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FOURTH
SECTION
CASE OF W.S. v. POLAND
(Application
no. 21508/02)
JUDGMENT
STRASBOURG
19
June 2007
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of W.S. v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr S. Pavlovschi,
Mr L.
Garlicki,
Mrs L. Mijović,
Mr J. Šikuta,
Mrs P. Hirvelä, judges,
and Mr T.L. Early, Section
Registrar,
Having
deliberated in private on 22 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 21508/02) against the Republic
of Poland lodged with the Court on 20 August 2001 under Article 34 of
the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by Mr W. S. The President of
the Chamber acceded to the applicant's request not to have his name
disclosed (Rule 47 § 3 of the Rules of Court).
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs. The applicant was initially represented by his parents, Ms
and Mr K. and W. S. and, subsequently, by Ms Fatima Mohmand, a lawyer
practising in Łódź.
- The
applicant alleged, in particular, that he had not received a fair
trial, in violation of Article 6 §§ 1 and 3 (d) of the
Convention.
- On
4 July 2006 the Court decided to communicate this complaint to the
Government. Under the provisions of Article 29 § 3 of
the Convention, it decided to examine the merits of the application
at the same time as its admissibility.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1966 and lives in Pabianice.
- On
11 April 1994 the applicant's wife filed an action for divorce, dated
8 April 1994, with the Łódź Regional Court. She
submitted that the parties had married in 1989, that the marriage had
not been a happy one from the beginning, that the applicant was
unworthy of any trust, that he had been battering her and that he was
generally unable to fulfil the role of husband and father. She
claimed maintenance for their daughter X. and custody of the child.
- On
14 April 1994 she requested the Pabianice District Prosecutor to
institute criminal proceedings against the applicant on charges of
sexual abuse of their daughter X. The minutes of her deposition read:
“We have been married since 1989. In 1990 our
daughter X. was born.
In April 1994, after a conversation I had with the
child, I started to think that my husband could have been, for some
time, sexually abusing her, of which I hereby inform the prosecuting
authorities. I would like to stress that after I had acquired this
information I moved out of our apartment to my sister's place ... It
will be for several days only and afterwards I will move in with my
parents in W. It seems to me to be a good decision as the child
should be, at least for some time, separated from her father. At the
same time, I realise that it would be nearly impossible to conduct
any interview with my child, regard being had to her age...”
- In
an undated subsequent opinion, apparently prepared on the basis of a
psychological examination of the child carried out on 14 April 1994
in the presence of her mother and maternal grandmother, E.K., a
psychologist, described the child's stage of development and
concluded:
“On 14 April 1994 an attempt was made to obtain
from X. an account of the events concerned in the case. This attempt
failed insofar as it was aimed at obtaining a verbal statement. It
can, however, serve as a basis for a description of the child's
psychological situation. (...) I think that any further attempt to
interview X. would not make any sense. Moreover, it would be
detrimental to her development. A child of this age is unable to make
any confabulations, without there being a concrete factual basis for
what she says. (...) Information obtained from third parties and
observation of the child seem to suggest that it is likely that she
has been a victim of sexual abuse:
- inflammation of sexual organs (medical records);
- secrets shared with her father rewarded by sweets or
toys in order to remain unknown to other persons and to the mother;
...
- reluctance to have sexual organs washed;
- pains in the legs, bruises on the legs;
- bizarre play and behaviour.
The fact that so many such manifestations occur makes it
possible to consider that the charges may be truthful.
In my view the child's father should be interviewed. It
is also recommended that the child be examined once again, not before
September.”
- Later
on, the child was interviewed by E.K. on 9 January 1995. Her
mother was not present during the examination. X. was also requested
to make drawings representing her family and to play with dolls
representing herself, her father and her mother.
- In
an opinion dated 17 January 1995, E.K. explained various techniques
she had used during this meeting, suited to the child's age. She
stated that during the second meeting the child had evoked events
which seemed to suggest that she had been sexually abused by her
father; that, given her age, there was no possibility that she was
talking about things which in reality had not happened; that the
drawings she had made constituted a spontaneous form of communication
which could not, given her age, have been suggested to her by other
persons; that these drawings suggested that she had been sexually
abused by her father, possibly also by anal intercourse as she had
clearly referred to anal pain in connection with “playing”
with her father.
- The
psychologist stressed that under no circumstances should the issue be
raised with the child, who should be excluded entirely from the
proceedings in order to safeguard her well-being and development. She
noted that the child was more relaxed and confident than in
April 1994, when she had realised that the “secrets”
her father shared with her had been regarded as evil by other members
of the family.
- On
31 March 1995 a bill of indictment was laid against the applicant in
the Łódź Regional Court. He was charged with having
sexually abused his daughter from 1992 until April 1994.
The
prosecution referred to interviews conducted during the
investigations with the applicant, his parents, his wife, her parents
and her sister and her aunt K.M.
Further,
reference was made to: X.'s medical records, police information on
the applicant, the opinions prepared by E.K. (referred to above), a
psychiatric opinion on the applicant (prepared by N.G. and M.G.-L.),
drawings made by X., an expert opinion dated 28 November 1994,
prepared by J.B., a sexologist, on the applicant's sexual profile,
another report about the applicant's mental health prepared by
psychiatrists M.L. and D.J., dated 1 March 1996, and an opinion of a
psychologist on the applicant's personality, dated 1 March 1995 and
prepared by E.W.
