FIFTH SECTION

DECISION

Applications nos. 32193/16 and 32637/16 René MÁLEK against the Czech Republic and Lukáš ČERNÍN against the Czech Republic (see appended table)

The European Court of Human Rights (Fifth Section), sitting on 20 October 2022 as a Committee composed of:

Mārtiņš Mits , President , Lətif Hüseynov, Kateřina Šimáčková , judges , and Martina Keller, Deputy Section Registrar,

Having regard to:

the applications against the Czech Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Czech nationals listed in the appended table (“the applicants”), on the dates indicated therein;

the decision to give notice of the complaint concerning the alleged unfairness of criminal proceedings to the Czech Government (“the Government”), represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice, and to declare the remainder of the applications inadmissible;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the applicants’ conviction for a sexually motivated crime they consider to be unfair on account of their inability to have the victim examined at their trial, in breach of Article 6 §§ 1 and 3 d) of the Convention.

2. In 2013 the applicants were convicted in relation to the rape in March 2011 of R.G., a young woman who was approximately twenty years old at that time, and sentenced, respectively, to suspended sentences of six months’ imprisonment for the failure to prevent her rape and of two years’ imprisonment for having raped her together with a third person. The convictions were based on pre-trial statements made by the victim shortly after the events in question, including on occasions when the applicants’ lawyer was present and had an opportunity to question her; the testimony of the hearsay witnesses S.V., P.G. and D.N., persons in whom the victim confided immediately after the events, who were examined in open court; and reports and opinions from two expert psychologists who examined the victim, as well as other evidence. The victim was not examined at the trial although she was summoned three times. On the first occasion she was admitted to a hospital and could not attend the hearing, and on the two other occasions she fainted at the beginning of her examination. The trial court, having solicited the expert psychologists’ opinions, decided to dispense with her examination and to read out her pre-trial statements.

3. In their appeals, the applicants complained that they had not been provided with an opportunity to confront the victim in open court, arguing in substance that her testimony had been decisive in establishing that the sexual intercourse with the second applicant and a third person had taken place against her will. They further considered that they had not had the opportunity of effectively questioning her credibility and reiterated that she had been severely intoxicated on the night in question and so her recollection of the events was open to doubt.

4. Their appeals were rejected on the grounds that the applicants had had an opportunity to put questions to the victim through their lawyer at the pre-trial stage of the proceedings, that the decision not to question her at the trial had been taken with due regard to the opinions of the expert psychologists about the adverse consequences for the victim’s health of undergoing such questioning, and to the fact that the applicants could in any case question other witnesses, challenge the victim’s credibility and examine other corroborating evidence at the trial (more details are summarised in the Appendix).

THE COURT’S ASSESSMENT

5. Relying on Article 6 §§ 1 and 3 (d) of the Convention, the applicants complained that their convictions had been unfair on account of their inability to have the victim examined at their trial.

6. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

7. The relevant principles on absent witnesses were summarised by the Court in the cases of Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, § 152, ECHR 2011), and Schatschaschwili v. Germany ([GC], no. 9154/10, § 118, ECHR 2015), in which it reiterated its primary concern to evaluate the overall fairness of the proceedings.

8. In the present case, even applying a very strict degree of scrutiny in its assessment, the Court finds that the applicants failed to demonstrate that the overall fairness of the proceedings which resulted in their convictions had been irretrievably prejudiced by the lack of an opportunity to examine, or have examined, the victim at their trial. Indeed, it is not disputed between the parties that the victim was present at the applicants’ apartment on the night at issue and that she was severely intoxicated. Nor did they seem to dispute the fact that she had had sexual intercourse there on that night. The applicants’ complaint was rather that the victim’s absence from the trial had prevented them from establishing that the sexual intercourse in question had been consensual.

