20 M.C. v. BULGARIA JUDGMENT A. The parties' submissions 1. The applicant 111. The applicant considered that domestic law and practice in rape cases should determine the existence, or lack, of consent to sexual intercourse on the basis of all relevant factors. In her view, a legal framework and practice that required proof of physical resistance by the victim, and thus left unpunished certain acts of rape, were inadequate. 112. The applicant relied on the written expert opinion she submitted (emphasising that the majority of children or other young rape victims displayed passive psychological reactions of panic – see paragraphs 69-71 above) and also on developments in international and comparative law as to the elements of the crime of rape. 113. The applicant then offered her analysis of Bulgarian law and practice concerning rape and sexual abuse. She made the following submissions: (i) According to the practice of the Bulgarian investigating and prosecuting authorities, the prosecution of rape was only possible if there was evidence of the use of physical force and evidence of physical resistance. Lack of such evidence would lead to the conclusion that sexual intercourse had been consensual. (ii) It was not possible to support the above assertion directly with a case study since investigators' and prosecutors' decisions were not publicly available; they could only be found in the relevant case files and there was no system of sorting, reporting or analysis that could serve as the basis of a study. Also, the impugned practice was not based on written instructions but on institutional tradition and culture. (iii) Because of the existing policy of the prosecuting authorities not to bring charges unless there was evidence of physical force and resistance, the issue had not been addressed directly by the courts. (iv) Nevertheless, an overview of the reported judgments of the Supreme Court and the Supreme Court of Cassation (judgments of lower courts were not reported) provided indirect evidence about the type of cases that were likely to be brought to court by the prosecuting authorities. The applicant had searched all reported judgments in rape cases and produced copies of twenty-one judgments considered relevant by her counsel. (v) Almost all reported cases concerned rape accompanied by substantial use of physical force and/or threats. Those cases typically involved the following acts of violence: dragging the victim from a car to a house and locking her up; tearing clothes and hitting the victim; punching the victim on the head and kicking her; suffocating the victim; causing concussion and fracture of the nose; or beating causing substantial bleeding. In several cases