EHRM, 19-06-2007, nr. 21508/02

The applicant was born in 1966 and lives in Pabianice.

On 11 April 1994 the applicant's wife filed an action for divorce, dated 8 April 1994, with the Łódź Regional Court. She submitted that the parties had married in 1989, that the marriage had not been a happy one from the beginning, that the applicant was unworthy of any trust, that he had been battering her and that he was generally unable to fulfil the role of husband and father. She claimed maintenance for their daughter X. and custody of the child.

On 14 April 1994 she requested the Pabianice District Prosecutor to institute criminal proceedings against the applicant on charges of sexual abuse of their daughter X. The minutes of her deposition read:

In an undated subsequent opinion, apparently prepared on the basis of a psychological examination of the child carried out on 14 April 1994 in the presence of her mother and maternal grandmother, E.K., a psychologist, described the child's stage of development and concluded:

Later on, the child was interviewed by E.K. on 9 January 1995. Her mother was not present during the examination. X. was also requested to make drawings representing her family and to play with dolls representing herself, her father and her mother.

In an opinion dated 17 January 1995, E.K. explained various techniques she had used during this meeting, suited to the child's age. She stated that during the second meeting the child had evoked events which seemed to suggest that she had been sexually abused by her father; that, given her age, there was no possibility that she was talking about things which in reality had not happened; that the drawings she had made constituted a spontaneous form of communication which could not, given her age, have been suggested to her by other persons; that these drawings suggested that she had been sexually abused by her father, possibly also by anal intercourse as she had clearly referred to anal pain in connection with ‘playing’ with her father.

The psychologist stressed that under no circumstances should the issue be raised with the child, who should be excluded entirely from the proceedings in order to safeguard her well-being and development. She noted that the child was more relaxed and confident than in April 1994, when she had realised that the ‘secrets’ her father shared with her had been regarded as evil by other members of the family.

On 31 March 1995 a bill of indictment was laid against the applicant in the Łódź Regional Court. He was charged with having sexually abused his daughter from 1992 until April 1994.

The prosecution referred to interviews conducted during the investigations with the applicant, his parents, his wife, her parents and her sister and her aunt K.M.

Further, reference was made to: X.'s medical records, police information on the applicant, the opinions prepared by E.K. (referred to above), a psychiatric opinion on the applicant (prepared by N.G. and M.G.-L.), drawings made by X., an expert opinion dated 28 November 1994, prepared by J.B., a sexologist, on the applicant's sexual profile, another report about the applicant's mental health prepared by psychiatrists M.L. and D.J., dated 1 March 1996, and an opinion of a psychologist on the applicant's personality, dated 1 March 1995 and prepared by E.W.

On an unspecified later date the court instituted the proceedings.

On 9 February 1996 an expert opinion, prepared by J.K., a specialist in surgery with considerable experience of working with battered and abused children, was submitted to the court. He prepared it on the basis of his analysis of X.'s medical records, but without interviewing either X. or other persons. He concluded that the symptoms which X. had manifested could have been caused by sexual abuse, but that such symptoms could also have been caused by other physiological factors. He was of the view that, in any event, no evidence pointed with certainty to sexual abuse by her father.

By a decision of 25 April 1996 the court called further expert witnesses: M.K., a psychologist, and another psychologist working for a Diagnostic Centre in Łódź.

In its decision of 24 May 1996 the court observed that doubts had arisen, in the light of J.K.'s opinion, as to whether an expert opinion of a sexologist on the applicant's personality and which had already been prepared for the purposes of the investigation had been sufficient and clear. The court noted J.K's professional experience in an non-governmental organisation helping children, victims of cruelty and sexual abuse. It therefore ordered that another expert opinion be submitted on whether the applicant was suffering from any sexual disturbances, and if this was the case, how they might relate to the charges against him. It appointed a sexologist, Dr A.B., as an expert.

On 12 July 1996 A.B. examined the applicant and on an unspecified later date submitted his opinion to the court.

On 5 March 1997 another expert opinion was submitted to the court in which the procedure for examination as well as the adequacy and soundness of the method used by the psychologist E.K. were assessed. Its conclusion was that there were no grounds for doubting the thoroughness and soundness of the opinion.

On 6 November 1997 the Łódź Regional Court convicted the applicant of having sexually abused X. and sentenced him to four years' imprisonment.

