FIFTH SECTION

Application no. 36705/12 Emil ŠTULÍŘ against the Czech Republic lodged on 8 June 2012

STATEMENT OF FACTS

The applicant, Mr Emil Štulíř , is a Czech national, who was born in 1967 and lives in Prague.

A. The circumstances of the case

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

On 23 June 2006 the Prague 1 District Prosecutor Office received an anonymous criminal complaint containing allegations of sexual abuse of children. The sender indicated that a certain C. confessed that she had taken part in sexual abuses when she had been working as an au-pair in the United Kingdom.

In July 2006 several persons including the applicant were questioned in connection with the criminal investigation opened upon the criminal complaint.

On 8 August 2006 the police interviewed C. as a witness in the presence of a judge under Article 158a of the Code of Criminal Procedure (hereinafter “the CCP”) as an urgent measure ( neodkladný úkon ) , because she resided and worked in the United Kingdom and it was not sure that she would be available in the future. At that moment, the applicant was not charged, he was therefore not present at the interview. Witness C. stated that she had been extorted by the applicant who, according to her, had threatened to drug her with heroin and to traffic her to Turkey for CZK 100,000 (EUR 3,900), if she did not re-establish a relationship with him. She further stated that later on, the applicant had phoned her and sent an e-mail to the United Kingdom and had repeatedly asked her to restore the relationship with him, menacing her, her family and friends with threats to their lives.

On 25 October 2006 a judge at the Prague 6 District Court ordered to draw up a list of incoming and outgoing telephone calls from the applicant ’ s mobile phone during the period from 20 December 2005 to 31 July 2006. On 26 October 2006 he ordered to set up a list of communications which had been carried out from thr ee mail-boxes during between 14 February and 30 June 2006 and between 1 January and 30 June 2006, respectively. On 31 October 2006 the judge ordered to set up a list of communications carried out from several of the applicant ’ s other mail- boxes during the period from 25 December 2005 to 30 June 2006, and also to provide information on the number of logs in these mailboxes from 25 December 2005 to 18 October 2006. On the same day, the judge ordered to draw up a list of outgoing telephone calls from the applicant ’ s land line on 9 June 2006 from 11 am to 3 pm.

During October 2006 the applicant ’ s telephone conversations and his e-mails were recorded and taken in evidence. In April 2007 a search was carried out in his flat and non-residential premises where he ran his business. The applicant was arrested on 20 April 2007 and was charged with deprivation of personal liberty, extortion, libel and wrongful accusation.

The police continued to gather evidence during 2007 and 2008. They obtained an expert opinion in psychiatry on the applicant ’ s health, an analysis of his computer, carried out a search in his flat and heard a number of witnesses.

The investigation having been concluded in May 2008, the applicant was indicted for extortion under Article 235 §§ 1 and 2 of the Criminal Code on 16 June 2008. This legal qualification of the applicant ’ s criminal acts was less favourable than that indicated in the notice served on him on 20 April 2007, when he had been charged with deprivation of personal liberty under Article 231 §§ 1 and 2 of the Criminal Code in concurrence with extortion under Article 235 § 1 of the Criminal Code. The applicant submitted that contrary to Article 176 § 2 of the CCP, he was not invited to complement the file.

The trial started on 14 October 2008. Witness C. apologised for not attending the main hearing and her statement given on 8 August 2006 was therefore read out. The applicant claimed that C. ’ s residence abroad had not been a sufficient reason to carry out her interview as an urgent measure and that her statement should not be read out at trial. He argued that the conditions under Article 211 § 2 of CCP were not met.

In a judgment of 8 December 2009 the Prague 6 District Court found the applicant guilty of extortion and sentenced him to two and a half years ’ suspended prison sentence subject to a probationary period of two years. The court explicitly noted that in finding the applicant guilty, it relied on the testimony of witness C.

The applicant appealed raising a number of procedural, factual and interpretational complaints. He also requested hearing witness C., drawing up an expert opinion in the area of psychiatry on the reliability of witness C. and to assess other evidence which had been rejected without adequate reasoning by the first instance court.

The hearing before the Prague Munic ipal Court wa s held on 30 March 2010 in the absence of the applicant who apologised that he could not attend the hearing due to serious personal and family reasons. He was represented by a counsel who, contrary to the applicant ’ s written appeal, did not request any further evidence to be taken. The court, having rejected the applicant ’ s request to postpone the hearing, examined his appeal, upholding the finding of the first instance court.

It found that the applicant ’ s guilt had been securely established in particular by the statement given by witness C. This testimony was not the only evidence against the applicant, further indirect evidence having corroborated her statements, such as a testimony of her mother, to whom C. had confided at the material time. The appellate court also found that although witness C. and her mother did not have a close relationship before, witness C. contacted her in fear of her and her brother ’ s life and described the acts of extortion conducted by the applicant. The mother of witness C. also claimed that the initial anonymous criminal complaint sent by e-mail to the Prague 1 District Prosecutor Office had been sent by the applicant who had thus lodged wrongful accusation. Her testimony was examined in detail. In addition, the indirect evidence included text messages sent by the applicant on 5 June 2006 and the criminal complaint filed by witness C. in the United Kingdom on 7 June 2006. The time concurrence was thus a significant factor, too.

The appellate court found that the prosecutor had violated Article 176 § 2 of the CCP in re-qualifying the charges without notifying the applicant, which, however, did not have any impact on the legality and correctness of the reviewed judgment giving rise to a duty of reversing it.

