CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 27 mai 2021

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font:7pt 'Times New Roman'; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s68D1564D { width:34.89pt; display:inline-block } .s8B971D04 { width:146.77pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s34DFC730 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid }   FIRST SECTION CASE OF J.L. v. ITALY (Application no.   5671/16)       JUDGMENT   Art   8 •   Positive obligations •   “Secondary victimisation” of victim of sexual violence, judgment’s reasoning containing guilt-inducing, judgmental comments and conveying sexist stereotypes •   Respect for applicant’s personal integrity ensured by authorities during investigation and oral proceedings   STRASBOURG 27   May 2021   FINAL   27/08/2021     This judgment has become final under Article   44 §   2 of the Convention. It may be subject to editorial revision. In the case of J.L. v.   Italy, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Ksenija Turković, President ,   Krzysztof Wojtyczek,   Alena Poláčková,   Péter Paczolay,   Gilberto Felici,   Erik Wennerström,   Raffaele Sabato, judges , and Liv Tigerstedt, Deputy Section Registrar , Having regard to: the application (no.   5671/16) against the Italian Republic lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Ms   J.L. (“the applicant”), on 19   January 2016; the decision of the Section President not to have the applicant’s name disclosed; the parties’ observations; the decision of 29   January 2018 to give notice to the Italian Government (“the Government”) of the applicant’s complaints and to declare the remainder of the application, namely the complaints made by the applicant’s mother, inadmissible pursuant to Rule   54 §   3 of the Rules of Court; Having deliberated in private on 8   April 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The applicant complained that criminal proceedings conducted in response to her allegations of gang rape had breached the national authorities’ positive obligation to protect her effectively from such sexual violence and to guarantee the protection of her right to private life and personal integrity. She asserted that this amounted to a violation of Articles   8 and 14 of the Convention. THE FACTS 2.     The applicant was born in 1986 and lives in Scandicci. She was represented by Ms   S.   Menichetti and Ms   C.   Carrano, lawyers practising in Rome. 3.     The Government were represented by their former Agent, Ms   E.   Spatafora, and former co-Agent, Ms   M.   Aversano. THE APPLICANT’S ALLEGATIONS OF SEXUAL VIOLENCE 4.     The applicant, who was an art-history and drama student at the material time, explained that during the night of 25   July 2008, at about midnight, she had joined L.L. and his friends at Fortezza da Basso, a former military fortress in Florence which had been converted into a public entertainment venue. 5.     As part of the preliminary investigation (see paragraphs   12-13 and 15 below), the applicant stated in interviews with the police and the public prosecutor’s office that she had met L.L. in a drama class two years earlier and that in February 2008 she had acted in a short film he had written and directed, in which she had played a prostitute who was being abused. She had also had casual sexual relations with L.L. on 5   June 2008. 6.     According to the applicant, L.L. had invited her to join him at the fortress on 25   July and had promised her a “little gift”. She had decided to accept the invitation in the hope of receiving photographs from the short film and collecting the remainder of her pay. Her boyfriend had not accompanied her, because he was ill. Over the course of the evening she had drunk several shots offered by L.L. and his friends, to the point where she had quickly lost control of her actions and had had difficulty walking. She told the investigators that L.L. had known about her low tolerance to alcohol. 7.     She stated that at about 1.30   a.m. she had followed D.S.   – one of L.L.’s friends whom she had previously met and with whom she had had casual sexual relations some weeks earlier   – into the fortress toilets, where he had demanded oral sex. She had been unpleasantly surprised by D.S.’s behaviour but, under the influence of alcohol, she had been unable to refuse him. She and others had subsequently ridden a mechanical bull that had been set up near the bar, and then she and the group of friends had danced on the dance floor. Towards the end of the evening she had drunk cocktails offered in turn by L.L. and his friends and by the barman. 8.     The applicant alleged that at about 3   a.m., when the evening was coming to an end and the fortress was about to close, six of L.L.’s friends, including D.S., had accompanied her to the exit and had begun to sexually assault her by stroking her breasts and touching her genitals. L.L., who had been waiting for them at the exit after leaving the group a few minutes earlier to see his girlfriend out, had joined them. The applicant had put up resistance to their advances and had cried out, “What are you doing?” She had then attempted to break free and get to her bicycle, but had been pushed in the opposite direction and led towards L.L.’s car. There, she had been forced to have sexual relations several times with the members of the group. 