A Media Psychological Analysis of the Open Letter of Nine European States on the ECHR

By Sharon Coen, Associate Professor of Media Psychology at the University of Salford and Thalia Magioglou, Assistant Professor of Psychology at the University of Westminster

 

On May 22nd 2025 nine representatives of European countries have co-signed an open letter in which they are arguing that the current interpretation of the European Convention of Human Rights is preventing nation states from being able to autonomously decide how to deal with immigrants who have committed crime. The letter has already attracted criticism for politicizing the work of the European Court of Human Rights and therefore dragging the application of the rule of law (i.e. the judicial power) in the political arena.  In his reaction post in this blog, Antoine Buyse appeals to communication scholars to examine how the letter conveys its message by appealing to particular discursive strategies. We therefore decided to respond to the appeal and offer an analysis of the communication strategies adopted by the authors to convey their message.

 

Reading this letter from a cultural/political/discourse perspective there is a combination of a binary discourse opposing “right” on the side of the signatories to “wrong”, with no mention of specific facts or legal documents to justify these positionings.  “We are leaders of societies that safeguard human rights”. Opposed to “They have learned our languages… Others have come and chosen not to integrate, isolating themselves in parallel societies and distancing themselves from our fundamental values of equality, democracy and freedom. In particular, some have not contributed positively to the societies welcoming them and have chosen to commit crimes”. 

 

The form of discourse adopted aims, as it is stated in the last phrases, to enforce a new interpretation of the European Convention of Human Rights. This implies that the European Convention of Human Rights is not interpreted in a “right” way by the European Court of Human Rights that represents the judicial power. This is an interesting statement since the signatories of the letter represent the executive power in their respective countries. In democratic states the judiciary sector is to be independent from the executive power. 

 

The construction of democracy and human rights that is adopted is presented to be embodied de facto by the signatories of the letter and the silent majority of European citizens they claim to represent, whereas immigrants are presented to occupy the opposite position as contestants of these foundational values. Although there are three different categories of immigrants mentioned in the letter, criminality seems to exist only in immigrant communities and to be unknown to European societies.

 

What is worrying is a binary form of logic throughout the document where generalised entities that are presented as homogeneous, are opposed as versions of “defenders of democracy” on the one side, to the “opponents of democracy” on the other. In this binary logic there are no questions or a need to investigate - there are certainties. However, these certainties are not, at least in this text, associated with specific studies or facts. 

 

Several rhetorical and logical strategies are adopted in the letter to persuade readers of the validity of its claims. We present them in the context of Aristotle’s triad in persuasive communication: Ethos (appeal to credibility and authority); Pathos (appeal to emotions); Logos (appeal to logic) and highlight how all three components are leveraged to frame immigration as an existential threat to sovereign Nation states, and by implication the Human Rights Commissioners’ interpretation of the European Convention of Human Rights as dangerous to national safety and sovereignty and then provide an in depth analysis of a crucial passage illustrating the logical faux pas underpinning the whole communication.

 

Ethos (Appeal to Credibility and Authority)

 

Claims to expertise are essential ingredients of persuasive communication. In the letter, authority is established by repeatedly stressing that the signatories are heads of state and government, and leaders of member states (“As leaders”, “We want to use our democratic mandate…”). Credibility is established by emphasising commitment to human rights, democracy, and multilateral institutions (without offering any – even anecdotal – evidence). Authority is also implied by presenting [false] consensus in the appeal to bipartisan unity (we belong to different political families, yet we agree on this) and the claim that their views are representative of the majority (“we believe that we are strongly aligned with the majority of the citizens of Europe in our approach.”).

 

Pathos (Appeal to Emotion)

 

The letter appeals primarily to moral outrage (by artificially creating a dichotomy between law abiding citizens and foreign criminals who have “taken advantage of our hospitality” to “commit crimes”) and fear (by suggesting that immigrants pose an existential threat “it risks undermining the very foundation of our societies. It harms the trust between our citizens and it harms the trust in our institutions.”). Finally, it expresses moral indignation: “it is beyond our comprehension”.  Such appeals are often used as strategies to disengage morally in the immigration debate.

