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Minimum requirements under article 3 for rape investigation; €7,000 awarded for breach

In Y v Bulgaria [2020] ECHR 163, the European Court of Human Rights set out the minimum requirements for criminal investigations where a person has been subjected to ill-treatment contrary to Article 3 and held that those principles were properly derived from cases involving breaches of Article 2, despite their different content and rationale. Here, the court found a breach of Article 3 in respect of the authorities’ failure to pursue an obvious line of enquiry in a rape investigation and awarded €7,000. It is an example how an investigation can be satisfactory in several respects but still fail to comply with the minimum requirements of Article 3. It is also worth comparing with the bands of damages that English cases have suggested.

On 10 July 2013 at 23.30, a woman was raped in a field by an unknown man with whom she had spoken at a bus stop and agreed to follow to a nearby train station. She called the police at around 00.05. The police recovered forensic material, the applicant’s clothes and, later that day, the applicant underwent medical examination and gave a description of the assailant.

On 15 July 2013, the police arranged an identity parade, at which the applicant identified Mr X as her assailant. On 20 July 2013, a psychiatric and psychological report stated that the applicant could not give reliable evidence about the incident due to her having poor eyesight and a querulous personality, with a tendency to pinpoint culprits without being certain, to fulfil her desire for revenge.

The DNA report was not ready until 14 December 2013 – five months from the start of the investigation. The applicant’s underwear bore traces of DNA from a different male whose profile was in the national DNA database, Mr Z. There were no traces of DNA from Mr X.

Mr Z was located and questioned on 11 March 2014. He denied having had sexual contact with or knowing the applicant. He was not questioned again. There was no challenge to or further investigation of his account. On 9 June 2014, the prosecutor instructed the investigator to hold an identity parade with Mr Z, which the applicant refused to attend. On 5 June 2015, the applicant failed to identify Mr Z from photographs shown to her.

On 4 May 2016, a reviewing court ordered that investigators interview the police officers who had first arrived at the scene and two witnesses – Mr X’s partner and a friend who had been living in the same lodging house as him. On 12 October 2017, the investigator again questioned Mr X. On 2 April 2018, the applicant reiterated that Mr X be charged and that Mr Z was not involved. On 26 June 2018, Mr X was again interviewed. The investigation was suspended – after more than five years post-incident.

The European Court of Human Rights reiterated that it was not concerned with “alleged errors or isolated omissions” in an investigation and that the thoroughness of an investigation had to be judged in the light of the “practical realities of investigation work”. It was not appropriate to interfere with lines of inquiry pursued by national authorities unless they had “manifestly failed to take into account relevant elements or were arbitrary” – but a “failure to pursue an obvious line of inquiry” could decisively undermine the effectiveness of an investigation [82].

Here, the DNA results did not become available for five months. The results identified a second potential suspect – Mr Z, whose profile was in the national DNA database. Mr Z denied in interview having had sexual contact with the applicant, which was in apparent contradiction with the DNA evidence [85]. The court observed that there was no indication that the investigator had attempted to resolve that contradiction with Mr Z in his interview, when it plainly required further explanation. There was also no attempt to probe the reliability of Mr Z’s account [86].

The authorities had made no subsequent attempts to establish Mr Z’s whereabouts at the time of the assault or whether there was an alternative explanation for the discovery of his DNA on the applicant’s underwear [87]. Although the applicant declined to participate in an identity parade with Mr Z and then later failed to identify him from photographs, there was already expert evidence that cast doubt on the reliability of her identification of the assailant. Further, she was not asked to explain her relationship with Mr Z or the presence of his DNA on her underwear. The authorities had not explained to her the significance of this evidence [88].

The investigator failed to analyse whether Mr Z’s statement, which was inconsistent with the DNA evidence, was credible and instead believed it fully [91]. Although the applicant did not press the investigator to pursue a line of inquiry with respect to Mr Z, the obligation to investigate was not limited to responding to assertions and specific requests by the alleged victim. Although the investigation was satisfactory in several other respects, it had failed to pursue an obvious line of inquiry concerning Mr Z [93].

In those circumstances, the court held that there was a breach of articles 3 and 8 [96] and awarded non-pecuniary damages of €7,000 [100].


This case is useful for its substantial recitation at [82] of the considerations for assessment of whether an investigation meets the requirements of adequacy and thoroughness. The court held at [83] that although the principles were derived from a number of cases concerning Article 2 and violent acts by state agents, there was “no reason” why such considerations should not guide the court when assessing whether the investigation into an alleged rape or serious sexual assault had been adequate and thorough; it noted that although the investigative obligations differed both in their content and underlying rationale, any investigation required under the Convention had to meet certain minimum requirements. It did not say required under Articles 2, 3 or 4; if this extends to Article 8, which must have a lower threshold for breach than Article 3, then this could impose a significant obligation.

There was no real consideration as to whether these failures were systemic or operational; everything was viewed as an operational failure. Cf with the test as stated by the Supreme Court in Commissioner of Police of the Metropolis v DSD [2018] UKSC 11; [2019] AC 196, that serious failures that are purely operational must be “egregious and significant” and not merely “simple errors or isolated omissions”.

It is also worth nothing that the court awarded €7,000 for a breach of Articles 3 and 8. This case concerned a material failure to investigate an obvious line of enquiry in a rape case. The applicant had psychological and, arguably, psychiatric impairments – see para [24], in which the court recorded that she had been diagnosed with a delusional disorder and had been seen by a psychiatrist for two years.

In D v Commissioner of Police of the Metropolis [2014] EWHC 2493 (QB); [2015] 1 WLR 1833, the High Court held that €1,000-€8,000 was for a nominal or low award, €8,000-€20,000 for a routine violation of Article 3 with no serious long term mental health issues and no unusual aggravating factors and €20,000-€100,000 for cases with serious aggravating factors.

A number of the cases that the High Court considered concerned injury caused by agents of the state or where a person was in the state’s custody. By contrast, the instant case appears to be one of the “routine” cases for a breach of the Article 3 procedural obligation, falling well below the High Court’s suggested band. Since the High Court’s decision, there have been a number of cases where the European Court of Human Rights has found breaches of the article 3 procedural obligation. It may be time for a reconsideration of what are the appropriate bands for damages based on those decisions.