9. However, those arguments, which the defence had ample opportunity to present at the trial, were carefully examined by the domestic courts on the basis of incriminating testimony and circumstantial evidence corroborating the victim’s version of the events, in particular statements made by witnesses S.V., P.G. and D.N., and expert evidence as to her credibility and her psychological condition. The trial court notably compared the content of the statements made by R.G. at the pre-trial stage, with those made to the forensic experts, and also with what she had said during the attempts to examine her at the trial, and found that she had presented a detailed and coherent description of the circumstances of the offence without any inconsistencies. It further considered the fact that she had informed the witnesses S.V., P.G. and D.N. about the events in question immediately after they had happened, and had reported the crime shortly afterwards at their insistence, being taken by car to the police station by witnesses S.V. and P.G. Moreover, it referred to the victim’s pre-trial interviews, which had been carried out in the presence of the applicants’ lawyer, who had been provided with an opportunity to ask her questions. The Court reiterates that the provision of such an opportunity constitutes an important procedural safeguard capable of compensating for the handicaps faced by the defence on account of the absence of such a witness from the trial (see Hasáliková v. Slovakia , no. 39654/15, §§ 59 and 74-75, 24 June 2021). It consequently rejects the applicants’ argument regarding the unavailability of any video-recording of that interview at the trial, while pointing out that the victim was an adult with full mental capacity (see Aigner v. Austria , no. 28328/03, § 42, 10 May 2012). Lastly, the domestic courts’ decision to dispense with the examination of the victim at the trial and consequently to read out her pre-trial statements instead was only taken after three unsuccessful attempts to question her and after having solicited opinions from two experts, including an expert for the defence, on her ability to testify in open court and on the possible adverse consequences for her of non-appearance. Nothing in the case file gives the Court any grounds to disagree with the reasoned conclusions of the domestic courts in this regard (see Przydział v. Poland , no. 15487/08, §§ 48 and 51, 24 May 2016, and Gani v. Spain , no. 61800/08, § 45, 19 February 2013).

10. To sum up, the applicants and/or their defence lawyer were able to effectively present their case before the domestic courts, challenge the evidence presented at the trial, including the pre-trial statements of the victim, and cross-examine witnesses and experts. The trial court duly assessed the material circumstances of the case, examined the weight, coherence and consistency of the victim’s statements and linked them to other available evidence, and examined the version of the events presented by the defence, which it considered and dismissed on reasonable grounds.

11. The above considerations weigh heavily in favour of the conclusion that the proceedings as a whole were fair. Accordingly, the Court finds that the complaint under Article 6 §§ 1 and 3 (d) of the Convention concerning the absence of the victim from the trial and the applicants’ inability to have her examined is manifestly ill-founded.

12. Given that finding, the Court does not consider it necessary to examine any other arguments submitted by the parties and concludes that it is appropriate to reject the present application in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 10 November 2022.

Martina Keller Mārtiņš Mits Deputy Registrar President

APPENDIX

No.

Application no.

Case name

Lodged on

Applicant Year of birth Place of residence Nationality

Represented by

Date of convictions

Upheld on

Convictions based on

1.

32193/16

Málek v.

the Czech Republic

01/06/2016

René MÁLEK 1968 Opava Czech

David KROFTA

Opava District Court

( okresni soud )

02/12/2013

Ostrava Regional Court

( krajsky soud )

15/04/2014

Supreme Court

26/08/2014

Constitutional Court

08/12/2015

Victim’s pre-trial statements:

Two interviews by the public prosecutor on 28/03/2011, the second in the presence of the applicants’ lawyer

Interview on 03/05/2011 in the presence of the applicants’ lawyer who also questioned her

Experts’ conclusions on the victim’s post-traumatic syndrome and credibility :

Medical (psychiatric) report of 02/08/2012 prepared by an expert in clinical psychology, Dr. H.K., notably concluding that the victim was suffering from post-traumatic stress symptoms

Addendum to the expert opinion of 14/12/2012

Testimony of the defence expert P.

Other evidence :

Testimonies of S.V., P.G. and D.N., hearsay witnesses in whom the victim confided shortly after the events and who were cross-examined at trial

2.

32637/16

Černín v.

the Czech Republic

06/06/2016

Lukáš ČERNÍN 1975 Opava Czech

David KROFTA