 

Logos (Appeal to Logic and Reason)

 

The logical progression of the argument is as follows: when migration is characterised by lack of integration (which is presented as a choice operated by migrants, rather than a responsibility of the host country), it leads to crime and wider societal harm, hence the need for reform. The ‘right’ way to be an immigrant is actually presented not as integration, but as assimilation (see Berry’s work on acculturation strategies for the distinction): “They have learned our languages, believe in democracy, contribute to our societies and have decided to integrate themselves into our culture.” Consequently, the European Court of Human Rights has overreached its remit by preventing Nation states to freely decide on deportations.

 

In the letter, freedom and opportunities are presented as rights host nations share with immigrants – by implication, freedom and opportunities are not seen as universal human rights – they belong to states and their citizens who can deny them at their will. However individual nation states are prevented from doing so, as illustrated by examples listed without citing data (Cherry-picking).

 

Framing – the letter frames the immigration and human rights debate as an issue of crime without presenting sufficient data or evidence. Immigrants are presented as a threat and something extraneous to the sovereign citizenry. This is achieved using the following strategies:

- False balance: the letter presents illegal immigration as a substantial proportion (“irregular migration has contributed significantly to the immigration”), when we know it is a small minority.

- False balance: Immigrants who integrate vs. those who isolate. This is presented as a choice made by immigrants in equal proportions, and no consideration of context.

- Us-vs-them framing is used for Othering the immigrants.

 

Anticipation of Criticism

 

The signatories knew the letter would be widely criticised, hence they employed rhetorical strategies to offset this.

 

- Pre-emptive rebuttal: we will likely be accused of the opposite. This strategy disarms critics and presents the original authors as thoughtful and misunderstood.

- Appeal to an inclusive Social Identity (we, our societies, our citizens) to mask exclusionary implications of proposed policies.

- Primus inter pares: establish authority by highlighting their leadership roles ‘As leaders…’

“we believe that we are strongly aligned with the majority of the citizens of Europe in our approach. We want to use our democratic mandate…”

 

To illustrate, a particularly rich sentence is the following:

“It is beyond our comprehension how some people can come to our countries and get a share in our freedom and our vast range of opportunities, and, indeed, decide to commit crimes. Although this concerns only a minority of immigrants, it risks undermining the very foundation of our societies. It harms the trust between our citizens and it harms the trust in our institutions.”

- “It is beyond our comprehension”: Moral outrage

- “come to our countries and get a share in our freedom and our vast range of opportunities”: Social identity appeal, Zero-sum fallacy: implies that immigrants ‘take a share’ of a delimited resource (freedom, opportunities)

- “and, indeed, decide to commit crimes”: Attribution bias: attributes criminal behaviour to an active decision made by individual immigrants – ignoring all the situational factors.

- “Although this concerns only a minority of immigrants, it risks undermining the very foundation of our societies.” Hyperbole: this is an exaggeration at best – misrepresentation at worst: how can a minority, who is responsible for a minority of crimes, be responsible for the very foundation of our society?

- “it risks undermining the very foundation of our societies. It harms the trust between our citizens and it harms the trust in our institutions.” Fear appeal: immigrants pose an existential threat.

 

Overall, our analysis convenes with Antoine Buyse’s own: “the letter clearly makes a divide between useful and unwanted migrants and between domestic democracy and an international court that apparently, in these states' views, binds their hands too much.”.  In this piece, we demonstrated how the message construction was achieved from a media psychological viewpoint. The adoption of such language - especially in the context of a polarising issue such as immigration - is problematic. Academic work in the area shows how this type of framing, as well as the rhetorical strategies adopted can lead to major misunderstandings and misinterpretations of the social issue the signatories are trying to address.

 

 

ECHR Developments on Gender-Based Violence Part II: The Autonomous and Proactive Risk Assessment in N.D. v. Switzerland

By Dr. Jasmine Sommardal, Associate Editor of the ECHR Blog 

 

Over the recent months, the ECtHR has delivered significant judgments concerning gender-based violence. In this post, I argue that N.D. v. Switzerland is notable for its application of the requirement of an autonomous and proactive risk assessment to a dangerous person under Article 2 ECHR in the context of gender-based violence. This blog post follows a previous one that discussed key takeaways of three other recent and important cases involving gender-based violence.

