Last Updated on April 22, 2020 by LawEuro
Communicated on 16 January 2019
FIFTH SECTION
Application no. 41990/18
Y
against Bulgaria
lodged on 29 August 2018
STATEMENT OF FACTS
1. The applicant, Ms Y, is a Bulgarian national who was born in 1964 and lives in Haskovo.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The alleged events of 10 July 2013
3. According to the applicant and the findings of the prosecuting authorities based on her statements, at about 11.30 p.m. on 10 July 2013, when she was on a trip to Sofia and (following a quarrel with the acquaintance at whose home she had stayed) was seeking accommodation for the night, an unknown man with whom she had briefly conversed at a bus stop attacked her in a poorly lit street and raped her. In particular, he pushed her to the ground, covered her mouth with his hand, pulled her trousers down, penetrated her vagina digitally, then penetrated it with his penis, and then walked away.
4. At five minutes after midnight the applicant called the emergency police number and a police patrol arrived at the scene (apparently) shortly after that.
2. The investigation
5. An investigation was opened the next day, 11 July 2013. The police inspected the scene and recovered four paper napkins, the applicant’s mobile telephone, receipts, a t-shirt, a polo blouse and a bag of wipes. The applicant also gave them for testing her knickers, her trousers, her switcher and her shoes.
6. The applicant was interviewed by the police between 5 and 5.55 a.m. and again between 10 and 10.40 a.m. on 11 July 2013.
7. On 15 July 2013 the police organised an identification parade at which the applicant named a Mr I.I. as the culprit.
8. At unknown later dates the police obtained a medical expert report of the applicant’s injuries and a psychological and psychiatric expert report in relation to her. They also obtained DNA tests of the items recovered from the scene, in particular the applicant’s knickers.
9. On 23 March 2016 the prosecutor of the Sofia district prosecutor’s office in charge of the case decided to stay the proceedings. He noted that the applicant’s allegations that she had been raped through the use of force were consistent with the medical evidence – the medical expert report confirmed bruises to her vagina and her lower lip –, and that her statements about the way in which the incident had happened were sufficiently detailed and believable.
10. Yet, in spite of the investigation’s efforts, it was impossible to come to a safe conclusion about the identity of the attacker. In particular, the applicant’s statements in relation to Mr I.I. were not credible. Her descriptions of the attacker’s physical features, during her interviews and just before the identification parade, were vague and varied. She also said that she had been unable to see properly the attacker’s face, and at the time of the identification parade had failed to describe any sufficiently specific physical features of the attacker. The psychological and psychiatric expert report had noted that she had a querulous personality and would tend to name a culprit without being sure, just in order to have a concrete person whom to blame.
11. For his part, Mr I.I. categorically denied being the attacker, and said that he had been in his dormitory at the time of the attack on the applicant. That alibi was confirmed by the dormitory’s guard, who had been on duty from 5p.m. on 10 July 2013 until 8 a.m. on 11 July 2013. His evidence was that he had seen MrI.I. enter the building at about 10 or 10.30 p.m. on 10 July 2013, about one hour before the attack, and that he was certain that MrI.I. had not gone out after that, that the door where he had been on duty was the only possible way out, and that he had not fallen asleep at any point during his shift. The guard had no links with Mr I.I., and there was no reason to doubt his evidence.
12. Nor was there any physical evidence, such as fingerprints or DNA, putting Mr I.I. at the scene of the attack, or communications data showing that his mobile telephone had been used near it (according to the applicant, the attacker had spoken on his mobile telephone shortly before assailing her). There was therefore no basis to suppose that he had been the attacker.
13. The DNA traces recovered from the applicant’s knickers belonged to another man, Mr A.D., but the applicant did not name him as the attacker. He himself also denied that, and the DNA test could not pinpoint the time when his DNA had been left on the applicant’s knickers, and thus permit a clear finding that this had happened at the time of the attack.
14. There was no reason to doubt the expert evidence, some of which had been contested by the applicant. All experts were recognised specialists in their respective fields, and had carried out their duties with due care.
15. In those circumstances, the available evidence did not provide a sufficient basis to indict anyone. It was rather appropriate to stay the proceedings and instruct the police to continue with their efforts to establish the attacker’s identity.
16. The applicant sought judicial review of the prosecutor’s decision, and on 4 May 2016 the Sofia District Court quashed it. It held that although the investigation had taken a considerable number of steps, it had not done everything possible to elucidate the facts. In particular, the police officers who had first arrived at the scene after the applicant’s emergency call had not been interviewed. It was necessary to do so, as well as to obtain their contemporaneous notes. It was also necessary to interview two witnesses who according to Mr I.I. had accompanied him on the day of the alleged attack.
17. It appears that those police officers were later interviewed and said that they did not remember anything.
18. On an unknown date in the summer of 2017 the applicant was allowed to acquaint herself with the case file. She asked the prosecutor in charge of the case to order fresh DNA tests and a renewed identity parade with the participation of Mr A.D. On 7 August 2017 the prosecutor refused her requests, saying that all items recovered from the scene had already been subjected to DNA testing and that it was impermissible to carry out a repeat identity parade, as the applicant had already seen a picture of Mr A.D.
19. On 2 April 2018 the applicant was again allowed to acquaint herself with the case file, and asked the prosecutor, among other things, to indict Mr I.I. On 24 April 2018 the prosecutor refused her request, saying that he would decide whether or not to indict someone at the close of the investigation.
20. On 24 August 2018 the applicant was once more allowed to acquaint herself with the case file, and reiterated her request. On 4 September 2018 the prosecutor again refused to indict Mr I.I., saying that he would determine how to proceed with the case in his decision at the close of the investigation.
21. Meanwhile, on 25 June 2018 the applicant complained to the Sofia City prosecutor’s office that the investigation had been delayed. That office obtained from the Sofia district prosecutor’s office information about the course of the proceedings, and on 13 July 2018 dismissed the applicant’s complaint. It found that the investigation had not been unduly delayed in view, in particular, of the complexity of the case. The applicant appealed to the Sofia appellate prosecutor’s office, and on 2October 2018 that office quashed the decision of the Sofia City prosecutor’s office, on the basis that it was not competent in the matter.
22. The proceedings are apparently still pending before the Sofia district prosecutor’s office. Throughout the proceedings the applicant had a special representative.
B. Relevant domestic law
23. The law relating to rape has been set out in detail in M.C. v. Bulgaria,no. 39272/98, §§ 74-86, ECHR 2003-XII.
COMPLAINT
24. The applicant complains, without citing any Article of the Convention or its Protocols, that the investigation of her allegations that she was attacked and raped was slow and ineffective.
QUESTION TO THE PARTIES
Did the investigation of the applicant’s allegations that she had been raped meet the requirements of Articles 3 and 8 of the Convention (see, among other authorities, M.N. v. Bulgaria, no. 3832/06, §§ 34-40, 27 November 2012; S.Z.v. Bulgaria, no. 29263/12, §§ 42-47, 3 March 2015; and G.U.v.Turkey, no. 16143/10, §§ 59-65, 18 October 2016)?
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The Government are requested to provide a detailed chronological account of the investigation, and submit all relevant decisions and other documents from the investigation case file.
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