- On
an unspecified later date the court instituted the proceedings.
- On
9 February 1996 an expert opinion, prepared by J.K., a specialist in
surgery with considerable experience of working with battered and
abused children, was submitted to the court. He prepared it on the
basis of his analysis of X.'s medical records, but without
interviewing either X. or other persons. He concluded that the
symptoms which X. had manifested could have been caused by sexual
abuse, but that such symptoms could also have been caused by other
physiological factors. He was of the view that, in any event, no
evidence pointed with certainty to sexual abuse by her father.
- By
a decision of 25 April 1996 the court called further expert
witnesses: M.K., a psychologist, and another psychologist working for
a Diagnostic Centre in Łódź.
- In
its decision of 24 May 1996 the court observed that doubts had
arisen, in the light of J.K.'s opinion, as to whether an expert
opinion of a sexologist on the applicant's personality and which had
already been prepared for the purposes of the investigation had been
sufficient and clear. The court noted J.K's professional experience
in an non-governmental organisation helping children, victims of
cruelty and sexual abuse. It therefore ordered that another expert
opinion be submitted on whether the applicant was suffering from any
sexual disturbances, and if this was the case, how they might relate
to the charges against him. It appointed a sexologist, Dr A.B., as an
expert.
- On
12 July 1996 A.B. examined the applicant and on an unspecified later
date submitted his opinion to the court.
- On
5 March 1997 another expert opinion was submitted to the court in
which the procedure for examination as well as the adequacy and
soundness of the method used by the psychologist E.K. were assessed.
Its conclusion was that there were no grounds for doubting the
thoroughness and soundness of the opinion.
- On
6 November 1997 the Łódź Regional Court convicted
the applicant of having sexually abused X. and sentenced him to four
years' imprisonment.
The
court first recalled the circumstances of the applicant's marriage
and the difficulties that had arisen between the spouses. It further
established that the applicant's wife, having considered their
situation and having discussed the issue with her sister I.K.,
decided, on 8 April 1994, to petition for divorce. On the same day
she had sought legal advice and agreed with the lawyer that a divorce
petition would be prepared. In the evening she had surprised the
applicant caressing X. in a manner which shocked her as it seemed
that he had been touching the child's sexual organs. She had not
reacted immediately, but left the apartment with her daughter on the
next day and moved in with her sister. On the same day she had talked
with X. about her father's conduct and her suspicions of sexual abuse
had been confirmed. On 14 April 1994 she had requested the prosecutor
to institute an investigation and had been interviewed on the same
day.
- On
14 April 1994 the psychologist E.K. had met with X., but an attempt
to obtain verbal confirmation of the charges of sexual abuse failed.
The expert had only established that the convergence of various
manifestations in the child's behaviour was sufficient to suppose
that sexual abuse could have occurred.
- As
shown by the expert opinion of 17 January 1995, a further attempt by
the psychologist to interview the child had been successful. The
psychological tests had allowed the specialist to conclude that the
girl's genitals had been touched and manipulated by her father and
that this had happened on numerous occasions.
The
court further referred to an expert opinion of Dr J.B, who had
concluded that the applicant had a normal heterosexual drive and that
he had a low self-esteem. The latter factor, in the expert's view,
could have explained why he might have sought sexual experience with
X. instead of normal adult sex.
- The
court recalled that it had decided not to interview X., having regard
to the unequivocal opinion of the psychologist that it would not
serve any useful purpose and would be harmful to her, and given that
other evidence at its disposal was sufficient to give a ruling in the
case.
- The
court considered that the expert opinions of E.K. were of decisive
importance for its judgment. In particular, her second opinion of
January 1995 in which she had categorically stated that X. had been
sexually abused sufficed to conclude that the applicant was guilty.
In that connection, the court recalled that already X's first contact
with E.K. in April 1994 had given cause to believe that this had
indeed been the case, even though the child had not wanted to talk at
that time. Further, the examination carried out in January 1995 had
confirmed these suspicions, the more so as the child at that time had
been more relaxed and confident.
- The
court also referred to an expert opinion in which the methods used by
E.K. were assessed by two further specialists as methodologically
sound and appropriate to the situation and to the child's age. They
had not found any grounds on which to challenge its validity.
The
court further observed that in 1995 the girl had been treated for
problems of foecal incontinence. In June 1995 a medical test had been
carried out which showed that the muscular tension of her sphincter
was too low for a child of her age. The court had heard the expert
witness Dr A.D., who was of the view that damage to the child's
sphincter might have been caused by anal penetration. The court
observed that his medical findings corresponded to the conclusions
made by E.K. in her opinion of January 1995 that the child could have
been the victim of anal penetration.
- The
court referred to the opinion and testimony of Dr J.K. and was of the
view that this opinion was merely of a theoretical character because
he had not examined the child. Hence, his conclusions in which he had
disagreed with the conclusions of certain other experts previously
prepared in the case were not of decisive importance.
- The
court further noted that the members of the applicant's wife's family
had been questioned in the proceedings, but that their testimony had
been very emotional. As they had been interpreting all of the
information about the applicant as pointing to his guilt, the court
did not consider their testimony to be wholly credible.
