CASE OF ŠTULÍŘ v. THE CZECH REPUBLIC
(Application no. 36705/12)
12 January 2017
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 Štulíř v. the Czech Republic,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Tim Eicke, judges,
and Abel Campos, Section Registrar,
Having deliberated in private on 29 November 2016,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 36705/12) against the Czech Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Czech national, Mr Emil Štulíř (“the applicant”), on 8 June 2012.
2. The applicant, who had been granted legal aid, was represented by Mr J. Petera, a lawyer practising in Hradec Králové. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, Ministry of Justice.
3. The applicant alleged a violation of his defence rights in criminal proceedings brought against him.
4. On 26 June 2013 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1967 and lives in Prague.
6. In the period between 30 December 2005 and 8 June 2006 the applicant was found to have addressed emails to C., his former partner, stating, among other things:
“... It is this [C.] that I wish to see; I don’t want to meet the other one again. I gave up the possibility of keeping her at bay by any means (such as pictures of her injecting drugs, pictures of her offering prostitution services or pictures of her masturbating), because I have so much respect for her that I did not want to spend any more hours trying to pull off dirty tricks on her, naively believing that the second time I would be able to open her eyes to the truth. ...
You say that you are scared of me. Well, get rid of that fear finally; otherwise we cannot even be very good friends ...
I suggest we draw a line under the past, particularly the evil period, and turn over a new leaf. In the same spirit, I suggest not talking about the evil things ever again; otherwise you will not be able to get rid of your fear ...
... Are we really only able to talk to each other when I yell at you or tie you up or abduct you in my car, or do I have to think up a similar dirty trick? Do I have to become evil before you can hear me out and are willing to talk to me? You are not going to believe me, but it hurt me that I had to lower myself to that level. ...
It’s a pity that one has to abduct you or tie you up, in other words simply use means of physical restraint in order to make you listen and carefully think about and evaluate what they have told you. I would be happier if you could do so without such actions ...
... promise made in the car ...
Because I have not humiliated you either, although I had a good opportunity to do so. I could have taken pictures of you, forced you to make a porn movie and sent it to all those people in England. I could have forced you to sign whatever I wished for, and I know that you would forced yourself to sign whatever I wished and I know that you would have done it at that moment. Do not wonder about the things I am able to think about; wonder about why I have not done so ...
I will tell her everything about what I have done to you as well as why I have done it; I will give her your contact details, and maybe she can help us become closer ...
I told the psychologist everything about what I have done to you, ... how I was bad to you, including the threats I have recently made in order to make you hear me out. When I told her about how I tied you up, she replied that I must not do that to you ever again and that I should be glad that you have not turned me in ...
On Monday, it will be one month since that last time I threatened you and intimidated you ...
... all my threats are really just my defensive response to various feelings of injustice ...
When you were at my place, I could have done whatever I wanted with you; but I’m not like that, it is hard to hurt you in any way because I love you ...
If you cannot accept it, I will not do anything more than what I have repeated a thousand times when we made that agreement at Christmas ...
I will do or pay someone to do something that will harm you. Ranging from pettiness to heavy force that would be in violation of the law ...
[C.], I’m slowly starting to realise that my feelings for you are heading towards freezing point and hatred is starting to prevail ...”
7. On 7 June 2006 C. made a statement about the applicant’s threatening telephone calls and emails at the police station in Surrey (the United Kingdom). On the next day, upon police advice, she changed her telephone number and email address.
8. On 23 June 2006 the Prague 1 District Prosecutor’s Office (obvodní státní zástupce) received an anonymous criminal complaint containing allegations of the sexual abuse of children. The female informer indicated that a certain C. had confessed that she had participated in sexual abuse whilst working as an au pair in the United Kingdom.
9. In July 2006 several individuals including the applicant were questioned in connection with the criminal investigation into the criminal complaint.
10. On 13 July 2006 C.’s mother made a statement at the police station in Prague 1 according to which the applicant had tied C. up in his apartment and had shown her a bag in which he intended to carry her away. She stated, in particular, that:
“On 6 June 2006, my daughter called me, asking me whether I had time and that maybe I should sit down. She informed me that she had not been dating [L.], as she had claimed the entire time she dated [the applicant], but that instead she had been dating [the applicant], who had allegedly threatened and was currently still threatening her with physical annihilation if she would not resume her relationship with him; he had also demanded that [C.] continue to have sexual relations with him. She decided to tell me about the entire matter only after he had allegedly sent her an email with the words ... ‘and don’t forget that you have a family - mother, brother - back at home’ ... Given her experience of him, [C.] considers it very likely that this threat could be carried out by [the applicant]. Since that time she had changed her email address and phone number; she also informed me that she had changed her place of residence in England because she did not want to have contact with him any more. In addition, my daughter informed me that she had also reported the entire matter in England, where she had been questioned about the matter after suffering a mental breakdown there. This condition of my daughter was caused by the actions of the [applicant], who had continuously been sending her emails and threatening her. My daughter said that she had these emails at her disposal ...
In addition, I learned from my daughter that [the applicant], during the period when he was communicating and was able to communicate with her, had told her that she could come back to him, that she was in no danger from him because he had started seeing a psychologist ... in order to reduce or eradicate his violent behaviour, which he was aware of and had been using against her - against [C.] ...”
11. On 19 July 2006 C.’s female friend D.B. stated that, in a letter of 28 January 2006, C. had confided in her about the forcible coercion by the applicant, which had taken place on 29 December 2005. She further stated that, at about the same time, C. had called her from the United Kingdom, telling her that the applicant had been menacing her and her family with threats to their lives. In addition, she said that the applicant had contacted her by SMS, by phone and by email. She submitted the letter to the police.
