ECHR holds that re-victimised rape complainant suffered violation of Article 8 rights

In a judgment issued on the 27 May 2021 the European Court of Human Rights found that a rape complainant in Italy suffered a violation of her ECHR rights after she was re-victimised in court.

In its judgment in the matter of  J.L. v. Italy, the European Court of Human Rights held, by six votes to one, that there had been a violation of Article 8 (right to respect for private life and personal integrity) of the European Convention on Human Rights. The case concerned criminal proceedings against seven men who were charged with the gang rape of the applicant.

The applicant complained about the conditions in which she had been questioned throughout the criminal proceedings and challenged the arguments on which the courts had based their decisions in this case. The court held that several passages in the Italian Court of Appeal’s judgment had breached the applicant’s rights under Article 8.

In particular, the court considered the references to the red underwear “shown” by the applicant in the course of the evening to be unjustified, as were the comments regarding her bisexuality, relationships and casual sexual relations prior to the events in question.  The court found that the considerations of the Italian Court of Appeal concerning the applicant’s “ambivalent attitude towards sex” were inappropriate.

The court also considered that the assessment of the applicant’s decision to lodge a complaint about the events, which the Italian Court of Appeal held to have resulted from a wish to “denounce” and to repudiate a “moment of fragility and weakness that was open to criticism”, had been regrettable and irrelevant, as was the reference to the applicant’s “non-linear life”.

The Court held that the language and arguments used by the Italian Court of Appeal conveyed prejudices existing in Italian society regarding the role of women and were likely to be an obstacle to providing effective protection for the rights of victims of gender-based violence, despite the fact that a satisfactory legislative framework was in place.. 

It was therefore essential that the judicial authorities avoided reproducing sexist stereotypes in court decisions, playing down gender-based violence and exposing women to secondary victimisation by making guilt-inducing and judgmental comments that were capable of discouraging victims’ trust in the justice system.

The Court held that the national authorities had not protected the applicant from secondary victimisation and that the wording of the Italian Court of Appeal judgment played a very important role in this re-victimisation due to its public character.

The Applicant was awarded €12,000 in respect of non-pecuniary damage.


Written by Sharon Moohan at BLM (sharon.moohan@blmlaw.com)

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