In its recent judgment in X v. Georgia (March 2026), the European Court of Human Rights (the Court) answered the following question: can a State be said to have complied with its positive obligations under Article 3 (prohibition on torture) and Article 8 (respect for private and family life) of the European Convention on Human Rights (ECHR) where it maintains a formally adequate legal framework but fails to apply it effectively in practice? The case reveals that the existence of an adequate legal framework was not enough to prevent the investigation from stalling, nor to guarantee the applicant’s effective participation, nor to protect her from secondary victimization.

Although the Court affirmed the positive obligation to conduct an investigation as soon as possible, it does not yet appear willing to place the burden of proof on the respondent State. It still prefers to adopt an excessively formalistic approach regarding the evidentiary requirements it imposes on a victim alleging discrimination under Article 14-in particular, discrimination supported by credible evidence.

The victim, a minor who alleged she had been sexually assaulted by her stepfather between May and July 2019, revealed the events in 2021, leading to the immediate opening of a criminal investigation. This investigation uncovered messages in which she described the alleged assaults. However, despite this evidence, the investigation “remained at a standstill between 2021 and 2026, for more than five years, without any further action being taken.” Most importantly, throughout this period, the applicant was never granted victim status, which limited her ability to fully participate in the proceedings.

On the positive side, the Court confirms an analysis of Articles 3 and 8 of the Convention focused on the effectiveness of institutional practices and emphasizes that the protection of Convention rights does not depend on the formal existence of rules, but on their implementation by the investigating authorities ( X v. CYPRUS). Furthermore, it highlights the structural risks of victim-blaming when investigating and prosecutorial authorities are ill-prepared to handle cases of sexual crimes. The coexistence of a “satisfactory legislative framework” and a deficient investigative response in terms of effectiveness and speed reveals a deeper structural problem.

The Court then emphasizes the requirement of speed (S.Z. v. BULGARIA §47), which is of particular importance in cases of sexual violence involving minors because of the need for “particular diligence” given the vulnerability of the victim and the risk of retraumatization (P.M. v. BULGARIA, §64-65).

The judgment aligns with previous case law (X v. CYPRUS, § 123) in that it highlights the fact that an investigation which exposes a victim to further trauma cannot satisfy the requirements of Articles 3 and 8. Indeed, procedural obligations include not only the obligation to investigate, but also the obligation to conduct investigations in a manner which respects the dignity and psychological integrity of victims.

Nonetheless, the Court continued its reasoning by finding that the applicant had provided no evidence suggesting that, in comparable cases of sexual abuse, investigative failures disproportionately affect underage girls compared to underage boys. This implies that the burden of proof rests with applicants to provide statistical or comparative evidence demonstrating discriminatory treatment (see A. v. CROATIA, § 97). However, as this blog post argues, this burden of proof can place a disproportionate burden on victims of gender-based violence, not all of whom have equal access to such data.

It is noteworthy that the Court refrained from examining the discriminatory dimension of the case, although the Court itself had empirical evidence and referred to it. This gap contrasts sharply with its treatment of discriminatory motives on other bases such as race (NACHOVA AND OTHERS v. BULGARIA (2005, para. 160-161; 168), B.S. v. SPAIN (2012, §58-59), and sexual orientation IDENTOBA AND OTHERS v. GEORGIA (2015, para. 77-78) where the Court has held that failure to investigate discriminatory intent can amount to a violation of Article 14 (prohibition of discrimination). The Court has not made equivalent findings when it comes to sexist or gender-based discriminatory motives, particularly in cases involving sexual violence. As a result, the procedural obligation to unmask and address underlying sexist bias remains underdeveloped in the Court’s case law, highlighting a significant gap in the protection against gender-based discrimination under Article 14. In conclusion, by requiring the applicant to produce her own evidence to support her complaint under Article 14, the Court acknowledges structural deficiencies but addresses them solely from the perspective of the procedural obligations set out in Articles 3 and 8.

This trend raises a broader concern. It is difficult to reconcile the Court’s requirement that the applicant produce independent statistical evidence with the fact that relevant and credible evidence had already been submitted by her. This practice risks placing an excessive burden of proof on victims, particularly in cases of sexual violence, where structural patterns of discrimination are well documented.

In this context, a more victim centered approach would require the Court to examine these contextual elements in greater detail. When an applicant raises a plausible allegation of discrimination under Article 14, supported by credible evidence, it might be more appropriate to place the burden of proof on the respondent State to refute the appearance of discriminatory treatment, rather than requiring the applicant to prove structural inequality through independent statistics https://scandinavianlaw.se/pdf/51-1.pdf

To conclude, compliance with ECHR Articles 3 and 8 requires not only that States criminalize sexual assault, but also that they investigate these allegations diligently, sensitively, and with a genuine commitment to establishing the truth. The gap between the law and its application remains a significant challenge for the Court’s jurisprudence on sexual violence, a challenge that can only be addressed through legislative reform and greater attention to the procedural situation of victims. A clear-eye view of how gender discrimination manifest in practice would help to bring a sharper focus on these very procedural obligations Facts and figures: Ending violence against women | UN Women – Headquarters.  For its part, the Court should continue its search for fairness in the application of the sharing of the burden of proof in matters of gender-based discrimination, by clarifying the implementation of the criteria that determine this burden of proof, ensuring that it does not set too high a threshold for establishing prima facie evidence and examining the circumstances in which irregularities in official investigations should have consequences for the findings of gender-based discrimination.