FIRST SECTION

DECISION

Application no. 6386/17 B.Å». against Poland

The European Court of Human Rights (First Section), sitting on 31 August 2021 as a Committee composed of:

Erik Wennerström, President, Krzysztof Wojtyczek, Ioannis Ktistakis, judges, and Attila Teplán, Acting Deputy Section Registrar,

Having regard to the above application lodged on 17 January 2017,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr B. Ż., is a Polish national who was born in 1969 and lives in B. He was represented before the Court by Mr J. Ludziak , a lawyer practising in Wałbrzych.

2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.

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

4. On 3 April 2013 a woman informed the police that the applicant had allegedly sexually abused her daughter, L. (born in 2002).

5. On 9 April 2013 the Zgorzelec District Prosecutor instituted an investigation concerning the sexual abuse of L. The investigation related to the period between 2010 and 2012, when the applicant had allegedly on several occasions sexually abused L., who was his wife’s niece. The incidents had allegedly occurred when the girl had stayed overnight at the applicant’s apartment.

6. On 26 April 2013 the child victim, the prosecutor and an expert in psychology appeared in court. The victim was interviewed in a so-called “blue-room” procedure in the presence of the psychologist. The expert concluded that the victim was emotionally stable and her ability to perceive, remember and reproduce information was intact. She had also demonstrated a strong emotional response indicating that the events had indeed taken place.

7. The applicant did not attend the interview. At that time, he was not formally charged and was not represented by a defence lawyer. He had no opportunity to question L. There was no video recording of the interview.

8. Subsequently, on 26 April 2013, the applicant was charged with rape and two counts of attempted rape of a minor. He did not plead guilty and he provided explanations.

9. On 27 April 2013 the Zgorzelec District Court ordered the applicant’s pre ‑ trial detention.

10. On 29 April 2013 the applicant appointed a lawyer, R.S., to represent him in the proceedings.

11. On 24 May 2013 an expert psychologist’s opinion was prepared in order to assess the credibility of the victim’s testimony. The expert relied on observations made during the interview of the child victim and tests carried out on 16 May 2013. It was concluded that the 11-year-old victim had been in a balanced mental state and that her manner of presenting the events had been appropriate for her age and corresponded to a child’s ability to perceive and reproduce information.

12. On 20 June 2013, following a request by the prosecutor, four child witnesses were heard by the Zgorzelec District Court: the applicant’s son and three friends of the victim. An expert psychologist was present during the interviews.

13. On 2 September 2013 the applicant appointed another defence lawyer.

14. On 13 September 2013 a bill of indictment was filed with the Jelenia Góra Regional Court. The indictment included a request to read out the victim’s testimony and the child witnesses’ statements which had been given in the “blue room” before the court at the investigative stage of the proceedings.

15. The trial court relied on the testimony obtained from L.’s three friends who were minors, who had confirmed to some extent that L. had told them in 2012 about some elements of the applicant’s behaviour in 2010. The other witnesses refused to testify, as they were close relatives of the applicant and the victim. The court also relied on L.’s diary. Its contents were described by a police officer who had seen it before it had been destroyed by the victim. In addition, the court referred to pornographic photographs that the applicant had kept on his computer, indicating that there was a reasonable suspicion that they might have involved minor children.

16. At a hearing held on 19 November 2013, the court heard evidence from the expert psychologists. The expert who had prepared the opinion of 24 May 2013 confirmed that the victim had been interviewed in the “blue room” and that, given her serious emotional state, psychological tests could not be carried out on the date of the interview, but had had to be carried out later, on 16 May 2013.

17. The court admitted as evidence the record of the victim’s interview and the statements made by the other witnesses who were minors. The parties informed the court that they did not wish to make any further evidentiary submissions.

18. On 4 February 2014 the Jelenia Góra Regional Court found the applicant guilty of sexual offences against a minor under 15 years of age comprising one count of rape, which had occurred in October 2010, and two counts of attempted rape, which had occurred between March and October 2012. It imposed a cumulative sentence of four years’ imprisonment on the applicant. He was also prohibited from having any personal contact with the victim for five years.

