Communicated on 29 June 2015

FOURTH SECTION

Application no. 20416/13 M.P . against Poland lodged on 13 March 2013

STATEMENT OF FACTS

The applicant, Ms M .P. , is a Polish national, who was born in 1952 and lives in Warsaw.

A. The circumstances of the case

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

The applicant ’ s son, M.P., born in 1974, suffers from a considerable intellectual disability. He is legally incapacitated and the applicant acts as his guardian. M.P. attends a municipal day-care centre for disabled persons in Warsaw-Mokotów.

On 18 January 2007 , after M.P. ’ s return from the centre, the applicant noted blood on his buttocks, thighs and trousers. M.P. told the applicant that he had been raped by J.K., a therapist of the centre. The alleged rape took place in a bathroom during a carnival ball organised by the centre. M.P. was allegedly assaulted and threatened by J.K.

On 24 January 2007 the applicant informed the director of the centre, Z.P. about the above facts. On an unspecified later date in January 2007 the director filed a criminal complaint with the Warsaw-Mokotów District Prosecutor ’ s Office , alleging that the therapist J.K. had raped M.P.

On 5 February 2007 the junior prosecutor of the Warsaw-Mokotów District Prosecutor ’ s Office interviewed M.P. in the presence of a psychologist (M.T.) and the applicant. During the interview, M.P. stated that “ J. raped me, it happened three times, it was Mr J. from the centre where I go. He beat me once, he hit me, he hit me with a belt. He had to h it me with a belt, he beat me ”. Subsequently, in view of the difficulties with understanding M.P. ’ s speech, the junior prosecutor allowed the applicant to take part in the interview. M.P. explained that J. had held his buttocks, beat him and threatened him. The events took place in a men ’ s toilet next to the carpentry workshop. M.P. stated that a similar incident had occurred during a residential camp organised by the centre a few months earlier .

On 5 February 2007 J.K. was placed in pre-trial detention and remained there until 21 November 2007.

On 29 August 2007 the prosecutor filed a bill of indictment against J.K. with the Warsaw-Mokotów District Court. The prosecutor alleged that J.K. had raped the applicant ’ s son having taken advantage of his mental disability (Article 198 of the Criminal Code).

The applicant had the status of auxiliary prosecutor in the proceedings.

J.K. claimed his innocence and gave evidence.

M.P. was heard by the trial court. He was unable to comment on his statements made before the prosecutor and did not understand questions put to him by the court. The hearing of M.P. was terminated following the opinion of the psychologist B.J.

The trial court considered that in view of M.P. ’ s considerable disability and difficult contact with him, the assessment of his evidence required the assistance of experts in psychology.

The psychologist M.T., who had taken part in the first interview of M.P., concluded in her written opinion that M.P. was capable of reconstructing simple situations concerning him directly and that his statements could be taken into account as reliable evidence. His statements were brief but he gave basic information about the perpetrator and the alleged act in a sufficiently clear manner.

The psychologist B.J., who had observed M.P. giving evidence before the trial court, opined that M.P. ’ s perception and the ability to reconstruct his observations were considerably limited . His statements could not have been considered psychologically credible having regard to his limited verbal and intellectual abilities. The expert further stated that M.P. had a tendency to fantasise and was prone to suggestions.

The trial court decided to hear both experts in view of the discrepancy between their opinions. However, this did not resolve the existing discrepancy. Th e psychologist B.J. stated that M.P. ’ s statements were credible with regard to the fact of rape but not with regard to the person of a perpetrator.

In view of the persisting divergence of opinion between the experts, the trial court decided to obtain a joint opinion of two psychologist s, M.T. and H.D. as well as of an e xpert in special education, A.O. The experts examined M.P. on 15 January 2009 at the centre. In their joint opinion they observed that M.P. ’ s ability to remember and reconstruct his observations was commensurate to the level of his disability. His statements resulted from his own experience, were independent and reflected his communication skills. M.P. still showed fear of J.K. which indicated a considerable feeling of harm. M.P. ’ s trauma was indirectly confirmed by his physiological disorders, such as faecal incontinence after his return from the residential camp and after the carnival ball at the centre.

The experts concluded that despite a considerable intellectual disability of the victim, they did not detect that he would imagine situations entirely inconsistent with his own experience or perception. In view of M.P. ’ s speech impairment, his statements about the events were primitive and terse, but psychologically convincing. M.P. confirmed the fact of rape, indicated the perpetrator, had a strong feeling of harm and his reactions pointed to a trauma related to his abuse. In their view, there were no indications that anyone could have suggested to M.P. the alleged act or point to a concrete perpetrator. They did not detect either th at M.P. had a tendency to fantasise .

The psychologist B.J., heard again by the trial court, agreed with the conclusions presented in the joint expert opinion. She observed that her earlier opinion had been based on her conversation with M.P. and his evidence before the trial court, while the joint opinion had been based on an interview carried out in the centre which was a safe environment for M.P.