- The
court concluded that in the light of the evidence seen as a whole,
the applicant's guilt was not open to doubt.
- The
applicant appealed, arguing that the finding of his guilt had
primarily been based on the opinions prepared by E.K. Having regard
to these opinions, the court had refused to take further evidence
which would have cast light on the real circumstances of the case.
The court had ignored evidence pointing to the applicant's innocence
and, on the whole, had failed to take evidence which would have
allowed the facts of the case to be established in a full and
convincing manner.
It
was further submitted that the applicant had been effectively
deprived of his defence rights. The authorities had decided, in the
child's interest, not to interview X. As a result, its role had been
limited to the assessment of the opinions submitted by E.K. and of
her oral testimony. This had led to a situation in which the accused
had been convicted on the basis of E.K.'s reports. Neither the
prosecutor nor the court had ever seen the child. The court could
not, therefore, form an opinion on the veracity of the charges.
- On
12 March 1998 the Łódź Court of Appeal dismissed the
appeal and upheld the impugned judgment. It first observed that the
applicant's submission that the lower instance had failed to hear
further evidence was incorrect.
- It
disagreed with the applicant's submission that the refusal to
interview X. had deprived him of his defence rights. The applicant,
who had been represented by a lawyer, had made full use of his
defence rights and had put to the court numerous arguments in his
defence.
- The
appellate court recalled that the first-instance court had concluded
that in the light of the evidence seen as a whole, the applicant's
guilt was not open to doubt, even in the absence of any oral
testimony given by X. This conclusion of the first-instance court had
met with the approval of the appellate court, despite the fact that
it had been motivated in a rather succinct manner. Neither the
prosecution nor the applicant had made a formal request to have X.
interviewed by the court, and the attempt to obtain verbal testimony
from her during the investigations had failed. Hence, such testimony
should be regarded as “testimony impossible to obtain”
within the meaning of the Code of Criminal Procedure.
- It
was further noted that the validity and soundness of the opinions
prepared by E.K. were not open to doubt. The first-instance court had
taken specific steps in order to have their probative value assessed
by other experts. Further, E.K.'s conclusions had also been assessed
by the first instance court in the light of other evidence at
its disposal. The appellate court referred to the evidence given by
A.D., which corroborated the conclusions reached by E.K. The
submissions made by A.D. had corresponded to other available
evidence. The first-instance court had also taken into consideration
the conclusions made by the experts who had examined the applicant.
The
appellate court concluded that the assessment of the evidence had
been thorough and logical and that there were no grounds on which to
find that the first instance court had reached unreasonable or
arbitrary conclusions.
- On
22 February 2001 the Supreme Court dismissed the applicant's
cassation appeal as being manifestly ill founded.
On 2
March 2001 this judgment was served on the applicant.
II. RELEVANT DOMESTIC LAW
- At the relevant time the rules governing the
assessment and admissibility of evidence were contained in the Code
of Criminal Procedure of 1969 (“the 1969 Code”). It was
repealed and replaced by the Law of 6 June 1997 (commonly
referred to as the “New Code of Criminal Procedure”),
which entered into force on 1 September 1998.
- Article 4 § 1 of the 1969 Code provided:
“Judges shall rule on the basis of their
conviction derived from evidence obtained and founded on their free
assessment of evidence [and they shall] draw on knowledge and life
experience.”
- Under
Article 155 of the 1969 Code, the trial court should dismiss a motion
for evidence to be taken, if the taking of such evidence was
inadmissible in law; if the fact to be proved was irrelevant to the
assessment of the case, and if the evidence concerned was impossible
to obtain.
- Article
402 of the Code provided that the appellate court could not, in
principle, take evidence. However, it could do so exceptionally at a
hearing if it was of the view that this would expedite the
proceedings. If the appellate court found that the evidence examined
by the first instance court was insufficient to give a judgment,
it could also quash the judgment under appeal and remit the case to
the trial court for reconsideration.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d)
OF THE CONVENTION
-
The applicant alleged that the proceedings brought against him had
been unfair, in particular in that X. had never been questioned. He
relied on Article 6 §§ 1 and 3 (d) of the Convention.
- Given
that the requirements of paragraph 3 (d) represent specific aspects
of the right to a fair hearing guaranteed by Article 6 § 1, the
Court will examine the applicant's complaints in the light of the two
texts taken in combination (see, among many other authorities, Van
Geyseghem v. Belgium [GC], no. 26103/95, § 27,
ECHR 1999 I, and Kamasinski v. Austria,
judgment of 19 December 1989, Series A no. 168, pp. 31 32,
§ 62).
These
provisions, in so far as relevant, read as follows:
“1. In the determination of ... any criminal
charge against him, everyone is entitled to a fair ... hearing ... by
an ... impartial tribunal established by law. ...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him.”
A. Admissibility
- The Government argued that the application had not
been submitted within the six-month period provided for by Article 35
of the Convention. It had been submitted by the applicant's parents,
acting on his behalf, on 20 August 2001. They submitted a
form of authority, signed by the applicant, on 7 May 2002. The
Government were of the view that the latter date was decisive for the
assessment of compliance with the six-month requirement. The
Government submitted, in addition, that the original application had
been lodged by the applicant's parents, who could not claim to be
victims of a violation of the right to a fair hearing in the
proceedings concerning the determination of the criminal charge
against their son.
