32
M.C. v. BULGARIA JUDGMENT
of a restrictive practice is based on reasonable arguments and has not been
disproved by the Government.
175. Turning to the particular facts of the applicant's case, the Court
notes that, in the course of the investigation, many witnesses were heard and
an expert report by a psychologist and a psychiatrist was ordered. The case
was investigated and the prosecutors gave reasoned decisions, explaining
their position in some detail (see paragraphs 44-65 above).
176. The Court recognises that the Bulgarian authorities faced a difficult
task, as they were confronted with two conflicting versions of the events
and little “direct” evidence. The Court does not underestimate the efforts
made by the investigator and the prosecutors in their work on the case.
177. It notes, nonetheless, that the presence of two irreconcilable
versions of the facts obviously called for a context-sensitive assessment of
the credibility of the statements made and for verification of all the
surrounding circumstances. Little was done, however, to test the credibility
of the version of the events proposed by P. and A. and the witnesses called
by them. In particular, the witnesses whose statements contradicted each
other, such as Ms T. and Mr M., were not confronted. No attempt was made
to establish with more precision the timing of the events. The applicant and
her representative were not given the opportunity to put questions to the
witnesses whom she accused of perjury. In their decisions, the prosecutors
did not devote any attention to the question whether the story proposed by
P. and A. was credible, although some of their statements called for caution,
such as the assertion that the applicant, 14 years old at the time, had started
caressing A. minutes after having sex for the first time in her life with
another man (see paragraphs 16-65 above).
178. The Court thus considers that the authorities failed to explore the
available possibilities for establishing all the surrounding circumstances and
did not assess sufficiently the credibility of the conflicting statements made.
179. It is highly significant that the reason for that failure was,
apparently, the investigator's and the prosecutors' opinion that, since what
was alleged to have occurred was a “date rape”, in the absence of “direct”
proof of rape such as traces of violence and resistance or calls for help, they
could not infer proof of lack of consent and, therefore, of rape from an
assessment of all the surrounding circumstances. That approach transpires
clearly from the position of the investigator and, in particular, from the
regional prosecutor's decision of 13 May 1997 and the Chief Public
Prosecutor's decision of 24 June 1997 (see paragraphs 55, 60, 61, 64 and 65
above).
180. Furthermore, it appears that the prosecutors did not exclude the
possibility that the applicant might not have consented, but 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 (see the text of the prosecutors' decisions in paragraphs 64 and 65