Communicated on 9 July 2015

SECOND SECTION

Application no. 14000/12 T.K. against Lithuania lodged on 29 February 2012

STATEMENT OF FACTS

The applicant, Mr T.K. , is a Lithuanian national, who was born in 1971 and is currently serving a prison sentence .

The circumstances of the case

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

The applicant lived together with V.K. They had two sons, born in 2002 and 2004. The documents before the Court show that between 2007 and 2010 V.K. complained to the police a number of times about the applicant being violent towards her and their children. For that reason, in November 2010 the applicant was arrested and detained. Taking into account the time the applicant already spent in detention, he was released on 20 October 2011, after a court had found him guilty of causing physical pain or negligible health impairment to both sons (Article 140 § 2 of the Criminal Code).

In April 2011 the applicant ’ s and V.K. ’ s family was put on the list of families posing a social risk. Both parents were later warned for not having fulfilled their parental duties properly. According to the social services, later that year V.K. was given social housing; she had no property of her own. V.K. did not take care of the two children: she would leave them locked up alone at home during the day and sometimes at night. V.K. did not try to keep her job and was eventually fired.

1 . T he charge of sexual assault and the applicant ’ s ensuing detention

On 4 July 2011 V.K. lodged a complaint with a prosecutor, in which she claimed that the applicant had sexually abused their children from April until October in 2009. The investigators then searched the applicant ’ s apartment in Kaunas.

On 5 August 2011 the investigator questioned a number of witnesses. Among those witnesses was Z.S., mother of V.K. ’ s sister ’ s husband. Another witness was V.F., Z.S. ’ s daughter. Those two witnesses testified to having learned from the applicant ’ s sons that their father had abused them sexually. A school teacher of one of the sons testified that she had not noticed any alarming changes in the boy ’ s behaviour. Neither had she observed any improper behaviour by the applicant towards his son. Another witness, a former work colleague of the applicant, testified that the applicant raised the boys together with V.K.; they had family quarrels, but that was nothing exceptional. According to that witness, the applicant took care of his sons.

On 17 August 2011 the prosecutor wrote to V.K. that the two boys were to be questioned by the pre-trial investigation judge. The applicant was informed that she had the obligation to bring her sons for questioning and that she had a right to be present during that questioning.

On 22 August 2011 the applicant ’ s sons were questioned by the pre-trial investigation judge in Kaunas. The record of their questioning indicates that the prosecutor, the police investigator, a representative from the child care authority, and a psychologist from Kaunas police as well as the boys ’ mother, V.K., were all present during that questioning. The boys described the details of how their father had sexually abused them in 2009. A couple of days later the applicant was charged with sexual assault of a young child (Article 150 § 4 of the Criminal Code).

The forensic experts – child psychologists – then questioned the children in Vilnius in October-November 2011. The doctors concluded that the children were able to remember past events; they had no tendency to imagine things. The psychologists also underlined that both parents had power over the children. The boys ’ testimony could have been affected by the passage of time, given that two years had passed since the alleged mistreatment. The psychologists recommended that the boys should not take part in further investigative actions and in court proceedings because it was too stressful for them.

On 23 November 2011 the applicant was arrested. He was searched and placed in detention. The applicant states that the investigator took away his spectacles, which were never returned to him despite his requests.

By a ruling of 25 November 2011, the Kaunas City District Court ordered the applicant ’ s detention for three months. The applicant and his lawyer were present at the court hearing. The court observed that the applicant was suspected of having sexually abused his two sons from April until October 2009. The evidence against the applicant was his sons ’ and witnesses ’ testimony, psychologists ’ reports and evidence obtained when the applicant ’ s apartment was searched. Given that the applicant already had previous convictions for physical violence against his children and influencing witness V.K., and that he faced a possible prison sentence, the court deemed that detention pending trial was the only suitable remand measure.

On 1 December 2011 the Kaunas municipality appointed temporary guardians f o r both children , because V.K. could not be located and the children ’ s parents could not take care of them. The children were placed in a foster home.

On 23 December 2011 the Kaunas Regional Court, in the presence of the applicant ’ s lawyer but without the applicant taking part in that hearing, upheld the applicant ’ s detention. The courts then kept prolonging applicant ’ s detention until his conviction, the applicant having taken part in those court hearings either in person, or through his lawyer.

In January 2012 the prosecutor dismissed the applicant ’ s request to cross-examine the two witnesses , Z.S. and V.F. , who had testified against the applicant. The prosecutor deemed that there were no discrepancies in their testimony, so that a cross-examination would be necessary. The prosecutor ’ s decision was later upheld by a pre-trial investigation judge.

It transpires that the applicant complained about the investigator having taken away his spectacles , because on 25 January 2012 a prosecutor informed the applicant that it was the investigator who had to resolve the question of returning the objects taken away (spectacles) .

In reply to the applicant ’ s complaint, in April 2012 the Children Rights Ombudsman informed him that at that time V.K. did not visit their sons in the foster home, she was not interested in their lives, she was hiding where she lived. The child care specialists tried to establish V.K. ’ s living place and intended to ask a court to limit V.K. ’ s parent al rights in respect of the two boys.

In April 2012 the prosecutor dismissed the applicant ’ s request to order a fresh psychological examination of his children. For the prosecutor, t he examination reports which were already in the criminal file were sufficient. That decision was upheld by the pre-trial investigation judge.

2 . T he Vilnius Regional Court ’ s judgment

Once the criminal file was transferred to the Kaunas Regional Court, the latter considered that V.K. should be questioned, ‘ because her testimony was important f o r the criminal case ’ . When V.K. did not appear at three court hearings, the court ordered the police to find her and bring her in. The police informed the court that they could not locate V.K.

