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DEMSKI v. POLAND - 22695/03 [2008] ECHR 1230 (4 November 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/1230.html
Cite as:
[2008] ECHR 1230
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FOURTH
SECTION
CASE OF DEMSKI v. POLAND
(Application
no. 22695/03)
JUDGMENT
STRASBOURG
4
November 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Demski v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
David Thór Björgvinsson,
Ledi
Bianku,
Mihai Poalelungi, judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 14 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 22695/03) against the Republic
of Poland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Polish national, Mr Arkadiusz Demski (“the
applicant”), on 27 June 2003.
The
applicant, who had been granted legal aid, was represented by Ms B.
Słupska-Uczkiewicz, a lawyer practising in Wrocław. The
Polish Government were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
The
applicant alleged that his rights under Article 6 §§ 1 and
3 (d) of the Convention were violated as he had had no opportunity to
examine the main witness in the criminal proceedings against him.
On
8 January 2007 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1971 and lives in Głogów.
On 12 June 2000 Ms M.Ł. informed the police that
her 17 year-old granddaughter (M.H.) had been raped by the applicant
and J.K. Subsequently, the police opened an investigation into the
allegations.
M.H.
was questioned by the police on 12 June and by a prosecutor on 5 July
2000.
The
police were unsuccessful in their attempts to arrest the applicant as
he had gone into hiding.
On
6 July 2000 M.H. was heard by the Jelenia Góra District Court,
at the request of the prosecutor, pursuant to Article 316 § 1 of
the Code of Criminal Procedure. Apparently, the prosecutor had
attempted to notify the applicant of the hearing, but he had been
absent from his place of residence.
On
17 August 2000 the Jelenia Góra District Court ordered that
the applicant be detained on remand for a period of seven days from
the day of his arrest. On 6 September 2000 the prosecutor issued a
warrant for his arrest.
On
20 September 2000 the applicant was arrested by the police and placed
in pre-trial detention.
On
20 December 2000 the co-accused was arrested by the police and
detained on remand.
On
15 January 2001 the applicant was indicted before the Jelenia Góra
Regional Court (Sąd Okręgowy).
On
26 July 2001 the Jelenia Góra Regional Court gave judgment.
The applicant was convicted as charged and sentenced to four years'
imprisonment. The court established the following facts. On 10 June
2000 M.H., who was at that time 17 years old, met the applicant, J.K.
and another man in a bar called “DIK”. The men were
aggressive and intimidating, particularly J.K., who wanted to become
M.H.'s boyfriend. They told her to come to the same bar the next day
at 5 p.m., which she did. On 11 June 2000 the applicant and J.K.
again threatened M.H. in the bar. Afterwards, J.K. went with her to a
toilet where he harassed her. The applicant then led M.H. out of the
bar and together with J.K. they went to the latter's house. The
applicant and J.K., taking turns, repeatedly raped M.H. in the
basement of the house. They threatened to kill M.H. if she told
anybody about it. The following day M.H. spoke about the incident to
her grandmother, who informed the police.
The
applicant and J.K. did not confess. They stated that they had met
M.H. in the bar where they arranged a meeting for the next day with
the purpose of having sex. They admitted that they had had sexual
intercourse with M.H. but denied having raped her.
As
regards the grounds for the conviction the trial court stated as
follows:
“The explanations of J.K. and [the applicant]
regarding the rape of M.H. were considered untruthful. Their account
came down to a statement that on 11 June 2000, in the DIK bar,
M.H. had voluntarily agreed to meet the accused the next day to have
sex with them, only she did not want to do it with both of them at
the same time, but one after the other. From the accused's
explanations it also appears that afterwards she went upstairs with
them to J.K.'s apartment where she was given a glass of water by his
sister. Then they all returned to the DIK bar.
As the explanations of both accused are contrary to the
testimonies of M.H. [they have been considered untruthful].
During the preparatory proceedings, [M.H., who was]
questioned three times, described in identical terms the course of
events of 10 and 11 June 2000...
Taking into account the age of M.H. and her personality
as described in the psychologist's report, detailed below, it is no
surprise that it was out of fear of the accused that she went [back]
to the bar on 11 June 2000.
...
[After having left the bar] throughout the whole of the
journey [the applicant] held [M.H.] firmly by the hand, making it
impossible for her to leave, and threatened to kill her if she cried
or talked. It is not surprising that, despite the fact that she had
been close to a police station, M.H. did not try to call for help.
...
