CEDH · CASELAW;CLIN;ENG — 24 avril 2025

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s97EB40D9 { margin-top:12pt; margin-bottom:14pt; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } Legal summary April 2025 L. and Others v. France - 46949/21, 24989/22 and 39759/22 Judgment 24.4.2025 [Section V] Article 3 Positive obligations Failure by respondent State to apply, in practice, a criminal-law system capable of punishing non-consensual sex acts against minors: violation Article 8 Positive obligations Failure by respondent State to apply, in practice, a criminal-law system capable of punishing non-consensual sex acts against minors: violation Article 14 Discrimination “Secondary victimisation” by national authorities of a minor who alleged that she had been subjected to non-consensual sex acts, through the use of moralising and guilt‑inducing statements which propagated gender stereotypes: violation Facts – Three minors, who were 13, 14 and 16 years old at the time of the events and in particularly vulnerable situations, each alleged that they had been subjected to non-consensual sex acts by adult men and lodged complaints of rape against them. The ensuing inquiries and investigations ended in an acquittal (application no. 24989/22) and a decision by the investigating judge not to commit the accused for trial in respect of the rape charges (applications nos.   46949/21 and 39759/22). Before the Court, all three applicants complained that French law and practice did not provide effective protection against rape and that their status as minors and the vulnerable situations in which they had been at the relevant time had not been adequately taken into account. The first and third applicants (applications nos. 46949/21 and 39759/22) further alleged that the authorities had failed to comply promptly with their obligation to investigate and punish the perpetrators of the offences complained of. Lastly, the first applicant submitted that she had been subjected to secondary victimisation and discriminatory treatment during the criminal proceedings. They relied on Articles 3 and 8 and, in the case of the first applicant, Article 14 taken together with Articles 3 and   8. Law – Articles 3 and 8: (1) Considerations relevant to all three applications – (a) The applicable legal framework – The concept of “consent” was not explicitly referred to in the applicable provisions of the Criminal Code relating to the offences of rape, sexual assault or the sexual assault of minors. However, the absence of consent was taken into consideration by the Court of Cassation in its case-law. There was growing consensus among the States Parties to refer explicitly to the concept of informed consent in the definition of rape and to consider the absence of such consent as a constituent element of that offence. Indeed, the Istanbul Convention, which France had ratified, called for such a development. (b) How the legal framework was applied in the present cases – First, the fact that the inquiries and investigations had closed with the proceedings being discontinued did not in itself entail a breach by the national authorities of their positive obligations. Secondly, the Court had to satisfy itself that the domestic authorities dealing with a rape complaint had analysed the circumstances of the case from the perspective of gender-based violence and that they had explored the available possibilities for establishing all the surrounding circumstances. In the present cases, as soon as the applicants had lodged their complaints, a criminal investigation had been conducted and the matters complained of had been referred to an investigating judge or a trial court. Thirdly, in order to ensure adequate protection against rape and sexual offences, the authorities had to take into account, where applicable, the vulnerability of victims, especially where they were minors, in accordance with the standards set out in national and international instruments. In the present cases, the applicants had been particularly vulnerable, given that they had been underage at the time of the events complained of and the presence of several other factors, such as their health or the fact that they had consumed alcohol and intoxicating substances. The authorities had been aware of each applicant’s particular vulnerability, either because it was a long-standing state of affairs or because it had been established at the outset or during the investigation. (2) Application no. 46949/21 – In ruling that the acts could be not be classified as rape under the applicable legal framework and upholding the investigating judge’s order, the investigation division of the court of appeal had held that, despite the age difference between the applicant – a minor aged under 15 at the relevant time – and the accused – all adults –, the circumstances of the case had not made it possible to establish the presence of violence, coercion, threat or surprise. With regard to the applicant’s vulnerability, the court of appeal’s reasoning had been seriously flawed in its assessment of whether – in view of her extreme vulnerability, resulting from her very young age and health – she had had sufficient discernment to be capable of giving genuine consent to repeated sex acts with several partners. With regard to the requirement that the investigation be effective, in the circumstances of the case and given the applicant’s particularly traumatic medical history – of which the authorities had been fully aware –, criminal proceedings lasting more than eleven years and culminating, inter alia , in dismissal of the rape charge could not be said to have been conducted diligently. With regard to secondary victimisation, the national authorities had failed in their duty to protect the applicant’s dignity, by permitting the use of moralising and guilt-inducing statements which propagated gender stereotypes and were capable of impairing victims’ confidence in the justice system. First, comments which were inappropriate, guilt-inducing and likely to discredit the applicant’s account had been used when her initial statement was being taken, a decisive stage in the proceedings during which the authorities had a special duty to support victims. In addition, those comments were at odds with the present-day understanding of the constituent elements of rape, it no longer being the case that the victim’s physical resistance had to be established for the offence to be made out. Secondly, the investigation division’s judgment had relied on gender-based stereotypes, describing the acts complained of by the applicant in a mocking and derogatory manner. The reasoning used had sought to absolve the perpetrators of responsibility for those acts. The terms employed and the meaning conveyed were wholly inappropriate; these gender-based stereotypes