The applicant disagreed.
- The
Court first notes that the final judgment including the reasoning was
served on the applicant on 2 March 2001. The Court is thus satisfied
that the six-month period started to run on 3 March 2001 and expired
on 3 September 2001. It observes that the applications submitted
on 20 August and 17 December 2001 were signed by the
applicant's parents. On 7 May 2002 the Court received a power of
attorney, signed by the applicant, authorising his parents to act on
his behalf.
- Where
applicants choose to be represented by a solicitor under Rule 36 of
the Rules of Court, rather than to introduce their application
themselves, it is a requirement, under Rule 45 § 3 of the Rules
of Court, that a power of attorney to act shall be supplied by their
representatives. However, the Court recalls its case-law to the
effect that the date on which a form of authority to represent an
applicant in the proceedings before it has been submitted is not
decisive for the purposes of assessment of the compliance with the
six-month requirement (see, among other authorities, Fitzmartin
and Others v. the United Kingdom (dec.), 34953/97,
21 January 2003). The Court
has also taken the view that this approach is equally valid in the
case of applicants who are not represented by a professional legal
representative (Manole and Others v. Moldova (dec.), no.
13936/02, 15 June 2004). Furthermore, for the Court, where an
application has been lodged by the parents of an applicant, there is
a presumption that they are acting on the latter's behalf in a
representative capacity, irrespective of any formal signed statement
to that effect.
- Having
regard to the above considerations, the Court notes that the initial
application was lodged on 20 August 2001 by the applicant's parents
acting on his behalf. They did not claim that they themselves were
victims of a breach of the Convention but that they wished to
represent him in the proceedings before the Court. Moreover, and in
any event, when requested to do so by the Court, they later submitted
an appropriate form of authority signed by the applicant.
- Accordingly,
the Court finds that the applicant has submitted the application in
compliance with Article 35 § 1 of the Convention. It further
notes that the application is not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention or inadmissible
on any other ground. It must therefore be declared admissible.
B. Merits
1. The arguments of the parties
- The
applicant submitted that during the proceedings the court had never
ordered that the child be questioned. The applicant disagreed that
the case should be distinguished from S.N. v. Sweden
(no. 34209/96, ECHR 2002 V) merely on the ground of the
difference in the age of the victims. Firstly, the
Government's submission was inconsistent with the facts of the case
as established in the proceedings. Secondly, the Government had
failed to explain the significance of the difference in age of the
victims for the assessment of the fairness of the proceedings.
- In
the light of serious doubts expressed by the witnesses as to the
existence of sexual abuse and whether the applicant had indeed been
involved, the authorities should have taken adequate measures to
secure the applicant's rights of defence. They had failed to do so.
The special measures taken in the proceedings in order to protect the
victim had not been counterbalanced in any way.
- The
Government first referred to the S.N. v. Sweden
judgment (cited above) in which the Court had noted that regard had
to be had to the special features of criminal proceedings
concerning sexual offences. The Court accepted that in criminal
proceedings concerning sexual abuse certain measures might be taken
for the purpose of protecting the victim, provided that such measures
could be reconciled with an adequate and effective exercise of the
rights of the defence. In securing the rights of the defence, the
judicial authorities may be required to take measures which
counterbalance the handicaps under which the defence labours (Doorson
v. the Netherlands, judgment of 26 March 1996, Reports of
Judgments and Decisions 1996-II, p. 471, § 72, and P.S.
v. Germany, no. 33900/96, § 23, 20 December
2001).
- The
Government submitted that in the present case the charges related to
sexual abuse committed when the victim had been two years old. The
psychologist E.K. concluded, having regard, inter alia, to the
victim's age, that she should not participate in the proceedings.
Later on, the two other experts considered that her opinion was
well-founded. The evidence had therefore been impossible to obtain
within the meaning of Article 155 of the 1999 Code of Criminal
Procedure. The present case should therefore be distinguished from
Bocos-Cuesta v. the Netherlands (no. 54789/00,
(dec.) 10 November 2006), in that in the latter case no expert
evidence had been obtained as to the advisability of hearing the
evidence of the victims.
- The
Government argued that the applicant had not been put on an unequal
footing vis-à-vis the prosecution, because the victim
had never been questioned by the prosecutor. Hence, both the
prosecution and the applicant had had at their disposal the same
evidence.
- The
Government further submitted that during the proceedings before the
first-instance court the applicant had not requested that the victim
be questioned. His counsel had only requested his appeal against the
first instance judgment. In their view, the case was therefore
similar to S.N. v. Sweden in that in both cases the applicants
had not requested that the victims be heard by the first instance
courts. The only difference between these cases was that in the S.N.
case the child was ten years old, while in the present case the
victim of the sexual abuse was a two year old at the time of the
material events and four when she was examined by a psychologist.
- The
Government emphasised that Article 6 of the Convention did not grant
the accused an unlimited right to secure the appearance of witnesses
in court. It was normally for the national court to decide whether it
was necessary or advisable to call a witness. In the present case the
court had conducted fair, extensive, detailed and diligent
proceedings when taking evidence. The applicant had been able to
avail himself of all his procedural rights. He had requested that new
evidence be taken and certain of his requests had been granted. All
this evidence was examined in the applicant's presence.