[in the basement] M.H., being afraid of the accused and
that [the applicant] would carry out the threats he had made, which
were fully backed up by J.K. as his behaviour proves, submitted
herself to all the demands of the accused and had with [the
applicant] and J.K. repeated vaginal, anal, and oral sexual
intercourse.
One cannot be surprised by the victim's behaviour given
the huge physical advantage of the accused and taking into account
the place in which M.H. had found herself, namely a basement. The
victim could not have counted on anybody's help in such a place and
she believed that putting up any resistance would have been
pointless.
...
The truthfulness of M.H.'s testimonies is confirmed by
the testimonies of witnesses R.K. [bartender], M.Ł
[grandmother], and P.N., D.K. and E.C. [work colleagues]. R.K. could
not say much about M.H.'s time in the bar and the accuseds' behaviour
towards her. When questioned in the preparatory proceedings she had
stated nevertheless that she had urged J.K. to leave M.H. alone ...
From the testimonies of M.Ł, P.N., R.K. and E.C. it
appears that M.H. told them, crying, that she had been raped ...
From the psychologist's report ... it appears that M.H.
is a girl of average intelligence, with a normally developed capacity
for logical thought, orientation in the world around her, and
awareness of norms and moral and social behaviour ... She has a
strong feeling of injustice and feels guilty that she was not able to
react differently in a threatening situation. Her statements were
coherent and logically linked. According to the expert they do not
have the characteristics of a lie or confabulation ...
M.H. was only examined by a gynaecologist on 12 June
2000. No injuries were established ... The test excluded the presence
of semen ... A lack of abrasions ... cannot prove that sexual
intercourse had not taken place, because since M.H. had not put up
any resistance such injuries would not necessarily have occurred,
[although they] could have occurred ...
The circumstances examined above allowed the court to
believe that the accused, acting together and in agreement,
threatening to beat M.H. up and using force by holding her arms, had
raped her on 11 June 2000.”
On
18 September 2001 the applicant's lawyer lodged an appeal against the
judgment. In particular, he complained that the applicant's right to
defence had been breached and that the testimonies taken from the
victim at the investigation stage had been used by the trial court.
On
13 December 2001 the Wrocław Court of Appeal (Sąd
Apelacyjny) upheld the first-instance judgment and dismissed the
appeal. With regard to the applicant's allegation that M.H. had not
been heard in his presence, the court stated:
“In examining whether the above allegation is
well-founded, it should be noted that the first-instance court had
summoned the victim on several occasions in order to hear her, but
she failed to appear [before it]. It appears from the testimonies of
M.Ł. - the victim's grandmother - that since November 2000 M.H.
had been living in Germany with her mother, who has a permanent place
of residence there. A certificate from a psychological clinic in
Germany, which has been treating the victim since January 2001,
constitutes proof of her continuing and permanent residence in
Germany.
The above situation was a ground for the first-instance
court's decision, under Article 391 §1 of the Code of Criminal
Procedure, not to hear the witness at the hearing and to read out the
statements she had made during the investigation.”
On
14 February 2002 the applicant's lawyer lodged a cassation appeal on
his behalf with the Supreme Court (Sąd Najwyższy).
He complained that the victim has only been summoned to the hearing
of 21 May 2000 once and that the summons had been sent to an
address in Poland even though the trial court had known her new
address in Germany. Moreover, according to M.Ł.'s statements the
victim has been returning often to Poland as she did not have a
permanent place of residence in Germany. The applicant concluded that
he had been deprived of the right to put questions to the witness and
to confront her with other evidence, which he had repeatedly
requested during the trial.
On
11 March 2003 the Supreme Court dismissed the cassation appeal. The
Supreme Court stated, in so far as relevant:
“...[Article 391 § 1] does not mean that in
every case when a witness is abroad an automatic application of an
exception from the rule of principle of directness (zasada
bezpośredniości) should apply. On the contrary, if the
testimonies of witnesses who are abroad are of significant importance
to the outcome of the case, they should be summoned to a hearing
using all available means, and when that proves impossible, they
should give evidence by means of international judicial assistance
(Article 587 of the Code of Criminal Procedure).