 

Main Circumstances of the Case

 

An assessment of the Court’s reasoning in N.D. v. Switzerland requires a short review of the facts. The case concerns a woman who, after her separation from her partner, was subject to extremely grave violence by him. The applicant did not know about her partners’ violent past, but different state authorities were aware, among other things, of the fact that he in 1993 had been convicted for rape and murder, and that he had in 2006-2007 been subject to a court procedure for threats and coercion against a former partner. An ensuing psychiatric report noted that ‘in the short term, there was no reason to fear that X’s former partner was in danger [but that] situations involving immediate separation, in which violent acts were to be feared, were critical’ (para. 6).

 

After these events, the applicant started her relationship with X. Because of X’s behaviour against her, the applicant contacted the family doctor of X, who recommended her to end the relationship, but to avoid doing so abruptly. The doctor at this point consulted a legal psychiatrist and informed the police about the discussion with the applicant.

 

On the next day, the police contacted the applicant, and she told the police officer that she was being harassed by phone and text messages by her partner, who did not want their relationship to end. The police asked about the extent of the harassment, seeking to determine whether the applicant ‘had the situation under control’, or if she needed police assistance, and informed her about the dedicated emergency number. The officer informed her of the possibility of filing a criminal complaint or contacting victim support services, and also advised her that it would be preferable for her to end the relationship. The applicant replied that she had the situation under control and wanted to give her partner a little more time before leaving him. She added that she would proceed cautiously and would contact the police immediately if the situation got out of hand or if she encountered any problems. The officer, who was unaware of the contents of the psychiatric reports concerning the applicant’s partner, did not mention his criminal past during these exchanges.

 

The Autonomous and Proactive Risk Assessment

 

In its judgment, the Court established that there had been a ‘real and immediate risk to life’ of which the authorities knew or ought to have known. This is the so-called Osman test, which can raise positive obligations under Article 2.

 

In applying the Osman test to this context, the Court referred to the obligation on behalf of the state authorities to conduct an autonomous and proactive risk assessment (requirements established in Kurt v. Austria [GC], see para. 63 of the judgment). In Kurt v. Austria [GC], the Court had held that the assessment of the nature and level of risk constitutes an integral part of the duty to take preventive operational measures where the presence of a risk so requires. Thus, an examination of the State’s compliance with this duty under Article 2 must ‘comprise an analysis of […] the adequacy of the assessment of risk conducted by the domestic authorities’ (para. 159).

 

However, N.D. v. Switzerland (to my knowledge) is the first time the Court establishes such a real and immediate risk of which the authorities knew or ought to have known in a gender-based violence case where the woman concerned had not filed a single complaint against her partner or contacted the authorities on her own behalf (para. 67), and where she had not been subject to any prior violent behaviour (para. 64). The Court applied the Kurt requirement of an autonomous and proactive risk assessment to a new situation. The absence of a complaint by the applicant about her partner and the absence of prior violence against her makes the Court’s assessment of whether the authorities ‘knew or ought to have known’ about an imminent risk particularly interesting.

 

Some characteristics of the Court’s reasoning in this case are worth noting. First, in the assessment of whether the authorities did or ought to have known about such a risk, the Court did not take the position of any single national authority (because, in fact, establishing the risk would have required the exchange of information between them). It instead referred to the knowledge that the domestic authorities had altogether, ‘prises dans leur ensemble’ (para. 66).

 

The judgment thus implies that when different authorities are in possession of distinct pieces of information that together would allow for the conclusion of a real and imminent risk to life, the proactive obligation of a thorough risk assessment can trigger a violation of the positive obligations under Article 2. N.D. v. Switzerland thus indicates the need for information exchange between authorities in the context of violence against women. Indeed, the court also held in Kurt v. Austria [GC],  that ‘there is a duty on the part of the authorities examining the case to ask relevant questions in order to obtain all the relevant information, including from other state agencies’ (emphasis added, para. 169). Information exchange also seems to be in accordance with the spirit of, and even required by, the Istanbul Convention. Article 7 of the Istanbul Convention emphasises the importance of comprehensive and co-ordinated policies, and Article 51 requires ‘the necessary legislative or other measures to ensure that an assessment of the lethality risk, the seriousness of the situation and the risk of repeated violence is carried out by all relevant authorities’ (emphasis added).