- The
Government were of the view that the proceedings as a whole had been
fair.
2. The Court's assessment
- The
Court first reiterates that the admissibility of evidence is governed
primarily by the rules of domestic law. The Court's task under the
Convention is not to rule on whether witnesses' statements were
properly admitted as evidence, but rather to ascertain whether the
proceedings as a whole, including the way in which evidence was
taken, were fair (see, among many other authorities, Lucà
v. Italy, no. 33354/96, § 38, ECHR 2001 II).
It will therefore confine its attention to establishing whether the
manner in which the proceedings were conducted against the applicant
in the domestic courts was compatible with the rights of the defence
(see De Lorenzo v. Italy (dec.), no. 69264/01,
12 February 2004).
- Article
6 does not grant the accused an unlimited right to secure the
appearance of witnesses in court. It is normally for the national
courts to decide whether it is necessary or advisable to call a
witness (S.N. v. Sweden, cited above, § 44, ECHR 2002-V,
with further references to Bricmont v. Belgium, judgment
of 7 July 1989, Series A no. 158, p. 31, § 89).
- All
the evidence must normally be produced at a public hearing, in the
presence of the accused, with a view to adversarial argument. There
are exceptions to this principle, however. As a general rule,
paragraphs 1 and 3 (d) of Article 6 cannot be interpreted as
requiring in all cases that questions be put directly by the accused
or his lawyer, whether by means of cross examination or by any
other means, but rather that the accused must be given an adequate
and proper opportunity to challenge and question a witness against
him, either when he makes his statements or at a later stage (Van
Mechelen and Others v the Netherlands, Reports 1997 III,
p. 711, § 51; S.N. v. Sweden, cited above, §
44, Bocos-Questa v the Netherlands, cited above, §
68; Gossa v. Poland, no. 47989/99, § 53).
- With
respect to statements of witnesses who proved to be unavailable for
questioning in the presence of the defendant or his counsel, the
Court recalls that paragraph 1 of Article 6 taken together
with paragraph 3 requires the Contracting States to take
positive steps so as to enable the accused to examine or have
examined witnesses against him (see, Sadak and Others v. Turkey,
nos. 29900/96, 29901/96, 29902/96 and 29903/96, § 67,
ECHR 2001 VIII).
- The Court must also have regard to the special
features of criminal proceedings concerning sexual offences. Such
proceedings are often conceived of as an ordeal by the victim, in
particular when the latter is unwillingly confronted with the
defendant. These features are even more prominent in a case involving
a minor. In the assessment of the question whether or not in such
proceedings an accused received a fair trial, account must be taken
of the right to respect for the private life of the alleged victim.
Therefore, the Court accepts that in criminal proceedings concerning
sexual abuse certain measures may be taken for the purpose of
protecting the victim, provided that such measures can be reconciled
with an adequate and effective exercise of the rights of the defence
(see S.N. v. Sweden, cited above, § 47; see
also Lemasson and Achat
v. France (dec.), no. 49849/99, 14 January 2003).
- Turning
to the circumstances of the present case, the Court first observes
that both the prosecuting authorities and the court heard evidence
from various sources including members of the applicant's and his
wife's close family who testified about the relations between the
applicant and his daughter, the daughter's behaviour during and after
the alleged events, the confidences that she might have shared with
her mother or other relatives concerning the alleged sexual abuse,
her health and any change of personality which could be indicative of
her being a victim of sexual abuse. The applicant had ample
opportunity to try to discredit any adverse conclusions which might
have been drawn from their statements. In the event, the trial court
chose not to attach any particular weight to their testimony since it
was coloured by emotion (see paragraph 26 above). On the other hand,
the trial court was of the view that the testimony of E.K. was of
decisive importance (see paragraph 23 above) and that her findings
based on her sessions with the child, one of which was conducted in
the presence of the applicant's wife, conclusively showed that not
only had the child suffered sexual abuse but that the applicant was
guilty of the offence. It is true that the trial court had been at
pains to have the soundness of the methodology used by E.K. confirmed
(see paragraphs 18 and 24 above) However, it remains the case that
the trial court was at no stage presented with any direct evidence of
the applicant's guilt. E.K.'s crucial testimony, like that of Drs
J.B. and A.D., was based on expert inference.
- In contrast to many other cases in which the Court
examined similar complaints, the decisive evidence on which the
applicant was convicted could be challenged before the court
(see in this respect, mutatis mutandis, Van Mechelen and Others
v. the Netherlands, cited above, §§ 51 55;
see also Kostovski v. the Netherlands, judgment of 20
November 1989, Series A no. 166, p. 20, § 41).
However, for the Court, and as a matter of fairness,
appropriate measures should have been taken so as to allow the trial
court to take a broader view of the question of the applicant's
possible guilt. It notes that at no stage was any consideration given
to the possibility of video recording the sessions which E.K.
had had with X. It is to be observed in this connection that the
complaint was made to the prosecutor on 14 April 1994 and that E.K.
was able to conduct a first interview with the child on the same
date. A further interview took place on 9 January 1995. On neither
occasion was a video-recording made showing how E.K. had interacted
with the child and had endeavoured to form an opinion as to whether
the allegations of sexual abuse were founded and whether the
applicant had been implicated.