The trial court found that the joint opinion was comprehensive and consistent and decided to admit it in evidence. It further took into account the applicant ’ s consistent evidence concerning the allegations made by M.P.

The trial court heard evidence from Z.P., the director of the centre and D.K., a therapist employed in the centre. The latter testified that she had had a very good relationship with M.P. and that on 23 January 2007 M.P. told her that J. had raped him. M.P. told her that the event occurred in the toilet near the carpentry workshop and that he was afraid of J.K. The trial court considered their evidence credible as it was consistent with the evidence of the applicant.

The trial court heard evidence from a surgeon K.A. who stated that it had been impossible to determine the cause of bleeding from anus after a few days from the alleged events had passed . The medical examination took place on 5 February 2007. The court further heard expert in sexology. The latter expert did not identify that J.K. had a homosexual orientation. The expert in genetics concluded that the hair found in M.P. ’ s pants were his own hair. The court further heard evidence from other employees of the centre and the family of M.P.

On 2 March 2010 the Warsaw-Mokotów District Court convicted J.K. of the offence under Article 198 of the Criminal Code and sentenced him to three years ’ imprisonment. It also imposed on J.K. a five-year ban on working with minors and persons with mental disabilities. The court found that J.K. ’ s guilt was established beyond do ubt. The principal evidence was the statements of M.P. which the trial court considered credible in the light of the expert opinions. M.P. confirmed the fact of sexual abuse and indicated J.K. as the perpetrator. The court further relied on the evidence of the applicant and employees of the centre. It also took into account the circumstantial evidence, such as the changes in behaviour of M.P. after his return from a residential camp where he had shared a room with J.K. and his faecal incontinence.

J.K. filed appeal. He argued, inter alia , that the trial court had erroneously assessed the evidence in the case. In particular, the trial court had erred in considering M.P. ’ s evidence credible whereas he had made inconsistent and contradictory statements. The reliance on the joint expert opinion was also erroneous since that opinion had been contradictory and incomplete. Furthermore, the trial court had erred in admitting in evidence the joint opinion of experts M.T., H.D. and A.O. where it had been unable to resolve the differences between the earlier opinions of M.T. and B.J. In that situation the trial court should have called different experts.

On 24 September 2010 the Warsaw Regional Court quashed the trial court ’ s judgment and remitted the case. It found that the only incriminating evidence in the case were the statements of M.P. Having regard to the considerable level of his mental disability, it was necessary to interpret M.P. ’ s statements with the assistance of psychologists. However, the appellate court noted that the record of M.P. ’ s interview at the investigation stage did not match the content of his evidence given before the trial court. The latter evidence was entirely incoherent. The appellate court expressed doubts whether M.P. ’ s statements included in the record of his first interview reflected his actual statements. The psychologist M.T. expressed the view that the first statements were reliable, while the expert B.J. opined that the second statements did not meet the criteria of psychological credibility. The hearing of both experts by the trial court did not resolve the divergence in their opinion. In that situation, the trial court was required to call new experts. However, the trial court again called the same expert M.T. to prepare a joint opinion with two other experts. Such a decision was in breach of Article 201 of the Code of Criminal Procedure and created the impression that the trial court had favoured one of the opinions. The appellate court found that this error alone sufficed to quash the trial court ’ s judgment since it was essential for the assessment of the only evidence incriminating the accused. In addition, the appellate court expressed his doubts about the trial court ’ s assessment of the opinion submitted by the expert in sexology.

The appellate court instructed the lower court to call a different panel of experts with a view to comprehensively assess the level of the victim ’ s disability, his ability to perceive and reconstruct events, his inclination to fantasise and susceptibility to suggestions from others as well as his ability to independently formulate his statements. The panel should include a psychiatrist. The lower court was further instructed to examine the manner of recording M.P. ’ s statements during his first interview.

Accordingly, the trial court ordered that opinions be prepared by a psychiatrist and a psychologist.

The psychiatrist S.K. observed M.P. during his hearing before the trial court on 21 March 2011. He noted that M.P. had been emotionally tense and that the contact with him was difficult. M.P. ’ s statements were short and his speech was unclear. M.P. reported that he had contact with “J.” and claimed that “J.” had harmed him and that he had been afraid of “J.”.

The psychiatrist S.K. concluded in his report that M.P. had a considerable mental disability but did not suffer from a mental illness. He noted that M.P. had reacted with a considerable tension when the act imputed to J.K. had been discussed. The psychiatrist noted that it could not be excluded that M.P. ’ s statements were consistent with his personal experience. However, his statements should have been verified by other elements and a psychological experiment.