9 .     The applicant stated that she clearly remembered that there were seven men in the car, including D.S., who was sitting in the front seat. The men had all raped her in turn, through both vaginal and oral penetration. They had also bitten her breasts and genitals, holding her down by her arms and forcing her legs apart, such that she had subsequently suffered bruising and pain, particularly in her jaw. The applicant indicated that the men had ejaculated and that there was a strong semen smell in the car. She also stated that she had been in a state of shock and confusion during the incident, and had been unable to react. She had then managed to recover her wits and to get away at about 4   a.m. She further stated that her assailants had appeared “almost surprised” by her sudden reaction. Upon exiting the car, she had realised that it had been moved and had been parked in a place which she had not recognised at the time but which she had subsequently identified as Via Cosseria. Still in shock, she had wandered around aimlessly, then had collected her bicycle (see paragraph   21 below) and returned home, where she had told her boyfriend what had happened. 10 .     In the afternoon of 26   July 2008 the applicant, accompanied by her boyfriend and a friend, went to the Careggi University Hospital’s anti ‑ violence centre and reported that she had been gang-raped. The centre’s gynaecologists drew up a medical certificate indicating that the applicant had bruising on both of her forearms, a five-centimetre scratch on her right thigh, inflammation on the areola of her left breast and redness around her genitals. The doctor at the anti-violence centre prepared a report on the events described by the applicant. Once the applicant had signed the report, she requested that one of its passages be amended to state that, after being subjected to the alleged violence, she had walked back to her bicycle rather than being driven back by her assailants, as had been written in the first version of the report (see paragraph   21 below). A copy of the report was sent to the police. 11.     In the months following the incident the applicant suffered from psychological trauma and had a panic attack. She was treated by a psychologist at Artemisia   – a centre for victims of violence run by a private association and funded by the local authorities   – where she had sought support. She was then hospitalised for post-traumatic stress at Careggi Hospital from 21   January to 11   February 2009. THE CRIMINAL PROCEEDINGS 12 .     On 30   July 2008 the applicant was called in and interviewed by the Florence police, who had received the report from the Careggi anti-violence centre. She lodged a criminal complaint against her alleged assailants on the same day. 13 .     On 31   July she was called in and interviewed by the police in Ravenna, where she was visiting friends. She gave her version of events again and identified her alleged assailants from photographs taken during the evening in question. 14 .     On the same day, in Florence, the seven suspects, including D.S., were remanded in custody. The police seized their mobile phones and examined the phone records. They also seized the car in which the assault had allegedly taken place. The public prosecutor’s office commissioned experts to identify any traces of body fluids that might have been left in the car and on the applicant’s clothing and to determine any cell towers that might have been pinged by the suspects’ and the applicant’s phones on the night of the events. 15 .     The applicant was interviewed by the Florence public prosecutor’s office from 6.30   p.m. to 10.10   p.m. on 16   September 2008. She once again described the events of the night of 25 to 26   July and gave further details of her relationship with L.L. and the other suspects before the incident. Following the interview the public prosecutor’s office instructed the police to identify and question as witnesses the individuals named by the applicant. It also asked the police’s forensic unit to obtain detailed maps of the areas indicated by the applicant in her account, so that the exact location of the events could be determined. 16.     On an unspecified date the investigators conducted an on-site inspection with the applicant. 17.     On 29   April 2009 the Florence public prosecutor recorded   – in the register of suspected perpetrators of aggravated group sexual violence   – the names of the seven individuals accused by the applicant. 18.     On 11   May 2010 the suspects were committed for trial before the Florence District Court. The applicant and the municipality of Florence joined the proceedings as civil parties. 19.     Eighteen public hearings were held between 17   September 2010 and 14   January 2013 as part of the trial proceedings before the Florence District Court. After consulting the parties, the president of that court, pointing to the difficult, sensitive nature of the issue and the need to protect the applicant as much as possible, refused permission for the journalists in the courtroom to film the proceedings. 20.     