12. On 7 August 2006 the police asked the Prague 6 District Prosecutor’s Office to apply for an “urgent or non-repeatable measure” (neodkladný nebo neopakovatelný úkon) pursuant to Article 158a of the Code of Criminal Procedure (hereinafter “the CCP”), and the following day an interview with C. was conducted. The request included a very detailed justification explaining that the applicant had forcibly coerced C. in the Czech Republic as well as in the United Kingdom, where she had filed a criminal complaint. At the time of making that request, C. had been living and working in the United Kingdom but arrived back in the Czech Republic for the purpose of her interview on 8 August 2006. Her employment and the distance between the place of her employment and Prague, where she was interviewed, made it impossible for her to travel more often to the Czech Republic, where she did not feel safe anyway, given the prior events.
13. On the same day, a prosecutor at the District Prosecutor’s Office asked the Prague 6 District Court (obvodní soud) to secure the presence of a judge during C.’s interview, which was to be carried out as an urgent and non-repeatable measure.
14. On 8 August 2006 the police interviewed C. as a witness in the presence of a judge pursuant to Article 158a of the CCP. At that time, the applicant had not been charged and was therefore not present at the interview. C. stated at the outset that:
“... [S]ince September 2005 I have been working as an au pair in the United Kingdom. ... I arrived in the Czech Republic on the basis of an agreement with the police authorities of [the Czech Republic] and upon the advice of my employer, ..., who is a police officer, after the actions of [the applicant] reached such an intensity that I started to be really scared.”
She further stated that the applicant had not come to terms with the fact that she had broken off their intimate relationship. She described in detail the acts of intimidation conducted by him in the form of phone calls, SMS messages, emails, letters and verbal threats. She also stated that on 29 December 2005, between 12 noon and 4.30 p.m., she had been present in the applicant’s flat, where he had tied her to the bed, partially undressed the lower part of her body, and threatened to drug her with heroin, to carry her out from the flat in a large bag and to hand her over to unspecified persons to be trafficked to Turkey for 100,000 CZK (EUR 3,622) unless she promised to resume their intimate relationship, which she had broken off on 25 December 2005. According to her, the applicant had threatened to take pornographic pictures of her or to record a porn movie with her, which he would then send to her employer in the United Kingdom and the company which had acted as intermediary in finding her a job in the United Kingdom. Furthermore, on 1 January 2006 they had been in a car together and the applicant had threatened to throw C. into a snowdrift and drive off, or to kill both her and himself in a deliberate car accident. C. also stated that the applicant had searched through her mobile phone contacts to find the number of her female friend D.B., whom he had contacted at a later date. C. wrote an explanatory letter to D.B. She had also phoned her mother and had confided in her about the intimidation by the applicant. C. also stated that the applicant was seeing a psychotherapist. As the intimidation continued, C. filed a criminal complaint at a police station in the United Kingdom on 7 June 2006.
She also stated:
“Upon the advice of the police in the United Kingdom, on 8 June 2006 I changed my mail address, after 9 June 2006 I also changed the number of my mobile phone and at the advice of my employer, I have also the confidential employment that [the applicant] or his eventual messengers could not contact me. ...
I was asked to make comment on the email notice which was made anonymously at the Prague 1 District Prosecutor’s Office on 23 June 2006 at 10.48 a.m.. ... I do not know any girl who would meet me in a club in the United Kingdom; I do not know any such girl who would know the information about me, which were written in this denouncement. ... The information indicated in this denouncement corresponded to what [the applicant] knows about me, what I foolishly told him in the past.”
At the end of the interview, C. submitted copies of her email exchanges with the applicant and a tape recording of his voice messages, and made available SMS messages on her mobile phone for transcription.
15. On 25 October 2006 a judge at the Prague 6 District Court ordered the compilation of a list of incoming and outgoing telephone calls from the applicant’s mobile phone between 20 December 2005 and 31 July 2006. On 26 October 2006 he ordered the compilation of a list of communications executed from three mail-boxes between 14 February and 30 June 2006 and between 1 January and 30 June 2006, respectively. On 31 October 2006 the judge ordered the compilation of a list of communications carried out from several of the applicant’s other mail-boxes in the period from 25 December 2005 to 30 June 2006, and also the provision of information on the total number of communications logged in these mailboxes between 25 December 2005 and 18 October 2006. On the same day, the judge ordered the compilation of a list of outgoing telephone calls from the applicant’s land line on 9 June 2006 between 11 a.m and 3 p.m.
16. On 5 April 2007 criminal proceedings were initiated against the applicant for unlawful restraint (omezování osobní svobody) in concurrence with coercion (vydírání), defamation (pomluva) and false accusation (křivé obvinění).
17. In April 2007 a search was conducted in both the applicant’s flat and the commercial premises where he ran his business, upon the search orders issued on 16 and 18 April 2007 respectively. The applicant was arrested on 20 April 2007 and was charged with unlawful restrain, coercion, defamation and false accusation, and released afterwards.
18. The police continued to gather evidence during 2007 and 2008. They obtained an expert psychiatric opinion on the applicant’s health, analysed his computer, carried out a search of his flat and questioned a number of witnesses.
19. On 27 April 2007 C.’s mother was interviewed. She stated, in particular, that:
“On 6 June 2006 ... my daughter called me at work, started crying on the phone ... She told me that ... she had been dating [the applicant] the entire time. [She] continued crying a lot, which made me realise that this was not all there was to it. It made me feel physically sick. She continued the story, saying that when she was at home for Christmas [the applicant] had abducted her. She had agreed to meet him somewhere in Prague they met normally and agreed to go out for a drink in the evening. But he said that he needed to change clothes so they would first drive to his place and then go out later in the evening. In the apartment, however, he tied her up and menaced her with horrible threats. At that time, she did not tell me any details. ... At the same time, during our phone conversation we came onto the topic of the threatening emails that [the applicant] had been sending her the entire time. She said that she had not paid much attention to them but that lately it had got completely out of hand and ... he had started threatening to kill her and, finally, had sent her an email saying that she should not forget that she had her entire family in Prague, specifically mentioning her mother and brother, and that she should not forget that he knew where we lived.