On 23 November 2012, in closed proceedings to protect the rights of the children, the Kaunas Regional Court found the applicant guilty. The applicant and his lawyer took part in the court hearings. The applicant questioned the two witnesses, Z.S. and V.F., whose cross-examination the prosecutor had refused earlier. Other witnesses (the boys ’ teachers and their guardians at the foster home) testified in court that the two boys were serious and honest. According to those witnesses, the boys had told them that their father was physically violent, but they had not mentioned having been abused sexually. The applicant did not confess. However, his guilt was based on the testimony of his two sons, which they gave to the pre-trial investigation judge on 22 August 2011, as well as the reports by psychiatrists, testimony of Z.S. and V.F. , and pornographic materials found in the applicant ’ s apartment. In reply to the applicant ’ s argument that V.K. had pressured their sons to testify against him, the trial court noted that the boys had told about the fact of abuse first to witnesses Z.S and V.F., and only later to their mother. There was no reason to believe that V.K. had any reason to wrongly accuse the applicant.

The trial court convicted the applicant of sexual assault of a young child (Article 150 § 4 of the Criminal Code) and of possession of pornographic material displaying a child or presenting a person as a child (Article 309 § 2 of the Criminal Code). He was sentenced to eleven years of deprivation of liberty.

3 . T he Court of Appeal decision

The applicant appealed, insisting that the trial court should not have relied on his sons ’ testimony, because they had been swayed by their mother, who lived with them at the relevant time and who had accompanied them to the questioning.

On 9 December 2013 the Court of Appeal rejected the applicant ’ s appeal. It observed that notwithstanding the trial and the appellate courts ’ efforts to summon V.K. for questioning, she could not be located. Even so, the applicant ’ s guilt was supported by other evidence in the case, which was consistent. According to the psychologists, the applicant ’ s sons did not have a tendency to fantasise, which would have precluded them from accurately depicting the facts. When questioned by the pre-trial investigation judge and by forensic experts, the boys were mature enough, given that they were then seven and nine years old. Even though the applicant asserted that his sons had been influenced by their mother V.K., the applicant ’ s power over them was equally strong. The court dismissed the applicant ’ s accusation that V.K. had a motive to incite the boys to accuse their father and to tamper with their testimony. For the appellate court, even though V.K. had accompanied the boys to questioning, she had not taken part either in the boys ’ questioning by the pre-trial investigation judge or during their questioning by the forensic experts. Moreover, the trial court had not relied on V.K. ’ s testimony to find the applicant guilty. The Court of Appeal also found that statements by witnesses Z.S. and V.F. about what the applicant ’ s children told them were basically identical and consistent; therefore, there was no reason not to believe those statements. Even though the applicant tried to challenge those two witnesses as partial, asserting that they were V.K. ’ s close relatives, the appellate court found no objective basis to believe that those two witnesses had any motive to incriminate the applicant. Moreover, neither of the two witnesses was a close relative of V.K. within the meaning of that term under Lithuanian criminal law. Lastly, it was the court ’ s prerogative what evidence to take into account. As to the applicant ’ s request to question his neighbours, his sons ’ teachers and his work colleagues to prove that in 2009 he had worked long hours and therefore had had no practical opportunity to sexually abuse his children, for the Court of Appeal there was no reason to believe that testimony by those other witnesses would outweigh the entirety of incriminating evidence in the case, which for that court was consistent.

4 . T he Supreme Court ’ s decision

On 15 January and on 26 February 2014, the applicant lodged two appeals on points of law. He argued, inter alia , a violation of Article 6 § 3 (d) of the Convention, in that the trial and appellate courts had refused his request to summon and question the witnesses for the defence on the same conditions as the prosecutor ’ s witnesses had been questioned. Even though the Kaunas Regional Court had ordered that V.K. be summoned to the hearing, the police had never executed that instruction. As a result, V.K. was never questioned in the courtroom. The applicant reiterated his assertion that his conviction was mainly based on the testimony of witnesses who were V.K. ’ s relatives.

On 19 February and 11 April 2014 the Supreme Court refused to examine the applicant ’ s appeals on points of law.

COMPLAINTS

The applicant complains under Article 3 of the Convention that after his arrest on 23 November 2011 the investigator took away his spectacles. At least for five months (until lodging the application with the Court), the applicant had to read without them and his eyesight became worse.

Under Article 6 § 3 (d) of the Convention the applicant complains that the courts refused to summon and question certain witnesses for the defence who could testify that during relevant time in 2009 he had been working and thus could not have sexually abused his children. He is also dissatisfied that the authorities could not locate and summon for questioning V.K., and argues that the criminal proceedings were not fair.

QUESTION S TO THE PARTIES

1. Has there been a violation of Article 3 of the Convention, on account of the fact that after the applicant ’ s arrest on 23 November 2011 the investigators took away his spectacles (see Slyusarev v. Russia , no. 60333/00, § § 34-44 , 20 April 2010 )?

The applicant is requested to provide the Court with copies of his complaints to the State authorities about being deprived of his spectacles after his arrest on 23 November 2011 and the authorities ’ responses to those complaints.

2. Has the applicant had a fair trial within the meaning of Article 6 § 1 of the Convention (see Colozza v. Italy , 12 Fe bruary 1985, § 26, Series A no. 89)?

In particular, has there been a violation of Article 6 § 3 (d) of the Convention on account of the courts ’ refusal to secure the appearance of the defence witnesses indicated by the applicant and to question them in court (see Perna v. Italy [GC], no. 48898/99, § 29 , ECHR 2003 ‑ V )? Has there been a violation of Article 6 § 3 (d) of the Convention on account of the fact that the applicant could not cross-examine V.K. in court ?