JL v Italy: The ECtHR is finally recognising victim blaming in cases of sexual violence

JL v Italy: The ECtHR is finally recognising victim blaming in cases of sexual violence

By Sophie Girardini

 

Source: pch.vector on Freepick

This year the European Court of Human Rights (ECtHR) finally addressed victim-blaming and secondary victimisation of survivors of sexual violence by national courts throughout their criminal proceedings. In February the Court addressed the secondary victimisation in a sexual abuse case regarding a minor in NÇ v Turkey, and in March the secondary victimisation of a ‘not especially vulnerable woman’ in JL v Italy. This is a huge step. Condemning national courts for upholding presumptions and stereotypes of female sexuality and holding them accountable for their wrongdoings has been long overdue. But did the Court really go far enough in expanding its recognition?

The applicant in the present case, JL, was a 22-year-old young woman living in Scandicci (Italy) when she was raped in 2008 by 7 men at the end of a party. While the alleged rapists were found guilty in the first instance trial, they were acquitted in March 2015 by the Florence Court of Appeal. The applicant contested the reasons of judgement and requested an appeal to cassation, which was declined and then finally opened the road to jurisdiction in front of the ECtHR. The Court found ‘the comments in the reasoning of the appeals judgment were guilt-inducing, moralising and conveyed sexist stereotypes’ and concluded therefore that authorities had failed to protect the applicant’s right to private life and personal integrity in the context of the criminal proceedings, violating their positive obligations under Art 8 ECHR.

The judgement by the Florence Court of Appeal can be seen as a classic case of victim-blaming. Through and through, like in a textbook example, the Italian Court blamed the gang rape on the young victim, calling the applicant ‘uninhibited, vulgar, lascivious’ as well as ‘non-linear’. The judges believed the applicant’s family situation, her previous relationships, her sexual orientation and her clothing choices, as well as the subject matter of her artistic and cultural activities, were relevant for assessing her credibility and the criminal liability of the defendants. The judgement mentioned the applicant’s ‘ambivalent attitude towards sex’, which led her to ‘choices that she did not entirely own and experienced in a contradictory and traumatizing fashion.’ (JL v Italy, para 46) Her allegedly liberal lifestyle as a student of art history, as a woman perceived bisexual, having casual sexual relations with both genders, made her de facto a less worthy victim. She did not fit the stereotype of rape victims that still prevails in Italian society. She was not the ‘innocent’ victim the judges expected in their stereotypical and sexist worldview.

What the Italian judges seemingly overlooked was that the applicant was a drunk young woman, raped by 7 men in a dark parking lot, who was denying her consent loudly and clearly by saying ‘no’, as witnesses vividly recalled in court. The judges called the incident ‘unfortunate’ but not criminal. They did not follow governing international standards, such as the Council of Europe Convention on preventing and combating violence against women, the Istanbul Convention, which requires that national courts focus solely on moment-specific consent.

While the ECtHR this year rightly found a violation of Art 8 of the ECHR regarding the appeals trial proceedings it did strangely not do so regarding the proceedings in front of the first instance court. The first instance court had been praised by the ECtHR for prohibiting journalists from filming the public proceedings and granting the applicant pauses when the defence lawyer continuously asked her personal questions concerning her sexual orientation and her intimate choices, which were unrelated to the facts of the case. This practice was firmly contrary not only to the principles of international law regarding the protection of the rights of victims of sexual violence, but also to Italian criminal law according to Article 472 3bis Italian Code of Criminal Procedure.

The first instance court, however, did not rebuke the defence lawyer sharply nor did it prevent him from his abusive cross-examination. Neither did it ask ex officio for an exclusion of the public in a highly polarised case when the victim unfortunately missed doing so. (JL v Italy, para 131) Did the Italian first instance court therefore really do enough to avoid secondary victimisation? The ECtHR seems to think so: ‘The public authorities in charge of the proceedings could not be considered responsible for the particularly distressing experience suffered by the applicant, and they had not failed to ensure that her persona integrity was duly protected during the trial.’

In the earlier case Y v Slovenia, the Court set high standards for victim protection in sexual violence cases and stated that cross-examination was not to be used as a means of intimidating or humiliating a victim. However, it questionably did not find this applicable to the present case. The Court saw a fair balance between the protection of the victim and the right of the defendant to proof his innocence in the first instance proceedings, which the present author cannot fully support. Relevant international instruments, such as the Istanbul Convention in its Article 54, state that ‘evidence relating to the sexual history and conduct of the victim shall be permitted only when it is relevant and necessary’ and therefore only when closely related to the facts of the case. The present non-related questions, however, were highly intrusive and should not be accepted when it comes to the positive obligations of states under Art 8 ECHR.

