A girl cries rape? Positive obligations and the cyprus case

Updated: Aug 14, 2020

By Jing Min Tan

A 19 year old British girl has been convicted of public mischief in the Famagusta District Court in Cyprus for allegedly falsely accusing 12 Israeli tourists of raping her.[1] The judge made this decision on the basis of a retracted criminal complaint, which she says she signed at the police station without receiving legal advice and after police intimidation. The UK Foreign Office has raised fair trial concerns, while domestic and international human rights groups have widely condemned the proceedings for its legal irregularities and as tainted by political desire to preserve friendly relations with Israel.

Public mischief is defined under the law “as knowingly providing police with a false statement concerning an imaginary offence”.[2]

The defence team of the British girl, who remains unnamed, has indicated that they intend to appeal the case all the way to the European Court of Human Rights, if necessary.[3] Regrettably, such a process would take several years or more. The facts of this case that have surfaced in the news have already given insight to the various legal issues that may arise at the Strasbourg court. If it does eventually happen, the ECtHR would be given another valuable opportunity to further clarify and systematise its messy case law on state failure to protect against sexual violence.[4]

A brief overview of the facts

The British woman had befriended two of the Israelis and entered into consensual sexual relations with one of them. However, she protested when his travel companions entered the room and, immobilising her, began to rape her. They also took video footage of her without her consent, which they made publicly available.

Following her report to the police, the 12 men were arrested and interrogated, but released shortly after. She was then apprehended, and after an eight hour interrogation without a lawyer present, retracted her initial report. Following a separate hearing that ruled that her retraction was not a result of police duress and thus admissible, the woman was found guilty of ‘public mischief’. The Israeli men have since returned home to heroes’ welcomes.

Investigative obligations

The Court has previously recognised that rape constitutes torture contrary to article 3 ECHR in Aydin v Turkey. In MC v Bulgaria and Kontrova v Slovakia, the Court held that states have positive obligations to ensure the criminal law is sufficient to deter the commission of sexual offences, as well as effective investigation and prosecution of sexual offences. State authorities must ‘explore all the facts and decide on the basis of an assessment of all the surrounding circumstances.’

It’s unclear what investigative steps the Cypriot police took in its criminal investigation of the rape and whether further inquries were made regarding the circumstances surrounding the woman’s retraction. The defence team’s expert witness on linguistic analysis testified that the statement of retraction contained numerous errors, which a native English speaker would not have made. It is also unclear why investigation of the rape accusation was so readily discontinued.

In both Israel and the UK, of which the parties involved are nationals, circulating a sexually explicit video without the individual’s consent is a crime.[5] While it is not a criminal offence in Cyprus, police did not enquire into who had made and circulated the video footage, nor did they ensure she had access to psychological support and legal advice once she made the report. On the contrary, it was alleged that police pressured the woman to say it was not a rape.

The defence team’s other expert witness, a well-known forensic pathologist Dr Marios Matsakis, testified that the State forensic pathologist’s report was incomplete. Crucial information was not included, such as analysis of the woman’s clothing and pictures of the bruises on her body.[6]

Though rape is criminalised in Cyprus, details of how the law is applied by domestic courts are not known, and at present the scant details we have of how police investigation was undertaken raise serious questions about Cypriot authorities’ compliance with Convention rights.

Procedural issues

Early access to a lawyer is part of the procedural safeguards built into art 6(1) ECHR. It was recognised in Salduz v Turkey that access to a lawyer should be provided from the first moment of questioning in order for Art 6(1) ECHR to be “practical and effective”.[7] This was particularly important in the present case, where the woman’s status changed from victim to suspect in a matter of hours.[8] It is unclear whether police informed her of her right to remain silent and privilege against self-incrimination during the period of her questioning,[9]and indeed at what point did her status switch to being a suspect, thus conferring on her art 6 protections. In court, the judge refused to engage with evidence of the rape: “This is not a rape case, I will not consider whether she was raped or not.”

As a matter of mere speculation, this writer wonders if it is possible for this case to even constitute state entrapment. Though typically applied to cases where state agents go undercover to investigate crime, it could be argued here that the woman retracted her statement only after extensive questioning by police officers, which formed the basis of her conviction of public mischief. As set out in Ramanauskas v Lithuania, art 6 ECHR requires that defendants must have the opportunity to raise the issue of entrapment. As far as has been reported, the woman’s defence team did not make the argument even though she alleges in news media that she was subjected to duress by her interviewers.

The woman has been imprisoned during trial for a month now and awaits a sentencing hearing on Jan 7.

[1] https://www.theguardian.com/uk-news/2019/dec/30/briton-found-guilty-over-ayia-napa-false-claim-cyprus

[2] https://cyprus-mail.com/2019/12/30/uk-govt-to-question-womans-guilty-verdict-in-napa-rape-claim-case-defence-to-appeal-update-7/

[3] https://cyprus-mail.com/2019/12/30/uk-govt-to-question-womans-guilty-verdict-in-napa-rape-claim-case-defence-to-appeal-update-7/

[4] https://strasbourgobservers.com/2019/04/12/vulnerability-rape-and-coercive-obligations-a-discussion-of-e-b-v-romania/

[5] https://www.timesofisrael.com/israeli-law-labels-revenge-porn-a-sex-crime/; Criminal Justice and Courts Act 2015.

[6] https://www.justiceabroad.co.uk/news/evidence-of-forensic-pathologist-marios-matsakis-in-teenagers-cyprus-trial-after-reporting-group-rape

[7] Salduz v Turkey, no. 36391/02, 27 November 2011  [54]-[55].

[8] https://cyprus-mail.com/2019/08/18/napa-rape-trial-police-tactics-in-the-dock/

[9] Allan v UK

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