19. The court summarised L.’s statement, which described how the applicant had behaved when she had stayed at his apartment overnight. The court relied mostly on the first interview of the victim on 26 April 2013. L.’s credibility was confirmed by an expert psychologist who had been present during the interview on 26 April 2013. The victim’s testimony was corroborated by statements made by other witnesses

20. The applicant appealed against the judgment of the Jelenia Góra Regional Court on the ground that he had not had an opportunity to question the victim, although there were new circumstances which would have justified this.

21. On 28 August 2014 the Wrocław Court of Appeal ( Sąd Apelacyjny) upheld that judgment. The court held that the applicant had not submitted a request for a second interview of the victim under Article 185a § 1 of the Code of Criminal Procedure (“the CCP”), although he had been entitled to do so. Moreover, his defence lawyer had not demonstrated that there were any new circumstances which would have justified a second interview. The court also noted that the relevant domestic provisions did not lay down a requirement for a video recording of an interview of a victim who was a minor.

22. The applicant lodged a cassation appeal.

23. On 16 April 2015 the Supreme Court (Sąd Najwyższy ) quashed that judgment and remitted the case to the Wrocław Court of Appeal. It held that the appellate court should have interviewed the victim again, especially as the first interview had not been recorded despite the clear obligation to do so under Article 147 § 2 (2) of the CCP.

24. On 11 June 2015 the Wrocław Court of Appeal again upheld the judgment given by the Jelenia Góra Regional Court on 4 February 2014.

25. During the proceedings, the court commissioned a new expert opinion. In the opinion of 28 May 2015, an expert psychologist found that further questioning would be too traumatic for L. because of her emotional state, which had lasted throughout the three years since the offences had taken place. According to the expert, the victim’s mental state showed an emotional disorder related to post-traumatic stress disorder. The events described by the victim had been traumatic and incriminating and could have long-term negative effects on her mental health and emotional development. The expert recommended that the victim not be interviewed a second time, as this would expose her to excessive trauma.

26. Therefore, the court denied the applicant’s request for L. to be interviewed again. The court referred to the Supreme Court’s judgment of 7 May 2013 (case no. III KK 380/12), according to which a request by an accused person (under Article 185a of the CCP) for a further interview of a victim who was a minor did not make it necessary to question the victim a second time. Such a request should, in any event, be subject to the general criteria for the admissibility of evidence.

27. On 29 July 2016 the Supreme Court dismissed a further cassation appeal by the applicant. The court stressed that the applicant had not requested that the victim be interviewed again during the proceedings before the first-instance court. It also noted that the Jelenia Góra Regional Court had provided other safeguards in order to preserve the applicant’s right to a defence. In particular, L.’s testimony had been read out during the court’s hearing and the applicant had had an opportunity to comment on it. Furthermore, the credibility of L.’s testimony had been confirmed by an expert psychologist. The applicant had had the opportunity to question those findings.

28. The Supreme Court also found that the applicant’s right to examine the victim was not absolute and could be subject to reasonable limitations. The applicant’s right to verify the evidence against him had been in direct conflict with the best interests of the child. The necessity to protect a victim of sexual offence had been further increased as the case involved a child victim, given that children were particularly sensitive and lacked fully formed defence mechanisms.

29. Article 185a of the Code of Criminal Procedure (“the CCP”), as in force at the material time, provided:

Ҥ 1 In cases concerning offences described in Chapters XXV and XXVI of the Criminal Code [sexual offences and offences against morality], a victim who, at the time of the hearing, is less than 15 years old should be interviewed 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.

§ 2 The interview shall be conducted at a court hearing with the participation of an expert psychologist. The prosecutor, defence lawyer and the victim’s representative shall have the right to attend the interview.

§ 3 The record of the interview shall be read out at the trial; if a video or audio recording was made, it shall be played back at the trial as well.”

30. In accordance with Article 147 § 2 (2) of the CCP, unless there are technical obstacles, the interview of a victim as referred to in Article 185a should be recorded on video.