I personally contacted the psychologist ... She confirmed that my daughter had phoned her as well. She said that she had advised her ... to immediately cut off all contact with [the applicant] ... I told her about what [the applicant] had done to my daughter at Christmas 2005 and she essentially replied that [the applicant] had also told her about it and that she had strictly forbidden him to ever do such a thing again ...
[C.] told me that in December 2005, when she was in his flat, [the applicant] had tied her up, threatened to kill her, to traffic her, to make a movie of her taking drugs or a porn movie; he had also searched through her handbag and taken a piece of paper with her home address or had written it down, had searched through the address book in her mobile phone and had accessed her electronic mail box after forcing her to give him the password ...”
20. The investigation having been concluded in May 2008, the applicant was indicted for coercion under Article 235 §§ 1 and 2 of the Criminal Code on 16 June 2008. This legal classification of his criminal acts was more serious 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 conjunction with coercion under Article 235 § 1 of the Criminal Code. According to the applicant, he had not been informed about it, contrary to Article 176 § 2 of the CCP.
22. The trial started on 14 October 2008. As C. apologised for not attending the main hearing, the statement made by her on 8 August 2006 was therefore read out. The applicant claimed that C.’s residence abroad had not been a sufficient reason for carrying out her interview as an urgent measure and that her statement should not be read out at the trial. He argued that the conditions laid down in Article 211 § 2 of CCP had not been met.
23. The District Court tried to summons C. again. In its letter of 12 March 2009, the court sent a summons to the main hearing to C. through her mother. On 13 March 2009 the District Prosecutor’s Office sent to the District Court copies of the documents justifying the urgent need to interview C., namely the request of 7 August 2006 to secure the presence of a judge during an urgent and non-repeatable measure and the police letter of 7 August 2006.
24. In a letter of 24 April 2009, C. informed the presiding judge that, although she had been summonsed, she was unable to attend the main hearing because she had been working abroad for more than four years and intended to stay abroad on a permanent basis. She stated that the circumstances justifying the applicant’s criminal prosecution were very stressful for both her and her mother. It appears that the District Court did not try to summon C. again.
25. In a judgment of 8 December 2009 the District Court found the applicant guilty of coercion 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 mainly relied on the testimony of C., but also on a statement made by D.K., a schoolfriend of C.’s, who stated that she had received emails concerning C.; the statement by M.V., C.’s psychotherapist, who testified that C. had confided in her about having been taken somewhere by the applicant against her will; the statement by C.’s mother; a testimony by L.B. implying that the applicant and C. had met at Christmas 2005; expert opinions in cybernetics and computer technology and in psychiatry; the emails sent by the applicant to C. between 30 December 2005 and 8 June 2006; and the letter from C. to D.B., in which C. wrote to her female friend about the applicant’s violent behaviour.
“Based on such secured evidence, the court came to a clear conclusion, finding the defendant guilty as indicated in the verdict of the judgment. The defendant denies any such behaviour and actions on his part directed against [C.] as described in the judgment; however, he has clearly been proved guilty by the evidence taken. The court relied in particular on the testimony of witness [C.], who described the defendant’s actions in great detail. The testimony is consistent with further evidence taken. This includes email correspondence, which corroborates the victim’s statement and the victim’s mother’s statement to the effect that the victim had confided in her about everything on 6 June 2006. A brief description of the defendant’s behaviour was also included in the letter sent by the victim to her female friend [D.B.] which was available to the court ... In his expert opinion, the expert concluded that it was absolutely possible and posed no problem for the defendant to use previously prepared straps to tie the victim to bed and partially undress the bottom half of her body, and that it was absolutely possible and posed no problem for him to tie her up in the manner she had described ...”
27. On 13 February 2010 the applicant appealed, raising a number of procedural, factual and interpretational complaints. He claimed, inter alia, that C.’s statement remained uncorroborated evidence on which his conviction was based.
28. In his extensive submissions of 26 March 2010, he requested that C. be questioned in order, inter alia, to clarify the contradictions between the statements given by C., her mother, and her psychologist and the applicant’s testimony. He also suggested that an expert opinion be drawn up by a psychiatric expert to assess the reliability of C. and to complete and assess other evidence, including the hearing of three witnesses who had been rejected without adequate reasoning by the first instance court. He also requested that the Prague Municipal Court (městský soud) postpone the public hearing, without giving any reason in this respect.
29. The hearing before the Municipal Court was held on 30 March 2010 in the absence of the applicant, who had apologised in writing on 29 March 2010 indicating that he could not attend the hearing due to serious personal and family reasons, but agreeing that the court carry out merely the procedural acts allowed by Article 263 § 5 of the CCP and asking, at the same time, to postpone the hearing afterwards. At the hearing he was represented by counsel who, contrary to the applicant’s written appeal, did not request that any further evidence be taken. The court, having rejected the applicant’s request to postpone the hearing, examined his appeal, upholding the conviction of the first instance court.
30. The court found that the applicant’s guilt had been securely established in particular by the statement given by C., which was not the only evidence against the applicant, her statements having been corroborated by further indirect evidence, such as the testimony of her mother, in whom C. had confided at the material time. The appellate court also found that, although C. and her mother had not had a close relationship before, C. contacted her out of fear for her and her brother’s life and described the acts of coercion carried out by the applicant. Witness C.’s mother also claimed that the initial anonymous criminal complaint sent by email to the Prague 1 District Prosecutor’s Office had been sent by the applicant, who had thus lodged a false accusation. Her testimony was examined in detail. The indirect evidence also included text messages sent by the applicant on 5 June 2006 and the criminal complaint filed by C. in the United Kingdom on 7 June 2006. The time concurrence was thus a significant factor, too.
