SEPARATE OPINION OF SIR NICOLAS BRATZA

1. While I am in agreement with the majority of the Court that there was a violation of Article 6 § 1 in the present case, I would have preferred that the applicant ' s complaint had been examined under that paragraph alone rather than in conjunction with paragraph 3 (d) of the Article.

2. The central problem in the case does not in my view derive from the fact that the applicant was unable to examine, or have examined, X. as a witness against him. X. was at most four years old at the time the criminal investigation commenced against the applicant and no more than seven years old at the time of the applicant ' s trial. Even if, on the latter occasion, X. could be said to be old enough to be examined by the applicant or his lawyer, either directly or through the trial judge, I do not consider that, in the particular circumstances of the present case, the failure of the trial court to require such examination gave rise to a violation of Article 6 § 3 (d).

3. The problem in terms of Article 6 stemmed in my view from the testimony of E.K., to which the trial court attached decisive importance. That testimony was based on two psychological examinations of X. which had been carried out by E. K. - the first on 14 April 1994, which took place in the presence of the mother and maternal grandmother of X. on the day that the former had requested the Pabianice District Prosecutor to institute criminal proceedings against the applicant on charges of sexual abuse of their daughter, and the second, some nine months later, on 9 January 1995. Neither examination was attended by a representative of the prosecutor ' s office or by representative of the applicant or by a psychologist appointed by him. Moreover, as noted in the Court ' s judgment, neither examination was recorded on video so as to enable the trial court, with the assistance of other expert evidence, to assess the validity of the opinion of E.K. founded on such examinations that X. had not only been sexually abused but that the applicant was the abuser. It is true that the applicant had an opportunity to challenge this opinion and to question the adequacy and soundness of the methods used by E.K. when examining X. However, in my view, the rights of the defence were not thereby sufficiently safeguarded. Where, as here, the examination of X. by E.K. alone played a crucial role in the conviction of the applicant, I consider that fairness required that the applicant should have had the opportunity of testing E.K. ' s evidence with the benefit of a recording of the examination itself.

JOINT PARTLY DISSENTING OPINION OF JUDGE S CASADEVALL AND MIJOVIĆ

( Translation )

We do not share the opinion of the majority concerning point 2 of the operative provisions as, in our view, there has been no violation of Article 6 § 1 of the Convention taken in conjunction with Article 6 § 3(d), for the following reasons.

1. The fact that the applicant ' s daughter was subjected to very serious and repeated sexual assaults between the ages of two and four is not in dispute. Nor did any dispute arise as to the fact that the child was examined on two occasions, on 14 April 1994 and 9 January 1995, by E.K., an expert psychologist, or the fact that, leaving aside these two examinations and consultations of a strictly medical nature, no one questioned or took evidence from the child: not the police, the prosecutor, the accused or his lawyer, the court of first instance or the court of appeal.

2. It was established that neither the defence lawyer nor the prosecutor made a request at any point, during the investigation or before the first ‑ instance court, for the court to hear evidence from the victim. This would appear to be a sensible precaution in the case of a four-year-old girl. As the appellate court found, such testimony was to be regarded as “testimony impossible to obtain” within the meaning of the Code of Criminal Procedure (see paragraph 31 of the judgment). This assessment seems wholly correct given that no testimony had been obtained from the victim, this having proved impossible.

3. The regional court convicted the applicant on the basis of the two reports from the psychologist E.K., the expert opinion of Dr J.B. on the applicant ' s sexual profile, the opinion of two other specialists as to the adequacy of the methodology used by E.K., the medical file of the victim (who received treatment during 1995 for faecal incontinence and low muscular tension of the sphincter) and the expert reports of Drs A.D. and J.K. The regional court decided against hearing evidence from the child, firstly because it considered it to be unnecessary and secondly in order to avoid causing her serious harm in view of her extreme youth. The appellate court upheld the reasoning of the regional court and found that, even in the absence of oral testimony from the victim, the first-instance court ' s assessment of the evidence had not been unrea sonable or arbitrary.

4. The applicant complained in particular that the criminal proceedings against him had not been fair on account of the fact that X had never been questioned, and that the evidence on which the domestic courts based his conviction had been insufficient. He relied on Article 6 §§ 1 and 3(d) of the Convention. With regard to the second complaint, there is no need to reiterate that the admissibility of evidence is governed primarily by the rules of domestic law and that it is in principle for the national courts to assess the evidence before them , the Court ' s role being confined to ascertaining whether the proceedings considered as a whole were fair. As regards the first and main complaint, the two questions which arise, as we see it, are as follows: ( i ) first, whether a four-year-old girl can or should be questioned or give evidence, especially in relation to serious sexual abuse issues and (ii) second, whether the same child, who was never questioned, can be regarded as a witness against the accused within the meaning of Article 6 § 3(d) of the Convention and the autonomous concept of “witness” established by the Court.

( i ) Our reply to the first question is in the negative. We consider that the Polish judicial authorities acted with extreme caution – in line with the recommendations of a psychologist – in order to protect a vulnerable victim and spare her further damage. As age is an important factor in assessing this issue, it should be pointed out that in the case of S.N. v. Sweden the child concerned was ten years old, in P.S. v. Germany the girl was eight years old and in Bo cos-Cuesta v. the Netherlands , where the circumstances were serious but less traumatic, the victims were aged ten, six, nine and eleven. The situation is clearly different in the present case.

(ii) In the three cases cited above, all the children were questioned by specially trained police officers (see paragraph 60 of the judgment) and their statements constituted the evidence on which the accused were convicted. The victims therefore acted as witnesses for the prosecution. In the present case, the child was examined by a psychologist and by doctors but was never questioned by anyone else; the evidence against the accused consisted of expert reports rather than statements, the latter not having been taken. That being the case, we consider that the victim herself cannot be considered as a witness against the accused, either for the purposes of Article 6 § 3(d) of the Convention or within the autonomous meaning of the Court ' s case-law (see, conversely, among other authorities, S.N. v. Sweden , no. 34209/96, § 45 , ECHR 2002 ‑ V ).

5. Admittedly, there is room for doubt or speculation as to whether it might not have been useful for the parties (the defence as much as the prosecution, and also the courts) to have had an audiovisual recording of the conversations between the psychologist and the child. However, the fact that this was not available does not in any sense mean that the victim should be regarded as a prosecution witness . As the cr iminal case file was made up in particular of psychologists ' and doctors ' reports and opinions, the prosecution and the defence had the same evidence available to them and the same resources for performing their respective tasks; hence, no issue arises with regard to the principle of equality of arms. The applicant had every opportunity to challenge the psychologists ' and doctors ' reports and opinions, to question the authors and, if appropriate, to request a second opinion. Hence, all the evidence was produced at a public hearing, in the presence of the accused, enabling adversarial argument to take place as required by our Court ' s case-law.

6. If the majority consider (as seems to be suggested in paragraph 58 in fine and paragraph 59 of the judgment), with regard either to the rights of the defence or the admissibility of the evidence, that there was a real issue as to fairness in this case – and we do not believe that there was –, they should have examined it from the general standpoint of Article 6 § 1. They should not have based their finding of a violation on the specific circumstance that no evidence was heard from a four-year-old child who, moreover, could not be considered as a witness against the accused (despite the assertion to the contrary in paragraph 63).