31. In its judgment of 24 November 2009 (case no. III KK 176/09) the Supreme Court held:

“In cases in which victims of the crimes specified in Chapters XXV and XXVI of the Criminal Code are under 15 years old, attempts should be made to ensure that the suspect already has a defence lawyer during the first interview of the victim. The interview under Article 185a should be held after the charges have been brought against the suspect, that is, at the in personam investigation stage of the proceedings, and not at the in rem stage. At that stage it is possible to appoint legal aid counsel for the suspect, if he has not yet appointed his own lawyer. In such situations, in most cases, it will be possible to preserve the single interview of the child victim and the right of the accused to a defence will not be affected.”

COMPLAINT

32. The applicant complained under Article 6 §§ 1 and 3 (d) of the Convention that his right to a fair trial had been breached in that he had been denied a second interview of the victim.

THE LAW

33. The applicant complained that the fairness of the criminal proceedings against him had been undermined because he had been unable to question the victim, who was a minor. He relied on Article 6 §§ 1 and 3 (d) of the Convention, the relevant parts of which read as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

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; ...”

34. The Government noted that the child victim had testified only at the pre-trial stage of the proceedings on account of the need to protect her mental health. Her testimony had not been the only evidence in the case and had been corroborated by the testimony of other witnesses and expert statements. Lastly, there had been sufficient counterbalancing factors to compensate for the handicaps under which the defence had laboured.

35. The applicant disagreed with the Government’s submissions in general terms.

36. The principles to be applied when a witness does not attend a public trial were set out in the case of Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, §§ 119-47, ECHR 2011). In view of those principles the Court will consider whether there was good reason for the rejection of the applicant’s request to hear L.; whether the evidence given by her was the sole or decisive basis for the applicant’s conviction; and whether there were sufficient counterbalancing factors, including the existence of strong procedural safeguards, which permitted a fair and proper assessment of the reliability of that evidence to take place.

37. 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 perceived victim (see S.N. v. Sweden , no. 34209/96, § 47, ECHR 2002 ‑ V; Bocos ‑ Cuesta v. the Netherlands , no. 54789/00, § 69, 10 November 2005; and Aigner v. Austria , no. 28328/03, § 37, 10 May 2012).

38. In the present case the Court notes that, following the remittal of the case, the Wrocław Court of Appeal carefully assessed whether L. should be re-examined. In that assessment it paid special attention to the vulnerable situation and the young age of the victim. Moreover, it relied on an expert to report on the question whether L. should be interviewed again. The expert confirmed that a second interview would be traumatic for L. and would cause her excessive trauma (see paragraph 25 above). That assessment was subsequently reviewed by the Supreme Court, which agreed that there had been good and justified reasons not to interview the child victim again. The Court sees no reason to doubt those conclusions and finds that there was good reason for the rejection of the applicant’s request to hear L.

39. As to the second consideration, namely whether the evidence given was the sole or decisive basis for the conviction, the Court notes that the applicant’s conviction was based to a decisive extent on the statements made by L., and that this was not contested by the Government (see paragraph 34 above).

40. As to the third consideration, namely whether sufficient counterbalancing measures were taken to safeguard the rights of the defence, the Court notes that, even though the applicant lacked the opportunity to question L. at any point during the domestic proceedings, the verbatim record of her interview was available to the applicant and his lawyer, who could have challenged it in court. Moreover, L.’s interview was analysed by an expert psychologist who was subsequently questioned at the hearing and the applicant had an opportunity to ask her questions. The trial court also used in evidence the statements of L.’s friends to whom L. had recounted the events at issue and relied on her diary.

41. Against the background of the careful scrutiny of the evidence by the domestic courts and viewing the fairness of the proceedings as a whole, the Court finds that the above-mentioned counterbalancing measures taken were sufficient. It therefore concludes that the applicant was afforded the protection of his rights as safeguarded by Article 6 §§ 1 and 3 (d).

42. It follows that the application is manifestly ill ‑ founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 23 September 2021.

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Attila Teplán Erik Wennerström Acting Deputy Registrar President