“... the assessment of the evidence is reasonable and convincing, as is [the District Court’s] conclusion concerning the reliability of witness [C.]. The District Court was not wrong in believing this witness, who proved the defendant’s guilt of the criminal acts. The testimony of the victim was not the only convincing evidence against the applicant on which the District Court based its conclusion about the defendant’s guilt, since the defendant’s criminal acts are also proved by a chain of indirect evidence corroborating the testimony of the victim and confirming the credibility of her statements. This includes, in particular, the testimony of her mother ... in whom the victim confided during a phone call on 6 June 2006 in which she described the defendant’s actions, including the way he had tied her up in his apartment, threatened her and sent her threatening emails. The testimonies given by [C.] and her mother ... regarding the relevant facts correspond to the content of the criminal complaint filed by the victim at the police station in Surrey, United Kingdom ... on 7 June 2006. The defendant’s complaint that the unreliability of the victim is proved by the fact that she did not confide earlier in her mother or a close female friend about his alleged behaviour is ill-founded: the evidence taken clearly shows that the victim and her mother did not previously have a particularly close relationship since she did not confide in her mother about her relationship with the defendant. This is understandable given that she was allegedly abused by the mother’s partner (as the victim confided in the defendant). Furthermore, the victim was already back in the United Kingdom at the relevant time (as of 3 January 2006) and her contact with the defendant was conducted solely via mobile phone calls and email correspondence. In these circumstances, the behaviour of the victim appears rather logical and understandable, i.e. confiding in her mother and brother concerning the threats to their health and her life in an SMS message. ... The reliability of the victim and the veracity of her testimony is also corroborated by the emails included in the ... These emails, which were submitted to the police by the victim, correspond case file to her testimony as to the timeframe and the contents ... It is hardly possible for the Municipal Court to believe that the victim would systematically and for many months beforehand prepare all the evidence ... in order to be able to file a criminal complaint against the defendant. In addition to the above, the defendant’s contacts with the victim (which he himself did not deny) and her reliability are also clearly shown in the defendant’s affidavit of 2 June 2006 ..., in which the defendant declared he did not have any financial claims against the victim. Finally, one should not disregard the statement of an impartial witness ... namely the victim’s psychotherapist, who confirmed that the victim came to her because of relational problems with the defendant, confided in her about having been held by the defendant against her will and driven off somewhere in his car, and about his emails threatening to harm her if she left him. All this indirect evidence is interrelated and consistent with the victim’s testimony. Consequently, the defendant’s complaint concerning the unreliability of the victim is ill-founded ... As a result, the District Court correctly believed the testimony given by the victim in relation to this matter, considering her testimony in general to be credible ...
The defendant’s behaviour and verbal aggression, as documented in the emails and SMS messages sent by him escalated at a later stage, prompting the victim to file a criminal complaint and change her contact details because she was afraid of the defendant’s behaviour after he threatened to harm her mother and brother. ...”
“The victim was duly interviewed in the presence of a judge ..., with the unrepeatability of the measure being determined by the long-term residence of the witness in the United Kingdom. The justification of such a procedure and the unavailability of the witness were confirmed by the efforts of the District Court to secure her attendance at the main hearing, which the witness repeatedly failed to attend, providing a written statement to the effect that she was residing abroad on a long-term basis and would not be able to attend the main hearing in the foreseeable future. Therefore, the Municipal Court deemed legal the procedure applied by the District Court whereby, after exhausting the possibility of examining the victim in the main hearing for unavailability due to her residence abroad, it read out the statement she had made ... in the pre-trial proceedings in accordance with Article 211 § 2(a) of the Code of Criminal Procedure. Although this was key evidence, it was not the only evidence proving the defendant’s guilt ...”
33. The appellate court admitted that the prosecutor had violated Article 176 § 2 of the CCP in reclassifying the charges without notifying the applicant. It found, however, that this omission did not impact on the legality and correctness of the reviewed judgment to the extent that a duty to reverse it resulted.
34. On 18 July 2010 the applicant filed an appeal on points of law (dovolání) which was rejected as unsubstantiated by the Supreme Court (Nejvyšší soud) on 30 November 2010. The 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 have the hearing postponed. It added that the applicant’s counsel had not requested that further evidence be gathered and assessed and that, therefore, there had been no need to postpone the hearing.
35. On 13 March 2011 the applicant filed a constitutional appeal (ústavní stížnost) which was dismissed by the Constitutional Court (Ústavní soud) in a decision of 1 December 2011 which was served on the applicant on 9 December 2011. Having analysed the testimony given by C., the Constitutional Court found that, although it was direct evidence, it was corroborated by a chain of indirect evidence, especially the testimony of her mother. In respect of the remaining complaints, the Constitutional Court agreed with the findings of the lower courts stating, in particular:
“The applicant’s complaints regarding the search in his flat and non-residential premises and lands are unsubstantiated. The search in the applicant’s domicile was carried out in compliance with Article 83 of the Code of Criminal Procedure on the basis of the search order issued by the Prague 6 District Court. The applicant had the opportunity, if he was convinced that the search is unlawful, to lodge a constitutional appeal against this order ... In a constitutional appeal against the final judgment of conviction, it is possible, in connection with a search carried out unlawfully, complain in particular the inadmissibility of concrete pieces of evidence which were gathered and on the basis of which [an applicant] was found guilty. However, the applicant did not expressly submit any concrete evidence which would be gathered illegally. ...”
36. On 30 August 2012 the applicant submitted to the Ministry of Justice a claim for compensation for damages caused by delays in the criminal proceedings under the State Liability Act (no. 82/1998). On 24 September 2012 his claim was rejected as having been introduced outside the six-month statutory time-limit. On 24 May 2013 the applicant filed an action for damages against the Ministry, which appears to be still pending before the Prague 2 District Court.