The expert psychologist W.G. , having observed M.P. at the hearing on 21 March 2011, opined that M.P. suffered from a considerable mental disability and that his perception of the alleged events was commensurate with the level of his disability. The psychologist opined that it was necessary to carry out a psychological experiment in order to determine whether the fact that M.P. indicated J.K. as the perpetrator had resulted from suggestions of other persons or reflected his own experience.

Following the experiment, the psychologist noted that M.P. had had serious difficulties in expressing his thoughts. M.P. expressed single words or, with more difficulty, simple sentences. The psychologist opined that M.P. ’ s ability to perceive, remember and reconstruct his observations was seriously limited. After the passage of the considerable period of time from the alleged events it was impossible to clearly separate his own experience from information received by him from his environment. The psychologist noted that M.P. had a distinct emotional relationship with J.K. which was strongly negative. This was reflected in his behaviour and his statements accompanying the process of reconstruction of his observations about the alleged events.

Both experts were heard by the trial court. The trial court found their opinions comprehensive and decided to rely on them. Despite the experts ’ difficulties with drawing definite conclusions, they concurrently opined that the psychological condition of M.P. did not allow to precisely establish the concrete events, and in particular, to reconstruct or verify the fact that the accused had committed the imputed offence.

The trial court heard evidence from the psychologist M.T. who had earlier opined that M.P. ’ s statements could have been considered reliable. The trial court did not agree with this opinion since it was contradicted by the subsequent opinions of experts S.K. and W.G. The latter experts established that M.P. ’ s statements pointed to some traumatic experience of M.P. but did not permit to determine which specific events had been at stake.

The trial court heard evidence from the prosecutor who had initially interviewed M.P. The prosecutor stated that the contact with M.P. during the interview had been difficult and therefore she opted for translating his statements into a form which could be used in the proceedings. The trial court considered this evidence credible. The evidence of the prosecutor confirmed that the record of the first interview of M.P. had not reflected the actual course of the interview.

The trial court, having regard to the expert opinions and its own contact with M.P., found that M.P. ’ s statements could not be considered credible. The statements of M.P. were the only direct evidence of the alleged offence. The trial court had serious doubts about the discrepancy between the form of M.P ’ s statements recorded during his first interview with the prosecutor and those recorded before the trial court. The record of the first interview contained full sentences and had clear and logical content. When M.P. was first heard by the trial court he expressed short sentences unrelated to the context and focused on repeating the questions. During his second hearing by the trial court, M.P. did not logically react to the questions put to him by the court or the expert. M.P. mostly repeated questions put to him in an affirmative way. The court put a question to M.P. what did he mean by the word “to rape”. However, it was not possible to determine what was M.P. ’ s understanding of this word on the basis of his statements .

On 11 April 2012 the Warsaw-Mokotów District Court acquitted J.K. of the imputed offence. It noted that M.P. ’ s statements, which were carefully scrutinised by the experts, were the principal evidence in the case. In the trial court ’ s view, the impugned statements did not allow to determine whether they related to a sexual act on M.P. or to an entirely different act, not connected with the sexual behaviour of the accused, which had simply left a trace in M.P. ’ s consciousness , such as a situation where M.P. had been punished by J.K. The witness evidence indicated that M.P. had felt respect for J.K.

The trial court found that it could not be excluded that M.P . could have recounted events which had not reflected his personal experience as a result of the attitude of his mother and other close persons. The court noted that M.P. ’ s statements at the trial consisted mostly of repeating content unrelated to the specific circumstances of the imputed act. In conclusion, the trial court established that M.P. ’ s statements could not have been treated as credible evidence capable of categorically proving the guilt of J.K.

The trial court further found that none of the remaining evidence confirmed the guilt of the accused. The medical examination of M.P. did not confirm the allegation against the accused. The firm opinion of the expert in sexology excluded the possibility of J.K. ’ s homosexual orientation . Lastly, the trial court found that the evidence of the applicant, Z.P. and D.K. was not a direct evidence of the alleged offence.

The applicant (auxiliary prosecutor) filed an appeal. She argued that the lower court had unfairly assessed the evidence supporting the credibility of the victim ’ s account . The applicant stressed that the trial court should have been very careful with the assessment of M.P. ’ s evidence, having regard to his intellectual disability. M.P. ’ s intellect ual disability (and not “mental disability” as referred to by the trial court) entailed certain limitations on his abilities, but in no way prejudged the issue of his credibility. In the applicant ’ s view, the trial court should have used alternative procedures for hearing evidence from the victim, having regard to the specific features of the case, the victim ’ s trauma and the fact that his intellectual disability may have prevented him from giving evidence in a court room, even with the assistance of a psychologist. Instead, the trial court r efused her request to hear M.P. in appropriate conditions and to have such a hearing video-recorded.