 

Notable is also the Court’s vulnerability reasoning, which established that there was a vulnerability of the applicant, ‘stemming from her lack of knowledge of the full range of elements available to the authorities when considered as a whole, created an informational asymmetry’, and that ‘[t]his asymmetry should have been offset by heightened vigilance on the part of the authorities, leading to a comprehensive and up-to-date assessment of the seriousness of the risk to which she was exposed’ (para. 74). While victims of domestic violence have long been considered particularly vulnerable in the Court’s case law, the applicant’s vulnerability in this case arose from the lack of knowledge of her partner’s criminal background.

 

N.D. v. Switzerland also tells us something about the possible (ir)relevance of the individual’s own risk assessment. In its earlier case law, the Court has held that ‘the victims’ own perception of the risk they are facing is relevant and must be taken into account by the authorities as a starting-point’, which however, does not discharge the authorities from ‘proactively collecting and assessing information on all relevant risk factors and elements of the case’ (Kurt v. Austria [GC], para. 170). N.D. v. Switzerland establishes such a proactive obligation also without the individual’s own assessment of the risk.

 

It is also noteworthy that the Court found a violation of the state’s positive obligations despite the individual police officer’s proactive approach. After having been contacted by the doctor, the police called the applicant on his own initiative, asked about the situation, informed the applicant about possible support, and sought to ascertain that there was no situation of danger. Yet, this did not hinder the Court from finding a Convention violation (paras 68-75).

 

The outcome in N.D. v. Switzerland further implies that certain considerations in the Court’s case law seem to have been given relatively less weight in the Court’s assessment of whether the authorities knew or ought to have known about a real and imminent risk to life. These considerations include i) the need to avoid relying on the benefit of hindsight, especially in risk assessments carried out in advance (for instance, the concurring judges in Kurt v. Austria [GC], but also the majority view, para. 160); ii) the need not to impose an impossible or disproportionate burden on the authorities, taking into consideration ‘the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources’ (Osman [GC], para. 116); and iii) possible Article 8 concerns for the applicant’s partner’s sensitive medical data, in accordance with the ‘need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects due process and other safeguards that legitimately place restraints on the scope of their actions, including the guarantees contained in Articles 5 and 8 of the Convention’ (Kurt v. Austria [GC], para. 182; Talpis v. Italy, para 101).

 

In Kurt, the Court concluded a non-violation of Article 2 despite significantly developing the case law principles. Some have held that this shows ‘how deeply embedded a misogynistic culture is and how difficult it is for society – including the legal system – to move from theory to practice’ (see here). In N.D. v. Switzerland, however, the Court both referred to the Kurt principles and challenged the domestic authorities’ treatment of the situation. It shows, in the sense of Talpis, that the Court’s assessment of a real and imminent risk of which the authorities knew or ought to have known can be a particularly sensitive one in the context of violence against women.

 

Conclusion

 

The former President of the Court, Síofra O’Leary, considered the Court ‘extremely attentive’ when confronted with domestic and gender-based violence (here). Recent scholarship has indicated a ‘positive shift in the Court’s case law and greater sensitivity to, and awareness of, gender as a source of structural oppression, discrimination and inequality’ (here). But there are also limits to the Court’s approach. It is clear that gender biases can be deeply embedded in (legal) culture and that the ECtHR, as a result, may struggle to overcome them (for such comments, see here and here). In N.D. v. Switzerland, the Court took a notable approach in its application of the obligation of an autonomous and proactive risk assessment under Article 2 in the context of violence against women. When read together with the Court’s judgments in X v. Cyprus, I.C. v. Moldova, and L. and Others v. France, the Court’s recent case law seems to show a certain willingness to remedy often deeply embedded gender biases.