Furthermore,
X. was never at any stage questioned, either by the police, the
prosecutor or the court. The prosecuting authorities, when declining
to question the victim, had regard to the two opinions given by E.K.
in which she had advised that it would be detrimental to X.'s
well being and development to hear her. It has not been shown
that these opinions were not sufficiently motivated or credible.
However, it observes that later on, during the judicial proceedings,
the courts simply accepted the expert's conclusions and did not, on
their own motion, consider whether it might have been advisable to
question X. at that stage (see Gossa v. Poland cited above,
§ 58, a contrario) or to have questions put to her
as to whether the applicant had sexually abused her.
- The
Court observes that the circumstances of the present case differ from
those it examined in the case of S.N. v. Sweden referred
to above. In the latter case the Court found that no violation of the
Convention had occurred. However, the Court notes that, in contrast
to the present case, not only was the victim questioned twice by the
police, but also a videotaped police interview with the child was
made which could later be played back to the court, and indeed was,
to give it an opportunity of assessing the reliability of the
evidence given by the victim (S.N. v. Sweden, §§ 10,
13 and 15). Moreover, S.N failed to avail himself of an opportunity
to put questions to the victim.
Likewise,
in other similar cases, P.S. v. Germany, cited above,
and Bocos-Cuesta v. the Netherlands, cited above,
the victims of the alleged sexual offences were interviewed by
the police during the investigations and the courts later relied on
their recorded statements. The Court found in these cases that the
use of this evidence involved such limitations on the rights of the
defence, that the applicants could not be said to have received a
fair trial, despite the fact that the victims' evidence was available
to the courts.
- In
the present case the essence of the applicant's complaint is that the
victim of the offence was never questioned during the proceedings and
that, as a result, he was convicted without ever having been able to
question her.
It is
not for the Court to replace the domestic authorities in deciding on
the manner in which evidence in criminal proceedings should be taken
and presented to the courts. The Court is also fully aware that in
the present case there were particular difficulties in establishing
the facts of the case, if only because of the victim's very young
age. It notes the efforts made by the prosecuting authorities to
assess whether questioning her would have been detrimental to her
development. However, the Court observes that it has not been shown
or argued that the authorities envisaged or made attempts, either at
the investigation stage, or later, before the court, to test the
reliability of the victim in a less invasive manner than direct
questioning. This could have been done, for example, by more
sophisticated methods, such as having the child interviewed in the
presence of a psychologist and, possibly, also her mother, with
questions put in writing by the defence, or in a studio enabling the
applicant or his lawyer to be present indirectly at such an
interview, via a video link or one way mirror
(Accardi and Others v. Italy (dec.), cited above; S.N.
v. Sweden cited above, § 13). Had the authorities
in the present case taken measures which would have allowed the court
to have at its disposal, for instance, a recording of the interview
which the psychologists had with the victim, the applicant's defence
rights would have been better safeguarded.
- The
Court notes the Government's argument that during the proceedings
before the first instance court the applicant had not requested
that the victim be questioned, and had only complained of this in his
appeal against the first-instance judgment (see paragraph 29 above).
In this connection, the Court observes that under domestic law as it
stood at the relevant time the appellate court was empowered to
consider questions of both fact and law. Further, it was open to that
court to quash the judgment under appeal and to remit the case for
re-consideration to the first instance court, with a view to
taking additional evidence (see paragraph 37 above). However,
despite the applicant's complaint that X. had never been questioned,
the appellate court chose not to do that.
3. The Court's conclusion
- Consequently,
on no occasion could the prosecutor or the court observe the
behaviour of the victim during questioning (compare Kostovski
v. the Netherlands, cited above, p. 20, § 42
in fine). Likewise, the applicant never had an opportunity of
observing the demeanour of X. under direct questioning (see P.S.
v. Germany, cited above, § 29). Hence, no procedures
were introduced by the authorities to counterbalance the difficulties
faced by the defence and the applicant was not given an adequate and
proper opportunity to challenge and question this witness against him
(compare and contrast S.N. v. Sweden, where the applicant
failed to avail himself of the opportunity at the pre trial
stage to have questions put to the child complainant). The mere fact
that the prosecuting authorities did not have such an opportunity
either is not sufficient for a finding that the applicant was not put
in a disadvantageous position vis-à-vis the other
party.
- In
these circumstances, the way in which the proceedings were conducted
involved such limitations on the rights of the defence that the
applicant cannot be said to have received a fair trial. Therefore
there has been a violation of Article 6 § 1 taken together
with Article 6 § 3 (d).
II. OTHER COMPLAINTS UNDER ARTICLE 6 OF THE CONVENTION
- The
applicant complained that he had been convicted on the basis of
insufficient evidence. The court had accepted the evidence obtained
from the medical examination of X., conducted by A.D. three and a
half years after the alleged event, which for that reason could not
be considered credible. On the whole, the courts had failed to
establish the facts of the case convincingly and wrongly assessed the
evidence.
- The
Court notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
- However,
having regard to its above finding of a violation of paragraph 3 (d)
taken in conjunction with paragraph 1 of Article 6 of the
Convention, the Court holds that it is not necessary to examine
separately this complaint.
- The
applicant further complained that his ex officio defence
lawyer had failed to ensure his proper defence during the
proceedings.
