Legal service answerable to Human Rights Court

In rape cases the central task, according to the court, is assessing the issue of non-consent

There is a public outcry in Cyprus following the finding by the European Court of Human Rights (ECtHR) in the case of NT v Cyprus (RoC) of a violation of a woman’s right to have an allegation of rape investigated and prosecuted properly in accordance with the criminal law of Cyprus.

In reaching its conclusion, the court made it clear that it did not in any way express an opinion on the accused person’s guilt. He is presumed to be innocent and remains so unless and until the contrary is proved beyond reasonable doubt by a court of law.

In 2021 NT made a complaint to the police that she was raped by the accused in 2011. The case was investigated, and he was charged with rape and his trial was pending before the Larnaca Assize Court – a higher criminal court of three judges who try serious crimes.

In December 2021 the prosecution was discontinued by the deputy attorney-general who signed a nolle prosequi – Latin for will no longer prosecute – in the public interest. A discontinuation by way of a nolle prosequi is not an acquittal, but it does mean that other things being equal the accused will not be prosecuted again for the same offence. Sometimes instead of discontinuing a case, the prosecution offers no evidence and what then happens is the accused is acquitted.

The deputy attorney-general invoked the public interest in the case of NT because he said fresh evidence had come to light after the case had been sent for trial that revealed inconsistencies in the complainant’s account that significantly reduced the chances of a conviction. He judged that lack of success would not be in the public interest as it discourages complainants from reporting rape.

It is important to appreciate the practical realities within which the deputy attorney-general operates. Unlike the ECtHR he knows his forum in Cyprus. The deputy attorney-general and prosecutors under him have to make judgements about the prospects of satisfying three Assize court judges beyond reasonable doubt of the guilt of accused persons. And, as the deputy attorney-general noted, there was also a need in this case to examine whether the accused may have thought, even if erroneously, that the complainant consented –   knowledge of lack of consent is required to prove guilt in rape cases. 

The ECtHR’s role is supervisory which is important because in Cyprus refusals to prosecute are not otherwise accountable.  In its supervisory capacity the court was able to hold that the deputy attorned-general’s decision to discontinue the proceedings was not in accordance with the applicant’s human rights because he placed irrational weight on the fresh evidence.

The deputy attorney-general thought it was particularly important to NT’s credibility that the complainant was attracted to the accused and afterwards felt guilty and thought she may have led him on. So what? Was in effect the court’s response. In the real world of victims of rape, it is not unusual that they are attracted and had previously had sex, or are in some kind of relationship as partners or wives with men who rape them and sometimes feel guilt and engage in self-blame as a consequence of their experience.

As the court pointed out “the evolving understanding of the manner in which rape is experienced by the victim and the development of law and practice in that area reflects the evolution towards effective equality and respect for each individual’s sexual autonomy.”

The court took into account that the case was not discontinued for lack of corroboration. In more detail, it held that the deputy attorney-general relied too heavily on the complainant’s expression of sympathy for the accused, the fact that her friends stopped talking to her, uncertainty whether she would have consented if he were not violent, and the possibility she had sent the wrong signals that led him on.

According to the court her reactions, hesitations and feelings of guilt and the possible effects of trauma needed to be assessed by a specialist psychologist to evaluate whether the overall credibility of her complaint was sound enough – which must be right.

The central task according to the court was assessing the issue of non-consent. The deputy attorney-general did not examine the complainant’s expressions of guilt or sympathy for the accused alongside evidence suggesting lack of consent.

For example, she said in her first statement that she had pleaded with the accused “Please stop. Why are you tormenting me. You can have sex with anyone you want,” which the court said was not “meaningfully countered.” Neither was the corroborative evidence of her distressed state or her neck full of bruises that her female companion confirmed in her statement to police. The court also noted that the only opposing witness’ credibility was never assessed. He was the accused’s male friend who said he neither heard nor saw anything untoward on the night and would have done so had it occurred as he was within earshot.

According to the court, there was no other evidence, although it appears from the judgement of the ECtHR at paragraph 31 that on her own case the complete sequence of what was said was that the accused told her to stop scratching him and asked whether she liked it, and if he should continue, to which she did not reply at first and that it was after being asked again that she said “Please stop Why are you tormenting me?”

The accused was interviewed by police in the presence of his lawyer and refused to answer any of their questions, which of course was his right, and no adverse inferences can be drawn from his refusal. But it has meant that the ECtHR felt there was little to contradict her specific allegation that she had asked him to “please stop” that the court said had not been “meaningfully countered.”

Nolle prosequi has traditionally been used by attorneys-general in England to stop prosecutions in the public interest for which they are answerable to parliament. As a result of NT v Cyprus, the deputy attorney-general may not be answerable to any higher authority in Cyprus but he is answerable to the ECtHR. Well done her legal team; this was not an easy case to win.