X & Y v. The Netherlands

App. No. 8978/80, 8 Eur. H.R. Rep. 235 (1986).
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The applicant, a father of a mentally handicapped woman, found himself unable to institute criminal proceedings against an individual who had sexually assaulted his daughter due to a gap in the domestic criminal laws of the Netherlands, which required the victim to file the complaint herself. Although the victim was more than sixteen years of age, she was unable to file the criminal complaint due to her mental disabilities.

The applicant referred the case to the Court, alleging that the impossibility of instituting criminal actions on behalf of his daughter violated her right to respect for private and family life under Article 8 of the European Convention on Human Rights and Fundamental Freedoms, as well has her right to nondiscrimination under Article 14, taken in conjunction with Article 8, of the Convention.

The Court found that the impossibility of instituting criminal proceedings against the perpetrator of sexual assault on a minor with a mental disability breached Article 8 (right to private and family life). The Court underscored that the state had not only the obligation to refrain from interfering with the right, but also to undertake measures aimed at protecting the individual from interference by others. The Court also found that the provisions of Criminal Code at issue did not sufficiently provide "practical and effective protection" to Y.

Based on its holding regarding Article 8 (right to private and family life), the Court found it unnecessary to analyze the applicant's Article 14 (right to nondiscrimination) claims.

"21....There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

"24. [...] The Court, which on this point agrees in substance with the opinion of the Commission, observes that the choice of the means calculated to secure compliance with Article 8 (art. 8) in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States’ margin of appreciation. In this connection, there are different ways of ensuring "respect for private life", and the nature of the State’s obligation will depend on the particular aspect of private life that is at issue. Recourse to the criminal law is not necessarily the only answer."

"28. According to the Government, it was the exceptional nature of the facts of the case which disclosed the gap in the law and it could not be said that there had been any failure on the part of the legislature. The Criminal Code admittedly contained no specific provision to the effect that it was an offence to make sexual advances to the mentally handicapped. However, criminal proceedings could in certain circumstances be instituted on the basis of Article 239 para. 2 of the Criminal Code, with or without a complaint by the victim, against anyone who violated the sexual integrity of a mentally handicapped person. Under this Article, it was an offence to commit an act of indecency "while another person is present against his will", a phrase which the Supreme Court had interpreted as also covering a person who was the actual victim of an indecent act.

According to the applicants, on the other hand, the current Criminal Code offered insufficient protection (see paragraphs 41-43 of the Commission's report)."

"30. Thus, neither Article 248 ter nor Article 239 para. 2 of the Criminal Code provided Miss Y with practical and effective protection. It must therefore be concluded, taking account of the nature of the wrongdoing in question, that she was the victim of a violation of Article 8 (art. 8) of the Convention."

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