The court first recalled the circumstances of the applicant's marriage and the difficulties that had arisen between the spouses. It further established that the applicant's wife, having considered their situation and having discussed the issue with her sister I.K., decided, on 8 April 1994, to petition for divorce. On the same day she had sought legal advice and agreed with the lawyer that a divorce petition would be prepared. In the evening she had surprised the applicant caressing X. in a manner which shocked her as it seemed that he had been touching the child's sexual organs. She had not reacted immediately, but left the apartment with her daughter on the next day and moved in with her sister. On the same day she had talked with X. about her father's conduct and her suspicions of sexual abuse had been confirmed. On 14 April 1994 she had requested the prosecutor to institute an investigation and had been interviewed on the same day.

On 14 April 1994 the psychologist E.K. had met with X., but an attempt to obtain verbal confirmation of the charges of sexual abuse failed. The expert had only established that the convergence of various manifestations in the child's behaviour was sufficient to suppose that sexual abuse could have occurred.

As shown by the expert opinion of 17 January 1995, a further attempt by the psychologist to interview the child had been successful. The psychological tests had allowed the specialist to conclude that the girl's genitals had been touched and manipulated by her father and that this had happened on numerous occasions.

The court further referred to an expert opinion of Dr J.B, who had concluded that the applicant had a normal heterosexual drive and that he had a low self-esteem. The latter factor, in the expert's view, could have explained why he might have sought sexual experience with X. instead of normal adult sex.

The court recalled that it had decided not to interview X., having regard to the unequivocal opinion of the psychologist that it would not serve any useful purpose and would be harmful to her, and given that other evidence at its disposal was sufficient to give a ruling in the case.

The court considered that the expert opinions of E.K. were of decisive importance for its judgment. In particular, her second opinion of January 1995 in which she had categorically stated that X. had been sexually abused sufficed to conclude that the applicant was guilty. In that connection, the court recalled that already X's first contact with E.K. in April 1994 had given cause to believe that this had indeed been the case, even though the child had not wanted to talk at that time. Further, the examination carried out in January 1995 had confirmed these suspicions, the more so as the child at that time had been more relaxed and confident.

The court also referred to an expert opinion in which the methods used by E.K. were assessed by two further specialists as methodologically sound and appropriate to the situation and to the child's age. They had not found any grounds on which to challenge its validity.

The court further observed that in 1995 the girl had been treated for problems of foecal incontinence. In June 1995 a medical test had been carried out which showed that the muscular tension of her sphincter was too low for a child of her age. The court had heard the expert witness Dr A.D., who was of the view that damage to the child's sphincter might have been caused by anal penetration. The court observed that his medical findings corresponded to the conclusions made by E.K. in her opinion of January 1995 that the child could have been the victim of anal penetration.

The court referred to the opinion and testimony of Dr J.K. and was of the view that this opinion was merely of a theoretical character because he had not examined the child. Hence, his conclusions in which he had disagreed with the conclusions of certain other experts previously prepared in the case were not of decisive importance.

The court further noted that the members of the applicant's wife's family had been questioned in the proceedings, but that their testimony had been very emotional. As they had been interpreting all of the information about the applicant as pointing to his guilt, the court did not consider their testimony to be wholly credible.

The court concluded that in the light of the evidence seen as a whole, the applicant's guilt was not open to doubt.

The applicant appealed, arguing that the finding of his guilt had primarily been based on the opinions prepared by E.K. Having regard to these opinions, the court had refused to take further evidence which would have cast light on the real circumstances of the case. The court had ignored evidence pointing to the applicant's innocence and, on the whole, had failed to take evidence which would have allowed the facts of the case to be established in a full and convincing manner.

It was further submitted that the applicant had been effectively deprived of his defence rights. The authorities had decided, in the child's interest, not to interview X. As a result, its role had been limited to the assessment of the opinions submitted by E.K. and of her oral testimony. This had led to a situation in which the accused had been convicted on the basis of E.K.'s reports. Neither the prosecutor nor the court had ever seen the child. The court could not, therefore, form an opinion on the veracity of the charges.

On 12 March 1998 the Łódź Court of Appeal dismissed the appeal and upheld the impugned judgment. It first observed that the applicant's submission that the lower instance had failed to hear further evidence was incorrect.

It disagreed with the applicant's submission that the refusal to interview X. had deprived him of his defence rights. The applicant, who had been represented by a lawyer, had made full use of his defence rights and had put to the court numerous arguments in his defence.