In the context of the present case, while not denying
that the prerequisite of “a witness being abroad” was met
(the victim permanently left for Germany and due to her psychological
troubles she was clearly unwilling to come back for the purpose of
testifying in court), in the reasoning of the decision taken pursuant
to Article 391 §1 it should have been particularly underlined
that the non-appearance of M.H. was a result of 'obstacles that could
not be removed'. The victim – according to the certificates
issued by psychologists (Polish and German) – as a consequence
of her brutal rape by two perpetrators, remained, one year after the
events, under intensive psychological and medical care and suffered
from depression and anxiety. A limitless effort to fulfil the
principle of directness, within legal boundaries, would be in
striking collision with the legitimate interest of M.H. [...]. It
would strengthen a false conviction within society that the victim of
a crime is placed on the margin of the criminal procedure and is
interesting to the relevant authorities only in so far as he or she
is necessary to convict an accused or acquit him or her. The
interpretation of the term 'obstacles which could not be removed', as
the genuine possibility of a deterioration of the victim's mental
health as a result of having to appear before a court, has already
been set out in the jurisprudence under the 1969 Code of Criminal
Procedure.
In this connection one cannot but note that the victim
was heard in the preparatory proceedings by a court according to the
provision of Article 316 § 3 of the Code of Criminal Procedure
... At the time when the court (in the presence of a psychologist)
heard the victim, the applicant had been in hiding. Thus, by his own
choice he did not participate in this important evidentiary stage of
the proceedings and consequently deprived himself of the opportunity
to put questions to the witness. The author of the cassation appeal
... failed to indicate what concrete, additional information he would
have liked to obtain from M.H ...”
II. RELEVANT DOMESTIC LAW
Article
316 § 3 of the 1997 Code of Criminal Procedure reads as follows:
“If there is a danger that the witness cannot be
heard at the hearing, a party or the prosecutor or other body
conducting proceedings may submit a request to have the witness heard
by a court.”
Article
391 of the Code provides as follows:
“1. If a witness has without good
reason refused to testify, or has given testimony different from the
previous one, or has stated that he does not remember certain
details, or if he is abroad, or a summons cannot be served on him, or
if he has not appeared as a result of obstacles that could not be
removed or if the president of the court has declined to summon him
pursuant to Article 333§2 [i.e. because upon the lodging of the
bill of indictment the prosecution has asked that the records of his
testimony be read out at trial], and also when a witness has died,
the records of his previous statements may be read out, [regardless
of whether they] have been made in the investigation or before the
court in the case in question or in another case or in any other
procedure provided for by the law.
2. In the circumstances referred to in
paragraph 1, and also in the case specified in Article 182 §
3, the records of evidence that a witness has given when heard as an
accused may also be read out.”
Article
585 of the Code governs the issue of judicial assistance. It provides
in so far as relevant:
“The actions necessary in criminal proceedings may
be conducted by way of judicial assistance, particularly the
following:
1) service of documents on persons staying abroad or on
agencies having their headquarters abroad,
2) taking depositions from persons as accused,
witnesses, or experts ...”
According
to Article 587:
“The official records of inspections, examinations
of persons as accused persons, witnesses or experts, or records of
other evidentiary actions prepared upon a request from a Polish court
or state prosecutor, by the courts or state prosecutors of foreign
countries or by agencies performing under their supervision, may be
read aloud at the hearing according to the principles prescribed in
Articles 389, 391 and 393. This may be done provided that the manner
of performing these actions does not conflict with the principles of
the legal order in the Republic of Poland.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d)
OF THE CONVENTION
The
applicant complained that the criminal proceedings against him had
been unfair and that he had not been given the opportunity to examine
or have examined the main witness against him, Ms M.H., whose
statements had been the basis for his conviction. He relied on
Article 6 §§ 1 and 3 (d) of the Convention, the
relevant parts of which provide:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by [a] tribunal ...
...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(d) to examine or have examined witnesses
against him ...”
The
Government contested that argument.
A. Admissibility
The Court notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties' submissions
The
applicant submitted that he had not had a fair trial and that he had
been deprived of the right to put questions to M.H., whose statements
played a decisive role in his conviction, in breach of Article 6 §
3 of the Convention. The applicant argued that his rights of defence
had been restricted to an extent incompatible with the requirements
of this Article.
The
applicant submitted that during his trial M.H. had not been living in
Germany permanently, and, according to the statements made by her
grandmother, she had been returning to Poland often, staying each
time for a period exceeding one week. Thus, the trial court could
have summoned her to a hearing during her stays in Poland. Moreover,
it was open to the Regional Court to use other means of securing the
witness's attendance at hearings, notably to impose a fine on her for
unjustified absence.