The hearings of 8   February and 13   May 2011 were devoted entirely to taking evidence from the applicant. Her testimony was recorded in a 430 ‑ page transcript. The applicant was questioned by the prosecution and the eight defence lawyers. It appears from the transcript of the hearings that the president of the court intervened on numerous occasions to prevent the defendants’ various lawyers, in so far as possible, from dwelling on matters which had already been addressed by the victim, had no connection with the case or were of a strictly personal nature. The president of the court also ordered short adjournments to allow the applicant to regain her composure. 21 .     During the trial, testimony was also heard from the people to whom the applicant had told her story after the events in issue   – namely her boyfriend at the relevant time and another friend; several of the applicant’s and the alleged perpetrators’ friends, including L.L.’s girlfriend; several people who had been at the party that evening; the gynaecologists from the anti-violence centre; the psychologist from the Artemisia centre; and the police and forensics officers who had taken part in the investigation. In particular, the doctor at the anti-violence centre who had treated the applicant the day after the events stated that she had asked to amend a passage of the report after reading it. She had wished to clarify that, after being subjected to the violence in question, she had walked back to her bicycle rather than being driven back by the members of the group, as initially stated in the report. 22.     Three individuals   – L.B., S.S. and S.L., who were present when the applicant had left the fortress with the defendants   – also gave evidence to the court as witnesses. In particular, L.B. and S.S.   – two employees assigned to security and access control at the fortress   – stated that when the applicant had left the fortress she was visibly under the influence of alcohol, was unable to walk by herself and was being supported by two men who were touching her intimate parts, and that other men were surrounding them. L.B. and S.S. indicated that the young woman had not been reacting and had not appeared to be in a position to put up any resistance. That had concerned the two witnesses, who had asked the young men what was going on. The young men had replied, before moving away, “It’s not our fault she’s a nympho”. 23.     S.L., for her part, stated that at the end of the evening she had been informed by five friends   – who also gave evidence before the court   – that a group of men and a young woman had attracted attention during the evening for their uninhibited behaviour and explicit sexual advances. The men had offered the young woman drinks several times. When the young woman had left the fortress, surrounded by the group of men, who were touching and kissing her, she had appeared to be under the influence of alcohol. S.L. and her friends had been hesitant to intervene. Three of them had felt that the young woman had freely chosen to leave with the men, while the other two had considered that she was neither thinking clearly nor able to give her consent. S.L. had been worried about the young woman and so had decided to get closer to the group and follow them for a few minutes. She had heard the applicant ask the men to stop and to leave her alone (“ Ora basta! Lasciatemi stare! ”). S.L. had thus offered her assistance, but the applicant had replied that she did not need to worry, the men accompanying her were friends and were going to take her back to her home. After the group of men had made derogatory comments to S.L. (“Go away! Mind your own business! Who are you, the rape police?”), the young woman had added, “I’m sorry, it’s my fault. I used to be a lesbian and now I’m straight”. According to S.L., although the young woman was amused by the men’s comments, she had appeared absent and not fully aware of what was happening. 24.     While giving evidence in court the applicant stated that she did not remember S.L. She was also questioned by the defendants’ lawyers about her family situation, her relationship status and her sexual history. In addition, she gave evidence regarding her decision to follow a friend to Serbia twenty days after the events in question, from 15 to 25   August 2008, and to take part in an artists’ workshop entitled “Sex in Transition”. She explained that she had decided to leave Florence to avoid seeing her assailants, but had been forced to return earlier than planned because she had had a serious panic attack, which had required her to be hospitalised. 25.     At hearings held on 28 and 29   February 2012 the court took evidence from the seven defendants, all of whom, including D.S. himself, stated that D.S. had not been present either at the fortress exit or in the car. According to the version of events given by the defendants (excluding D.S.), the applicant had been acting provocatively the entire evening, in terms both of how she was dressed and of her sultry, lewd behaviour. No one had forced her to drink. She had, moreover, performed oral sex on D.S. in the fortress toilets, a fact that had immediately been revealed to the entire group of friends. L.L. stated that the applicant had always been physically attracted to him, which he claimed was proved by their sexual relations on 5   June 2008, and that she had lied when saying that she had gone to the fortress on 25   July in order to collect the remainder of her pay for the short film in which she had acted, because she had in fact already been paid. 26.     