On 18 July 2010 the applicant filed an appeal on points of law which was rejected as unsubstantiated by the Supreme Court on 30 November 2010. The Supreme Court stated that the appellate court had not proceeded erroneously in having decided the case in the absence of the applicant who had not sufficiently substantiated his request to postpone the hearing. It added that the applicant ’ s counsel had not requested that further evidence be gathered and assessed and that, therefore, the hearing had not needed to be postponed.

On 13 March 2011 the applicant filed a constitutional appeal which was dismissed by the Constitutional Court on 1 December 2011. Having analysed the testimony given by witness C., the court found that although it was the only direct evidence, it was corroborated by a chain of indirect evidence, especially by the testimony of her mother. In respect of the remaining complaints, the Constitutional Court agreed with the findings of the lower courts.

On 9 December 2011 the Constitutional Court ’ s decision was served on the applicant.

The latter unsuccessfully asked the Minister of Justice to lodge a complaint in breach of law.

B. Relevant domestic law

At the material time, the relevant provisions of the Code of Criminal Procedure (Act no. 141/1961) , as amended, read as follows:

Article 158a

“If it is necessary to question a witness as an urgent or unrepeatable measure during an investigation at a time before anybody has been charged, such an interview can be conducted on the request of a prosecutor and in the presence of a judge; the judge is responsible for the legality of such questioning and in order to do so, he may intervene in the questioning. However, the judge is not authorised to review the conclusion of the prosecutor that the questioning is urgent and unrepeatable.”

Article 176 § 2

“The indictment shall be filed only for the act covered by the charges brought (Article 160). If the prosecutor wants to qualify this act as a crime different from the qualification of the investigator, he shall notify the accused and his defense counsel prior to filing indictment and he shall also find out whether they will apply for supplementing the investigation with respect to the intended change.”

Article 211 § 2

“The statement of a witness given during pre-trial proceedings may be read out at the trial if the witness:

a) has died or gone missing, is staying abroad and is thus unreachable, or has become ill and is not, therefore, in a position to be heard, or

b) has been questioned as an urgent or unrepeatable measure under Article 158a.”

At the material time, the relevant provisions of the Criminal Code (Act no. 140/1961) , as amended, read as follows:

Article 231 Deprivation of liberty

“(1) A person who without authorisation prevents another from enjoying personal liberty (freedom) shall be sentenced to a term of imprisonment of up to two years.

(2) An offender shall be sentenced to a term of imprisonment of up to three years if he commits an act under section 1 with intent to facilitate another crime.”

Provision 235 Extortion

“(1) A person who forces another by violence, the threat of violence or the threat of another serious detriment to do something, to desist from doing something or to tolerate something, shall be sentenced to a term of imprisonment of up to three years.

( 2) An offender shall be sentenced to a term of imprisonment of two to eight years if:

...

(c) he commits such act with a weapon;

(d) by such act he causes severe harm to health or substantial damage;

(e) he commits such act against a witness, expert or interpreter in connection with performance of his duties; or ...”

COMPLAINTS

1. Relying on Article 6 § 1 of the Convention, the applicant complains that the domestic courts did not sufficiently established the relevant circumstances of the case, did not sufficiently motivate their judgments and wrongly interpreted the domestic criminal law. Moreover, he alleges that the proceedings were unreasonably lengthy.

2. Relying on Article 6 § 3 (b) of the Convention, he further complains that his right to have adequate time and facilities for the preparation of his defence was violated because the indictment was filed for a different criminal act than the one indicated in the decision on commencement of prosecution. He states that the legal qualification was changed in contradiction with the domestic law.

3. Relying on Article 6 § 3 (c) of the Convention, the applicant submits that the conduct of the Prague Municipal Court which decided in his absence deprived him of his right to defend himself in person.

4. Relying on Article 6 § 3 (d) of the Convention, the applicant complains that he could not examine the key witness against him, as admitted by the first instance and appellate courts. He underlines that since the testimony of witness C. was the only direct evidence proving his guilt. She gave the statement at the preliminary stage of the proceedings and was never heard in court. According to him, the domestic courts did not examine her reliability and did not deal adequately with his request to adduce further evidence. He unsuccessfully requested to draw up an expert opinion in psychiatry on the reliability of witness C. He further claims that the requirements of the domestic law to read out her testimony at trial were not satisfied. The applicant further doubts the reasons to conduct the interview with witness C. as an urgent measure which, in his view, were not sufficient. He attempted to obtain evidence on his behalf which were rejected without adequate and convincing reasoning.

5. Furthermore, relying on Article 8 of the Convention, the applicant submits that the requirements of the domestic law to search his flat and non-residential premises where he ran his business were not met. He alleges that the collection of the telecommunication records and his e-mail records breached his right to respect for private and family life, home and correspondence.

6. Finally, relying on Article 13 of the Convention, the applicant complains that although he used all domestic remedies available to him, he did not receive redress in respect of the rights which were violated.

QUESTION TO THE PARTIES

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

In particular, has there been a violation of Article 6 § § 1 and 3 (d) of the Convention on account of the use of the testimony o btained from key witness C. who could not be questioned by the defence at any stage of the criminal proceedings (see Al- Khawaja and Tahery , [GC], nos . 26766/05 and 22228/06, 15 December 2011, §§ 118 – 147 ) ?