Case:
M C v Bulgaria
LEARNING ABOUT FREEDOM FROM TORTURE
AND THE RIGHT TO PROTECT LIFE IN THE
CONTEXT OF RAPE
European Convention for the Protection of Human Rights (ECHR )
Article 3:
Article 8:
Project group:
Marija Ćurić,
Tihana Balagović
SUMMARY:
In this unit student will learn about Articles on the example of the case M.C. vs. Bulgaria. After the
activity students will be able to recognize what is necessary for sexual act to be classified as rape
and when and how rape constitutes the violation of the freedom from torture. Through debate and
discussions students will also be acquainted with the practice of the European Court of Human
Rights (ECtHR).
The safeguards which the European Convention on Human rights provides against rape are
enshrined in Art. 3 - prohibiting ‘inhuman and degrading behaviour’ and Art. 8 - guaranteeing ‘the
right to private life’.
A Landmark decision
A.0 RATIONALE: WHY THIS ARTICLE? WHY THIS JUDGMENT??
A.1 BACKGROUND AND FACTS
Applicant MC, 14 years and 10 months old at the time, was invited to go out with P(21), A(20) and
VA (unspecified age) in the evening of 31 July 1995. She knew P from before, while A was a
brother of a friend of hers.
At one point, when they stopped at the swimming reservoir on the way back from the night club
they went, she unintentionally stayed alone with P who, she alleged, forced her to have sex with
him. According to her version of events, P. pressed his body against hers and twisted her hands. She
refused his advances, asked him to leave, but P. had persisted in kissing her while she had
unsuccessfully tried to push him back. She did not resist violently or scream: she was scared and at
the same time embarrassed by the fact that she had put herself in such a situation.. It was the
applicant’s first time to have sex. Later on that evening, when V.A. and A. took her to the V.A.’s
house, she had sexual intercourse with A, which she claimed was not voluntary. She cried and
begged the man to stop, but could not push him away as he was stronger than her. Again, she did
not resist violently.
In the morning, the applicant confessed the first rape to her mother, which took her directly to the
local hospital. The medical examiner found that the hymen had been freshly torn, but did not find
any traces of fight or bruises. Her mother then made attempts to arrange a marriage of M.C. and P,
who allegedly begged forgiveness and claimed to have loved the applicant. Later on, M.C. and P
were seen having some drinks in the city.
Applicant confessed the second rape only later, as she was firstly embarrassed to do so, as well
because she lived in a conservative community where virginity was considered to be an asset for
marriage. The family then discussed the matter and decided to file a complaint on 11 August 1995.
In the course of investigation many witnesses were heard. The defendants claimed that after the first
sexual intercourse they all went to a restaurant where the applicant cheerfully talked with the singer
in the restaurant. The applicant claimed that they never went to the restaurant and accused the
singer of perjury. The investigator ordered an expert opinion by a psychologist and physiatrist who
were to answer, inter alia, whether it was likely that the applicant would have spoken calmly with a
singer if she had just been raped and whether it was likely that several days after the alleged rape
the applicant would have gone out with the person who had raped her. Experts stated that if there
had been a meeting with the singer, it was still possible that the applicant could have had a brief
chat, and that her going out with P, could be explained by her family’s desire to lend a socially
desirable meaning to the event. They as stated that she was psychologically sound and could
understand the meaning of the events, but that in view of her tender age she she “could not assert a
stable set of convictions”.
Nevertheless, on 28 February 1997 the investigator proposed the investigation to be closed as he did
not find evidence that P. and A. had used threats or violence. On 17 March 1997 the District
Prosecutor closed the case, which was finally confirmed by the Chief Public Prosecutor’s Office on
24 June 1997. They held that P and A could be held criminally responsible only if they used force
or made threats precisely with the aim of having sexual intercourse against the applicant's will,
which presupposes physical resistance. In their view, there was insufficient evidence to establish
that the applicant demonstrated unwillingness to have sexual intercourse, and that P and A used
threats or force.
A.1.1 APPLICANTS
MC., whose real name is not used because she was a minor at the time of the application and has
asked for anonymity.
There was also a third party intervention in this case. Interights, international centre for the legal
protection of human rights, was wrote a submission exmplaining international law standards on rape
and comparative rape laws.
A.1.2 CASE SUMMARY
The applicant complained that Bulgarian law an practice did not provide effective protection
against rape and sexual abuse, as only cases where the victim had resisted actively were prosecuted
and that authorities did not effectively investigate her allegations of rape. In her view, that
amounted to a breach of the state’s positive obligations to protect individuals’ physical integrity and
private life under Articles 3 and 8 of the ECHR as well to the right to effective domestic remedy
under Article 13 of the ECHR.
With regard to general practice, she submitted the analysis of the case-law of the Supreme Court,
which showed that only those cases where there was physical force applied were likely to be tried.
