22
M.C. v. BULGARIA JUDGMENT
118. In the applicant's view, seen in the context of all the relevant facts,
her clear and consistent testimony that she had begged P. to stop and had
pushed him away until he had twisted her arms, and her account of the
distress she had felt and of her resistance – reasonable in the circumstances
– should have led to the conviction of the perpetrators if a correct
interpretation of “rape”, consonant with the State's positive obligations
under Articles 3, 8 and 13 of the Convention, had been applied.
2. The Government
119. The Government submitted that the investigation had been
thorough and effective. All possible steps had been taken: seventeen persons
had been questioned, some of them repeatedly, experts in psychiatry and
psychology had been appointed and all aspects of the case had been
explored. The Government therefore considered that the conclusion of the
national authorities that P. and A. must have acted on the assumption of the
applicant's consent had been well-founded. In particular, the authorities had
relied on all evidence about the events of 31 July to 1 August 1995,
including information about the behaviour of the applicant. Furthermore, the
applicant had gone out with P. after the events and there had been
allegations by witnesses that her mother had attempted to extort money
from P. and A. in return for dropping the rape allegations.
120. In the Government's submission, the facts of the case did not,
therefore, concern the issue of protecting a person's integrity or
ill-treatment. As a result, no positive obligations arose under Articles 3 or 8
of the Convention.
121. The Government maintained that, in any event, Bulgarian law and
practice in rape cases and their application in the present case did not violate
any positive obligation that could arise under the Convention.
122. Describing the domestic law and practice in their initial
submissions at the admissibility stage, the Government stated that proof of
physical resistance was required in cases of rape and that, moreover, in
accordance with “international practice, including in France” rape was only
possible between strangers, whereas the applicant knew the alleged
perpetrators.
123. In their submissions on the merits, the Government corrected their
earlier statements and submitted that lack of consent was an essential
element of rape under Bulgarian law. Proof of lack of consent was derived
from evidence demonstrating that the victim was in a state of helplessness
or had been put in such a state by the perpetrator, or from evidence of
physical or psychological violence by the perpetrator. The Government
submitted copies of several relevant judgments of the Supreme Court. They
did not dispute the reliability of the analysis of Bulgarian case-law offered
by the applicant.