 

ECHR Developments on Gender-Based Violence Part I: Secondary Victimisation, Discrimination, and Minors’ Consent

By Dr. Jasmine Sommardal, Associate Editor of the ECHR Blog 

 

In 2025, the ECtHR has delivered significant judgments concerning gender-based violence. This post provides some reflections on X v. Cyprus of 27 February 2025, I.C. v. Moldova of 27 February 2025, and L. and Others v. France of 24 April 2025. The aim is not to treat each case in its entirety, but to provide some key takeaways (for a detailed analysis of L. and Others v. France, see this excellent analysis). I argue that these three cases are notable as the Court (I) addresses secondary victimisation through stereotyping and prejudices in criminal proceedings; and (II) partly reviews this as a separate issue of discrimination. In addition, in L. and Others, the Court (III) emphasises the need in sexual abuse cases to review the vulnerability, especially of minors, when assessing consent. This post will be followed by a note on the autonomous and proactive risk assessment under Article 2 in N.D. v. Switzerland.

 

I. Challenging Stereotyping and Prejudices in Criminal Proceedings

These cases indicate increased sensitivity of the Court towards secondary victimisation in domestic proceedings due to stereotypes and prejudices faced by the alleged victims of sexual abuse. In earlier cases, the Court’s omission in directly addressing such attitudes has been criticised (see here).

The Court reiterated that ‘in criminal proceedings on sexual violence, it is essential that authorities avoid reproducing sexist stereotypes in court decisions, playing down gender-based violence and exposing women to secondary victimisation by making guilt-inducing and judgmental comments that were capable of undermining victims’ trust in the justice system’ (I.C. v. Moldova, para. 199; L. and Others v. France, para. 200). In X. v. Cyprus, it noted that biases concerning women in Cyprus had hindered the effective protection of the applicant’s rights, and that they risk creating ‘a background of impunity discouraging victims’ trust in the criminal justice system, despite the existence of a satisfactory legislative framework’ (X. v. Cyprus, para. 125).

In all cases, these concerns were elaborated in more detail. In X. v. Cyprus, the Court for instance held that:

[I]t appears that the authorities’ disinclination to pursue the investigation further or to initiate criminal proceedings had been based on the applicant’s sexual liberty and conduct. The applicant’s credibility appears to have been assessed through prejudicial gender stereotypes and victim-blaming attitudes […]. By focusing on the applicant’s prior conduct, the authorities seemed to suggest by implication that because she had allegedly participated in group sexual activities before, she would not have refused to engage in such activities on the day of the alleged rape. The Court reiterates that circumstances concerning the victim’s behaviour or personality cannot excuse the authorities from the obligation to carry out an effective investigation (para. 119, emphasis added).

In L. and Others, the Court also found that an applicant had been subject to secondary victimisation by the national authorities through the use of moralising and guilt‑inducing statements which propagated gender stereotypes. The Court took into account that, the applicant was confronted with questions from a police officer who indirectly reproached her for not having shown her lack of consent by screaming or physically defending herself. These exchanges led the applicant to acknowledge that she had not behaved in an appropriate manner, allegedly expected from a rape victim facing her aggressor. The Court noted the inappropriate nature of such remarks, which were guilt-inducing and tended to discredit the applicant’s account. The Court also noted that such remarks are inconsistent with the contemporary definition of rape, which no longer depends on establishing physical resistance by the victim (emphasis added, para. 227).

The Court also found the reasoning used in the judgment problematic. It noted the gender stereotypes present in the domestic judgment which described in a caricatured and pejorative manner the facts reported by the applicant by referring to the ‘usual success [of firefighters] with the female sex and [the] sometimes uninhibited behavior of the latter towards them’, which supposedly did not ‘lead them to reflect’. The Court found that this reasoning was aimed at exonerating the perpetrators and that it was entirely inappropriate (para. 228).

In I.C. v. Moldova, the Court similarly noted that without having any procedural accommodation:

the police officers had asked [the women with disabilities] directly if she had enjoyed having sexual relations with I.P. […] Such a line of questioning was clearly inappropriate, insensitive and harmful. It was also legally irrelevant in that context, when the investigation should have focused on the absence of consent. Such behaviour by the police can only stem from and contribute to the stereotype of a female victim being somehow responsible for an assault. The Court finds that the said questions were not only aimed at attacking the applicant’s credibility, but were also meant to denigrate her character (para. 199).