The defendants stated that the applicant had displayed her red underwear while riding the mechanical bull and had danced lasciviously and uninhibitedly with each of them. At the end of the evening she had incited them to have group sex by saying, “And now I want you all to screw me”, and when L.L. had moved away with his girlfriend, she had called out to him to come back. They said that the group was euphoric and in a festive ( goliardico ) mood, but that no one was incapacitated by alcohol. The applicant had been walking without difficulty and had appeared sure of herself, teasing them and encouraging them to have sexual relations. When S.L. had called out to them at the fortress exit, the applicant had reacted by reassuring her and asserting her freedom to do as she saw fit in terms of sex. 27.     The applicant’s sexual advances had subsequently become more insistent, and the group had decided to drive to a more remote area less exposed to public view. They had chosen the car park of a kiosk on Via   Mariti. There, the applicant had had sexual intercourse with two of the men and had performed oral sex on the others, who had been unable to achieve an erection or to ejaculate, resulting in mockery and disappointment from the applicant. The six men had then offered to take her back to her home but, following her refusal, they had driven her back to her bicycle near the fortress. One of the defendants, D.A., submitted that the seminal fluid matching his DNA found on the applicant’s T ‑ shirt (see paragraph   32 below) could be explained by the touching that had taken place during the drive to the kiosk. THE JUDICIAL DECISIONS 28 .     In a judgment of 14   January 2013 the Florence District Court convicted six of the seven defendants of having induced an individual in a state of physical and mental impairment to perform or submit to acts of a sexual nature   – an offence punishable under Article   609   bis §   2 in conjunction with Article   609   octies of the Criminal Code. It acquitted them, however, on the charges of sexual violence committed with the use of force, for the purposes of Article   609   bis §   1. The seventh defendant, D.S., was acquitted because the investigation had found that, although he had been present during the evening in issue, he had not left the fortress with the others and had not taken part in the rape. 29 .     In its judgment, the trial court first noted that the parties’ accounts were in agreement in that group sexual relations had taken place, but that they differed substantially on the question of consent. It then observed that the applicant’s version of events contained inconsistencies and did not seem logical in several regards, especially concerning the initial circumstances. In particular, it attached little credibility to the applicant’s explanations as to why she had accepted L.L.’s invitation to join him at the fortress, and then had remained there despite the fact that no gift had been given to her and that the group of friends’ behaviour towards her had seemed inappropriate. 30.     The court did, however, consider that the victim’s statements as to how the events had unfolded at the specific time when the group had left the fortress were fully corroborated by the first-hand witness testimony of S.L., L.B. and S.S. It therefore concluded that the applicant could be regarded as credible in so far as the reconstruction of that part of the evening was concerned   – except as to whether D.S. was present   – but that she lacked credibility in her account of the first and last parts of the evening. In that connection, it indicated that there was case-law authority from the Court of Cassation in support of evaluating a victim’s credibility by means of a “fragmented assessment” of his or her statements   – provided that there were no factual or logical contradictions between the various parts of his or her version of events. 31 .     Regarding the course of events after the group had left the fortress, the court noted that any involvement by D.S. in the acts in dispute had been ruled out in the investigation, which had established that D.S. had not left the fortress with the group, contrary to what the applicant had stated. It further observed that the parties’ phone records and an analysis of the cell towers pinged by their phones disproved the applicant’s account of where the car had been parked during the acts complained of, and thus corroborated the defendants’ statements in that regard. The investigators had also performed simulations demonstrating that it would have been impossible for the applicant to walk back to her bicycle from the location in question, thereby further undermining her statements. 32 .     