She also submitted an opinion by a Bulgarian psychologist and psychiatrist who explained that two
responses to rape were known: violent physical resistance and the so called frozen fright syndrome,
which was more prevalent with the young girls, as was shown in their practice. I
The applicant claimed that in her case, the prosecutors had put undue emphasis on the absence of
physical violence and had not taken into account the fact that, at the age of 14, she had never taken
important decisions herself, particularly under the pressure of time. The prosecutors had failed to
have regard to the unlikelihood of a 14-year-old girl who had never had sexual intercourse
consenting to sex with two men in a row.
Namely, prosecuting authorities brought charges only in cases where the attacker was a stranger to
the victim or where there were serious injuries. That way, if there was insufficient proof of physical
resistance, consent was presumed. In connection with setting at 14 the age of consent for sexual
intercourse, limiting the prosecution of rape to cases of violent resistance by the victim, the
authorities had left children insufficiently protected against rape. A.1.3 KEY QUESTIONS BEFORE THE COURT
The key question was to examine whether or not the impugned legislation and practice and their
application in the case at hand, had such significant flaws as to amount to a breach of the
respondent State's positive obligations under Articles 3 and 8 of the Convention. This question
implied an analysis of the scope of obligations of Articles 3 and 8 and how rape is to be defined.
A.2 COURT RESPONSE TO THE QUESTIONS ASKED
The ECtHR first reiterated the scope of positive obligations under Articles 3 and 8 to protect
individuals against ill-treatment and secure respect for the fundamental aspects of private life and
concluded that these include the obligation to enact criminal law provisions effectively punishing
rape and apply them in practice through effective investigation and prosecution. Considering what
effective legislation and prosecution means, the ECtHR noted that while historically proof of
physical force and physical resistance was required, a requirement that the victim must resist
physically was no longer present in the statutes of European countries – it was a lack of consent
rather than force that was critical in defining rape. The Court further noted the international human
rights law and international criminal law required penalisation of all non-consensual sexual acts.
Moreover, the Court referred to the Interights’ submission that the the victims of sexual abuse – in
particular, girls below the age of majority – often provide no physical resistance because of a
variety of psychological factors or because they fear violence on the part of the perpetrator (frozen
fear syndrom). Furthermore, the Court noted that the development of law and practice in the area
of rape reflected the evolution of societies towards effective equality and respect for each
individual's sexual autonomy. It hence concluded that states have an obligation to penalize and
effectively prosecute all non-consensual sexual acts, even where the victim had not resisted
physically.,
Applying these principles to the case at hand, the Court first noted that the practice of the Bulgarian
authorities seemed to be restrictive, as argued by the applicant. As regards the applicant’s case the
Court held that the authorities failed to undertake context-sensitive approach and test the credibility
of the defendant’s version of events. The reason behind it seems to have been that the investigator
and the prosecutors considered that the ‘date rape’ had occurred and that in the absence of ‘direct’
proof of rape – such as traces of violence or calls for help - they could not infer proof of lack of
consent. Further, while the prosecutors did not exclude the possibility that the applicant might not
have consented, they adopted the view that in any event, in the absence of proof of resistance, it
could not be concluded that the perpetrators had understood that the applicant had not consented.
They did not assess the evidence that P. and A. had deliberately created an environment of coercion
by taking the applicant to deserted area.
While noting that in practice it may sometimes be difficult to prove lack of consent in the absence
of “direct” proof of rape, such as traces of violence, the Court concluded that the Bulgarian
authorities should have explored all the facts and decided on the basis of the assessment of all the
surrounding circumstances. The investigation and its conclusions should have been centred on the
issue of non-consent.
A.3 COURT CONCLUSIONS
In sum, the Court, without expressing an opinion on the guilt of P. and A., finds that the
investigation of the applicant's case fell short of the requirements inherent in the States' obligations
to establish and apply effectively a criminal-law system punishing all forms of rape and sexual
abuse.
The Court thus finds that in the present case there has been a violation of the respondent State's
positive obligations under both Articles 3 and 8 of the Convention.
A.4 CONCURRENT OPINIONS AND DISSENTS, IF RELEVANT
A.5 MAIN PRINCIPLES
1) States have a positive obligation inherent in Articles 3 and 8 of the Convention to enact criminallaw provisions effectively punishing rape and to apply them in practice through effective
investigation and prosecution.
2) Any rigid approach to the prosecution of sexual offences, such as requiring proof of physical
resistance in all circumstances, risks leaving certain types of rape unpunished and thus jeopardising
the effective protection of the individual's sexual autonomy. In accordance with contemporary
standards and trends in that area, the member States' positive obligations under Articles 3 and 8 of
the Convention must be seen as requiring the penalisation and effective prosecution of any nonconsensual sexual act, including in the absence of physical resistance by the victim.
