Written by Oliver Patterson, AIRE Centre Intern, UK Team

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Article 3 of the European Convention on Human Rights (“the Convention”) imposes a procedural obligation on Member States to conduct an effective investigation into plausible claims of ill-treatment contrary to Article 3 (X and others v Bulgaria, no. 22457/16, 2 February 2021 at §178), which includes rape and sexual abuse (N.T. v Cyprus, no. 28150/22, 3 July 2025 and X v Greece, no. 38588/21, 13 February 2024; see also Metropolitan Police v DSD [2019] A.C. 196).

In recent developments, the European Court of Human Rights (“the Court”) has shed more light on how discriminatory beliefs, stereotypes, and motives may be found to impact such investigations. This article looks at the different ways the Court has clarified the contours of this obligation throughout its case law, paying particular attention to some key cases in which the AIRE Centre has intervened. 

What is the standard for an “effective investigation”? 

The Court has previously identified several key characteristics of an effective investigation, including a requirement of promptness and reasonable expedition, the effective participation of the victim in the investigation, and the separation of the institutions responsible for conducting the investigation from those targeted by it, among other things (see Bouyid v Belgium, no. 23390/09, 28 September 2015, §117-123). There are several rationales for these obligations, such as the avoidance of secondary victimisation whereby the victim suffers further harm due to institutional failures that perpetuate stereotypes to the detriment of the victim (see J.I. v Italy, no. 5671/16, 27 May 2021) and the avoidance of the perception that the authorities are in collusion with or tolerant of the unlawful acts in question.

The impact of prejudicial attitudes and stereotypes on investigations

Due to the prevalence of prejudicial beliefs and stereotypes concerning, among other things, gender, disability, and questions of consent, the key characteristics of effective investigations have often been negatively impacted by bias. 

One of the central developments in the Court’s recent case law concerning this has been on the issue of non-consent. The Court has increasingly made it clear that the central task of the Court in cases concerning sexual assault and rape is the issue of non-consent, not necessarily the use of violence or force. In L and others v France (no. 46949/21 and 2 others, 24 April 2025), for instance, the Court considered that the relevant authorities failed in their duty to effectively enforce a criminal law system capable of punishing non-consensual sexual acts against minors (§250), inter alia. When the investigation was being conducted by the police into one of the applicant’s allegations of rape, the applicant was indirectly criticised for not expressing her lack of consent by screaming or physically resisting (§8 and §227), which amounted to a violation of the procedural obligation to conduct an effective investigation due to the use of moralising and guilt-inducing statements. In such circumstances, the Court has concluded that these kinds of statements may lead to secondary victimisation and may deprive individuals of adequate protection due to the inappropriate manner in which the relevant authorities approached their investigations, particularly on the issue of non-consent. 

While the Court recognises that it can be hard in practice to prove the absence of consent without “direct” proof, the relevant authorities must nonetheless demonstrate an appreciation of the importance of how the investigation being conducted and evidence being collected speaks to the issue of non-consent. Similarly, in I.C. v Moldova (no. 36436/22, 27 February 2025), in which the AIRE Centre intervened, the Court held that a line of question focused on determining if a victim had enjoyed sexual relations with the accused was not only irrelevant to the issue of non-consent but also “contribute[d] to the stereotype of a female victim being somehow responsible for an assault” (§199). Another facet of I.C. v Moldova concerned the failure of the relevant authorities to give weight to the applicant’s intersecting forms of vulnerabilities as a result of their gender, intellectual disability, and lifelong history of being institutionalised. The Court assessed that the domestic authorities failed to adequately investigate her allegations of servitude and sexual abuse, and this reflected the “institutional passivity and/or lack of awareness of the phenomenon of violence against women with disabilities in Moldova” (§222). 

Furthermore, X v Cyprus (no. 40733/22, 27 February 2025) concerned the alleged rape of a British national in which the Court found that Cyprus had failed to effectively investigate the allegations made by the applicant. In assessing the credibility of the applicant’s allegations, the Court found the relevant authorities’ disinclination to continue the investigation was based on  the “applicant’s sexual liberty and [prior] conduct” (§119). As a result, the Court considered that the national authorities had assessed the credibility of the applicant through “prejudicial gender stereotypes and victim-blaming attitudes” (§119) rather than determining how the evidence pointed to the issue of non-consent, which is the central task in such an investigation (§117). Moreover, the Court also examined the recommendations made by Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO), the independent body responsible for monitoring state adherence to the Istanbul Convention, to point out systemic failures for the protection of women from sexual violence in Cyprus (§125). 

In N.T. v Cyprus (no. 28150/22, 3 July 2025), in which the AIRE Centre intervened, the Court found that the conclusions drawn by the Deputy Attorney General had been selective and indicative of a victim-blaming attitude owing to the emphasis placed upon the applicant’s statement that she “liked” the accused, for example (§36). Thus, their supposition that this impacted her credibility, due to her behaviour “sending him the wrong signal that consent on her behalf was self-evident” (§36), was heavily criticised by the Court as exposing the applicant to secondary victimisation owing to the use of guilt-inducing and moralising statements (§78; see also the Concurring Opinion of Judge Krenc). This is also illustrated by cases in which a “marital duty” is claimed to have subsumed the requirement of consent in sexual relations. This was considered in H.W. v France (no. 13805/21, 23 January 2025) in which the Court recognised that consent to marriage does not equate to consent to sexual relations. 

Conclusion 

The Court has demonstrated a willingness to ensure that Member States conduct investigations into allegations of ill-treatment contrary to Article 3 of the Convention as effectively as possible. It is clear from the Court’s most recent case law that, in order to do so, there must be a demonstrable commitment to ensuring that stereotypes and victim blaming attitudes, particularly in cases concerning the issue of non-consent and gender-based violence, are overcome in order to avoid secondary victimisation and negatively impacting the effectiveness of the investigation. It is equally clear that moralising and victim-blaming statements will not be tolerated and that an investigation must be centred around the issue of non-consent.