In addition, the court considered that the injuries observed by the doctor at the anti-violence centre twelve hours after the incident (see paragraph   10 above) were incompatible with the degree of force alleged by the applicant and could have been the result of merely engaging in a sexual act in a car   – this not having been contested by the defendants. Furthermore, no trace of seminal fluid had been found either in the vaginal and oral swabs taken from the victim or in the car, which contradicted the applicant’s claim of a “strong semen smell” and corroborated the defendants’ statements to the effect that none of them had ejaculated in the vehicle. Moreover, an analysis of the biological traces found on the applicant’s clothing, in particular on the back of her T-shirt, had identified the DNA of only one defendant, namely D.A. 33.     The court then considered that it was not just speculation to assume that the defendants had at the very least been hoping for an evening of underhand pursuits, making use of the applicant to play erotic games. It saw evidence for that in text messages exchanged by the defendants on the afternoon of 25   July, making reference to the fact that the applicant would be at the fortress that evening. It also expressed concern over an obscene piece of writing by L.L., which had been found in his car and which appeared to suggest an unhealthy relationship with the applicant. 34.     In any event, the court considered that, contrary to all the defendants’ statements, the situation described by S.L., L.B. and S.S. could be characterised as neither “euphoric” nor “festive”. The corroborative evidence of those witnesses had irrefutably shown that the applicant was under the influence of alcohol when she had left the fortress with the six defendants. Although it had not been proved that she had been in such state because the defendants had incited her to drink alcohol with a view to sexually assaulting her, there was nevertheless evidence that she was drunk, that she was having difficulty walking and that her ability to consent to sexual relations was visibly impaired. 35.     The court considered that, at the time the applicant had been observed by the witnesses and for a period which was impossible to determine precisely, her state had to be characterised as one of both physical and mental “impairment”. In the context of sexual violence, the concept of impairment was not necessarily linked to mental illness in the victim but could be derived from various factors, provided that their severity ( incisività ) was capable of at least vitiating ( viziare ) consent. Impairment did not, moreover, require absolute submission from the victim, but was compatible with a certain degree of resistance on his or her part. 36.     The court pointed out that the offence of sexual violence committed by taking advantage of an individual’s state of impairment, which was punishable under Article   609   bis §   2   (i) of the Criminal Code, could be characterised by the act of inducing an individual, whose state of impairment made it impossible for him or her to refuse, to become an object of sexual gratification, without necessarily using force or intimidation. As to the mental element of the offence, it included both awareness of the victim’s state of impairment   – which in the court’s view was undoubtedly present in the instant case   – and the fact of acting for sexual purposes. The state of impairment did not necessarily have to be caused by the assailant but could be the result of external environmental factors. 37.     The six convicted men lodged an appeal. They submitted that the applicant had lied at least twenty-nine times and that those many untrue statements proved her total lack of credibility. Arguing that her version of events was doubtful on the whole, they asserted that the trial court’s “fragmented assessment” of her statements was contradictory and erroneous in the light of the relevant case-law. They argued that the applicant’s lies, which had been acknowledged by the court, were a sign of her remorse about the group sexual experience to which she had nevertheless consented. They averred that the state of physical impairment which had allegedly vitiated the applicant’s consent had not been proved and that her state of mental impairment had been contradicted by the testimony of the various witnesses heard by the court. They further submitted that they could not in any event have been aware of any impairment in the applicant, since they had all been under the influence of alcohol themselves. 38.     In a judgment of 4   March 2015, deposited in the registry on 3   June 2015, the Florence Court of Appeal acquitted the six accused who had been convicted at first instance (see paragraph   28 above). It considered at the outset that the part of the first-instance judgment concerning the acquittal of the accused on the charge of rape committed with the use of force or threats (under Article   609   bis §   1 of the Criminal Code) had become final, since the public prosecutor had not appealed against it. Its task was thus confined to examining whether the victim’s alleged state of impairment had been taken advantage of (under Article   609   bis §   2 of the Criminal Code). That first required it to analyse in what state the applicant had actually been at the material time. 39.     