The
applicant acknowledged that the special features of criminal
proceedings concerning sexual offences could justify the use of
certain measures for the purpose of protecting the victim, provided
that such measures can be reconciled with an adequate and effective
exercise of his right of defence. However, in the present case the
need to protect the witness, invoked by the Government, had been
given a disproportionate weight. The applicant was not given the
opportunity to confront the witness's statements with his version of
the facts, and with other evidence in the case, particularly, the
expert opinion of a gynaecologist. Such a confrontation would have
been possible if the applicant, or his counsel, had been able to
participate in hearing M.H., either during the trial or before it
started, and to put questions to her. However, since he was not given
any opportunity to put questions to her, the domestic courts had
convicted him on the basis of the witness's statements in breach of
the provisions of Article 6 § 3 of the Convention.
The
Government submitted that the principle of equality of arms had been
respected in the instant case and that the fact that M.H. had not
been heard by the trial court in the presence of the applicant had
not breached his rights under Article 6 §§ 1 and 3. The
Government stated that the applicant had been represented by counsel.
His case was examined at a public hearing, in an adversarial
procedure, during which he had had the opportunity to adduce evidence
and request that new witnesses be heard. The applicant had had access
to his case file and had been able to challenge the statements made
by the principal witness, M.H.
The
Government further maintained that the principle of producing all
evidence in the presence of an accused at a public hearing is not
absolute and might be subject to exceptions, particularly when a case
concerns a sexual offence. The Government conceded that M.H. “could
indeed be regarded as a 'principal' witness in the criminal case
against the applicant”. For this reason she was questioned
twice by the prosecutor, on 12 June and 5 July 2000, and
afterwards heard in court on 6 July 2000. The prosecutor sent a
summons to the applicant's address to inform him about that hearing,
but at that time he had been in hiding in an attempt to avoid
prosecution. The Government maintained that the applicant had not
participated in the questioning of M.H. on 6 July 2000 by his own
choice; therefore, he had deprived himself of the opportunity to put
questions to her.
Moreover,
the Government submitted that the trial court had in fact summoned
M.H. to a hearing. This attempt was unsuccessful because she had
moved to Germany permanently soon after the event of July 2000. That
amounted to “an obstacle that could not be removed”
within the meaning of Article 391 § 1 of the Code of Criminal
Procedure, and made it possible for the trial court to read out the
statements she had made at the investigation stage.
The
Government also maintained that the authorities had adopted measures
to protect M.H., the victim of sexual abuse, and had had regard to
her right to respect for her private life. The Government underlined
that in a rape case it is particularly important to prevent any
unnecessary, additional suffering of the victim. The Government
referred to their positive obligations under the Convention to
effectively prosecute rape offences (M.C. v. Bulgaria,
no. 39272/98, ECHR 2003 XII) and to the case-law
regarding the special features of criminal proceedings concerning
sexual offences (S.N. v. Sweden, no. 34209/96, ECHR
2002 V). They further invoked international principles regarding
protection of victims of crimes expressed, inter alia, in the
Recommendations of the Council of Europe and the United Nations
“Declaration of Basic Principles of Justice for Victims of
Crime and Abuse of Power”.
In
sum, the Government maintained that, taking the proceedings as a
whole and taking into account the national courts' margin of
appreciation in assessing the evidence before them, there had been no
breach of the applicant's right to a fair trial.
2. The Court's assessment
As the requirements of Article 6 § 3 are to be
seen as particular aspects of the right to a fair trial guaranteed by
Article 6 § 1, the Court will examine the complaints under
Article 6 §§ 1 and 3 (d) taken together (see, among many
other authorities, A.M. v. Italy, no. 37019/97, §
23, ECHR 1999-IX, and Van Mechelen and Others v. the
Netherlands, judgment of 23 April 1997, Reports of
Judgments and Decisions 1997-III, p. 711, § 49).
The
Court reiterates that, as a general rule, it is for the national
courts to assess the evidence before them as well as the relevance of
the evidence which defendants seek to adduce. More specifically,
Article 6 § 3 (d) leaves it to them, again as a
general rule, to assess whether it is appropriate to call witnesses,
in the “autonomous” sense given to that word in the
Convention system; it “does not require the attendance and
examination of every witness on the accused's behalf: its essential
aim, as is indicated by the words 'under the same conditions', is a
full 'equality of arms' in the matter”. The concept of
“equality of arms” does not, however, exhaust the content
of paragraph 3 (d) of Article 6, nor that of paragraph 1 of which
this phrase represents one application among many others (see, among
other authorities, Vidal v. Belgium, judgment of 22 April
1992, Series A no. 235-B, p. 32, § 33, and Bricmont v.