II. RELEVANT DOMESTIC LAW
37. At the material time, the relevant provisions of the Code of Criminal Procedure (Act no. 141/1961), as amended, read:
“1. The presiding judge, or in pre-trial proceedings the judge nominated upon the request by the public prosecutor, shall be authorised to order the search of private premises. 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 justified. 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 24 hours at the latest from elimination of the obstacle preventing such service.
2. A search warrant shall be executed upon order of presiding judge or other judge by a police body.”
“Where it is deemed necessary to question a witness as an urgent or non-repeatable measure during an investigation at a time before anybody has been charged, the interview must be requested by a prosecutor and shall be conducted in the presence of a judge; the judge shall be responsible for the legality of such questioning and for that purpose may intervene in the questioning. However, the judge shall not be authorised to review the prosecutor’s decision that an urgent and non-repeatable measure is required.”
Article 176 § 2
“The indictment shall be filed only for the act covered by the charges brought (Article 160). If the prosecutor wishes to classify this act as a crime different from the classification made by the investigator, he shall notify the accused and his defence counsel prior to filing the indictment and he shall also ascertain whether they will apply to supplement 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 therefore not in a position to be heard, or
b) has been questioned as an urgent or non-repeatable measure under Article 158a.”
Article 263 § 5
“After opening the public session, the presiding judge of the panel or a member of the panel appointed by him/her shall first read the challenged judgment, identify which errors in the judgment or proceedings are challenged and shall communicate the significant content of the proceedings so far.”
38. At the material time, the relevant provisions of the Criminal Code (Act no. 140/1961), as amended, read:
“(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.”
“(1) A person who by violence, the threat of violence, or the threat of another serious detriment forces another 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 that act using a weapon;
(d) by that act he causes severe harm to health or substantial damage;
(e) he commits the act against a witness, expert or interpreter in connection with performance of their duties ...”
III. RELEVANT INTERNATIONAL LAW
39. Mutual assistance in criminal matters between the Czech Republic and the United Kingdom is governed, in particular, by the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959, supplemented by the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 29 May 2000.
40. Pursuant to the 2000 Convention, one Member State may request the judicial authorities of another Member State to summons a witness within its jurisdiction to give evidence by videoconference. The consent of the witness is not required for this purpose.
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
41. The applicant complained that he could not challenge the testimony of key witness C., who had been heard only at the pre-trial stage through the application of an urgent measure in the absence of the applicant or/and his representative. He relied on Article 6 § 3 (d) of the Convention.
The Court considers that this complaint should be analysed under Article 6 §§ 1 and 3 (d) of the Convention, the latter concerning particular aspects of the right to a fair trial guaranteed by Article 6 § 1, which, in so far as relevant, reads:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...
3. Everyone charged with a criminal offence has the following minimum rights:
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”
42. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. The parties’ submissions
(a) The applicant
43. The applicant firstly maintained that the Government’s argument that neither he nor his legal counsel had asked that C. be examined was misleading, the applicant having actually insisted on hearing witness C. in the request he submitted to the Municipal Court on 29 March 2010.
44. The applicant further argued that the statement made by C. before the start of the prosecution had been neither urgent nor non-repeatable as there had been no threat of its frustration or destruction or loss of evidence. According to him, at the time when the examination had been conducted, the investigative, prosecuting and decision-making bodies had been in possession of facts which would have justified commencing the applicant’s prosecution. The applicant referred in this respect to the national case law in which the court held that if at the pre-trial stage of the proceedings an act has to be carried out which cannot be repeated at trial, this does not mean that such evidence may be taken before the start of the prosecution if the person who is to be charged is known and the prosecution against him can be initiated. The applicant concluded that in that situation, under Czech case law, an examination may not be carried out as an non-repeatable act, even though it is an act which cannot be executed at trial.
45. The applicant reiterated that the court had made practically no efforts to examine C. at trial and had failed to ask the judicial bodies of the United Kingdom to take evidence through the procedure under Article 3 of the European Convention on Mutual Assistance in Criminal Matters, no. 550/1992. He alleged that C.’s conduct showed her determined effort to avoid her duty to provide witness testimony and asserted that the testimony she gave on 8 August 2008 shows that she did not lack money to travel for the court hearing. Moreover, she visited the Czech Republic several times during the investigation, for instance on 24 July 2007 and 14 February 2008.
46. The applicant pointed out that C.’s testimony had been of substantial significance in terms of his conviction. The courts based their decisions solely on her witness statement, corroborated by indirect evidence whose evidentiary weight could be doubted. According to him, there were discrepancies between C.’s statement and the testimonies of other witnesses. He further noted that C. had claimed that she had received a threatening email referring to an article about the murder of a Czech au pair, but according to the expert opinion, the history of the browser on the applicant’s computer had not contained any such web address. In addition, neither the District Court nor the Municipal Court had proved that the emails or SMS messages had been written by him.
47. The applicant asserted that there had not been sufficient procedural guarantees to counterbalance his disadvantage during the proceedings. He argued that he had had no opportunity to challenge C.’s testimony as the courts had not admitted any evidence proposed by him. He maintained that the Czech authorities could have adopted measures to compensate for the aggravated conditions under which the defence was working. He referred in this respect to S.N. v. Sweden (no. 34209/96, § 50, ECHR 2002-V), in which the applicant’s legal counsel were able to put questions ‒ at least indirectly ‒ to a child who was a sexual abuse victim. The applicant stated that he would have considered it a sufficient procedural guarantee if C.’s examination had been conducted through a videoconference or teleconference within the meaning of the Convention on Mutual Assistance in Criminal Matters.
(b) The Government
48. The Government pointed out at the outset that although in his appeal to the Municipal Court the applicant had insisted on C. being heard before the court, his counsel ‒ who had been present at the hearing ‒ had not requested that any further evidence be taken. He had therefore not requested the examination of C.
