Jurčević v Croatia
Forum: European Court of Human Rights
INTERIGHTS’ role: Third party interveners
Keywords: Sexual violence, secondary victimisation, private life, rape, positive obligation on state to investigate and prosecute
On 18 October 2011, INTERIGHTS submitted a third party intervention to the European Court of Human Rights in the case of Jurčević v Croatia. The applicant complains that her case was not properly investigated and prosecuted as it is required by the procedural limb of Article 3 of the European Convention on Human Rights (ECHR). She further complains that the manner in which she was treated by the police and the judicial authorities violated her right to respect for her private life under Article 8 of the ECHR. The relevant facts include the facetious and offensive remarks made by the police officers arrived at the scene of the alleged rape, the inadequate initial medical examination which required the applicant to have undergone a new one, and the overly intrusive nature of the judicial examination which shifted the blame from the accused to the behaviour and private life of the applicant.
INTERIGHTS’ brief focuses on the issues raised by the latter aspect of the case, namely secondary victimisation of victims of sexual violence. Secondary victimisation is victimisation that occurs not as a direct result of the act of rape but through the victim-blaming attitudes, behaviours and practices of state institutions handling the victim’s complaint and the response of institutions and individuals to the victim. More specifically, in the context of the criminal justice system, secondary victimisation consists in the victim’s additional mental suffering caused by the insensitive behaviour of police, medical, prosecutorial and judicial personnel.
Rape has been emphatically recognised by the European Court of Human Rights as a grave violation of an individual’s rights protected by Articles 3 and 8 of the ECHR. States are required to criminalise rape and investigate and prosecute rape cases. Nevertheless, across Europe this crime remains heavily underreported; and when rape is reported, only a small proportion of cases result in convictions, with most cases never reaching a trial. Secondary victimisation is one contributing factor to the failure of the criminal justice system to address rape adequately as it deters victims from pursuing criminal complaints.
Our brief argues that secondary victimisation is, on the one hand, a direct violation of the victim’s right to psychological integrity under Articles 3 and/or 8 of the ECHR and, on the other, a violation of the state’s positive obligation to investigate and prosecute rape cases. The first part of the brief outlines empirical research and statements by international experts and human rights bodies that demonstrate the existence of secondary victimisation and explain its impact on victims of sexual violence. The second part argues that states have a specific duty to prevent secondary victimisation, especially in the context of sexual violence. It demonstrates the international recognition of this duty by referring to a number of international and regional standards, including those adopted in the Council of Europe (in particular, the new Convention on Violence against Women) as well as the practice of the international criminal courts. It goes on to discuss different categories of specific measures that are adopted internationally and domestically to address secondary victimisation (they include, among others, special training for all officials who work with victims of sexual violence, special protection measures for victims during court hearings, restrictions of the admissibility of certain evidence, and establishment of victims support centres).
The brief concludes that, when examining a state’s compliance with its negative and positive obligations under the ECHR, consideration should be given to the steps taken by the state to protect a victim of rape from secondary victimisation. Where a woman suffers an interference with her psychological integrity as a result of the way in which her complaint is handled by the criminal justice system, the lack of any special policies or measures to adequately and appropriately deal with the complaint, and/or a failure to implement such policies in practice, would constitute a strong indication of the state’s failure to comply with its obligations under Articles 3 and 8 of the ECHR.
Click to read the brief
INTERIGHTS contact: Yuri Marchenko