FOURTH SECTION

DECISION

Application no . 52520/12 B.J. and S.J . against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 6 January 2015 as a Committee composed of:

Nona Tsotsoria , President, Paul Mahoney , Krzysztof Wojtyczek , judges,

and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 8 August 2012 ,

Having regard to the declaration submitted by the respondent Government on 29 September 2014 requesting the Court to strike the application out of the list of cases and the applicants ’ reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicants, Ms B.J. and Ms S.J. , are Polish nationals, who were born in 1969 and 1993 respectively and live in Płock . The first applicant is the mother of the second applicant. The President granted the applicants ’ request for their identity not to be disclosed to the public (Rule 47 § 4). They were represented before the Court by Ms M. Surdek and Mr A. Jodkowski , lawyers practising in Warsaw .

The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska , of the Ministry of Foreign Affairs.

The application had been communicated to the Government .

The facts of the case, as submitted by the parties, may be summarised as follows.

On the morning of 19 March 2008, the second applicant, who at that time was fourteen years old, played truant together with her friend E . , making use of the common rooms in the local fire station in T. with some school friends. The second applicant and her friends listened to music and took photographs with the camera she had brought with her. She was offered vodka and wine brought by A . , B . , C . , and D . , boys she knew from school. At some point she passed out. When she regained consciousness she was naked in a back room together with a few boys and was being raped by them. They took turns to rape her and they also took photos with the camera they had taken from her.

On 15 May 2008 the first applicant made a formal written request to press charges. On 20 May 2008 the second applicant was interviewed by the prosecutor. S he was questioned in a friendly environment in the so ‑ called “blue room” of the local social services office and not in the prosecutor ’ s office.

On 28 August 2008, at the prosecutor ’ s request, the judge for minors K.Z. decided to instigate an investigation in respect of A . , B . , C . , and D.

On 19 February 2009 a hearing was scheduled at which the second applicant was to be examined by the judge. The applicants were reassured that it would be held in a respectful setting and without contact with the accused. However, when they arrived at the court, the second applicant came into contact with her attackers, which destabilised her. Afterwards she was examined by the judge in the presence of a psychologist.

O n 13 May 2009 j udge K.Z. decided to continue the case before the family court (not the criminal court), initiating the special correctional proceedings applicable to minors.

On 22 June 2010 the Pł ock District Court ( Sąd Rejonowy ), sitting with K.Z . as a single judge, convicted A . , B . , C . , and D . of rape under Article 197 §§ 1 and 3 taken together with Article 200 § 1 of the Criminal Code and ordered them to be detained in a correctional facility for minors.

The court relied on the testimonies of all the witnesses: the accused, other pupils present at the party of 19 March 2008, the teacher J . , the second applicant ’ s girlfriends, in particular E . , and the victim S.J. The court also examined the expert opinion prepared by the Regional Family Consultation Centre and the additional opinion submitted at the hearing of 21 June 2010. It considered that the evidence collected allowed the facts and the guilt of the accused to be established. They had taken advantage of the victim ’ s state of intoxication and, acting deceitfully, had subjected her to sexual intercourse. Since the perpetrators were minors at the time of the events, the court decided to place them in a correctional facility.

The prosecutor and the accused appealed against the judgment. The applicants could not appeal as they had no standing in the proceedings.

On 5 November 2010 the Pł ock Regional Court ( Sąd Okręgowy ) quashed the impugned judgment, acquitted the accused A . , and remitted the remainder of the case to the lower court for reconsideration. The court considered that the proceedings had been subject to a procedural error, because the same judge had taken the procedural decisions at the investigative stage and had also determined the merits of the case. Although not illegal under domestic law, this violated the European Convention on Human Rights. As regards the accused A., the court considered that there was no evidence proving his participation in the rape of the second applicant. In particular, none of the witnesses, including the victim, indicated that A. had participated in the gang rape. The case regarding the charge of rape against B . , C . , and D . was remitted to the District Court.

On 4 February 2011 the second applicant again gave evidence before the family court. Afterwards, the court held several further hearings and on 28 September 2011 it found B . , C . , and D . guilty of the rape of the second applicant (under Article 197 §§ 1 and 3 of the Criminal Code; the charge under Article 200 § 1 of the Criminal Code had been dropped by the court). The court decided to place them in a correctional facility but suspended the sentence for a probationary period of two years. During the probationary period the convicted minors were to report to a court-appointed guardian and perform voluntary duties in a social care home.