49. The Government argued that there had been a compelling reason why witness C. could not have been questioned by the defence. They reiterated in this respect that, in compliance with national law, the obtaining of the statement made by C. before the commencement of the prosecution had been carried out as an urgent and non-repeatable measure pursuant to Article 158a of the Code of Criminal Procedure. According to the Government, the procedure had been fully justified in this case because the witness had been residing abroad on a long-term basis in her place of work and, according to her statement, had no intention of coming back to the Czech Republic in the foreseeable future. Consequently, it had been impossible to summons the witness properly before the District Court and secure her questioning in person, even though the District Court had made significant efforts to do so. Moreover, C.’s residence abroad had also been motivated by her wish to avoid any confrontation with the applicant which was plausible, taking into account the circumstances of the present case. Moreover, according to the expert opinion concerning the applicant’s personality, the applicant displayed aspects of instability, passive aggression and excessive persecution. The Government noted that it had not been possible to conceal C.’s identity by any means because she had been the only victim in the criminal proceedings who had also previously worked and lived with the applicant.
50. The Government were also of the opinion that although C.’s statement had been important in order to establish the applicant’s guilt, it had not been decisive evidence, since there had been other convincing evidence against him. They noted in this respect that the District Court had also relied on the testimonies of other witnesses appearing before the court, particularly the testimonies given by C.’s mother, her psychotherapist and her female friend D.B., as well as on the documents included in the criminal case file, namely the letter from C. to D.B., emails sent by the applicant to C., SMS messages addressed to C. by the applicant, the expert opinions, and other evidence. The Government maintained that C.’s testimony had been corroborated by other evidence of significant strength (in contrast Tseber v. the Czech Republic, no. 46203/08, § 56, 22 November 2012).
51. The Government maintained that the presence of the judge during the interview at the pre-trial stage, the applicant’s opportunity to contest C.’s testimony at trial, the assessment of C.’s reliability by the courts, and other evidence corroborating C.’s testimony had been a sufficient procedural counterbalance to offset the disadvantage for the applicant of not having had the opportunity of direct confrontation with C. in order to question her. The Government added that the proof of C.’s reliability had been set down in detail in the Municipal Court’s judgment. Moreover, C.’s psychotherapist had confirmed that C. had come to her because of relational problems with the applicant and had confided in her about having been held by him against her will and about his menacing emails containing threats to her life (contrast Tseber, cited above, §§ 64-68).
52. Lastly, the Government pointed out that, as in Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, ECHR 2011), C. had confided in her mother, her psychotherapist and her female friend D.B. about the applicant’s unlawful behaviour, and these individuals had testified at trial. A similar situation played an important role in Al-Khawaja, leading the Court to the conclusion that there had been no violation of Article 6 of the Convention.
2. The Court’s assessment
(a) General principles
53. The Court reiterates that all evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence; as a general rule, Article 6 §§ 1 and 3 (d) require that the defendant 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 Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, § 707, 25 July 2013).
54. In Al-Khawaja and Tahery v. the United Kingdom, cited above, §§ 119-147, the Grand Chamber clarified the principles to be applied when a witness does not attend a public trial. These principles may be summarised as follows:
(i) the Court should first examine the preliminary question of whether there was a good reason for admitting the evidence of an absent witness, keeping in mind that witnesses should as a general rule give evidence during the trial and that all reasonable efforts should be made to secure their attendance;
(ii) typical reasons for non-attendance are, like in the case of Al-Khawaja and Tahery (cited above), the death of the witness or the fear of retaliation. There are, however, other legitimate reasons why a witness may not attend trial;
(iii) when a witness has not been examined at any prior stage of the proceedings, allowing the admission of a witness statement in lieu of live evidence at trial must be a measure of last resort;
(iv) the admission as evidence of statements of absent witnesses results in a potential disadvantage for the defendant, who, in principle, in a criminal trial should have an effective opportunity to challenge the evidence against him. In particular, he should be able to test the truthfulness and reliability of the evidence given by the witnesses, by having them orally examined in his presence, either at the time the witness was making the statement or at some later stage of the proceedings;
(v) according to the “sole or decisive rule”, if the conviction of a defendant is solely or mainly based on evidence provided by witnesses whom the accused is unable to question at any stage of the proceedings, his defence rights are unduly restricted;
(vi) in this context, the word “decisive” should be narrowly understood as indicating evidence of such significance or importance as is likely to be determinative of the outcome of the case. Where the untested evidence of a witness is supported by other corroborative evidence, the assessment of whether it is decisive will depend on the strength of the supportive evidence: the stronger the other incriminating evidence, the less likely that the evidence of the absent witness will be treated as decisive;
(vii) however, as Article 6 § 3 of the Convention should be interpreted in the context of an overall examination of the fairness of the proceedings, the sole or decisive rule should not be applied in an inflexible manner;
(viii) in particular, where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6 § 1. At the same time, where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny. Because of the dangers of the admission of such evidence, it would constitute a very important factor to balance in the scales and one which would require sufficient counterbalancing factors, including the existence of strong procedural safeguards. The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance to the case.
55. Those principles have been further clarified in the Schatschaschwili case (cited above, §§ 111-131), in which the Grand Chamber confirmed that the absence of good reason for the non-attendance of a witness could not, of itself, be conclusive of the lack of fairness of a trial, although it remained a very important factor to be weighed in the balance when assessing the overall fairness, and one which might tip the balance in favour of finding a breach of Article 6 §§ 1 and 3(d). The Court recalls in this regard that in cases concerning a witness’s absence owing to an inability to contact the witness, the domestic courts must, as a rule, have resorted to international legal assistance where a witness resided abroad and such mechanisms were available (see Schatschaschwili, cited above, §121).
