FOURTH SECTION

DECISION

Application no . 60389/11 Patrycja KALISZCZAK against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 16 December 2014 as a Committee composed of:

Ledi Bianku , President, Paul Mahoney , Krzysztof Wojtyczek , judges,

and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 12 September 2011 ,

Having regard to the declaration submitted by the respondent Government on 26 August 2014 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

The applicant, Ms Patrycja Kaliszczak , is a Polish national, who was born in 1997 and lives in Szczecin . She was represented before the Court by Mr D. Babski , a lawyer practising in Szczecin .

The Polish Government (“the Government”) were represented by their Agent, M s J. Chrzanowska of the Ministry of Foreign Affairs .

On 7 February 2014 t he application was communicated to the Government .

A. The circumstances of the case

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

In winter 2002 the applicant who, at that time was 5 years old, went with her father, T.K. to skiing holidays in the Alps.

When they came back, the applicant ’ s mother, N.K., noticed that her daughter behaved in a strange way, she also allegedly reported to her mother the events in the skiing holidays. N.K. suspected that T.K. had sexually abused their daughter.

On 25 March 2002 N.K. lodged with the Szczecin District Prosecutor a notification of a suspicion that an offence had been committed.

On 10 August 2002 the Szczecin District Court found the applicant ’ s father guilty and sentenced him to two years ’ of imprisonment.

T.K. ’ s lawyers appealed against the first-instance judgment.

On 4 February 2005 the Szczecin Regional Court quashed the challenged judgment and remitted the case. The court noticed that the first-instance court should consider whether it was necessary to hear the applicant on the basis of a newly enacted provision of the Code of Criminal Proceedings, which specified conditions under which a minor being a victim of a sexual abuse could be questioned and according to which such minor – as a principle - could be questioned only once in the course of criminal proceedings.

On 21 June 2006 the Szczecin District Court again sentenced T.K. to two years ’ imprisonment. It appears that the applicant was not questioned before the court.

T.K. ’ s lawyers appealed again.

On 20 November 2006 the Szczecin Regional Court upheld the challenged judgment.

T.K. ’ s lawyer lodged a cassation appeal.

On 1 February 2008 the Supreme Court found the cassation appeal well ‑ founded and quashed the challenged judgment and the preceding judgment of the District Court. It found a number of procedural shortcomings on the part of the first- and the second-instance courts. The Supreme Court found that the applicant should have been questioned as witness again because at the time of the first hearing the accused had not been represented by a lawyer; that the applicant had not been informed of her right to refuse to testify and that the courts of lower instances had wrongfully accepted private psychiatric o pinions as expert evidence. All these shortcomings led the Supreme Court to the conclusion that the case had to be re-examined.

The proceedings are still pending after the Supreme Court ’ s remittal of the case.

On 15 June 2011 the applicant ’ s mother, who acts as auxiliary prosecutor in the criminal proceedings, lodged a complaint against the excessive length of the proceedings with the Szczecin Court of Appeal. She sought a ruling that the duration of the proceedings in question had exceeded a reasonable time and a just satisfaction of PLN 20,000.

On 20 July 2011 the Szczecin Court of Appeal found the complaint well ‑ founded, acknowledged that the proceedings had indeed been lengthy and granted the applicant PLN 5,000 in just-satisfaction.

B. Relevant domestic law and practice

On 1 July 2003, that is at the time when the case was pending before the second instance court , for the first time the Code of Criminal Procedure was amended and a new Article 185a inserted:

§ 1. In cases concerning offences described in chapters XXV of the Criminal Code [sexual offences], a victim who at the time of the offence is less than 15 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.

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

§ 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.”

On 29 August 2005 paragraph 1 of Article 185a was amended and received the following wording:

“§ 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 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 applicant complained that because of the numerous procedural shortcomings on the part of the domestic courts the case had been remitted twice for re-examination and the proceedings have lasted unreasonably long. This, in turn, constantly reminded her of the events in 2002 and had a negative impact on her psychical and moral integrity and on her private life. She also complained that the investigation into the circumstances of the offence was not effective.

THE LAW

The applicant complained about the negative impact that the lengthy proceedings had had on her psychical and moral integrity and on her private life . She relied on Article s 3 and 8 of the Convention.

After the failure of attempts to reach a friendly settlement, by a letter of 26 August 2014 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.

The declaration provided as follows:

“ The Government hereby wish to express - by way of the unilateral declaration – their acknowledgement of the violation of their positive obligation arising under Article 3 and/or Article 8 of the Convention due to shortcomings in the domestic proceedings which led to their excessive length and ineffectiveness. Simultaneously, the Government declare that they are ready to pay the applicant the sum of PLN 40,000 which they consider to be reasonable in the Court ’ s case-law ( I.G. v. Moldova , application no. 53519/07, judgment of 15 May 2012, R.I.P. and D.L.P. v. Romania, application no. 27782/10, judgment of 10 May 2012, M.C. v. Bulgaria, application no. 39272/98, judgment of 4 December 2003) together with the individual circumstances of the case at issue, in particular the fact that the applicant ’ s claims have been partly satisfied at the domestic level on the basis of the Szczecin Court of Appeal ’ s decision of 20 July 2011 acknowledging violation of her right to have her case examined within a reasonable time and awarding her PLN 5,000. 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 day of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention. 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.

...

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...”

By a letter of 25 September 2014 , the applicant indicated that she was not satisfied with the terms of the unilateral declaration.

The Court recalls 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”.

It also recalls 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.

To this end, the Co urt examine d the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( Tahsin Acar v. Turkey (preliminary objection) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI ; WAZA Spółka z o.o . v. Poland ( dec. ) , no. 11602/02, 26 June 2007; and Sulwińska v. Poland ( dec. ) , no. 28953/03).

Having regard to the nature of the admissions contained in the Government ’ s declaration, 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)).

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 ).

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).

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government ’ s declaration under Article 3 and/or Article 8 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.

FatoÅŸ Aracı Ledi Bianku              Deputy Registrar President