The court established that B . , C . , and D . had planned the whole event in advance, had bought condoms and had encouraged the victim to drink the strong alcohol which they had brought.

Regarding the sentence, the court emphasised that the main purpose of the instant proceedings had not been to punish the perpetrators but to exert an educational influence on them as minors.

The applicant s appealed against the judgment.

On 8 February 2012 the Plock Regional Court upheld the impugned judgment.

COMPLAINTS

The applicants complained under Articles 3, 8 and 13 of the Convention. They refer red to the fact that the second applicant was questioned on three occasions and without due regard for her particular vulnerability in the light of her age and the type of crime committed. Moreover, the proceedings went on for too long, causing additional stress and suffering to the second applicant.

Secondly, they complain ed that the case was examined within the framework of the special proceedings for minors, which resulted in the de facto impunity of the perpetrators. Moreover, neither applicant could actively participate in the proceedings; in particular they could not appeal against the judgments .

THE LAW

After the failure of attempts to reach a friendly settlement, by a letter of 29 September 2014 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“T he Government wish to express by way of the unilateral declaration their acknowledgement of the fact that in the present case there has been a failure by the State to comply with its positive obligations to protect the second applicant from inhuman and degrading treatment and to safeguard her right to respect for her physical and moral integrity a nd private life within the meaning of Articles 3 and 8 of the Convention and that the applicants had not at their disposal an effective domestic remedy for their Convention complaints as required by Article 13 of the Convention .

Simultaneously, the Government declare that they are ready to pay the applicants jointly the sum of EUR 10,000 which they consider to be reasonable in the light of the Court ’ s case-law (...). The sum referred to above which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default peri od plus three percentage points.

The Government would respectfully suggest that the above declaration might be accepted by the Court as ‘ any other reason ’ justifying the striking out of the case of the Court ’ s list of cases, as referred to in Article 37 § 1 (c) of the Convention ...”

By a letter of 4 November 2014 , the applicants indicated that they were not satisfied with the terms of the unilateral declaration. They contested the amount of financial redress and submitted that their case had not been suitable for striking out.

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“ for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the case to be continued.

To this end, the Court examine d carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Spółka z o.o . v. Poland ( dec. ) , no. 11602/02, 26 June 2007; and Sulwińska v. Poland ( dec. ) , no. 28953/03).

The Court has established in a number of cases, including those brought against Poland , its practice concerning complaints about the violation of positive obligations, under Articles 3 and 8 of the Convention, that require States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals (see A. v. the United Kingdom , 23 September 1998, § 22, Reports 1998-VI; Z and Others v. the United Kingdom [GC], no. 29392/95 , §§ 73-75, ECHR 2001-V; and E. and Others v. the United Kingdom, no. 33218/96 , 26 November 2002, Wiktorko v. Poland , no. 14612/02, § 70, 31 March 2009; Grzywaczewski v. Poland , no. 18364/06, § 110, 31 May 2012; Karbowniczek v. Poland , cited above, § 93 . The Court has found that there existed positive obligations to enact criminal ‑ law provisions effectively punishing rape and to apply them in practice through effective investigation and prosecution (see M.C. v. Bulgaria , no. 39272/98, §§ 149-153 , ECHR 2003 ‑ XII R.I.P. and D.L.P. v. Romania , no. 27782/10 , § 65 , 10 May 2012 ; I.G. v. Moldova , no. 53519/07 , § 42 , 15 May 2012 ).

Having regard to the nature of the admissions contained in the Government ’ s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).

Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine ).

The Court considers that this amount should be converted into Polish zlotys at the rate applicable at the date of payment, and paid within three months from the date of notification of the Court ’ s decision issued in accordance with Article 37 § 1 of the European Convention on Human Rights. In the event of failure to settle within this period, simple interest shall be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.

Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention ( Josipović v. Serbia ( dec. ), no. 18369/07, 4 March 2008).

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government ’ s declaration under Article s 3, 8 and 13 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Done in English and notified in writing on 29 January 2015.

FatoÅŸ Aracı Nona Tsotsoria              Deputy Registrar President