The appellate court recalled that the first-instance court had concluded that in the light of the evidence seen as a whole, the applicant's guilt was not open to doubt, even in the absence of any oral testimony given by X. This conclusion of the first-instance court had met with the approval of the appellate court, despite the fact that it had been motivated in a rather succinct manner. Neither the prosecution nor the applicant had made a formal request to have X. interviewed by the court, and the attempt to obtain verbal testimony from her during the investigations had failed. Hence, such testimony should be regarded as ‘testimony impossible to obtain’ within the meaning of the Code of Criminal Procedure.

It was further noted that the validity and soundness of the opinions prepared by E.K. were not open to doubt. The first-instance court had taken specific steps in order to have their probative value assessed by other experts. Further, E.K.'s conclusions had also been assessed by the first-instance court in the light of other evidence at its disposal. The appellate court referred to the evidence given by A.D., which corroborated the conclusions reached by E.K. The submissions made by A.D. had corresponded to other available evidence. The first-instance court had also taken into consideration the conclusions made by the experts who had examined the applicant.

The appellate court concluded that the assessment of the evidence had been thorough and logical and that there were no grounds on which to find that the first-instance court had reached unreasonable or arbitrary conclusions.

On 22 February 2001 the Supreme Court dismissed the applicant's cassation appeal as being manifestly ill-founded.

On 2 March 2001 this judgment was served on the applicant.

At the relevant time the rules governing the assessment and admissibility of evidence were contained in the Code of Criminal Procedure of 1969 (‘the 1969 Code’). It was repealed and replaced by the Law of 6 June 1997 (commonly referred to as the ‘New Code of Criminal Procedure’), which entered into force on 1 September 1998.

Article 4 § 1 of the 1969 Code provided:

Under Article 155 of the 1969 Code, the trial court should dismiss a motion for evidence to be taken, if the taking of such evidence was inadmissible in law; if the fact to be proved was irrelevant to the assessment of the case, and if the evidence concerned was impossible to obtain.

Article 402 of the Code provided that the appellate court could not, in principle, take evidence. However, it could do so exceptionally at a hearing if it was of the view that this would expedite the proceedings. If the appellate court found that the evidence examined by the first-instance court was insufficient to give a judgment, it could also quash the judgment under appeal and remit the case to the trial court for reconsideration.

The applicant alleged that the proceedings brought against him had been unfair, in particular in that X. had never been questioned. He relied on Article 6 §§ 1 and 3 (d) of the Convention.

Given that the requirements of paragraph 3 (d) represent specific aspects of the right to a fair hearing guaranteed by Article 6 § 1, the Court will examine the applicant's complaints in the light of the two texts taken in combination (see, among many other authorities, Van Geyseghem v. Belgium [GC], no. 26103/95, § 27, ECHR 1999-I, and Kamasinski v. Austria, judgment of 19 December 1989, Series A no. 168, pp. 31–32, § 62).

These provisions, in so far as relevant, read as follows:

The applicant complained that he had been convicted on the basis of insufficient evidence. The court had accepted the evidence obtained from the medical examination of X., conducted by A.D. three and a half years after the alleged event, which for that reason could not be considered credible. On the whole, the courts had failed to establish the facts of the case convincingly and wrongly assessed the evidence.

The Court notes that this complaint 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.

However, having regard to its above finding of a violation of paragraph 3 (d) taken in conjunction with paragraph 1 of Article 6 of the Convention, the Court holds that it is not necessary to examine separately this complaint.

The applicant further complained that his ex officio defence lawyer had failed to ensure his proper defence during the proceedings.

The Court observes that this complaint has not been substantiated by any concrete arguments. It follows that the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

In his application form dated 17 December 2001 the applicant complained that the proceedings had lasted four years and had therefore been excessively long.

The Court observes that the proceedings concerned came to end on 21 February 2001, when the Supreme Court dismissed the applicant's cassation appeal. The judgment of the Supreme Court was served on the applicant on 2 March 2001. It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

Article 41 of the Convention provides:

The applicant claimed 150,000 Polish zlotys (PLN) in respect of the non-pecuniary damage he has suffered. He further sought an award of PLN 340,000 under the head of pecuniary damage, referring to lost earnings and to the costs he had had to bear in connection with the domestic proceedings.

The Government contested that claim. They added, however, that should the Court find a violation of the Convention this finding alone should constitute adequate just satisfaction or, in the alternative, that any financial compensation awarded should be consistent with the Court's own case-law in other similar cases.

The Court accepts that the impossibility for the applicant to have questions put to X. caused the applicant non-pecuniary damage, which cannot be made good by the mere finding of a violation. The Court, making its assessment on an equitable basis, awards the applicant EUR 1,800 in respect of non-pecuniary damage.