Johanna Westeson - The ICHRP

Consequently, the Court found that Bulgaria had violated its positive obligations under
Article 3 and Article 8 of the Convention. Worth noting is that the Court did not use the
concept ‘due diligence’ – a concept elaborated by the Inter-American Commission on
Human Rights – in setting a standard for state obligations when violations have been
committed by non-state actors. 524 However, the Court’s discussion about positive state
obligations is understood to set a similar standard to that of due diligence; in its later
jurisprudence, the Court has started to use the latter term directly. 525
Furthermore, the Court referred in this case explicitly to “the effective protection of the
individual’s sexual autonomy” as part of positive state obligations under the Convention.
This is worth paying attention to. The Court appears to suggest that sexual autonomy,
while not a right explicitly acknowledged in the Convention, is understood to be part of
human dignity and therefore must be protected in the spirit of the Convention.
Sexual violence in detention/rape as torture
In several cases the European Court has found the crime of rape against a (female) detainee
to constitute torture, prohibited by Article 3 of the Convention.
In Aydin v. Turkey 526 the applicant was a Kurdish woman who, at the age of 17, had been
detained by Turkish security forces. She alleged that she had been ill-treated and raped
while in detention, and that her ill-treatment and sexual assault amounted to torture, in
violation of Article 3 of the Convention. Furthermore, she contended that the failure of the
Turkish authorities to carry out an effective investigation into her complaints was in itself a
violation of Article 3, alternatively a violation of Article 6 § 1 (right to a fair trial) or
Article 13 (right to an effective remedy before a national authority).
The Court reaffirmed that the prohibition of torture and inhuman and degrading treatment
in Article 3 enshrines one of the fundamental values of democratic societies. In finding that
the rape of the applicant had amounted to torture (and not ‘only’ to inhuman or degrading
treatment), the Court emphasized the special vulnerability of a detainee, as well as the
psychological effects of rape, which distinguishes this kind of ill-treatment from other
kinds: 527
Rape of a detainee by an official of the State must be considered to be an especially grave
and abhorrent form of ill-treatment given the ease with which the offender can exploit the
vulnerability and weakened resistance of his victim. Furthermore, rape leaves deep
psychological scars on the victim which do not respond to the passage of time as quickly as
other forms of physical and mental violence. The applicant also experienced the acute
physical pain of forced penetration, which must have left her feeling debased and violated
both physically and emotionally. (para 83)
524 In Velazquez Rodrigueq v. Honduras, Series C No. 4, Judgment of 29 July 1988, and (applied to domestic
violence), in Maria da Penha v. Brazil, Case 12.051, Decision of 16 April 2001, Report No. 54/01.
525 See Opuz v. Turkey, 2009, above.
526 Application no. 23178/94, decided on 25 September 1997.
527 In this regard, the Court can be said to essentialize sexual violence as inherently worse or more damaging
and traumatizing than other kinds of violence. Several scholars have noted the potential risks with this
approach, see, e.g., the scholarship by Katherine M. Franke, in particual Putting Sex to Work, 75 U. Denver
L.Rev. 108 (1998) and Theorizing Yes: An Essay on Law, Feminism, & Desire, 101 Colum. L.Rev. 181
(2001). This discussion, however, while valid when analyzing a society’s approach to sexual crimes, goes
beyond the scope of this study.
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