CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 6 décembre 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s39A7D870 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s959B95E9 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s5830ECD9 { width:0.2pt; display:inline-block } .sCA6C4ED6 { width:194.76pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block }     FOURTH SECTION DECISION Application no. 20416/13 M.P. against Poland The European Court of Human Rights (Fourth Section), sitting on 6   December 2016 as a Committee composed of:   Nona Tsotsoria, President,   Krzysztof Wojtyczek,   Marko Bošnjak, judges, and Andrea Tamietti, Deputy Section Registrar, Having regard to the above application lodged on 13 March 2013, Having regard to the declaration submitted by the respondent Government on 27 January 2016 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration, Having deliberated, decides as follows: FACTS AND PROCEDURE 1.     The applicant, Ms M.P., is a Polish national, who was born in 1952 and lives in Warsaw. She was represented before the Court by Ms   M.   Zima ‑ Parjaszewska, a lawyer and Vice-President of the Polish Association for People with Intellectual Disability. The President granted ex   officio anonymity to the applicant (Rule 47 § 4 of the Rules of Court). 2.     The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs. 3.     The applicant’s son, A, born in 1974, suffers from a considerable intellectual disability. He was legally incapacitated and the applicant acted as his guardian. A attended a municipal day-care centre for disabled persons. He alleged that he had been raped by B, a therapist of the centre. B   was charged with rape. In the ensuing criminal proceedings, B was eventually acquitted. 4.     The applicant complained under Article 6 § 1 in conjunction with Article 14 of the Convention that the courts had refused to consider A’s evidence of abuse credible solely on account of his intellectual disability. Furthermore, the courts had not created conditions in which A could give evidence in a manner compatible with his abilities. As a result of the above failures, A was deprived of an opportunity to be adequately protected from violence and ill ‑ treatment. 5.     The application had been communicated to the Government under the substantive and procedural limbs of Article 3 of the Convention. 6.     Written submissions were received from the Helsinki Foundation for Human Rights in Warsaw, the Mental Disability Advocacy Centre in Budapest, the FORUM (Forum for Human Rights) in Prague and the Polish Association for People with Intellectual Disability, which had been granted leave by the President to intervene as third parties (Article 36   §   2 of the Convention and Rule   44   §   3 of the Rules of Court). THE LAW 7.     After the failure of attempts to reach a friendly settlement, by a letter of 27 January 2016 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. 8.     The declaration provided as follows: “The Government hereby wish to express – by way of the unilateral declaration – their acknowledgement of the violation of Article 3 of the Convention on account of failure to conduct an effective investigation in the present case and by not taking sufficiently into account in the course of the investigation and the subsequent judicial proceedings that the alleged ill-treatment concerned a person with intellectual disability. Simultaneously, the Government declare that they are ready to pay the applicant the sum of 40,000 PLN which they consider to be reasonable in the light of the Court’s case-law (see, most recent, Wołkowski and Jacyno , application no.   2037/14, decision of 14 September 2015 where each of the applicants was granted EUR 7,500). The above sum is regarded to be in line with overall case law of the Court (see M.C. v. Bulgaria , no. 39272/98, invoked in the Questions to the Parties prepared by the Registry of the Court, where the applicant was granted EUR 8,000 in respect of non-pecuniary damage). 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 periods plus three percentage points. With respect to the first question of the Court – whether the applicant was subjected to inhuman or degrading treatment contrary to Article 3 of the Convention, the Government indicate that they are unable to assess whether there was a violation of this provision in its substantive limb due to the inadequacy of the investigation in the case in question. For this reason, they refrain from submitting any observations in this part. At the same time, they respectfully ask the Court to examine the present case only in the light of its procedural limb (see, as far as relevant, Prądzyński v. Poland , decision of 25 March 2014, application no. 49284/10 and the Court’s case-law cited therein). The Government 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 lists of cases, as referred to in Article 37 § 1 (c) of the Convention.” 9.     By a letter of 8 March 2016, the applicant requested the Court to reject the unilateral declaration and to continue the examination of the case. She submitted that the above unilateral declaration did not fulfil the criteria stipulated in Rule 62 A §§ 1(b) and 3 of the Rules of Court. 10.     Firstly, the applicant argued that the Government had not indicated precisely which acts in the course of the investigation and the subsequent judicial proceedings were in breach of Article 3 of the Convention. In the absence of such indication, it was not possible to take any remedial actions. The payment of compensation was not a sufficient remedial measure for the alleged infringement. In addition, the applicant complained that the unilateral declaration was only limited to the procedural aspect of Article 3. 11.     Secondly, the applicant alleged that the Government had not referred to her complaint under Article 6 of the Convention. Thirdly, the Government had not indicated what remedial actions would be taken. The payment of compensation was only one element of the respect for human rights as defined in the Convention. In addition, the submissions of the third-party interveners indicated that the case should be decided on the merits. 12.     The Court reiterates 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”. 13.     It also reiterates 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 applicant wishes the examination of the case to be continued. 14.     To this end, the Court has examined the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( Tahsin Acar v. Turkey (preliminary objections) [GC], no.   26307/95, §§ 75-77, ECHR 2003-VI; WAZA sp. z o.o. v. Poland (dec.), no. 11602/02, 26   June   2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18   September   2007). 15.     The Court has established in a number of cases, including those brought against Poland, its practice concerning the obligation to carry out an effective investigation into allegations of treatment infringing Article 3 (see,   among many other authorities, Mocanu and Others v. Romania [GC], nos.   10865/09, 45886/07 and 32431/08, §§ 316-326, ECHR 2014 (extracts), Bouyid v. Belgium [GC], no. 23380/09, §§ 114-123, 28   September 2015, and, in respect of Poland, M.C. v. Poland , no. 23692/09, §§ 102-104, 3   March 2015). It also recalls that its strike-out decision could not extinguish the Government’s continuing obligation to conduct an investigation in compliance with the requirements of the Convention (see   Jeronovičs v. Latvia [GC], no. 44898/10, § 118, ECHR 2016). 16.     Having regard to the nature of the admissions contained in the Government’s declaration, the fact that the gist of the case concerns the procedural aspect of Article 3, 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)). 17.     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 ). 18.     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). 19.     In view of the above, it is appropriate to strike the case out of the list.   For these reasons, the Court, unanimously, Takes note of the terms of the respondent Government’s declaration under Article 3 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 12 January 2017.   Andrea Tamietti   Nona Tsotsoria Deputy Registrar   President