It also noted that a social worker present at an interview appeared to have a prejudiced view of the applicant’s credibility because she thought that ‘as a person with disabilities, [the applicant] enjoyed drawing attention to herself’ (para. 200).

The Court further took into account how the domestic courts had relied on the opinions of some witnesses which in fact had little or no knowledge of the applicant and never questioned why a crucial witness had changed their statements in the course of the investigation, while dismissing statements and conclusions from professionals as to the applicant’s credibility as their ‘personal conclusions’ (para. 201). Similar concerns on the biased treatment of evidence were also present in X v. Cyprus, where the Court also reacted to a lack of sensitivity towards the individual during the proceedings.

 

The term secondary victimisation is mentioned numerous times in the Istanbul Convention (see Articles 15, 18 and also Article 56, the Court has also referred to the Istanbul Convention in this context, see for instance, Y v. Slovenia, para. 104). These cases also follow the line of case law represented by J.L. v. Italy (paras 136-142); Carvalho Pinto de Sousa Morais v. Portugal (paras 49-56), Y v. Slovenia, (paras 107-114), and C. v. Romania, (paras 83-86), which to different degrees emphasise the need to avoid secondary victimisation through stereotypical judicial reasoning and/or due to lack of sensitivity towards the victim in criminal proceedings on sexual violence.

 

The Court’s approach in X. v. Cyprus, I.C. v. Moldova, and L. and Others v. France also seems to more directly challenge the domestic authorities’ preconceptions of victims of sexual violence than some earlier cases. The Court’s reference to the reproduction of ‘sexist stereotypes’, ‘preconceived beliefs’ and ‘myths’ (I.C. v. Moldova, para. 221) is stronger than the language used, for instance, in Y v. Slovenia which referred to ‘accusatory questions unrelated to his task’ (para. 112), and ‘offensive insinuations about the applicant’ (para. 109). The Court thus seems to be more directly addressing the reproduction of rape myths (see here) by national authorities, challenging views such as a ‘female victim being somehow responsible for an assault’, and that ‘because she had allegedly participated in group sexual activities before, she would not have refused to engage in such activities on the day of the alleged rape’.

 

It is also notable that the secondary victimisations established in I.C. v. Moldova, L. and Others v. France and X v. Cyprus were dealt with under Article 3 of the Convention (either alone or together with Article 8). The need to consider the victim in proceedings and stereotypical approaches to sexual offences have earlier been reviewed from the point of view of Article 8 (for instance, Y v. Slovenia, and J.L. v. Italy). The recent cases thus seem to reflect the ECtHR’s tendency to increasingly review the state’s obligations in relation to cases on sexual abuse under Article 3, instead of under Article 8.

II. Secondary Victimisation as Discrimination

The second aspect of the Court’s recent cases relates to the interpretation of the prohibition of discrimination. I.C. v. Moldova and L. and Others v. France indicate a willingness to treat cases of secondary victimisation as a separate issue to be addressed under Article 14. In L. and Others v. France,  the Court held that its findings on secondary victimisation were sufficient to conclude that the reasoning in the domestic judgment was marked by gender-based discrimination (para. 230). In I.C. v. Moldova, the Court expressly noted the need to examine the applicant’s complaint separately under Article 14, as it was ‘based on the broader allegation that [the failure of the authorities to investigate her allegations, inter alia about sexual abuse,] was due to the general stereotypes held by the Moldovan authorities against women with intellectual disabilities and a failure to attempt to correct such inequality’ (para. 93). This contrasts with the Court’s approach in cases such as J.L. v. Italy or C. v. Romania, where the Court did not separately review or find an Article 14 violation. Scholars have, indeed, criticised the Court’s lack of consistently assessing the reproduction of gender stereotypes in judicial decisions as a question of discrimination (here, and here).

 

It is also notable that in these two cases, the Court is not applying the approach of a comparator for finding violations of Article 14. The traditional requirement of ‘a difference in treatment of persons in analogous or similar situations’ (which in much of the Court’s case law requires a comparative group) and that this distinction is discriminatory, was, for instance, invoked by the dissenting judges in Carvalho Pinto de Sousa Morais v. Portugal. The importance of a comparator group seems, indeed, less significant in cases that concern stereotypisation (see here). 