Scholars and the ECtHR judges seem to disagree upon whether the Italian violation of Art 8 ECHR was disregarding a negative obligation of the Italian state or a positive one. I would like to argue it disregarded both. The Italian state should not only have abstained from insulting the victim actively in the appeals judgement but should have also have protected her from the abusive cross-examination of the defence lawyer in the first instance trial.

All in all, the judgement is clearly a step in the right direction on the way to the elimination of secondary victimisation and the elimination of all kinds of sexual violence in Europe. However, the Court could still go far further, recognising higher standards of secondary victimisation under Art 8 ECHR and additionally recognising secondary victimisation and sexual violence as discrimination against women in conjunction with Art 14 ECHR. The judgement shows the continuing importance of the standards of the Istanbul Convention for the ECtHR, as the Court is mentioning the Italian GREVIO report as well as provisions of the Istanbul Convention in its reasoning. Therefore, it is to be hoped that the Court will continue to show its ongoing desire to upgrade its standards in regard to violence against women and aspire to reach higher protection standards in accordance with relevant international instruments.

Bio:

Sophie Girardini is a recent graduate student of the University of Groningen’s Bachelor programme of International and European law, focusing during her Bachelor’s thesis on the European trend in consent-based rape law and the use of the Istanbul Convention by the European Court of Human Rights. She is currently working on recent issues regarding violence against women in the MENA region at ARPA International Law Group in Rabat, Morocco.

 

Doctoral Research Forum Blog Series: Part IX

Looking at itself: the character of the European Court of Human Rights in its judgments

By Yuliia Khyzhniak


René Magritte, La réproduction interdite, 1937

The judgments of the European Court of Human Rights (ECtHR/Court) represent the most conspicuous form of its communication with external audiences. These judgments convey both legal messages as well as the way the Court sees itself as an institution. The latter is what this post will briefly scrutinise through a narrative analysis of ECtHR case-law.

The way the ECtHR talks about its figure gives us, as readers, a certain impression, which is sometimes hard to put into words — in the sense that we may ‘hear’ a court’s voice differently when reading the judgments of the ECtHR and the judgments of other courts without necessarily realising why. However, if we look closer at some statements of the ECtHR where it characterises itself, we can grasp why the Court’s voice feels so distinct. Obviously, the ECtHR does not speak about itself directly, it does so while conducting its standard legal analysis. For instance, the Court wouldn’t hesitate to include in its main reasoning phrases such as: ‘[t]he Court can also imagine that a party may have a feeling of inequality…’ (Kress v. France, para 81). Such openness may not necessarily be encountered in the judgments of other courts, be they domestic or international. Not every court dares to acknowledge explicitly that it can imagine feelings experienced by people. And it definitely cannot imagine them in reality since the Court does not physically exist as a person with a mind and a heart. But what if we look at the Court in its judgments as the character which lives in the text? I suggest using narrative theory as a tool to describe the Court’s textual figure. This gives an insight into how the ECtHR constructs itself before the eyes of its audience.

Perhaps some would object to the idea that the Court can be seen as a character living in the text, arguing that it is not a fictional construction. Indeed, beyond the texts of judgments, there are real judges who embody the Court in actuality. However, I propose looking at the judgments in the way we look at literary non-fiction, such as memoirs. Such a comparison illustrates the complexity of the relationship between the writer (judges, law clerks) and the narrator/character (the ‘Court’) in the judgments.

As in the memoir, where the narrator/character (the ‘I’) is strongly connected to the writer, in judgments, the narrator/character (the ‘Court’) is strongly connected to the judges who write the concrete judgment as well as to the Court as an institution. However, despite this undeniable interconnection, the ‘I’ in memoirs and the ‘Court’ in judgments do not completely match the actual writer. At the same time, the reasons for such a mismatch are different for memoirs and judgments. As for the memoir, this mismatch can be explained by the fallibility of memory and hence by the personal unreliability of the writer or a deficiency in interpretation (R. Freeman & K. Le Rossignol). To write a good memoir, the writer should be able to create a separate textual persona in order to filtrate real lived experience. In the case of judgments, this mismatch can be explained by other considerations. First, the real collective of judges is not tantamount to the holistic figure who tells the story and who belongs to the text. And second, the voice in the text also embodies the entire Court as an institution which does not actually exist as a single person with a separate voice. In this sense, the narrator/character of the Court in ECtHR judgments is a fictional persona crafted by the judges and who is not any of them individually as such but nevertheless reflects to some extent each of them. This narrator/character of the Court therefore embodies the idea of the unity of the judges who constitute the Court.