The Court of Appeal found that the numerous inconsistencies noted by the trial court in the applicant’s version of events (see paragraphs   29 and 31 above) undermined her credibility in its entirety. It considered that the trial court had been wrong to carry out a “fragmented assessment” of the applicant’s various statements and to accept her credibility with regard to part of the facts. In that connection, it pointed out that, according to the Court of Cassation’s case-law on the matter, a “fragmented assessment” of the statements of a victim of sexual violence was possible only in cases where the statements in question referred to different, independent events, such as separate assaults substantiated to varying degrees. Given that the case concerned one single assault, the victim’s credibility could not be determined using a “fragmented assessment”. It had to be assessed in the light of her statements taken as a whole. 40 .     The Court of Appeal further found that the applicant’s statements had not been corroborated by any other evidence but had in fact been contradicted by the gynaecologist’s report, which noted injuries that were incompatible with her allegations, and by the results of the tests for body-fluid traces in the car, on the applicant’s clothing and on her person. Lastly, it found that the applicant’s reply to S.L., far from being a cry for help, had been more akin to an affirmation of her sexual choices, which had previously been homosexual and then been heterosexual. 41 .     As regards the applicant’s alleged state of impairment, the Court of Appeal first considered that any psychological deficiency which might have affected her ability to give her consent should be ruled out. Although she had been going through difficult times in terms of her family and her romantic relationships   – her mother was seriously ill, her father was absent and she herself had recently experienced a break-up and had begun a new relationship with a man she had just met   – the applicant was a young woman who was “admittedly fragile but also creative and uninhibited”, “capable of dealing with her (bi)sexuality and of having casual sexual relations even when she was not entirely sure she wanted to”. As examples of such relations, it cited those she had had with L.L. in the street and with D.S., in both cases a few days before the events in question, and the oral sex she had performed on D.S. in the fortress toilets, after which she had danced and had played on a mechanical bull. 42 .     The Court of Appeal further noted that several witnesses had testified that the applicant’s behaviour had been extremely provocative and lewd, that she had danced lasciviously with her arms around some of the accused and that after having sexual relations with D.S. in the toilets   – a fact that had immediately been revealed to the group of friends   – she had displayed her red underwear while riding a mechanical bull. The Court of Appeal also noted that the witnesses L.B. and S.S., for their part, had merely stated that the applicant had appeared to be under the influence of alcohol and had had difficulty walking when she had left the park. Lastly, the Court of Appeal considered that S.L.’s testimony, concerning how the applicant had reacted when S.L. had intervened to defend her, suggested that she was not a victim of violence, but rather that she was capable of defending herself and even of finding amusement in the group of friends’ comments about her new sexual orientation. In the light of those factors, the Court of Appeal found that the applicant’s judgment had not been impaired by alcohol. 43.     Having ruled out the existence even of a latent state of impairment in the applicant, the Court of Appeal considered that it had only to examine the issue of her “withdrawal of her initial consent” which the accused had   – rightly or wrongly   – believed she had given during the evening, in the light also of the oral sex D.S. had previously “obtained” from the applicant in the toilets. Prior to leaving the fortress, the applicant had not been bothered by the fact that the group of friends had been touching and fondling her on the dance floor, and had allowed herself to be accompanied to the car, where she had remained motionless during the sexual acts, such that the members of the group of friends had appeared “almost surprised” when she had decided to leave. The Court of Appeal found that, in the light of those factors, the accused could be regarded as having considered that the applicant had consented to group sexual relations, which had ultimately satisfied no one. The Court of Appeal further noted that there had been no meaningful break ( cesura ) on the applicant’s part between her initial consent and her alleged subsequent refusal ( dissenso ), since she had acknowledged remaining motionless and at the mercy of the group during the sexual relations. 44.     The Court of Appeal found that its assessment, which was based on an in-depth examination of all the above-mentioned elements established in the trial, was supported by subsequent considerations, such as the lack of scratch marks or other signs of a struggle on the bodies of the accused, who had been arrested immediately after the events, and the fact that the applicant had ridden for ten minutes on her bicycle after allegedly suffering serious violence. According to the Court of Appeal, those details were incompatible with the serious violence and abuse to which the applicant claimed to have been subjected for two hours (see paragraphs   9 and   40 above). 