A.6 EXECUTION OF JUDGMENT: SPECIFIC AND GENERAL MEASURES
B EDUCATIONAL ACTIVITIES
Summary: In these learning activities student will learn what is necessary for sexual act to be
declared as rape and about freedom from torture. Through debate and discussions students will
learn about practice of EHCR. They will learn that trough three main activities that will last 4
school hours (45 minutes) in a row, 2 hours per week.
B.1 ACTIVITY PLAN
Introduction: In these learning activities students will learn about Articles 3 and 8 of the European
Convention on Human Rights and about the standards of the Court with respect to effective
protection from rape.
Goals: By the end of this learning unit students will be able to understand the legal meaning of the
right to protect private life in the context of rape and of freedom from torture; they will also be
familiar with the approach of ECHR to protecting the individual from acts of rape and torture, and
will understand what obligations the States have under the Convention to penalise and effectively
prosecute all forms of non-consensual sexual acts, and how rape is defined under the Convention.
Learning objectives:
Learning activity:
Time
Aims / content
Method – Teacher activities – students activities
4 school
hours (45
 OBJECTIVES :
Assignment
category
Material
For
teachers:
minutes) in
-
defining the act of rape
1. power
a row; 2
-
getting to know the case
point
hours per
week
-
debate, conclusion
presentation
GOALs: get students to know about ECHR convention
GOAL: get students familiarize whit articles that are
connected whit rape
GOAL: Get students to think about what is necessary for
2. European
Convention
on Human
Rights
something to be called rape
GOAL: get students to think about general, public view
on rape and how can it be changed
3.the case
M.C. vs.
Bulgaria
GOAL: Get students to think of fair trial, to get the
personal picture of what is fair and what is not and to
For students:
learn them about court system, especially ECHR
1. European
COURT!
Convention
on Human
Rights ( only
ACTIVITY NO.1: WHAT IS RAPE?
1 What do students know about the rape?
 Ask students what they think is necessary for a
sexual act to be defined as rape. Why such act is
 What do they think what should be the punishment
for rape? What do they think what is the
punishment for rape?
(Do these punishments fit? Do you
think punishments are too harsh or too soft?)
 Does age play any role in the case of rape?
 Could man be raped, or is it only woman who
could be the victim of rape?
 Is it possible for a wife to be raped by her husband
or for a husband to be raped by his wife? Is rape in
marriage possible? Does it make any difference if
someone is raped by a boyfriend/girlfriend or by a
husband/wife or by an unknown person?
laws and
articles)
2. summed
up case
 The teacher opens the floor for students to answer the
questions and discuss the issue. It is important that
students express their opinions freely, give arguments for
their positions, understand the positions of other
students, observe similarities and differences in their
approaches and summarise the key aspects of rape.
 After discussion the teacher projects ECHR’s show
them on power point slide show the accurate definition
of rape, what are the rules in every country, the
importance of age, what law says about man rape and
rape in marriage
 After they heard the accurate definitions we ask them
to say what they think about them (do they thing they are
good or not, why?)
ACTIVITY NO. 2. HOW DOES ECHR DEFINE
RAPE?
 Students are divided in groups of four
 Each group receives the ECHR articles and
analyses their contents. convention gives them the
protection from rape and in which articles
ACTIVITY NO.3: GETTING TO KNOW THE CASE
MC vs BULGARIA
3. What the case is about?
 We present students whit the case
 We stress out the articles that are important in this
case ( 3,8 )
 We ask the students why are these articles
important and not others
4. Playgame
 Students are divided in groups of four or five
 They are given two tasks:
1. Define the term FORCE and THREAT
2. In which condition should the victim be to
declare her as POWERLESS
 Discuss these terms and connect them whit our
case
5. Does the victim bear a part of responsibility?
 We give students power point slide show whit two
pictures: on one there is a girl which is poorly
dressed and on the other girl which is dressed as a
average school girl
 We offer them series of statements like:
o This girl has low standards
o This girl is responsible
o This girl is promiscuous
o This girl doesn’t dring
Etc.
 Then we ask student to link the statements whit
girls on pictures
 We discuss why did they link some statements
whit some girls
 We discuss about how society looks on raped
women
 We show them statistics of victimization and
reporting crime, we ask student what they think are
the most reported crimes and which are less likely
to be reported and why
 this discussion MUST go in a way of showing that it
is not victims fault, and that we shouldn’t judge people
because of what they are wearing or not
ACTIVITY NO. 4: WHAT WAS THE PROCEDURE
AND THE JUDGMENT OF THE ECtHR
 Ask students to predict the verdict
 Show them the verdict
 Ask student what they think about the verdict. Is it
fair? What they think would be fair? ( If they say it
isn’t fair)
 What is the meaning of the verdict? Does it mean
that A. and P. are convicted?
 We show the students timeline which contains the
courts on which the girl went and explain the law
process and every court ( whit power point
presentation)
5. POSITIVE AND NEGATIVE OBLIGATIONS OF
THE
STATE
 Explain students what are the positive and what are
the negative obligations of state and connect them
to the case
Didactical approach