had served no purpose and been prejudicial to the applicant’s dignity. The Court considered that its findings concerning the secondary victimisation suffered by the applicant were sufficient to enable it to conclude also that the reasoning in the investigation division’s judgment disclosed sex-based discrimination. In view of all the foregoing, the Court held that the national authorities’ shortcomings, relating both to the lack of promptness and diligence in the conduct of the proceedings and to the manner in which the validity of the applicant’s consent had been evaluated, had not only deprived her of appropriate protection but had also exposed her to secondary victimisation, likewise amounting to discrimination. (3) Application no. 24989/22 – The applicant was also a minor aged under 15 years at the time of the events complained of; the applicable legal framework was therefore the same as that in application no.   46949/21. In assessing the applicant’s consent, the court of appeal, in a finding that was not subsequently challenged by the Court of Cassation, had considered, first, that in view of her conduct, the persons who had been accused could legitimately have believed that she had given consent, and, secondly, that there was no evidence that they had acted by violence, coercion, threat or surprise. The court of appeal had chosen not to assess the effect on the applicant’s cognitive abilities, and conduct, of the very large quantity of alcohol she had consumed. This factor had been taken into consideration only in order to establish her disinhibition and rule out the possibility that the accused had taken advantage of her. Furthermore, the court of appeal did not conduct a context-sensitive assessment of the applicant’s particularly vulnerable situation; at the time of the events, she was a very young girl who had had sex for the first time that afternoon with another individual, and had been facing strong pressure from two adults. The court of appeal had also failed to take the latter’s conduct into consideration; when the applicant’s brother noticed their car, they had driven away and parked in a more isolated spot, and had later abandoned the applicant and her friend, both of whom were minors, next to the motorway in the middle of the night. Taken together, the foregoing considerations led the Court to conclude that the approach taken by the domestic courts – which had failed to give adequate consideration to the factors that made the applicant particularly vulnerable and to the effect of the surrounding circumstances when evaluating the validity of her consent – had been insufficient to guarantee appropriate protection for her. (4) Application no. 39759/22 – The applicant had been a minor of 15 years or over at the time of the events complained of. As such, under the applicable legal framework, the constituent elements of coercion or surprise could be established through the existence of a significant age difference between the adult perpetrator and the young victim. The domestic courts had ruled this out in the applicant’s case because of the narrow age gap between the individuals concerned. The court of appeal, after concluding that none of the constituent elements of the offence of rape had been established, upheld the discontinuance order delivered at first instance. Noting that the gender stereotypes used by the court of appeal had served no purpose and had indeed been inappropriate, the Court concluded that it had inferred the applicant’s consent mainly on the basis of her passive behaviour and the absence of physical resistance, without giving proper weight either to her particular vulnerability or to her psychological state, an approach which ran counter to present-day knowledge about the behaviour of rape victims, especially where they were of a young age. With regard to the part of the complaint alleging ineffectiveness in the judicial proceedings, the duration of this case revealed a lack of diligence in the conduct of the criminal proceedings, in what had not been a particularly complex case. In view of all the foregoing, the Court concluded that the national authorities’ failings with regard both to the lack of promptness and diligence in the conduct of the proceedings and to the manner in which the validity of the applicant’s consent had been evaluated, had deprived her of appropriate protection. (5) Conclusion – In all three applications, the investigating authorities and domestic courts had failed to protect the applicants, who had complained of acts of rape and had been aged only 13, 14 and 16 at the relevant dates, in an adequate manner. Having noted, in two of the applications, that the criminal proceedings had not been conducted promptly or with diligence, the Court found, in all three applications, that the domestic courts had not properly assessed the impact of all the circumstances surrounding the events; nor had they taken sufficient account, in evaluating whether the applicants had been capable of understanding and giving their consent, of the particularly vulnerable situations in which they had found themselves, particularly in view of their ages. Reiterating that consent had to reflect a free willingness to engage in sexual relations at a given moment and in the specific circumstances, the Court considered that, given both the legal framework in place at the relevant time and the manner in which it had been applied to the present cases, the respondent State had failed to comply with the positive obligations, in the light of the requirements of the Court’s case-law and international standards, to apply, in practice, a criminal-law system capable of punishing non-consensual sex acts. The Court concluded that the respondent State had failed to comply with its positive obligations in respect of the three applicants and, accordingly, that there had been a violation of Articles 3 and 8 of the Convention in each of the three applications. It also held, with regard to application no.   46949/21, that there had been a violation of Article 14 taken together with Articles 3 and 8. Article 41: EUR   25,000 (application no.   46949/21), EUR   15,000 (application no.   24989/22) and EUR   15,000 (application no.   39759/22) in respect of non-pecuniary damage; claim for pecuniary damage (application no.   24989/22) dismissed. (See M.C. v.   Bulgaria , 39272/98, 14   December 2003, Legal Summary ; Z v.   Bulgaria , 39257/17 , 28   May 2020   ; J.L. v.   Italy , 5671/16, 27   May 2021, Legal Summary ; X v.   Greece , 38588/21 , 13   February 2024   ; Y. v.   Czech Republic , 10145/22 , 12   December 2024; Council of Europe Convention on preventing and combating violence against women and domestic violence, the Istanbul Convention , adopted on 11   May 2011)   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .