The case of X v Cyprus attracted worldwide attention as it highlights the plight of rape complainants

In a judgement last Thursday in the application of X v Cyprus, the European Court of Human Rights (ECtHR) held that Cyprus’ refusal to reopen a criminal investigation of a group of Israeli youths for the gang rape of a young English woman in 2019 was in breach of her human rights.

In particular Cyprus was found to have acted in violation of the applicant’s right to a proper investigation of her allegation of rape implicit in her right not to be subjected inhuman and degrading treatment and her right to privacy.

She had complained she was raped by the Israelis in Ayia Napa in July 2019 but then retracted her complaint. In her retraction statement she said she lied about being raped after she found out that unbeknown to her she had been filmed having sex and felt humiliated – apparently the video recording was shared widely on social media.

Cyprus’ attorney-general considered the evidence and decided that the retraction was fairly obtained and that there was evidence to convict her of causing a public mischief by making a false allegation of rape.  As custodian of the public interest, the attorney-general always has a discretion to stop a prosecution, but her prosecution went ahead even though she complained of rape because she was filmed having sex without her consent.

In 2020 she was convicted of causing public mischief by a criminal judge and sentenced to four months imprisonment suspended for two years. She appealed to the Supreme Court and her appeal against conviction was allowed on the ground the retraction of her complaint of rape was not obtained fairly – she was treated as a suspect rather than a complainant in a gang rape.

In light of the judgement of the Supreme Court, she requested the attorney-general to reinvestigate her complaint of rape, but he refused because her original statements were contradictory and inconsistent with other evidence which significantly undermined the credibility of her complaint.

She then applied to the ECtHR claiming that the Cypriot authorities failed in their procedural obligation to investigate and prosecute acts of rape and breach of privacy. In reply the attorney-general first argued that the case was inadmissible because she had not exhausted an available domestic remedy of a civil claim in the courts in Cyprus for compensation for violation of her human rights. The ECtHR rejected that argument holding that in its view effective protection against rape and sexual abuse requires measures in the criminal law.  

On the merits the court’s assessment was that there was a hasty termination of the investigation of her allegation of rape after her retraction, followed by an immediate decision to prosecute the applicant for public mischief that closed off further investigation of her initial complaint of rape before all the evidence was gathered.

A proper investigation of a rape requires the investigator to make absolutely sure the complainant does not feel that her sexual behaviour is being judged let alone being treated as a suspect while still a complainant – the only issue is whether she consented or not.

In this case it was obvious even after the retraction that the rape allegation needed to be fully investigated as this was an alleged gang rape of a young woman in which there was evidence that a number of members of the gang did have sex with her. They each had to be identified and questioned specifically about whether their sexual intercourse with her was consensual in light of all the surrounding circumstances.

There is another aspect of the case which has not been raised but which is important these days when men – it is usually men – frequently film women in a sexually intimate state without their consent which they then share online.

The applicant had said that she was filmed having sex without her consent but this was ignored as a serious violation of her right to privacy. Filming a woman without her consent during consensual sex does not in law cancel the consent to the sex itself to make it rape. But when the woman finds out – especially after the film is shared online – she may genuinely believe that her lack of consent to being filmed cancels her consent to the sex itself – most women do not know the finer points of the law of rape.

In the UK in 2019 it was a criminal offence punishable with a maximum of two years imprisonment to show a film of a sexual act to another without the consent of the person involved intending to cause them distress. Since 2023 the offence is committed if a person shares an intimate photograph or film without their consent – it is no longer necessary to show intent to cause distress.

The case of X v Cyprus attracted worldwide attention as it highlights the plight of rape complainants. In its judgement the ECtHR observed that the case showed “certain biases concerning women that impeded the protection of the applicant as a victim of gender-based violence which, if not reversed, run the risk of creating a background of impunity discouraging victims’ trust in the criminal justice system despite the existence of a satisfactory legislative framework.”

The legislative framework in Cyprus however needs online safety legislation to criminalise nonconsensual sharing of intimate photographs and films because most people want their sex lives kept private. 

Alper Ali Riza is a king’s counsel in the UK and a retired part time judge