45.     Accordingly, the Court of Appeal considered that it had not been proved that the applicant had been in a state of alcohol-induced impairment ( alterazione alcolica ). While the small group had been euphoric after drinking a relatively small amount of alcohol, the applicant’s behaviour   – when she had ridden the mechanical bull, when she had tried to phone L.L. as he was accompanying his girlfriend out, and when she had curtly replied to S.L.   – had in any event suggested that she was sufficiently clear-headed. The Court of Appeal pointed out that, according to the Italian Court of Cassation, the physical element of the offence of sexual violence committed against an individual who was in a state of impairment was made out where one person, through devious, insidious conduct, induced another person to engage in acts of a sexual nature by taking advantage of his or her state of alcohol-induced impairment. 46 .     The Court of Appeal considered that by reporting the events to the anti-violence centre and visiting the Artemisia centre, the applicant had sought to “stigmatise” the fact that she had not hindered the group sexual experience. In doing so, she had attempted to repudiate what she realised was a moment of fragility and weakness and thereby erase it from her non ‑ linear life. The Court of Appeal found that the applicant’s behaviour and activities before and after the events showed that she had an ambivalent attitude towards sex. This led her to make choices for which she did not take full responsibility and which she experienced in contradictory and traumatic ways. Such choices included acting in L.L.’s short film without showing any reluctance as to its sex scenes and violence, and taking part in a workshop entitled “Sex in Transition” in Belgrade a few days after the alleged assault. 47.     The Court of Appeal concluded that the acts complained of, although regrettable, were not criminal offences and that the accused were to be acquitted, on the ground that the physical element of the offence of sexual violence committed by abuse of the victim’s state of impairment had not been made out ( perché il fatto non sussiste ). 48 .     On 13   July 2015 the applicant sent the public prosecutor’s office a statement of grounds of appeal against the Court of Appeal’s judgment, challenging its reasoning and requesting that an appeal on points of law be lodged. 49.     The public prosecutor’s office did not lodge an appeal on points of law. The Florence Court of Appeal’s judgment thus became final on 20   July 2015. 50.     The case and trial attracted significant media attention. The applicant commented on the events in issue on social media and created a blog to promote gender equality and the fight against gender-based violence. 51.     On 5   August 2015 a parliamentary question was addressed to the Prime Minister and to the Minister of Justice concerning the reasoning in the Florence Court of Appeal’s judgment and its compatibility with the provisions of national and international legislation on the protection of the rights of sexual abuse victims and on the fight against violence against women. It was not examined. RELEVANT LEGAL FRAMEWORK AND PRACTICE RELEVANT DOMESTIC LAW Criminal Code 52 .     Article   609   bis of the Italian Criminal Code concerns the offence of “sexual violence” ( violenza sessuale ). It reads: “1.     Anyone who, through the use of force, threats or abuse of authority, coerces someone into engaging in acts of a sexual nature shall be punished by imprisonment of between five and ten years. 2.     The same punishment shall apply to anyone who induces ( induce ) someone to perform or submit to acts of a sexual nature (i)   by taking advantage of that individual’s state of physical or mental impairment at the time of the events; or (ii)   by misleading that individual by pretending to be someone else. 3.     In less serious cases, the prison sentence shall be reduced by no more than two-thirds.” 53.     Article   609   ter , in so far as relevant, provides: “The prison sentence may be increased to between six and twelve years if the offences punishable under Article   609   bis are committed: ... (2)     with the use of weapons, alcohol, sedatives, narcotics or other means or substances which may seriously harm the health of the victim. ...” 54 .     Under Article   609   octies of the Criminal Code, “group sexual violence” is defined as the act of several individuals together taking part in sexual violence as provided for in Article   609   bis . It is punishable by imprisonment of between six and twelve years. Code of Criminal Procedure 55 .     Article   392 of the Code of Criminal Procedure provides that, in proceedings concerning, inter alia , offences punishable under Articles   609   bis and 609   octies of that Code, the public prosecutor’s office   – at the request of the victim, where appropriate   – or the defendant may apply to have the preliminary investigations judge take evidence from a minor or the complainant, if an adult, at an ad   hoc pre-trial evidential hearing ( incidente probatorio ). 56.     