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The applicant alleged violations of her rights under Articles 3, 8, 13 and 14 of the Convention in that domestic law and practice in rape cases and the investigation into the rape of which she had been a victim did not secure the observance by the respondent State of its positive obligation to provide effective legal protection against rape and sexual abuse. The application was transmitted to the Court on 1 November 1998, when Protocol No. The application was initially allocated to the Fourth Section of the Court (Rule 52 1). On 1 November 2001 the Court changed the composition of its Sections (Rule 25 1). He had then moved the car seat back to a horizontal position, grabbed her hands and pressed them against her back. The following information about French case-law on rape may be gathered from the authoritative publication Juris-Classeur (2002): (i) The words “violence, coercion, threats or surprise” are given a broad meaning in practice. The victim therefore “did not freely consent to any sexual intercourse with Kunarac [as she] was in captivity and in fear for her life”.
In addition, third-party comments were received from Interights, a non-governmental organisation based in London, which had been given leave by the President to intervene in the written procedure (Article 36 2 of the Convention and former Rule 61 3). The ensuing investigation came to the conclusion that there was insufficient proof of the applicant having been compelled to have sex. On 31 July 1995 the applicant and a friend of hers had been waiting to enter a disco bar in the town of K., when three men, P. In practice, the absence of genuine and freely given consent or voluntary participation may be evidenced by the presence of the various factors specified in other jurisdictions – such as force, threats of force, or taking advantage of a person who is unable to resist.
invited the applicant to go with him and his friends to a disco bar in a small town 17 km away. The applicant saw some friends, with whom she had a short chat. being wet when they had come back to the car, although they had insisted on going to the reservoir for a swim. The applicant later testified that after the first rape she had been very disturbed and had cried most of the time. The group had gone to a restaurant, where the applicant had briefly talked with a Ms T., the singer performing there. Having heard the answer to her question, the applicant had left. stated that the applicant had appeared cheerful and that there had been nothing unusual in her behaviour. The placing of a person in such a position that the person is unable to resist shall be equivalent to violence ...” “Any person who by means of unlawful coercion (according to section 260 of this Act) other than violence or the threat of violence procures sexual intercourse for himself, shall be liable to imprisonment for a term not exceeding four years.” “Section 1: Rape (1) A person who coerces another into having sexual intercourse by the use or threat of violence shall be sentenced for rape to imprisonment for at least one year and at most six years. 2000-117239), or where the perpetrator used trickery to deceive the victim as to the real situation (Cass. The International Criminal Tribunal for the former Yugoslavia 102. that rape is a forcible act: this means that the act is 'accomplished by force or threats of force against the victim or a third person, such threats being express or implied and must place the victim in reasonable fear that he, she or a third person will be subjected to violence, detention, duress or psychological oppression'. Noting that the terms “coercion”, “force”, or “threat of force” from the Furundžija definition were not intended to be interpreted narrowly, the Trial Chamber in another case (Prosecutor v. IT-96-23, judgment of 22 February 2001) observed: “In stating that the relevant act of sexual penetration will constitute rape only if accompanied by coercion or force or threat of force against the victim or a third person, the Furundžija definition does not refer to other factors which would render an act of sexual penetration non-consensual or non-voluntary on the part of the victim, which ...
when later questioned, the applicant had been in an excellent mood, had started caressing A., which had irritated P., and had asked to go to a bar or a restaurant. Shortly after midnight the applicant, whom she knew vaguely, had approached her and asked whether her group would be performing in the next few days. recalled having seen at that moment a man waiting at the door. In particular, there is no consent where the act is forced by means of violence, coercion or ruse or was made possible by the victim's disability or physical or mental deficiency.” “A person who coerces another into an act of sexual penetration or a similar sexual act through violence or the threat of imminent violence or by taking advantage of the person's helplessness shall be liable to imprisonment for a term of two to eight years.” “Any person who coerces [another into having] sexual intercourse by violence or under threat of violence shall be guilty of rape and liable to imprisonment for a term not exceeding eight years. 226), in a particular psychological state, involving depression, fragility, or simply distress (Cass. 2000-005087; Paris Court of Appeal, 30 March 2000, Juris-Data no. (iii) The courts have considered that there is always “surprise”, and therefore rape, where the victim is of such a low age as not to understand the concept of sexuality and the nature of the acts being imposed (Cass. – penalise any abuse of the position of a perpetrator, and in particular of an adult vis--vis a child.” C. IT-95-17/1-T, judgment of 10 December 1998), in the context of the question whether or not forced oral sexual penetration may be characterised as rape under international law, the Trial Chamber made the following relevant remarks about rape under international criminal law: “The Trial Chamber notes the unchallenged submission ... all jurisdictions surveyed by the Trial Chamber require an element of force, coercion, threat, or acting without the consent of the victim: force is given a broad interpretation and includes rendering the victim helpless.” 104.