Belgium, judgment of 7 July 1989, Series A no. 158, p.
31, § 89).
The
Court's task under the Convention is not to give a ruling as to
whether statements of witnesses were properly admitted as evidence,
but rather to ascertain whether the proceedings as a whole, including
the way in which evidence was taken, were fair (see, among other
authorities, A.M., cited above, § 24; Van Mechelen and
Others, cited above, p. 711, § 50; Doorson v. the
Netherlands, judgment of 26 March 1996, Reports 1996-II,
p. 470, § 67; and Perna v. Italy [GC],
no. 48898/99, § 29, ECHR 2003 V).
In
addition, all the evidence must normally be produced at a public
hearing, in the presence of the accused, with a view to adversarial
argument. This does not mean, however, that in order to be used as
evidence statements of witnesses should always be made at a public
hearing in court: to use as evidence such statements obtained at the
pre-trial stage is not in itself inconsistent with paragraphs 3 (d)
and 1 of Article 6, provided the rights of the defence have been
respected. As a rule, these rights require that an accused should be
given an adequate and proper opportunity to challenge and question a
witness against him, either when he makes his statements or at a
later stage (see Saïdi v. France, judgment of 20
September 1993, Series A no. 261-C, p. 56, § 43;
Kostovski v. the Netherlands, judgment of 20 November
1989, Series A no. 166, p. 20, § 41; and Unterpertinger
v. Austria, judgment of 24 November 1986, Series A no. 110,
p. 14, § 31). In particular, the rights of the defence are
restricted to an extent that is incompatible with the requirements of
Article 6 if the conviction is based solely, or in a decisive manner,
on the depositions of a witness whom the accused has had no
opportunity to examine or to have examined either during the
investigation or at trial (see Van Mechelen and Others, cited
above, p. 712, § 55).
In
appropriate cases, the principles of a fair trial require that the
interests of the defence are balanced against those of witnesses or
victims called upon to testify, in particular where life, liberty or
security of person are at stake, or interests coming generally within
the ambit of Article 8 of the Convention (see P.S. v. Germany,
no. 33900/96, § 22, 20 December 2001, and Doorson,
cited above, p. 470, § 70).
However,
only such measures restricting the rights of the defence which are
strictly necessary are permissible under Article 6. Moreover, in
order to ensure that the accused receives a fair trial, any
difficulties caused to the defence by a limitation on its rights must
be sufficiently counterbalanced by the procedures followed by the
judicial authorities (ibid., p. 471, § 72).
In
the present case the applicant was convicted of having raped
17 year-old M.H. The applicant argued that he had been unable to
question the statements made by M.H. at the pre-trial stage and that
the trial court had made no effective attempt to summon the witness
to his trial even though he had made requests to that effect on many
occasions. The applicant raised his Convention complaints in his
appeal and cassation appeal. The appellate court considered that it
had been justified in reading out the witness's statements because
she had been living abroad, while the Supreme Court referred to the
need to protect M.H., a rape victim, from possible deterioration of
her mental state as a result of giving evidence in the presence of
the defendants.
The
Court first notes that the statements made by M.H. had been the only
direct evidence of the offence in question. This was acknowledged by
the Government, which had agreed that M.H. could be regarded as a
principal witness as she had been the only person present at the
scene (see paragraph 30 above). Other witnesses who were heard by the
court – the grandmother, work colleagues and a bartender –
had not seen the acts alleged against the applicant and gave evidence
only on the basis of the victim's account (see paragraph 16 above).
The domestic courts further relied on the expert opinions of a
gynaecologist, who had not established any trace of rape or sexual
intercourse, and of a psychologist, who had been present when M.H.
was heard and had confirmed that her testimony could be considered
credible. The Court thus considers that the domestic courts based
their finding of the applicant's guilt to a decisive extent on M.H.'s
statements (see P.S., cited above, § 30).
The
Court observes that the Government submitted that the applicant had
waived his right to be present when M.H. was heard at the
investigation stage before the District Court on 6 July 2000.
However, at that time the applicant was being sought by the police
and thus had not yet been charged with the offence. The applicant was
only arrested on 20 September 2000 and indicted in January 2001.
The Court observes that during the subsequent trial and appeal
proceedings M.H. was not heard by the domestic courts and that the
statements she had made at the pre-trial stage were read out at the
trial. The Court thus considers that at no time could the applicant
put questions to her, either directly or indirectly (see P.S.,
cited above, § 26).