The applicant argued that M.P. ’ s speech impairment could not have justified the finding that his evidence was not credible. M.P. ’ s statements could constitute reliable evidence and be verified provided that an interview was carried by somebody who had a good contact with M.P. and was aware of his communication patterns. The relationship based on trust was essential in order to obtain credible information from a victim of sexual offence who suffered from an intellectual disability.

The applicant further submitted that the opinions of experts S.K. and W.G. obtained by the trial court did not contain any clear conclusions capable of undermining the evidence of M.P. She a lso argued that the lower court had wrongly found that the record of M.P. ’ s first interview did not reflect the actual course of that interview.

The prosecutor also filed an appeal.

On 13 September 2012 the Warsaw Regional Court upheld the acquittal judgment.

The appellate court found that the examination of the case was very difficult on account of the condition of the victim who, as established by the experts, suffered from a considerable disability. M.P. ’ s evidence was the only direct evidence against J.K. and therefore the trial court had had to assess it with particular diligence.

The appellate court found that certain errors had been committed at the beginning of the proceedings which had considerably influenced the judgment in the case, and that these errors could not have been subsequently corrected. This concerned, in particular, the first interview of M.P. carried out by the prosecutor which should have been sound-recorded. Secondly, the written record of that interview should have reflected the actual course of the interview with regard to the content and form of M.P. ’ s statements. The applicant should have been heard only subsequently if the meaning of some statements had not been clear. In that situation the trial court was unable to assess the first interview of M.P. which was particularly important in the light of the subsequent hearing before the court at which M.P. had made the impression that he had not understood the meaning of his initial statements.

The appellate court further underlined that the investigation in the case had not addressed the reasons for M.P. ’ s bleeding on 18 January 2007 and whether there had been any evidence of injuries.

The expert evidence in the case indicated that some hurtful incident had occurred because M.P. had felt great harm and there been signs of blood. Nonetheless, the trial court correctly found that in the light of changing accounts of the victim and the fact that when heard by the trial court M.P. had only talked about beating, kicking and threatening without reference to sexual acts, it was difficult to determine the actual course of the events. Furthermore, the applicant ’ s mother notified the director of the centre of the alleged abuse with certain delay but the prosecutor did not question persons who had direct contact with M.P. after the alleged event.

The appellate court dismissed the applicant ’ s argument that the trial court had failed to hear M.P. in suitable conditions. It stated that such a hearing would have been futile relying on the evidence of the witness Z.P. who had stated that M.P. had short memory.

In conclusion, the appellate court fund that the assessment of evidence by the trial court had been correct and that, having regard to the principle in dubio pro reo , the decision to acquit J.K. had been justified.

The Regional Court granted the applicant legal aid for the purposes of cassation proceedings. On 19 December 2012 the appointed legal-aid lawyer informed the Regional Court that he found no legal grounds on which to prepare a cassation appeal.

B. Relevant domestic law

Article 198 of the Criminal Code reads as follows:

“ Whoever, taking advantage of the vulnerability of another person, or of the lack of ability to recognise the significance of the act or ability to control his/her conduct, resulting from mental disability or disorder, subjects such a person to sexual intercourse or makes him/her submit to another sexual act or to perform such an act shall be subject to the penalty of the deprivation of liberty for a term o f between 6 months and 8 years.”

COMPLAINTS

The applicant relies on Article 6 § 1 in conjunction with Article 14 of the Convention. She complains that the courts refused to consider M.P. ’ s evidence of abuse credible solely on account of his intellectual disability. Furthermore, the courts did not create conditions in which M.P. could give evidence in a manner compatible with his abilities. It was essential that hearing of M.P. should be carried out by a person having a relationship of trust with him and aware of his communication patterns . The trial court should have used alternative procedures for hearing evidence from the victim, having regard to the specific features of the case . In this respect, the applicant also invokes Article 13 of the UN Convention on the Rights of Persons with Disabilities. As a result of the above failures, M.P. was deprived of an opportunity to be adequately protected from violence and ill ‑ treatment.

The applicant underlines that persons with intellectual disabilities were three times more exposed to the risk of sexual abuse than able-bodied persons and that they were frequently abused by persons in the position of authority to them.

QUESTIONS TO THE PARTIES

1. Has the applicant ’ s son been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention? Did the authorities comply with their positive obligation to prote ct the applicant ’ s son from ill ‑ treatment, including through the adoption of special measures and safeguards (cf. M.C. v. Bulgaria , no. 39272/98, ECHR 2003 ‑ XII; and O ’ Keeffe v. Ireland [GC], no. 35810/09, §§ 144-148, ECHR 2014 (extracts) )

2. Having regard to the procedural protection from inhuman or degrading treatment, was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?

3. H aving regard to the fact that the alleged ill-treatment concerned a person with intellectual disability, did the authorities take sufficiently into account this particular aspect of the case in the course of the investigation and the subsequent judicial proceedings?