Office of the United Nations High Commissioner for Human Rights, Palais Wilson, Geneva

Earlier this year, the Committee on the Elimination of Discrimination against Women (Committee) handed down a case on violence against women in the matter of T.S. v. Russia. The communication, which concerned the criminal investigation of a rape case, was declared inadmissible since domestic remedies were not exhausted (Article 4(1) of the Optional Protocol). Despite evidence that the author was re-victimized, the Committee found that the domestic investigations “could not be categorized as improper or otherwise ineffective.” By not considering re-victimization, the Committee missed an opportunity to analyze the exhaustion of domestic remedies requirement from a gender perspective.

The case was brought by T.S., who was raped by an acquaintance, V.S., with whom she went out a couple of times. In summer 2012, V.S. invited her to his apartment where he asked her to have sexual intercourse with him. When she refused, he became aggressive, undressed her, pushed her on the bed and raped her. T.S. was in shock thereafter and unable to leave the apartment. She spent the night in V.S.’s apartment and left the next day. Shortly after the incident, T.S. visited the Crisis Center for Women, a non-governmental organization, where she received counseling.

Two months after the incident, she filed a complaint before the Saint Petersburg investigation department, which instructed the Kalininsky district investigating agency to conduct a preliminary examination. This examination was closed for lack of evidence and T.S. lodged a complaint before the district court. The district court ordered the investigating agency to carry out another investigation that was again terminated. T.S. lodged two more complaints to the district court that lead to re-investigations by the same agency. Both investigations were eventually terminated. When she lodged a fourth complaint to the district court, the investigator opened the now fifth investigation proprio motu. The district court therefore closed the case. The city court, to which T.S. appealed, upheld the district court’s decision by reasoning that an investigation was underway. However, also this investigation was closed without a meaningful result and T.S. applied to the Committee.

T.S. was repeatedly re-victimized during domestic investigations. Re-victimization, also called secondary victimization, refers to the behavior or attitude of law enforcement personnel, members of the judiciary or social service providers that are victim-blaming, insensitive, expose victims to further humiliation or that employ gender stereotypes. Such disregard of a victim’s needs can be felt like ‘a second rape’ or ‘a second assault’. In the present case, the police alleged that T.S. had invented the incident and thus asked her to undergo a lie detector test, a method lacking scientific basis. T.S. was also questioned about the number of sexual partners and the age at which she began to have sexual relations, which are typical questions that attempt to undermine a victim’s credibility. Each time the case was re-opened it was the same investigator, who had closed the investigation before, questioning her and then closing the investigation again. V.S., however, was only questioned during the third investigation. Moreover, if T.S. was unable to recollect details of the event, the investigator allegedly raised her voice and cast doubt about her mental and professional competence. In addition, a police officer allegedly paid an unannounced visit to her apartment but left when she called her lawyer. T.S. stated that throughout the process she felt intimidated, humiliated and disbelieved.

In its response to the Committee, the State Party justified its behavior by stating that the investigator’s questioning of the author’s sexual life was “essential and their establishment is mandatory in the pre-investigation inquiries of crimes of a sexual nature”. The State Party further alleged that “the refusal to undergo a lie detector test, cast well-founded doubts about the forced nature of the sexual intercourse”.

Despite these shortcomings in the criminal investigation, the Committee declared the complaint inadmissible because “the State party’s investigative process could not be categorized as improper or otherwise ineffective.” The question arises to what extent re-victimization can be considered when deciding about the effectiveness of a domestic remedy. In order for a case to be declared admissible, an author needs to have exhausted all domestic remedies “unless the application of such remedies is unreasonably prolonged or unlikely to bring effective relief.” The rule of exhaustion of domestic remedies and the effectiveness exception are common in procedures before judicial and quasi-judicial international mechanisms. The rationale behind the rule is that international procedures are subsidiary and it is primarily the domestic system that implements human rights obligations. However, the exception to the rule acknowledges that certain domestic remedies are ineffective to provide relief from the start.

It could be argued that domestic remedies that re-victimize the person concerned do not provide for effective relief and do therefore not need to be exhausted. If rape victims are stigmatized and systematically disbelieved they are less likely to cooperate and participate which can render a criminal investigation ineffective. The lack of participation of T.S. was one of the central reasons for the Committee to find the communication inadmissible. The Committee noted that in “the numerous investigations conducted […] the author refused to participate in verification activities”. While it is not entirely clear from the decision to what extend T.S. refused to cooperate, it is indicated that the author did not want to show the location of V.S.’s apartment. Understandably, T.S. did not want to return to the place where she was raped. Re-victimization might have precisely been the reason for the lack of T.S.’s participation.

Although the Committee has in its General Recommendation No. 33 acknowledged that “secondary victimization of women by the criminal justice system has an impact on their access to justice”, it did not discuss this in the present case. The Committee missed the opportunity to address the connection between re-victimization and the requirement to exhaust domestic remedies under its complaint procedure.