It has not been contested by the parties that the
trial court had made one unsuccessful attempt to send a summons to
M.H. at her Polish address. She failed to appear before the court and
her grandmother testified that she had gone to live with her mother
in Germany. In addition to this statement the trial court had at its
disposal documents indicating that she was under medical care in
Germany. It thus appears that M.H.'s address in Germany was either
known to the trial court or could have been easily obtained (see,
a contrario, Solakov v. the former Yugoslav Republic of
Macedonia, no. 47023/99, § 66, ECHR 2001 X).
In spite of this, the authorities did not make any effort to
determine the actual address of M.H. which was a precondition for
serving a summons on a witness residing abroad (see, a conrario,
Gossa v. Poland, no. 47986/99, § 58, 9 January
2007). The Court thus considers that the domestic courts did not make
every reasonable effort to obtain the attendance of M.H. at the trial
(see Pello v. Estonia, no. 11423/03, § 34, 12 April
2007).
The
Court reiterates its case-law regarding rape cases in that there
exist requirements inherent in the States' positive obligations to
establish and apply effectively a criminal-law system punishing all
forms of rape and sexual abuse (M.C., cited above, § 185).
The Court acknowledges that the special features of criminal
proceedings concerning rape might require balancing the needs of the
defence against those of witnesses or victims called upon to testify.
Such proceedings are often conceived of as an ordeal by the victim,
in particular as they entail being confronted again with the
defendant. However, in the light of the findings above, in the
present case it cannot be said that the witness's whereabouts were
unknown or that she sought ways to avoid a confrontation with the
defendants (see Scheper v the Netherlands (dec),
39209/02, 5 April 2005). Had the domestic court made more effort to
summon the witness to the proceedings and had she demonstrated that
her participation would have had an adverse effect on her mental
state, the applicant's complaint that his defence rights had not been
respected would have been put in a different perspective. The Court
further observes that arrangements could in any event have been made
to allow M.H. to give evidence in a manner which spared her the
ordeal of an adversarial procedure while respecting the rights of the
defence (see W.S. v. Poland, no. 21508/02, § 57,
19 June 2007 and S.N., cited above, § 47).
The
Court considers that the present case is similar to the cases A.M.
and P.S. referred to above, and differs from previous
decisions where the Court was satisfied that criminal proceedings
concerning sexual offences, taken as a whole, were fair, as the
convictions were either entirely based on evidence other than the
statements of the victims (cf. Dankovsky v. Germany,
(dec) no. 36686/97, 12 January 1999), or not solely
based on the statements of the victims (Verdam v. the Netherlands,
(dec) no. 35253/97, 31 August 1999; and P.S., cited
above, §30).
In
these circumstances, the Court concludes that the applicant's
conviction was to a decisive extent based on the depositions of a
witness whom he had had no opportunity to examine or to have examined
either during the investigation or at the trial and in consequence
his rights of defence had been restricted to an extent which was
incompatible with the requirements of Article 6.
The
foregoing considerations are sufficient to enable the Court to
conclude that there has been a violation of paragraph 3 (d), taken in
conjunction with paragraph 1 of Article 6 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 20,000 euros (EUR) in respect of non pecuniary
damage.
The
Government considered the claim excessive. They asked the
Court to rule that a finding of a violation constituted in itself
sufficient just satisfaction.
Having
regard to the fact that Polish domestic law provides for a right to
have the criminal proceedings reopened following a judgment of the
Court finding a violation of the Convention, it considers that
the above finding of a violation of Article 6 § 1 taken together
with Article 6 § 3 (d) of the Convention constitutes in itself
sufficient just satisfaction for any non pecuniary damage
suffered by the applicant.
B. Costs and expenses
The
applicant also claimed EUR 3,360 for the costs and expenses incurred
before the Court. This included twenty-eight hours' work by a lawyer
at an hourly rate of EUR 120.
The
Government considered that the sum claimed was disproportionately
high and that the applicant and his lawyer had failed to substantiate
it with any documents.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum claimed in full less EUR 850
received by way of legal aid from the Council of Europe. It thus
awards EUR 2,510 for the proceedings before the Court.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that there has been a violation of Article
6 § 1 taken together with Article 6 § 3 (d) of the
Convention;
Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for any
non pecuniary damage sustained by the applicant;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,510 (two
thousand five hundred and ten euros) in respect of costs and
expenses, plus any tax that may be chargeable to the applicant, to be
converted into Polish zlotys at the rate applicable at the date of
settlement;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 4 November 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