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Having deliberated in private on 13 November 2003, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. 39272/98) against the Republic of Bulgaria lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, M. The Bulgarian Government (“the Government”) were represented by their Agents, Ms V. The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 3 in fine). The applicant is a Bulgarian national who was born in 1980. She alleged that she had been raped by two men on 31 July and 1 August 1995, when she was 14 years and 10 months old. Sexual autonomy is violated wherever the person subjected to the act has not freely agreed to it or is otherwise not a voluntary participant.
The latter was explained by the fact that any experience-based model of behaviour was inadequate when the victim was faced with the inevitability of rape. The third sub-paragraph refers to cases where the perpetrator put the victim in a state of helplessness before raping her, whereas the first sub-paragraph refers to cases where he took advantage of the victim's existing state of helplessness. The courts have stated that a victim is in a state of helplessness (“incapable of defending herself” or “brought to a state of helplessness”) only in circumstances where she has no capacity to resist physically owing to disability, old age or illness (see judgment no. One commentator has stated that the essential characteristic of rape is the victim's lack of consent and that the three sub-paragraphs of Article 152 1 of the Criminal Code embody different situations of lack of consent.
In June or July 1997 the applicant and her mother requested the institution of criminal proceedings against Ms T. A., alleging that they had committed perjury in that their statements in connection with the investigation into the rape of the applicant had been false. On 14 July 1997 the same prosecutor from the district prosecutor's office who had ordered the closure of the rape investigation refused the request, stating that it was unfounded and even abusive, as all the facts had been clarified in previous proceedings. An ensuing appeal by the applicant was dismissed on 6 February 1998 by the regional prosecutor's office. In June 2001 the applicant submitted a written opinion by two Bulgarian experts, Dr Svetlozar Vasilev, a psychiatrist, and Mr Valeri Ivanov, a psychologist, who had been asked by the applicant's lawyer to comment on the case. The experts stated, with reference to scientific publications in several countries, that two patterns of response by rape victims to their attacker were known: violent physical resistance and “frozen fright” (also known as “traumatic psychological infantilism syndrome”). Therefore, an accused person may be found guilty of rape only if it has been established that he had sexual intercourse with a woman in circumstances covered by one of the three sub-paragraphs. The first and third sub-paragraphs concern particular factual situations where the victim was in a state of helplessness at the time of sexual intercourse. 568, cited above) or because of the use of alcohol, medicines or drugs (see judgment no. The perpetrator was convicted of attempted rape resulting in serious injury. Legal commentators have not commented in detail on situations where coercion through force or threats may be considered to have been established, apparently taking the view that this was a matter for judicial interpretation (Al.
In the proceedings before the Court, the President of the Chamber acceded to the applicant's request not to have her name disclosed (Rule 47 3 of the Rules of Court). The applicant, who had been granted legal aid, was represented by Mr Y. Mr Grozev submitted a power of attorney dated 27 November 1997, signed by the applicant and her mother. Within that Section, the Chamber that would consider the case (Article 27 1 of the Convention) was constituted as provided in Rule 26 1. By a decision of 5 December 2002, the Chamber declared the application admissible. The applicant and the Government each filed observations on the merits (Rule 59 1). She had not had the strength to resist violently or scream. back had been unsuccessful, as he had been far stronger. had undressed her partially and had forced her to have sexual intercourse with him. In her testimony, the applicant stated: “It was my first time and it hurt a lot. He had started kissing her, she had responded, and he had tried unsuccessfully to unbutton her jeans or loosen her belt, whereupon she had done so herself and had taken off her pants. The Chamber found that, even if Kunarac had not heard the threats made by other soldiers, he could not have been “confused” by the behaviour of the victim, given the general context of the existing war-time situation and the specifically delicate situation of the Muslim girls in the region. In the context of the above facts, the Trial Chamber made the following observations on the elements of rape under international law: “The basic principle which is truly common to [the reviewed] legal systems is that serious violations of sexual autonomy are to be penalised.
11 to the Convention came into force (Article 5 2 of Protocol No. This case was assigned to the newly composed First Section (Rule 52 1). The applicant had been scared and at the same time embarrassed by the fact that she had put herself in such a situation. According to P.'s statements, he had had sex with the applicant in the car with her full consent. had finished, he left the car and walked towards A. For example, in one case it was stated that the fact that the victim was begging the perpetrator to stop, without further resistance, where she had previously agreed to enter his car and to be kissed by him, was sufficient to establish that there was rape (judgment of the Court of Cassation, Criminal Division (“Cass. The Trial Chamber also rejected Kunarac's defence that he was not aware of the fact that the victim had only initiated sexual intercourse with him because she feared for her life.