17 May 2018 Thursday

E.A. [PA] (no. 2014/19112, 17 May 2018)

The Facts

The applicant attended a musical event that was held within the scope of a web-site organization. The aim of this web-site is to make easier for its members to get in touch with different countries and cultures. Thereby, a member wishing to get acquainted with a new culture is accommodated in the house of another member living in a different country or city.

During this organization, W.J.L., who is a foreign national, invited the participants including the applicant and G.C., a musician against whom a criminal complaint was filed, for hosting in her house. W.J.L. assigned two separate rooms to the applicant and G.C. Waking up suddenly in the early hours of the morning, the applicant saw that G.C. was in her room in indecent manner. As found established by the inferior courts, as soon as the applicant perceived that G.C. was touching her body, she screamed, got out of the bed and run to the living room where W.J.L. was. The incident was then reported to the police.

Within the scope of the investigation conducted by the chief public prosecutor’s office, statements of the applicant and the host, W.J.L., were taken first. An incident scene investigation report was issued, and the applicant’s clothes and bedding materials were secured for a criminal examination. Besides, the incumbent magistrate’s court ordered G.C.’s detention on remand.

G.C., who had been released pending trial, was found to have committed the imputed offence at the end of the proceedings before the assize court and sentenced to a punishment at the lowest level. However the assize court suspended the pronouncement of the verdict. Upon the dismissal of his appeal against the assize court’s decision, the applicant lodged an individual application.

The Applicant’s Allegations

The applicant alleged that the prohibition of ill-treatment was breached due to the suspension of the pronouncement of the verdict at the end of the proceedings with regard to the sexual assault.

The Court’s Assessment

In principle, the Constitutional Court does not interfere with the determination of the amount of penalty, which is undoubtedly a matter falling within the discretionary power of the inferior courts. However, use of this power by the inferior courts in a way that would tolerate certain acts would undermine the efficient judicial protection and may impair fundamental rights and freedoms.

In this regard, the incident in the present case is that the applicant awoke while being harassed by a man unknown to her and therefore suffered a trauma. Regard being had to how the incident took place and the trauma suffered by the applicant, it may be concluded that sentencing the offender to a punishment at the lowest level and the suspension of the pronouncement of the verdict have caused the criminal act to go unpunished.

The suspension of the pronouncement of the verdict is not in a form of punishment but merely puts the offender under the threat of being subject to a criminal sanction. As in the present case, the offender may be punished only when he intentionally commits a further offence during the probationary period. Thus, the criminal act may go unpunished. In assessing whether to apply the criminal law institution (the suspension of the pronouncement of the verdict) introduced by the legislator for ensuring re-integration of the offender into the society, the deterring effect of the sanction must also be taken into consideration proportionally with the degree of distress suffered by the victim due to the offence.

The impression caused by the assize court’s decision is that the discretionary power was exercised to lessen the consequences of the sexual assault, which is a sensitive issue for the public, instead of making clear that such acts would not be tolerated.

As regards the applicant’s allegations of ill-treatment, the Court considered that the suspension of the pronouncement of verdict resulted in the offender’s not being subject to an executable punishment and failed to offer a sufficient and efficient redress for the victim.

Considering the severity inherent in the act of sexual assault, it has been concluded that merely putting the offender under the risk of being subject to a criminal sanction has rendered ineffective the deterrent effect of legal sanctions envisaged to protect individuals from ill-treatment.

For the reasons explained above, the Court found a violation of the prohibition of ill-treatment safeguarded by Article 17 of the Constitution.