ECHR judgment of 04 june 2020 in the case "association innocence en danger and enfance et partage (association innocence en danger and association enfance et partage) v. France" (aplications n 15343/15 and 16806/15).
In 2015, the applicants were assisted in the preparation of aplications. Subsequently, the aplications were consolidated and communicated to France.
the case successfully dealt with aplications about the failure of the authorities to take appropriate and necessary measures to protect the child from abuse by parents, which led to the death of the boy. the case violated the requirements of article 3 of the convention for the protection of human rights and fundamental freedoms. there were no violations of article 13 of the convention for the protection of human rights and fundamental freedoms.
CIRCUMSTANCES OF THE CASE
M., a child of eight, suffered from abuse at the hands of his parents, which led to his death in 2009. the authorities were notified of the situation in june 2008, when they received relevant information from the principal of the school where m. was studying.
The applicants, two associations for the protection of children, complained that the French authorities had failed to fulfil their positive obligations to protect the child from the abuse by his parents that had led to his death. They also raised the issue of the right to an effective remedy to bring the State to civil liability for the unsatisfactory functioning of the justice system.
Regarding compliance with article 3 of the Convention (substantive aspect). the "notification of suspected ill-treatment" received from the headmaster in june 2008 was a legal fact that gave the authorities a positive obligation to investigate whether ill-treatment had taken place and, if necessary, to identify the perpetrators, as well as to protect the child from such treatment in the future.
The prosecutor acted without delay, sending the relevant document to the gendarmerie on the same day that the "notification" was received. As part of the investigation, adequate and appropriate measures were also taken, such as videotaping the child's interview and conducting a forensic medical examination against him. However, several factors have reduced the significance of these measures.
First of all, despite the fact that the prosecutor's office responded to the situation quickly, the police officer received the necessary information only after 13 days, so the recommendations regarding the implementation of the prosecutor's decisions were not promptly implemented.
further, the teachers of m. informed the authorities in writing that they had found numerous signs of ill-treatment in the child in june 2008. these individuals had to be interrogated in order to gather information about the context and reaction of m. at the time of the discovery of his injuries. this was all the more significant because the forensic expert did not rule out that the child was the object of violence or ill-treatment, and that the child welfare service informed the prosecutor that the child had new bruises that appeared after the first notification. For this reason, if a child showed signs of abuse, teachers could play a crucial role in the violence prevention system.
It was also necessary to carry out investigative actions in order to clarify the situation in M.'s family, as the authorities were aware that the child's family had moved many times.
M.'s mother was briefly interviewed by the judicial police officer who conducted the investigation, at her home, and not in the gendarmerie's premises. the statement made by the father as the legal representative of the child to the forensic medical expert could not be equated with a real interrogation in the framework of an investigation, when questions are asked purposefully.
In addition, M. did not indicate any facts during his interview. However, this survey was conducted without the participation of a psychologist. although the latter's participation was not mandatory, it could be required to eliminate any doubts about the issues that caused the" notification " and the conclusion of the forensic expert.
In view of the numerous injuries recorded by the forensic medical examiner, as well as the family's new move at the same time as the termination of the investigation, the authorities should have taken some precautions when the decision to refuse to initiate criminal proceedings was made, rather than simply making such a decision. If the Prosecutor's Office had informed the child welfare Service of its decision, drawing the latter's attention to the need for the social protection authorities to investigate or at least monitor the child, this would have increased the chances that the social services would have responded appropriately after the refusal to initiate criminal proceedings.
In addition, the combination of the refusal to initiate criminal proceedings and the lack of a mechanism for centralizing information significantly reduced the likelihood of increased monitoring of the child and the necessary exchange of information between the judicial authorities and social protection agencies.
The social protection authorities, no doubt, have taken certain measures in the future. However, taking into account such factors as the disturbing information received from the director of the new school M. in April 2009, after another family move, and the simultaneous hospitalization of M. due to injuries on his legs, the social protection authorities had to be particularly vigilant in assessing the situation of the child. nevertheless, it is obvious that after the decision to refuse to initiate criminal proceedings, they did not thoroughly understand the situation, which could allow them to find out the real situation in which the child was.
Thus, the existing system could not protect M. from severe abuse by his parents, which led to his death.
the case involved a violation of the requirements of article 3 of the convention (adopted unanimously).
Regarding compliance with article 13 of the Convention in conjunction with article 3 of the Convention. Given the finding of a violation of article 3 of the Convention, the complaint under article 13 of the Convention is also provable, hence, article 13 of the Convention applies to the present case.
The conditions for bringing the State to justice were gradually relaxed in the judicial practice of France. Thus, the interpretation of the concept of "gross negligence" also covered cases of simple negligence, in particular, if numerous errors led to the improper functioning of the justice system. taken together, these errors, in the opinion of the french courts, constituted gross negligence for which the state was responsible.
States are given certain limits of discretion to fulfil the obligations imposed on them by article 13 of the Convention. The decision of the French legislator to limit the possibility of bringing the State to civil liability in order to protect the independence of justice, taking into account the complexity of its functioning and the peculiarities of the judiciary, including the work of the investigative and police authorities, does not seem unreasonable in the special context of the present case. However, the choice made by the legislator must ensure that a remedy is available that is effective both in theory and in practice.
The applicant associations had the opportunity to apply to the court for consideration of their complaints concerning alleged omissions on the part of the police and the Prosecutor's Office. The Court was authorized to consider these complaints, not limited to cases of gross negligence, and to rule on them in a process in which the applicant associations could present their arguments and arguments. The mere fact that their claims were not met is not sufficient to draw a conclusion as to the effectiveness or ineffectiveness of the remedy in question. Thus, the effectiveness of the remedy does not depend on the certainty of a favorable outcome for the applicant.
In conclusion, the fact that the applicant associations did not comply with the conditions provided for by law does not make it possible to conclude that the remedy in question did not generally comply with the requirements of article 13 of the Convention.
There was no violation of the requirements of article 13 of the Convention (adopted unanimously).
In the application of article 41 of the Convention. The European Court awarded the applicants a symbolic sum of 1 euro as compensation for non-pecuniary damage.