Legislative Decree no.   212 of 15   December 2015, which transposes the provisions of Directive   2012/29/EU of the European Parliament and of the Council establishing minimum standards on the rights, support and protection of victims of crime, amended Article   392 of the Code of Criminal Procedure with the addition of the following provision: “During the preliminary investigation, should the victim be particularly vulnerable, the public prosecutor’s office   – at the request of the victim, where appropriate   – or the defendant may apply to have evidence taken from the victim at an ad   hoc pre-trial evidential hearing ( incidente probatorio ).” 57 .     Under Article   472 §   3   bis of the Code of Criminal Procedure, hearings concerning sexual offences are public unless the victim requests that they be held in private or the victim is a minor. In such proceedings, questions relating to the victim’s private and sex life are allowed only if they are necessary for the reconstruction of the events. Possibility for the civil party to appeal against an acquittal 58.     Article   572 of the Code of Criminal Procedure provides: “The civil party and the victim   ... may, by means of a reasoned application, request that the public prosecutor’s office lodge an appeal. Where the public prosecutor’s office does not grant such request, it shall give reasons for its decision and notify the applicant thereof.” 59.     Article   576 of the Code of Criminal Procedure provides: “The civil party may appeal against a judgment of conviction in so far as it relates to the civil action; it may appeal against a judgment of acquittal only for the purposes of establishing the civil liability [of the perpetrator]   ...” Domestic legislative framework on violence against women 60.     Law no.   119 of 15   October 2013, known as the Femicide Act or the Special Action Plan to Combat Violence against Women, introduced measures to strengthen the procedural rights of victims of domestic violence, sexual abuse, sexual exploitation and harassment. Under the new provisions, the public prosecutor and the police have a legal obligation to inform victims of their right to be represented by a lawyer in the criminal proceedings and to request a private hearing through their lawyers. They must also inform victims of their right to legal assistance and how to obtain it. In addition, the Act provides that investigations into alleged offences must be carried out within one year of their being reported to the police and that residence permits for foreign victims of violence, including migrants without identity documents, must be extended. The Act also provides for the systematic collection and regular update of data on the issue, in particular through the coordination of existing databases. 61.     Law no.   69 of 19   July 2019, known as the “Red Code”, introduced new offences such as forced marriage, disfigurement of a victim by inflicting permanent facial injuries, and unlawful dissemination of sexually explicit photos or videos. It also increased the sanctions for the offences of harassment, sexual violence and domestic violence. Proceedings concerning those offences are given priority treatment. Judicial Code of Ethics 62 .     The Judicial Code of Ethics was amended in 2010. The third paragraph of Article   12 of the amended Code provides: “In giving reasons for decisions and conducting hearings, judges should examine the facts and the parties’ arguments and avoid commenting on irrelevant facts or individuals and making judgments or observations on the professional abilities of other judges, prosecutors and defence lawyers and   – unless so required for the purposes of the decision   – on the parties to the proceedings.” RELEVANT INTERNATIONAL LAW United Nations 63 .     The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the United Nations General Assembly in Resolution   40/34 of 29   November 1985, provides that victims should be treated with compassion and respect for their dignity (see the Annex to the Resolution, paragraph   4). The responsiveness of judicial and administrative processes to the needs of victims should be facilitated, in particular by taking measures to minimise inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation (ibid., paragraph   6   (d)). 64 .     The United Nations Committee on the Elimination of Discrimination against Women, in its “Concluding Observations on the Seventh Periodic Report of Italy” of 24   July 2017 (CEDAW/C/ITA/CO/7), stated, inter alia : “Stereotypes 25.     The Committee notes the State party’s efforts to combat discriminatory gender stereotypes by promoting the sharing of household duties and parenting responsibilities and to address the stereotyped portrayal of women in the media by strengthening the role of the Advertising Self-Regulation Institute. Nevertheless, it notes with concern: (a)     The entrenched stereotypes concerning the roles and responsibilities of women and men in the family and in society, perpetuating traditional roles of women as mothers and housewives and undermining their social status and educational and career prospects; ... Gender-based violence against women 27.     The Committee welcomes the measures taken to combat gender-based violence against women, including the adoption and implementation of Act No.   119/2013 on urgent provisions on safety and to combat gender-based violence, and the establishment of a national observatory on violenc