We can detect the character of the Court by looking at judgments where the texts have particular narrative features. To begin with, the ECtHR often gives quite personal descriptions of its interpretive actions. We are used to expressions such as ‘the Court notes’, ‘the Court held’ or ‘the Court observes’, all of which are typical. With this in mind, it is striking to encounter in a judgment the following more sophisticated descriptions: ‘the Court cannot turn a blind eye to the fact that…’ (Beizaras and Levickas v. Lithuania, para 152); or ‘[t]he Court has serious doubts as to…’ (İzzettin Doğan and Others v. Turkey, para 127); or ‘[t]he Court is fully conscious of the difficulties that member States may face…’ (R.R. and Others v. Hungary, para 88). Obviously, there is no strict necessity for being so diverse in describing one’s mental states; after all, it is common for many courts to use the passive voice altogether. But it seems that such diversity is an important tool for the ECtHR in serving to emphasise certain points. More personal language constructions appear in places in the judgment that carry a higher tension and are focal points for the whole text. Thus, such personal statements help to reveal shades of the Court’s attitudes which would otherwise remain invisible by using formal verbs like ‘holds’, ‘notes’ or ‘observes’.

What is even more remarkable is that the ECtHR ascribes emotional intelligence to itself, for instance, as in these passages: ‘[t]he Court has no doubt that this caused the first applicant deep anxiety’ (Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, para 70); ‘the Court acknowledges the emotional hardship that the said decision must have caused the applicants’ (V.D. and Others v. Russia, para 119); ‘[t]he Court cannot but be sympathetic to the applicant’s apprehension that …’ (Pretty v. the United Kingdom, para 55). This manner of self-expression opens a door to the Court’s inner world. In literature, access to a character’s inner world is a way to make her closer to the reader, to provoke the reader to put herself in the character’s shoes. Likewise, in the Court’s case, such access conveys a salient message — ‘I (the Court) am the same as you,’ which suggests that the Court is like a human being; and this message is twofold.

In the first place, this message means the following: ‘As a human being, I (the Court) am capable of understanding you, of being compassionate and appreciative.’ Therefore, personal passages about emotions turn the Court into a more fully-fledged actor in the human rights discourse. This makes the ECtHR as a figure more relevant, more natural in this particular setting where the suffering of the concrete person should be heard and recognised irrespective of the outcome of the case.

And then again, it also means: ‘Because I (the Court) am like a human being, I deserve empathy as well.’ Thereby, the phrases about the Court’s emotional states give us an opportunity to imagine what it is like to decide such cases, to feel for the applicant, to weigh all the circumstances, and to take someone’s side in the end. The revelation of the emotional attitude of the Court exposes readers to the complexity of some human rights cases as well as the complexity of the Court’s role.

By employing more personal constructions in its judgments, the ECtHR creates a relatable character of itself which can be easily understood by the reader. This character is more humane and fragile than we normally expect from the figure of a judicial or, indeed, any other institution. With the help of constructing such a character, the ECtHR inscribes itself more successfully into the discourse of human rights, expressing at the level of text not only its legal position, but also its attitude which is equally essential for a human rights actor.

Bio: 

Yuliia Khyzhniak is a third year PhD student at the University of Groningen (The Netherlands). She is currently working on a PhD project: The European Court of Human Rights and the Shadow of the Past: A Literary Approach to the Court’s Jurisprudence. This PhD research is dedicated to a narrative analysis of departures from previous interpretations of the Convention in the ECtHR judgments.

Minority vilification: Redress for community members

Minority vilification: Redress for community members

Balancing the right to be free from hate speech with a right to… hate speech?

 By Margarita Ilieva
     
Source: odg.roma.it

On 16 February 2021, the European Court of Human Rights (Court) delivered landmark judgments against Bulgaria regarding ethnic minority berating: Behar and Gutman; Budinova and Chaprazov. The domestic courts had failed in their positive duties to afford minority members redress for anti-Roma/anti-Semitic speech attacking their communities. This blog summarises the cases’ backgrounds, the Court’s judgments, and their significance as precedence, and includes two points of criticism and caution as well.[1]

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