56. Furthermore, given that its concern was to ascertain whether the proceedings as a whole were fair, the Court should not only review the existence of sufficient counterbalancing factors in cases where the evidence of the absent witness was the sole or the decisive basis for the applicant’s conviction, but also in cases where it found it unclear whether the evidence in question was sole or decisive but nevertheless was satisfied that it carried significant weight and its admission might have handicapped the defence. The extent of the counterbalancing factors necessary in order for a trial to be considered fair would depend on the weight of the evidence of the absent witness. The more important that evidence, the more weight the counterbalancing factors would have to carry in order for the proceedings as a whole to be considered fair (see Seton v. the United Kingdom, no. 55287/10, §§ 58 and 59, 31 March 2016).
(b) Application of these principles to the present case
57. In the present case, the Court observes that witness C., who was also the victim in the proceedings, made her statement before the commencement of the prosecution against the applicant, in form of an urgent and non-repeatable measure and her statement was read out at trial (see paragraphs 12-14, 25 and 32 above). Thus at no stage of the proceedings did the defence have an opportunity to confront C. and the court had no opportunity to observe her demeanour under questioning with a view to forming their own impression of her probity and credibility.
(i) Whether there was a good reason for the non-attendance of witness C. at the trial
58. As to the first of the requirements set out above, namely whether there was a good reason for the non-attendance of the witness, the Court in the Al-Khawaja and Tahery case (cited above, see §§ 122-125) held that the fear of a witness could justify his or her non-attendance at the trial and that there was no requirement that a witness’s fear be attributable directly to threats made by the defendant or his agents in order for the witness to be excused from giving evidence at trial. However, where the reason for the non-attendance of a witness at trial was the fear of the witness, the trial court was required to conduct appropriate inquiries to determine whether there existed objective grounds for that fear and whether these objective grounds were supported by evidence.
59. The Court notes that in the present case the District Court conducted the trial without hearing C. as a witness and admitted her pre-trial statement as evidence following a number of unsuccessful attempts to summon her to attend at trial (see paragraphs 21-24 above). The Court further notes that the main reason given by C. for her non-attendance at trial was that she was settled and was working in the United Kingdom, and that her fear to be confronted with the applicant appears to have been of secondary importance (see paragraph 24 above).
60. The Court admits, in this connection, the particular vulnerability of victims of domestic violence, which calls for active State involvement in their protection (see Eremia v. the Republic of Moldova, no. 3564/11, §§ 32-36, 28 May 2013) which would include their protection in the course of judicial proceedings including the arrangement of special conditions for their participation in hearings in order to avoid the repetition of testimony and to lessen the traumatising effects of proceedings, and, where necessary, the adoption of measures to protect victims effectively against threats and possible acts of revenge.
61. Nevertheless, the Court, applying the relevant principles established in its case-law (see paragraphs 53-56 above), observes that the national courts involved in the present case, in particular the District Court which acted as the trial court, did not make any particular effort to ensure the attendance of witness C. at the proceedings against the applicant, even though, as a rule, the domestic courts must have resorted to international legal assistance (see Schatschaschwili, cited above, § 121). Indeed, the District Court did not conduct in this respect any appropriate enquiry, but stopped summoning the witness, having apparently merely been satisfied with her written explanations why she was not ready to attend the trial, namely that she was living abroad and that it would be stressful for her to be in the presence of the accused (see paragraphs 24 and 32 above).
62. The Court finds that, in these particular circumstances, no good reason for the absence of witness C. and, as a result, for admitting the statements she had made to the police in the presence of the judge at the pre-trial stage as evidence had been established. However, the absence of a “good reason”, in the Al-Khawaja and Tahery sense, for the non-attendance of witness C. at the trial of the applicant, is not the end of the matter. As pointed out in Schatschaschwili v. Germany (see paragraph 55 above), this is a consideration which is not of itself conclusive of the lack of fairness of a criminal trial, although it constitutes a very important factor to be weighed in the overall balance together with the other relevant considerations.
(ii) Whether the evidence of the absent witness was the sole or a decisive basis for the applicant’s conviction
63. Moving on the second stage of the test in Al-Khawaja and Tahery, the Court will examine whether the applicant’s conviction was based solely or to a decisive degree on the deposition made by C. It reiterates in this respect that where the untested evidence of a witness is supported by other corroborative evidence, the assessment of whether it is decisive will depend on the strength of the supportive evidence; the stronger the corroborative evidence, the less likely that the evidence of the absent witness will be treated as decisive (see Al-Khawaja and Tahery, cited above, § 131).
64. The Court observes that while the statement of C. was, as the District Court found, the main evidence (see paragraph 25 above), it was not the sole or decisive evidence for the outcome of the case against the applicant (see Jakubczyk v. Poland, no. 17354/04, §§ 48-49, 10 May 2011; Fąfrowitz v. Poland, no. 43609/07, § 58, 17 April 2012).
65. The District Court found that C.’s statement related to the coercion charges against the applicant was corroborated by ample other evidence in the present case, in particular the very terms of the emails sent by the applicant to C. between 30 December 2005 and 8 June 2006; the opinions of experts in cybernetics and computer technology and in psychiatry; the statement of D.K., a schoolfriend of C., who stated that she had received emails concerning C.; the statement of M.V., C.’s psychotherapist who testified that C. had confided in her about having been taken somewhere by the applicant against her will; the statement of C.’s mother; the testimony of L.B. to the effect that the applicant and C. had met at Christmas 2005; and the letter from C. to D.B., in which C. wrote to her female friend about the applicant’s violent behaviour (see paragraphs 25-26 above).
66. The Municipal Court was confronted with the applicant’s contention that his conviction had been based on the uncorroborated statement of C. (see paragraph 27 above). However, it rejected those arguments stating that the applicant’s guilt was securely established in particular by the statement given by C., which was not the only evidence, since the applicant’s criminal acts were also proved by a chain of indirect evidence corroborating C.’s testimony and confirming the credibility of her statements (see paragraphs 30-31 above). The Constitutional Court shared this opinion (see paragraph 35 above).
67. While, for the above reasons, C.’s statement may not have been the sole or decisive evidence grounding the applicant’s conviction, the fact remains that her testimony carried significant weight and that its admission may have handicapped the defence (see Schatschaschwili, cited above, § 116). Accordingly, the Court will examine whether there were sufficient counterbalancing factors.