- The
Court observes that this complaint has not been substantiated by any
concrete arguments. It follows that the complaint is manifestly
ill founded and must be rejected in accordance with Article 35
§§ 3 and 4 of the Convention.
III.
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION WITH
RESPECT TO THE LENGTH OF THE PROCEEDINGS
- In
his application form dated 17 December 2001 the applicant complained
that the proceedings had lasted four years and had therefore been
excessively long.
- The
Court observes that the proceedings concerned came to end on
21 February 2001, when the Supreme Court dismissed the
applicant's cassation appeal. The judgment of the Supreme Court was
served on the applicant on 2 March 2001. It follows that this
complaint has been introduced out of time and must be rejected in
accordance with Article 35 §§ 1 and 4 of the
Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
-
The applicant claimed 150,000 Polish zlotys (PLN) in respect of the
non pecuniary damage he has suffered. He further sought an award
of PLN 340,000 under the head of pecuniary damage, referring to lost
earnings and to the costs he had had to bear in connection with the
domestic proceedings.
- The
Government contested that claim. They added, however, that should the
Court find a violation of the Convention this finding alone should
constitute adequate just satisfaction or, in the alternative, that
any financial compensation awarded should be consistent with the
Court's own case law in other similar cases.
- The
Court accepts that the impossibility for the applicant to have
questions put to X. caused the applicant non pecuniary damage,
which cannot be made good by the mere finding of a violation. The
Court, making its assessment on an equitable basis, awards the
applicant EUR 1,800 in respect of non pecuniary damage.
B. Costs and expenses
- The
applicant also claimed PLN 15,860 for the costs and expenses
incurred in the proceedings before the Court.
- The
Government argued that any award under this head should be limited to
those costs and expenses that had been actually and necessarily
incurred and were reasonable as to quantum.
- The
Court considers it reasonable to award the applicant EUR 1,000
for costs and expenses involved in the proceedings before it, less
EUR 850 received by way of legal aid from the Council of
Europe.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Declares unanimously the complaint concerning
the applicant's inability to question or have questioned the child
complainant and the alleged insufficiency of the reasons for his
conviction admissible and the remainder of the application
inadmissible;
- Holds by five votes to two that there has been a
violation of Article 6 § 1 of the Convention taken in
conjunction with Article 6 § 3 (d);
- Holds unanimously that it is not necessary to
examine separately the complaint under Article 6 § 1
of the Convention concerning the alleged lack of reasons for the
applicant's conviction;
4. Holds unanimously
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts to be converted into Polish zlotys at the rate applicable on
the date of payment:
(i) EUR 1,800 (one thousand eight hundred euros) in
respect of non-pecuniary damage;
(ii) EUR
150 (one hundred and fifty euros) in respect of costs and expenses;
(iii) any
tax that may be chargeable;
(b)
that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 19 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following separate opinions are
annexed to this judgment:
(a) separate
opinion of Sir Nicolas Bratza;
(b) joint
partly dissenting opinion of Mr Casadevall and Mrs Mijović.
N.B.
T.L.E.
SEPARATE OPINION OF SIR NICOLAS BRATZA
-
While I am in agreement with the majority of the Court that there was
a violation of Article 6 § 1 in the present case, I would have
preferred that the applicant's complaint had been examined under that
paragraph alone rather than in conjunction with paragraph 3 (d) of
the Article.
-
The central problem in the case does not in my view derive from the
fact that the applicant was unable to examine, or have examined, X.
as a witness against him. X. was at most four years old at the time
the criminal investigation commenced against the applicant and no
more than seven years old at the time of the applicant's trial. Even
if, on the latter occasion, X. could be said to be old enough to be
examined by the applicant or his lawyer, either directly or through
the trial judge, I do not consider that, in the particular
circumstances of the present case, the failure of the trial court to
require such examination gave rise to a violation of Article 6 §
3 (d).
-
The problem in terms of Article 6 stemmed in my view from the
testimony of E.K., to which the trial court attached decisive
importance. That testimony was based on two psychological
examinations of X. which had been carried out by E. K. - the first on
14 April 1994, which took place in the presence of the mother and
maternal grandmother of X. on the day that the former had requested
the Pabianice District Prosecutor to institute criminal proceedings
against the applicant on charges of sexual abuse of their daughter,
and the second, some nine months later, on 9 January 1995. Neither
examination was attended by a representative of the prosecutor's
office or by representative of the applicant or by a psychologist
appointed by him. Moreover, as noted in the Court's judgment, neither
examination was recorded on video so as to enable the trial court,
with the assistance of other expert evidence, to assess the validity
of the opinion of E.K. founded on such examinations that X. had not
only been sexually abused but that the applicant was the abuser. It
is true that the applicant had an opportunity to challenge this
opinion and to question the adequacy and soundness of the methods
used by E.K. when examining X. However, in my view, the rights of the
defence were not thereby sufficiently safeguarded. Where, as here,
the examination of X. by E.K. alone played a crucial role in the
conviction of the applicant, I consider that fairness required that
the applicant should have had the opportunity of testing E.K.'s
evidence with the benefit of a recording of the examination itself.
JOINT PARTLY DISSENTING OPINION OF JUDGES
CASADEVALL
AND MIJOVIĆ
(Translation)
We do
not share the opinion of the majority concerning point 2 of the
operative provisions as, in our view, there has been no violation of
Article 6 § 1 of the Convention taken in conjunction
with Article 6 § 3(d), for the following reasons.
