The European Court of Human Rights has delivered judgments in R.E. and Others v. Iceland and Z v. Iceland, examining whether Icelandic authorities complied with their positive obligations under the Convention to effectively investigate allegations of sexual violence.
The cases concerned five female applicants, several of whom were minors at the time of the alleged incidents. In each case, domestic investigations were discontinued on grounds of insufficient evidence, and those decisions were upheld by the State Prosecutor.
Articles 3 and 8: Effectiveness of Investigations
The Court reiterated that Articles 3 and 8 impose positive obligations on States to criminalise non-consensual sexual acts and to ensure prompt, effective, impartial and thorough investigations. It emphasised that the core substantive requirement is a consent-based legal framework, rather than one focused on force.
The Court found that Icelandic law criminalised the full range of non-consensual sexual conduct and had, since 2007, adopted a consent-centred approach, reinforced by legislative amendments in 2018 and consistent domestic case-law. The Court was satisfied that Iceland maintained an adequate legal and procedural framework to protect sexual autonomy.
In R.E. and Others v. Iceland, the Court held that the national authorities had adequately addressed issues of consent and capacity to consent, including by applying enhanced procedural safeguards in cases involving minors. It found that the police and prosecutors had taken statements from complainants, suspects and relevant witnesses and had not disregarded any obvious lines of inquiry.
While acknowledging delays in questioning suspects in two cases, the Court assessed these in context, noting that complaints had been made weeks or years after the alleged events, no physical evidence had been lost, and the overall duration of proceedings remained within acceptable limits. The investigations, viewed as a whole, did not disclose shortcomings of sufficient gravity to constitute a violation. Accordingly, there was no violation of Articles 3 or 8 in R.E. and Others v. Iceland.
In Z v. Iceland, however, the Court reached a different conclusion. It noted that the adult suspect had admitted initiating physical contact with a 16-year-old who was asleep or semi-conscious, without any prior indication of consent. The prosecuting authorities accepted his assertion that the touching was not sexual and focused narrowly on whether he had ceased once discomfort was perceived.
The Court found this approach unduly restrictive. It held that the authorities failed to assess whether there was any reasonable basis for assuming consent in circumstances where sexual touching was initiated without communication, involving a minor. The decisive issue was not whether the suspect stopped, but that he began sexual contact absent unambiguous consent. This failure meant the investigation was not properly directed towards determining whether non-consensual sexual contact had occurred, resulting in a violation of the procedural aspect of Article 8.
Article 14: Alleged Discrimination
The applicants also alleged discrimination on grounds of sex, relying on statistical data indicating lower prosecution rates for sexual offences compared to other violent crimes. The Court held that such data required caution and did not, of itself, demonstrate differential treatment or structural bias. It accepted that evidential difficulties inherent in sexual violence cases could explain lower prosecution rates.
The Court found no evidence of prejudicial attitudes or discriminatory decision-making by the Icelandic authorities. While acknowledging institutional challenges and delays, it considered these attributable to resource constraints rather than gender bias, noting ongoing reforms and prioritisation measures. There was therefore no violation of Article 14 read in conjunction with Articles 3 and or 8.
The Court concluded that Iceland had generally complied with its Convention obligations in investigating allegations of sexual violence, save in Z v. Iceland, where the failure to rigorously apply a consent-based analysis led to a breach of Article 8.