(iii) Whether there were sufficient counterbalancing factors
68. The extent of the counterbalancing factors necessary in order for a trial to be considered fair will depend on the weight of the evidence of the absent witness. The more important that evidence, the more weight the counterbalancing factors will have to have in order for the proceedings as a whole to be considered fair (Schatschaschwili, cited above, § 116).
69. In this regard, the Court notes that Czech law on criminal procedure provides for measures enabling the prosecution to have the evidence of witnesses whom they expect to become unavailable to testify at trial taken at the pre-trial stage. The measures allow for the hearing of a witness as “an urgent or non-repeatable measure” before charges are brought and for reading out the witness’s statement at the trial if the witness concerned does not attend the trial. In the present case, the request by the police to the prosecutor to apply this measure contained a very detailed justification, explaining that the applicant had forcibly coerced C. in the Czech Republic as well as in the United Kingdom where she had been living and working and that she had returned to the Czech Republic for the purpose of the interview, where she did not feel safe given the prior events (see paragraph 12 above). The Court further notes that the conduct of the investigation at this early stage, including recourse to the measures under Article 158a of the CCP was entirely within the hands of the police and prosecutor. However, C.’s interview was conducted in the presence and under the supervision of a judge. While this is not in itself a substitute for the defendant’s right to examine those who accused him (see Tseber, cited above, § 62), and does not compensate for the failure to have recourse to international legal assistance where a witness resided abroad and such mechanisms were available (see Schatschaschwili, cited above, §121), the Court considers that, by ensuring the lawfulness of the procedures followed by the police, it constituted one of the procedural safeguards for the right of a fair trial.
70. The Court further observes that the reliability of C.’s statements and the strength of the corroborative evidence was the principal issue throughout the domestic proceedings. The District Court carried out a comprehensive and rigorous assessment of all the evidence and was clearly alive to the need to approach the evidence of C. with caution. Its conclusion was that the statement of C. was reliable since it had been corroborated in a number of important aspects by other evidence, such as the testimony of C.’s mother, the content of the letter from C.’s female friend D.B. and the witness statement by C.’s psychologist (see paragraphs 25-26 above). The Court is satisfied that the trial court’s scrutiny of C.’s statement was a rigorous one (see, mutatis mutandis, Fąfrowicz v. Poland, cited above, § 61).
71. The Court further takes note of the fact that the applicant had the opportunity to contest C.’s testimony, her credibility and reliability in depth as he had known her personally for many years; moreover, he was able to, and did, challenge other evidence corroborating her testimony.
72. The Court also attaches significant weight to the in-depth review carried out by the Municipal Court which dealt with the applicant’s appeal against the first-instance judgment. It notes in this respect that the critical issue in the case, namely the credibility of C. and the reliability of her statement, was examined by the appellate court at length and in detail (see Sievert v. Germany, no. 29881/07, § 65, 19 July 2012, and contrast Tseber, cited above, § 67, where the reliability of an absent witness, whose evidence was decisive in the case, was not properly scrutinised). The appellate court explained why there were no grounds to assume that C. had wrongly accused the applicant of involvement in the impugned crime and ruled out the possibility that C. had orchestrated the whole story against the applicant (see paragraphs 30-32 above).
73. The Court observes that the assessment of “counterbalancing factors” is a relative one: the extent of the counterbalancing factors necessary in order for a trial to be considered fair depends on the importance of the evidence of the absent witness (see, Seton, cited above, § 68, referring to Schatschaschwili, cited above). Considering the circumstances of the present case, the Court is therefore satisfied that the necessary care was applied in the evaluation of C.’s statements also at the appeal stage of the criminal proceedings.
74. Against this background, and viewing the fairness of the proceedings as a whole, the Court considers that, notwithstanding the difficulties caused to the defence by the admission of the statement and the risks involved there, there were sufficient counterbalancing factors on which it is possible to conclude that the admission in evidence the testimony given by C. at the pre-trial stage of the criminal proceedings did not result in a breach of Article 6 § 1 read in conjunction with Article 6 § 3 (d) of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
75. The applicant submitted various other complaints under Articles 6, 8 and 13 of the Convention. The Court notes that the applicant’s complaint concerning the allegedly protracted length of the criminal proceedings is premature, the proceedings for damages being pending before the national authorities (see paragraph 36 above). In respect of the remaining complaints the Court finds, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
FOR THESE REASONS, THE COURT
1. Declares, unanimously, the complaint under Article 6 § 1 of the Convention read in conjunction with Article 6 § 3 (d) of the Convention concerning the impossibility for the applicant to examine or to have examined witness C. admissible and the remainder of the application inadmissible;
2. Holds, by five votes to two, that there has been no violation of Article 6 § 1 of the Convention read in conjunction with Article 6 § 3 (d) of the Convention.
Done in English, and notified in writing on 12 January 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Abel Campos Mirjana Lazarova Trajkovska Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinion of Judges Lazarova Trajkovska and Bianku is annexed to this judgment.
JOINT DISSENTING OPINION OF JUDGES LAZAROVA TRAJKOVSKA AND BIANKU
We submit that the same reasons that made us dissent in the case of Bátěk and Others v. the Czech Republic (no. 54146/09), decided on the same date as the present case, are the basis for our dissent from the majority in this case as well.
A fortiori, in the present case the witness C. was based in London and it could not be said that the difficulties involved in locating her were of the same nature as those related to locating the truck drivers in the case of Bátěk and Others. However, just as in Bátěk and Others, the national authorities applied the standard that as long as the witness is abroad, it is impossible for his or her statements to be reproduced at the trial. When you think that this dismissive attitude takes place in relation to witnesses residing in another member State of the European Union, within which judicial cooperation should be effective, we believe that our concerns are very much justified.