- The
fact that the applicant's daughter was subjected to very serious and
repeated sexual assaults between the ages of two and four is not in
dispute. Nor did any dispute arise as to the fact that the child was
examined on two occasions, on 14 April 1994 and 9 January 1995, by
E.K., an expert psychologist, or the fact that, leaving aside these
two examinations and consultations of a strictly medical nature, no
one questioned or took evidence from the child: not the police, the
prosecutor, the accused or his lawyer, the court of first instance or
the court of appeal.
- It
was established that neither the defence lawyer nor the prosecutor
made a request at any point, during the investigation or before the
first instance court, for the court to hear evidence from the
victim. This would appear to be a sensible precaution in the case of
a four-year-old girl. As the appellate court found, such testimony
was to be regarded as “testimony impossible to obtain”
within the meaning of the Code of Criminal Procedure (see paragraph
31 of the judgment). This assessment seems wholly correct given that
no testimony had been obtained from the victim, this having proved
impossible.
- The
regional court convicted the applicant on the basis of the two
reports from the psychologist E.K., the expert opinion of Dr J.B. on
the applicant's sexual profile, the opinion of two other specialists
as to the adequacy of the methodology used by E.K., the medical file
of the victim (who received treatment during 1995 for faecal
incontinence and low muscular tension of the sphincter) and the
expert reports of Drs A.D. and J.K. The regional court decided
against hearing evidence from the child, firstly because it
considered it to be unnecessary and secondly in order to avoid
causing her serious harm in view of her extreme youth. The appellate
court upheld the reasoning of the regional court and found that, even
in the absence of oral testimony from the victim, the first-instance
court's assessment of the evidence had not been unreasonable or
arbitrary.
- The applicant complained in particular that the
criminal proceedings against him had not been fair on account of the
fact that X had never been questioned, and that the evidence on which
the domestic courts based his conviction had been insufficient. He
relied on Article 6 §§ 1 and 3(d) of the Convention. With
regard to the second complaint, there is no need to reiterate that
the admissibility of evidence is governed primarily by the rules of
domestic law and that it is in principle for the national courts to
assess the evidence before them, the Court's role being confined to
ascertaining whether the proceedings considered as a whole were fair.
As regards the first and main complaint, the two questions which
arise, as we see it, are as follows: (i) first, whether a
four-year-old girl can or should be questioned or give evidence,
especially in relation to serious sexual abuse issues and (ii)
second, whether the same child, who was never questioned, can be
regarded as a witness against the accused within the meaning
of Article 6 § 3(d) of the Convention and the autonomous concept
of “witness” established by the Court.
(i) Our
reply to the first question is in the negative. We consider that the
Polish judicial authorities acted with extreme caution – in
line with the recommendations of a psychologist – in order to
protect a vulnerable victim and spare her further damage. As age is
an important factor in assessing this issue, it should be pointed out
that in the case of S.N. v. Sweden the child concerned was ten
years old, in P.S. v. Germany the girl was eight years old and
in Bocos-Cuesta v. the Netherlands, where the
circumstances were serious but less traumatic, the victims were aged
ten, six, nine and eleven. The situation is clearly different in the
present case.
(ii)
In the three cases cited above, all the children were questioned by
specially trained police officers (see paragraph 60 of the judgment)
and their statements constituted the evidence on which the accused
were convicted. The victims therefore acted as witnesses for the
prosecution. In the present case, the child was examined by a
psychologist and by doctors but was never questioned by anyone else;
the evidence against the accused consisted of expert reports rather
than statements, the latter not having been taken. That being the
case, we consider that the victim herself cannot be considered as a
witness against the accused, either for the purposes of
Article 6 § 3(d) of the Convention or within the autonomous
meaning of the Court's case-law (see, conversely, among other
authorities, S.N. v. Sweden, no. 34209/96,
§ 45, ECHR 2002 V).
- Admittedly,
there is room for doubt or speculation as to whether it might not
have been useful for the parties (the defence as much as the
prosecution, and also the courts) to have had an audiovisual
recording of the conversations between the psychologist and the
child. However, the fact that this was not available does not in any
sense mean that the victim should be regarded as a prosecution
witness. As the criminal case file was made up in particular of
psychologists' and doctors' reports and opinions, the prosecution and
the defence had the same evidence available to them and the same
resources for performing their respective tasks; hence, no issue
arises with regard to the principle of equality of arms. The
applicant had every opportunity to challenge the psychologists' and
doctors' reports and opinions, to question the authors and, if
appropriate, to request a second opinion. Hence, all the evidence was
produced at a public hearing, in the presence of the accused,
enabling adversarial argument to take place as required by our
Court's case-law.
- If
the majority consider (as seems to be suggested in paragraph 58 in
fine and paragraph 59 of the judgment), with regard either to the
rights of the defence or the admissibility of the evidence, that
there was a real issue as to fairness in this case – and we do
not believe that there was –, they should have examined it from
the general standpoint of Article 6 § 1. They should not have
based their finding of a violation on the specific circumstance that
no evidence was heard from a four-year-old child who, moreover, could
not be considered as a witness against the accused (despite
the assertion to the contrary in paragraph 63).