 

Some further aspects of I.C. v. Moldova are also worthy of attention with respect to the Court’s approach to discrimination. First, the Court reviewed ‘whether the failure of the authorities to protect the applicant from servitude and to investigate her allegations about servitude and sexual abuse was the result of a discriminatory approach, stemmed from a wider institutional tolerance of violence against women and neglect of persons with disabilities and the Moldovan authorities’ complacency in relation to such cases which undoubtedly affected women more than men’ (emphasis added, para. 216). The Court’s view of these wider institutional matters indicates a certain sensitivity towards the systemic nature of violence against women.

Second, the Court held that Article 14 of the Convention must be read in light of international requirements regarding reasonable accommodation, which ‘helps to correct factual inequalities which are unjustified and therefore amount to discrimination’ (para. 213, for similar reasoning, see Çam paras 65-69). The Court seems to be taking one step beyond formal towards factual equality, in a way which seems to imply the influence of the CRPD on the Court’s reasoning (despite that it has been found to have limited influence in the ECHR context, see here).

 

Third, the Court in I.C. v. Moldova noted the UN bodies’ concern with ‘the intersecting forms of discrimination faced by women with disabilities’ in Moldova (para. 218). It concluded its review by noting that the case did ‘clearly reflect a discriminatory attitude towards the applicant as a woman with intellectual disabilities’ (emphasis added, para. 222). The Court thus seems willing to recognise the intersecting nature of discrimination in the case. This echoes the recent trafficking case of F.M. and Others v. Russia, where the Court condemned the authorities’ discriminatory attitude towards the applicants  ‘as women who were foreign workers with an irregular immigration statusä (para. 346).  The Court’s approach may indicate a somewhat more robust use of Article 14 with respect to intersectionality, which also is in line with B.S. v. Spain (paras 58-62, see Yoshida). In general, the Court has been held to seem particularly resistant towards the notion of intersectionality (see Thielen). The absence of an analysis of intersectionality has been criticised in the context of discrimination against women (see here, and here).  Oftentimes, the Court instead uses the notion of vulnerability, and has recognised the ‘particular vulnerability’ of applicants, for instance as ‘women with intellectual disabilities exposed to sexual abuse in an institutional context’ (G.M. and Others v. the Republic of Moldova, para. 95).

 

III. The Assessment of Minors’ Consent in Rape Cases

 

The third main takeaway relates to L. and Others v. France. The Court found that the national courts in their assessment of the applicants’ consent and judgment in cases that concerned alleged rape, had not taken into account the particular vulnerability in which the applicants found themselves, especially given that they were minors at the time of the events (para. 249).

 

The Court reiterated its earlier established case law on the ‘importance of interpreting domestic definitions of rape in such a manner that they would encompass any non-consensual sexual act’ (for instance, M.C. v. Bulgaria, para. 171) and that ‘the investigation and its conclusions must be centred on the issue of non-consent’ (for instance, M.G.C. v. Romania, para. 72). The Court has also earlier required a context-sensitive assessment of consent and the importance of taking into account the vulnerability of the applicant in cases such as E.B. v. Romania, Z. v. Bulgaria, and N.Ç. v Turkey.

 

In L. and Others, the Court noted that in order to guarantee an adequate protection against rape and sexual abuse, the authorities must take into account, where appropriate, the vulnerability of victims, particularly minors, in accordance with the standards established in this area by national and international instruments (para. 213). The case thus also provides an example of the Convention being influenced by the broader (international) legal context.

 

Without directly reproaching the French legislative framework in terms of a failure to fulfil positive obligations (and thus, not directly challenging the insufficiencies in the obligation to criminalise), the Court took into account the domestic legislation as a background in its analysis. It noted that the relevant provisions of the French penal code did not include a reference to consent, but that the issue of consent is generally taken into account by the Court of Cassation in its jurisprudence (para. 206). The Court held that the domestic courts thus strive to determine the existence or absence of consent, while respecting the defence rights of the accused, in a context where the judge sometimes has few other elements at their disposal than the conflicting statements of each party (para. 206). The cases in L. and Others were illustrative of this difficulty (para. 206). The Court also referred to GREVIO holding that there is a strong judicial insecurity in France as to the constituent elements of rape, and that the definition does not cover all situations of non-consenting victims, particularly when they are in a state of shock or stupefaction (para. 206).

