Communicated on 7 April 2014

FOURTH SECTION

Application no. 52520/12 B.J. and S.J. against Poland lodged on 8 August 2012

STATEMENT OF FACTS

The first applicant, Ms B.J., is a Polish national who was born in 1969. She is the mother of the second applicant, Ms S.J., who was born in 1993. They both live in P.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, 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. Different individuals came and left, some playing table football or ping pong.

The second applicant and E. were offered vodka and wine brought by A, B, C, and D, boys she knew from school. The second applicant submitted that she had never drunk strong alcohol before and started feeling poorly. 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 while one of them held the door to the room closed so that nobody could enter. They turned her over in order to perform oral, vaginal and anal intercourse. They also took photos with the camera they had taken from her. The victim was under the influence of alcohol and felt totally unable to resist or protest. The next thing she remembered was being dressed by her friend E. and A. Later, at around 5 p.m., she returned home by bus, accompanied by B. The second applicant did not talk to her parents and for some time avoided talking to her girlfriends, although many pupils at school knew what had happened and started gossiping about it.

On 7 May 2008 the first applicant learned about the events of 19 March from the parents of one of the second applicant ’ s girlfriends. On the same day the first applicant went to a police station to register a complaint that a crime had been committed.

At an unspecified time, the gossip about the rape reached the second applicant ’ s teacher J She interviewed several girls, in particular E, and learned the details of the event in question. She informed the school psychologist and the head teacher.

The second applicant did not return to school after May 2008. In September 2008 she started attending another school. At that time she was receiving psychological support.

On 15 May 2008 the first applicant made a formal written request to press charges. On earlier occasions the police had refused to register her complaint and discouraged her from pursuing the matter.

On 20 May 2008 the second applicant was interviewed by the prosecutor. Thanks to the first applicant ’ s efforts, she 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 4 July 2008 the Plock district prosecutor submitted the case to the Plock District Court.

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.

On 28 April 2009 the Regional Family Consultation Centre (RODK) prepared an expert opinion on the case.

On 13 May 2009 Judge K.Z. decided to continue the case before the family court (not the criminal court), initiating the special correctional proceedings applicable to minors. The proceedings were conducted with participation of the Children ’ s Ombudsman.

On 22 June 2010 the Plock 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 August 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 RODK 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 Plock 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. It furthermore acquitted all the accused of the additional charge of stealing the second applicant ’ s camera. 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 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 appealed against the judgment.

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

B. Relevant domestic law

Article 10 § 2 of the Criminal Code (“the Code”) provides for an exception to the rule that the Code applies to anyone aged over seventeen years. It states:

“The provisions of this Code may apply to minors aged fifteen or older who commit a prohibited act set out in Article [ ... 197 §§ 3 or 4 ... ], if deemed appropriate given the circumstances of the case and the level of mental development of the offender, the characteristics and personal situation, and especially if previous attempts at educational or correctional measures have been ineffective.”

Article 197 of the Code provides as follows:

“ 1. Anyone who, by force, illegal threat or deceit, subjects another person to sexual intercourse is liable to imprisonment for between two and twelve years.

2. If the offender forces another person to submit to another sexual act, or to perform such an act in the manner specified in § 1, he or she is liable to imprisonment for between six months and eight years.

3. If the offender commits a rape

(1) in concert with another person,

(2) towards a minor under the age of fifteen,

(3) towards a descendant, ascendant, adopter, adoptee, brother or sister, he or she is liable to imprisonment for at least three years.

(4) . If the offender commits a rape as specified in §§ 1-3 with particular cruelty, he or she is liable to the penalty of imprisonment for at least five years.”

Article 200 § 1 of the Code deals with sexual intercourse with a minor. It provides as follows:

“Anyone who has sexual intercourse with a minor under the age of fifteen , or commits any other sexual act, or leads him or her to undergo such an act or to execute such an act, is liable to imprisonment from two to twelve years.”

Article 185 a § 1 of the Code of Criminal Procedure at the material time provided as follows:

“In cases concerning offences described in chapters XXV and XXVI [sexual offences and offences against morality], a victim who at the time of the hearing is less than fifteen years old should be questioned only once, unless there are new circumstances which need to be clarified in a separate interview or the accused was not represented by a lawyer during the first interview and so requests.”

COMPLAINTS

The applicants complain that the facts of the case raise issues under Articles 3, 8 and 13 of the Convention in particular. They refer to the fact that the victim 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. The specific provisions relating to the respectful interviewing of rape victims who are minors were not complied with. Moreover, the proceedings went on for too long, causing additional stress and suffering to the second applicant.

Secondly, they complain that the case was examined within the framework of the special proceedings for minors, which resulted in the de facto impunity of the perpetrators. Two of them, B and C, were over fifteen years old at the time the offence was committed, and could therefore have been tried in criminal proceedings and sentenced to a penalty appropriate to their conviction. Instead, they received no sentence as the proceedings were not aimed at “delivering justice”.

Moreover, neither applicant could actively participate in the proceedings; in particular they could not appeal against the judgments. The first applicant was participating in the hearings as an observer, but only until the second applicant reached eighteen years of age. Afterwards, the courts did not allow the mother to attend the hearings. The second applicant, however, was not able to attend the hearings for fear of meeting her attackers, and as a consequence, the applicants ’ interests were not properly protected.

QUESTIONS TO THE PARTIES

1. Has there 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/or moral integrity and private life, within the meaning of Articles 3 and 8 of the Convention? Reference is made, in particular, to the allegations that the victim was questioned on three occasions without regard to the specific arrangements provided for by law in cases of sexual abuse of a minor and that the proceedings were lengthy, exacerbating the victim ’ s suffering.

2. Did the applicants have at their disposal an effective domestic remedy for their Convention complaints, as required by Article 13 of the Convention?