Communicated on 11 December 2017

FIRST SECTION

Application no. 31767/13 Marian KHALIFA against the Czech Republic lodged on 14 May 2013

STATEMENT OF FACTS

The applicant, Mr Marian Khalifa , is a Czech national who was born in 1959 and lives in Prague. He is represented before the Court by Mr M. Marini, a lawyer practising in Prague.

A. The circumstances of the case

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

The applicant is married to J.K. On 31 May 2010 the latter submitted a criminal complaint, accusing the applicant of domestic violence. At that time, she had been allegedly receiving counselling from an association supporting victims of domestic violence – the White Circle of Safety ( Bílý kruh bezpečí ).

On 1 June 2010 the police charged the applicant with abusing a person living under the same roof under aggravated circumstances. He was arrested on the same day and on 3 June 2010 a court ordered his detention pending trial.

On 4 June 2010 the police commissioned an expert report from L.Č., a psychologist. She was asked to assess the credibility of the applicant ’ s wife and to determine whether she manifested the signs of a victim of abuse. Furthermore, L.Č. was requested to determine whether the conduct of the applicant towards his wife could be described as domestic violence, and if so, of what type and what its consequences could be for the victim.

On 22 June 2010 the police carried out an inspection of the scene of the crime – that is to say the applicant ’ s and his wife ’ s flat. The inspection was carried out without a court warrant but with the applicant ’ s wife ’ s consent and in the presence of her, her lawyer and the applicant ’ s lawyer. The police took several photographs and seized leather handcuffs, two leather collars and a coil of rope.

In her report of 7 July 2010 L.Č. concluded, firstly, that the applicant ’ s wife was credible. The expert had not detected any inclination to intentionally and purposely manipulate her statements about her relationship with the applicant. Secondly, she found acute symptoms of victimisation. Thirdly, she considered that, on the basis of J.K. ’ s statement, the married life of the couple showed signs of domestic violence which could be described, according to theories of domestic violence, as mental torment combined with sexual violence. As to the consequences, the psychologist stated that she could not formulate a conclusion because J.K. had still been in the process of piecing together her recollections of the traumatic events.

On an unspecified date in August 2010 the prosecutor officially indicted the applicant.

On 12 November 2010 the latter complained of the unlawfulness of L.Č. ’ s expert report. Relying on Article 107 of the Code of Criminal Procedure (hereinafter “the CCP”) he argued that the police had unlawfully requested the expert to assess the evidence, which she had done in a biased manner. As to the conclusion that J.K. had shown signs of being a victim of domestic violence, the applicant noted that the expert had violated the principle of presumption of innocence. He requested the court not to rely on this particular piece of evidence.

The trial court heard L.Č. on 31 January and 28 February 2011, respectively.

On 23 February 2011 the applicant, in a written submission to the court, argued again that the expert had been biased and asked the court not to rely on the expert report. He noted that L.Č. had been working, together with his wife ’ s lawyer, I.S., for the White Circle of Safety and that they had a very close professional relationship. Furthermore, he stated that L.Č. had been affiliated with that organisation for thirteen years, she had counselled women working for the organisation about domestic violence, and she had also been a member of its board.

On 3 June 2011 the Prague 8 District Court ( obvodní soud ) found the applicant guilty as charged and sentenced him to two years ’ imprisonment, suspended for three years. The court adduced a vast body of evidence, including testimony from numerous people, two expert reports, medical reports concerning the applicant ’ s wife, and a report of the inspection of the crime scene. Although the applicant denied having committed the crime, the court did not consider his assertions credible and based its judgment in particular on the testimony of the applicant ’ s wife (J.K.), whose credibility was confirmed by L.Č ’ s expert report and testimony; moreover, J.K. ’ s testimony was also supported by other pieces of evidence.

On 9 October the applicant appealed, complaining, inter alia , of the unlawfulness of the inspection of the crime scene and of L.Č. ’ s expert report.

On 9 November 2011 the Prague Municipal Court ( městský soud ) dismissed the appeal. The court upheld the factual and legal conclusions of the District Court. The court did not find any flaws in L.Č ’ s report and, having regard also to her detailed testimony before the District Court, it did not consider the report unreliable. The court also emphasised that the credibility of the applicant ’ s wife had been ultimately assessed by the District Court itself – not by the expert, who had only commented on it. With regard to the inspection of the crime scene, the court observed that although it had not constituted a house search, as defined by the CCP, it had been carried out with the applicant ’ s wife ’ s consent; moreover, its results had not been of fundamental importance to the proceedings, with the main evidence consisting of the applicant ’ s and his wife ’ s testimony and the expert reports.