 

Although the particular vulnerability of applicants has also in earlier cases been considered important by the Court for assessing the matter of consent, the emphasis and detail of review in L. and Others is worthy of particular attention (see paras 216-252). The Court, among other things, found insufficient reviews of each of the applicants’ consent, as the domestic courts had not taken adequately into account the applicants’ young age, the context of the alleged rape, the applicants’ mental state, and/or possible state of intoxication. For instance, the Court held that:

 

The applicant’s state of intoxication was only taken into account by the appellate judges to characterise her disinhibition and to dismiss any opportunism on the part of the accused. The Court further notes that the court of appeal did not carry out any contextual assessment of the particular situation of vulnerability in which the applicant found herself, who, at the time of the events, was a very young girl who had had her first sexual experience that very afternoon with a third party and was facing insistent advances from two adults aged 21 and nearly 30, respectively (translation, para. 236)

 

In another case, the Court noted the absence of a sufficient balancing between the applicant’s behaviour and the effects of the surrounding circumstances on her, as well as the elements characterising her particular vulnerability, whether be it her health condition or the findings of psychiatric assessments describing the applicant’s condition as preventing her from the expression of informed consent. The Court held that the judgment suffered from serious shortcomings in its assessment of whether the applicant had sufficient discernment to genuinely consent to repeated sexual acts with multiple partners, given her extreme vulnerability resulting from her very young age and her health condition (paras 221-222).

 

In a third case, the Court found issue with the appellate judges establishing ‘the applicant’s consent primarily on the basis of her passive behavior and lack of physical resistance, without duly taking into account either her particular vulnerability or her psychological state, contrary to current knowledge about the behavior of rape victims, especially when they are young’ (translation, para. 243).

 

In this way, the case of L. and Others provides a strong reminder of the need to take into account the particular vulnerability of (young) victims in the assessment of consent in cases that concern sexual abuse.

 

Conclusion

The Court’s recent judgments on gender-based violence are of considerable length, and they will hopefully be analysed more extensively in the future. I have argued that  X v. Cyprus, I.C. v. Moldova, and L. and Others v. France are important at least for three reasons. Firstly, the Court addresses secondary victimisation through stereotyping and prejudices in criminal proceedings, and secondly, the Court partly reviews this as a separate issue of discrimination. Thirdly, the case of L. and Others emphasises the need to review the vulnerability, especially of minors, when assessing consent in sexual abuse cases.

 

New Book on International Cooperation and the ECHR

Prisca Feihle of the Free University Berlin has just published a new monograph entitled 'An International Human Rights Law of Cooperation. International Cooperation, State Responsibility and the European Convention on Human Rights' with Edward Elgar Publishing. This is the abstract:

'This incisive book examines how states bear responsibility for human rights protection when they cooperate. Focusing on the European Convention on Human Rights (ECHR), it explores the challenges of international cooperation to international human rights law and uncovers how, nonetheless, human rights provisions may turn into an international human rights law of cooperation and regulate inter-state interaction.

Prisca Feihle discusses the meaning of international cooperation to human rights law, engaging in detailed analysis of case-law to illustrate how the European Court of Human Rights (ECtHR) addresses cooperation between states in a range of areas including migration policies, surveillance measures or criminal investigations. Developing a comprehensive framework for states’ human rights responsibilities in international cooperation, she puts forward insightful recommendations on what human rights law under the ECHR demands of states beyond these specific subject matters. Suggestions concern the ECHR’s interactions with the law of international responsibility, interpretational method and the scope of application and content of human rights provisions in relation to inter-state interaction affecting individuals.

This judicious book is a vital resource for students and scholars of public international law, particularly those with an interest in the law of international responsibility, human rights law and especially the ECHR and ECtHR. It will also benefit those studying international relations, as well as practitioners and policymakers in the field of human rights law.'