EIT: Tanska kohteli raiskauksen uhria epäinhimillisesti ja halventavasti kun raiskaussyytettä ei voitu nostaa syyttäjänviraston tekemien virheiden johdosta

Significant flaws in the procedural response to a rape allegation

In yesterday’s Chamber judgment in the case of Daugaard Sorensen v. Denmark (application  no. 25650/22) the European Court of Human Rights held, unanimously, that there had been:

• a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights, and
• a violation of Article 8 (right to respect for private and family life) of the Convention.

The case concerned the withdrawal of charges against the applicant’s alleged rapist, in view of errors that had occurred at the Regional State Prosecutor’s Office, in particular a failure to comply with a statutory time-limit.

The Court found in particular that at least three consecutive errors had been committed – and acknowledged – by the prosecution service. Regardless of who had been responsible for failing to ensure compliance with the prescribed deadline, the result remained the same; the charges against the alleged perpetrator had been dismissed. As a result, Ms Daugaard Sorensen had been deprived of an effective prosecution or judicial review in respect of the alleged rape that she  had reported to the police. Therefore, the Court concluded that there had been significant flaws in the procedural response to her allegations. Denmark had thus failed to fulfil its duties under those Articles of the Convention.

On 7 June 2021 Ms Daugaard Sorensen reported to the police that she had been raped the previous night. The next day, her alleged rapist, A, was remanded in custody. The police investigated the case, which included interviewing the applicant and a number of individuals, examining the scene of the crime and the applicant’s clothes, and searching A’s home. A was released on 18 June 2021.

On 30 July 2021 the prosecution decided to drop the charges against A, finding that there was insufficient evidence to prove that he was guilty of rape. Amongst other things, there were two opposing statements and no other evidence to conclusively corroborate the statement of either side.

On 18 August 2021 Ms Daugaard Sorensen appealed against the decision, and it was overturned by the Regional State Prosecutor on 16 September 2021. That decision had to be served on A before 30 September 2021, that is to say within two months of the date of the initial decision of 30 July 2021, either through A’s Digital Post account (e-Boks) or by registered letter. Under Danish law it is compulsory for all citizens over the age of 15 to have a Digital Post account in  order to ensure secure digital communication between them and the public authorities. Dispensations can only be granted if the person concerned cannot use a computer due to physical or mental disabilities or other difficulties.

Owing to a typing error in the entry concerning A in the prosecutor’s database, it was incorrectly assumed that he was not able to receive letters through a Digital Post account. Consequently, a registered letter was sent. However, on account of another error in the database, it was not written in the address field of the letter that A had a c/o address, that is to say, that he was registered and lived at the address, but his name was not on the letterbox. The letter was therefore returned to the prosecutor’s office on 23 September 2021 with a stamp stating: “addressee unknown at this address”. Owing to yet another error, no further attempt was made to serve the letter. Having failed to inform A about that decision within the two-month time-limit set out in section 724(2) of the Administration of Justice Act, the charges against him were dropped by a City Court decision of 16 November 2021.

Ms Daugaard Sorensen was informed that the charges had been dropped when the regional state prosecutor wrote a letter to her lawyer two weeks later, apologising and explaining that it was due to a mistake that his office had made when sending a registered letter to A. Ms Daugaard Sorensen’s subsequent court claims for compensation were refused.

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