On 2 December 2012 the applicant lodged an appeal on points of law ( dovolání ), which was dismissed by the Supreme Court ( Nejvyšší soud ) on 11 July 2012.

On 24 September 2012 the applicant lodged a constitutional complaint ( ústavní stížnost ), reiterating, inter alia , his complaints about the inspection of the crime scene and L.Č. ’ s expert report. On 22 November 2012 the Constitutional Court ( Ústavní soud ) dismissed his complaint as manifestly ill-founded, finding no unconstitutional flaws in the previous courts ’ decisions and conclusions. It emphasised the fact that the results of the impugned police inspection had not influenced the decision on the applicant ’ s guilt and it considered his arguments regarding L.Č. ’ s cooperation with the White Circle of Safety organisation as purely speculative.

B. Relevant domestic law

The relevant provisions of the Code of Criminal Procedure (Act no. 141/1961), as in force at the material time, read as follows:

Article 82

“ 1. A house search may be carried out if there is a reasonable suspicion that a person or an object important for the criminal proceedings is situated in a flat or other residential premises or in premises appertaining thereto ( a dwelling). ”

Article 83

“ 1. The presiding judge, or in pre-trial proceedings a judge nominated by the prosecutor, shall be authorised to order a house search. In urgent cases this can be done by the presiding judge, or by the judge in whose district the search is to be carried out, instead of by the appropriate presiding judge or other nominated judge (Article 18). The search warrant must be issued in writing and be reasoned. It shall be served on the person on whose premises the search is to be carried out at the time when the search takes place, or if this is not possible, within twenty-four hours at the latest of the elimination of the ob s tacle preventing such service.

2. A search warrant shall be executed upon the order of the presiding judge or another judge by a police body. ”

Article 84

“A house or personal search or search of non-residential premises and land shall be carried out only after the prior interrogation of the person concerned and unless that person, following the interrogation, does not hand over the sought object voluntarily or eliminate the reason for ordering the search. A prior interrogation is not necessary if the matter allows no delay and the interrogation cannot be carried out immediately. ”

Article 105

“ 1. Where any circumstance relevant for the criminal proceedings needs to be clarified using expert knowledge, the criminal justice authority shall request a specialised opinion. Where this does not suffice due to the complexity of the question to be assessed, the criminal justice authority shall appoint an expert. ...

2. When choosing a person to be appointed as the expert, any reasons for [excluding the appointment of such a person as] an expert from submitting a report, as laid down by a special law, shall be taken into consideration. ...

3. The [choice] of expert may be contested by [lodging] objections on grounds stipulated by a special law. The expert ’ s [field of] specialisation and the wording of the questions put to the expert may be also contested. These objections shall be examined by a prosecutor in pre-trial proceedings or by the ... presiding judge at the trial; if raised in the course of an appeal, the objections are examined by the authority competent to decide on that appeal. ... ”

Article 107

“ 1. The appointed expert shall be provided with any necessary explanations contained in the file and his or her tasks are defined, bearing in mind the fact that the expert may not assess the evidence and deal with legal issues. ... ”

Article 109

“ Where any doubt regarding the correctness of the report arises or where the report is ambiguous or incomplete, an explanation shall be requested from the expert. Should [that explanation not suffice], a new expert shall be appointed. ”

Article 113

“ 1. An inspection is carried out if direct observation is needed to clarify any circumstances relevant for the criminal proceedings. An expert is usually present at the inspection. ”

COMPLAINT

The applicant complains under Article 6 § 1 and Article 8 of the Convention of the allegedly unlawful search (inspection) in his home and L.Č. ’ s expert report. He argues that the inspection at his home constituted in fact a house search but was carried out without a court warrant and without the consent and knowledge of the own er of the building concerned ( a private company); moreover, the evidence acquired during the search/inspection played a significant role in his conviction. Regarding the expert report, he argues that the police officer who commissioned the report already knew the expert (L.Č.) and, in particular, the expert knew and cooperated with the applicant ’ s wife ’ s lawyer and was active within the White Circle of Safety organisation, which had been providing counselling to his wife at that time. Furthermore, he considers the expert report to have been selective, one-sided, based on unlawful material and to have addressed the question of his guilt, in violation of domestic law .

QUESTION

Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention?