A/HRC/44/52/Add.1 private-public, which means that a criminal prosecution of a general nature will be instituted upon a complaint of the aggrieved person to the prosecution and it cannot be terminated at her or his request. These provisions indicate that domestic violence is still considered a private matter. The Special Rapporteur recalls that according to international standards, States have the obligation to ensure that, for physical violence, the prosecution shall not be wholly dependent upon the report or complaint filed by the victim (ex parte) and that the public prosecution under way may continue even if the victim has withdrawn her or his statement or complaint (ex officio).9 28. The definition of rape in article 152 of the Criminal Code is not in line with international standards. Marital rape is not explicitly criminalized, the definition of rape covers only women, it is not fully based on the lack of consent and it does not cover all types of rape. It should be noted that article 152 includes the notion of “consent” explicitly in its wording and lack of consent is established as the constituent element of the offence. However, lack of consent is linked to the use of force and threat by a perpetrator and therefore, when there is no clear sign of resistance from the victim or in the absence of physical violence, the lack of consent itself will not be considered an element of crime. In the case of M.C. v. Bulgaria, the European Court of Human Rights concluded that any nonconsensual sexual act, including in the absence of physical resistance by the victim, should be penalized and effectively prosecuted. It further added that “any rigid approach to the prosecution of sexual offences, such as requiring proof of physical resistance in all circumstances, risks leaving certain types of rape unpunished and thus jeopardizing the effective protection of the individual’s sexual autonomy”.10 29. Furthermore, the definition of rape provided for in article 152 does not cover all types of rape, contrary to international human rights standards, as elaborated in the jurisprudence of the Committee on the Elimination of Discrimination against Women in the case of V.P.P v. Bulgaria (see CEDAW/C/53/D/31/2011) and in article 36 of the Istanbul Convention. All other types of sexual coercion, including coercive oral or anal penetration, irrespective of whether it is with the penis, with another part of the body or with an object, are interpreted as “fornication” but not as rape.11 Protection against Discrimination Act 30. In 2003, Bulgaria adopted the Protection against Discrimination Act. In article 4 (1) direct or indirect discrimination are prohibited on 19 grounds, including sex, sexual orientation, race, extraction, ethnicity, nationality, origin, religion or faith, as well as other grounds established by law or by an international treaty to which Bulgaria is a party. Article 7 lists the cases in which different treatment of a person does not constitute discrimination, including the possibility of affirmative action or special measures benefiting disadvantaged persons or groups identified in article 4 (1). Between 2014 and 2019, the Protection against Discrimination Act was amended by introducing provisions such as the shift of the burden of proof in cases of discrimination, the inclusion of transgender cases in the definition of gender-based discrimination, the definition of indirect discrimination, unfavourable treatment and provisional promotional measures (which, under this law, do not constitute discrimination). However, gender identity or gender expression are not included among the grounds explicitly listed, although sexual harassment is considered a form of discrimination and is prohibited under article 5 of the Act. The definition of sexual harassment in the Act reads: “any unwanted conduct of a sexual character expressed physically, verbally or in any other manner, which violates the dignity or honour or creates a hostile, degrading, humiliating, intimidating or threatening environment and, in particular when the refusal to accept such conduct or the compulsion thereto could influence the taking of decisions, affecting the person” (additional provision 1 (2)). 9 10 11 8 See the Istanbul Convention and Committee on the Elimination of Discrimination against Women, general recommendation No. 35. M.C. v. Bulgaria, European Court of Human Rights judgment of 4 December 2003, para. 166. See, for example, http://domino.vks.bg/bcap/scc/webdata.nsf/Keywords/ DFC2A9BF472658BAC225779300476901.