Communicated on 31 January 2014
FOURTH SECTION
Application no. 60389/11
Patrycja KALISZCZAK
against Poland
lodged on 12 September 2011
STATEMENT OF FACTS
The applicant, Ms Patrycja Kaliszczak, is a Polish national, who was born in 1997 and lives in Szczecin. She is represented before the Court by Mr D. Babski, a lawyer practising in Szczecin. The application was lodged by the applicant’s mother.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In winter 2002 the applicant who, at that time was 5 years old, went with her father, T.K. to skiing holidays in the Alps.
When they came back, the applicant’s mother, N.K., noticed that her daughter behaved in a strange way, she also allegedly reported to her mother the events in the skiing holidays. N.K. suspected that T.K. had sexually abused their daughter.
On 25 March 2002 N.K. lodged with the Szczecin District Prosecutor a notification of a suspicion that an offence had been committed.
On 10 August 2002 the Szczecin District Court found the applicant’s father guilty and sentenced him to two years’ of imprisonment.
T.K.’s lawyers appealed against the first-instance judgement.
On 4 February 2005 the Szczecin Regional Court quashed the challenged judgment and remitted the case. The court noticed that the first-instance court should consider whether it was necessary to hear the applicant on the basis of newly enacted provision of the Code of Criminal Proceedings, which specified conditions under which a minor being a victim of a sexual abuse could be questioned and according to which such minor – as a principle - could be questioned only once in the course of criminal proceedings.
On 21 June 2006 the Szczecin District Court again sentenced T.K. to two years’ imprisonment. It appears that the applicant was not questioned before the court.
T.K.’s lawyers appealed again.
On 20 November 2006 the Szczecin Regional Court upheld the challenged judgment.
T.K.’s lawyer lodged a cassation appeal.
On 1 February 2008 the Supreme Court found the cassation appeal well‑founded and quashed the challenged judgment and the preceding judgment of the District Court. If found a number of procedural shortcomings on the part of the first- and the second-instance court. The Supreme Court found that the applicant should have been questioned as witness again because at the time of the first hearing the accused had not been represented by a lawyer; that the applicant had not been informed of her right to refuse to testify and that the courts of lower instances had wrongfully accepted private psychiatric opinions as expert evidence. All these shortcomings led the Supreme Court to the conclusion that the case had to be re-examined.
The proceedings are still pending after the Supreme Court’s remittal of the case.
On 15 June 2011 the applicant’s mother who acts as auxiliary prosecutor in the criminal proceedings lodged a complaint against the excessive length of the proceedings with the Szczecin Court of Appeal. She sought a ruling that the duration of the proceedings in question had exceeded a reasonable time and a just satisfaction of PLN 20,000.
On 20 July 2011 the Szczecin Court of Appeal found the complaint well‑founded, acknowledged that the proceedings had indeed been lengthy and granted the applicant PLN 5,000 in just-satisfaction.
B. Relevant domestic law and practice
On 1 July 2003, that is at the time when the case was pending before the second instance court for the first time the Code of Criminal Procedure was amended and a new Article 185a inserted:
§1. In cases concerning offences described in chapters XXV of the Criminal Code [sexual offences], a victim who at the time of the offence is less than 15 years old, should be questioned only once, unless there are new circumstances which need to be clarified in a separate interview or the accused was not represented by a lawyer during the first interview and so requests.
§2. The interview shall be conducted at a court hearing with the participation of an expert psychologist. The prosecutor, defense lawyer and the victim’s representative shall have the right to attend the hearing...
§3. The record of the interview shall be read out at the trial; if a video or audio recording was made, it shall be played back at the trial as well.”
On 29 August 2005 § 1 of Article 185a was amended and received the following wording:
“§1. In cases concerning offences described in chapters XXV and XXVI of the Criminal Code [sexual offences and offences against morality], a victim who at the time of the hearing is less than 15 years old, should be questioned only once, unless there are new circumstances which need to be clarified in a separate interview or the accused was not represented by a lawyer during the first interview and so requests.”
COMPLAINTS
The applicant complains that because of the numerous procedural shortcomings on the part of the domestic courts the case was remitted twice for re-examination and the proceedings have lasted unreasonably long. This, in turn, constantly reminds her of the events in 2002 and has a negative impact on her psychical and moral integrity and on her private life. She also complains that the investigation into the circumstances of the offence is not effective.
QUESTION TO THE PARTIES
Does the present case concern a positive obligation arising under Article 3 and/or Article 8 of the Convention, to protect the applicant’s physical and/or moral integrity and her private life? If so, have there been violations of Articles 3 and/or 8 of the Convention on account of the alleged numerous shortcomings in the domestic proceedings which led to their excessive length and ineffectiveness? Reference is made to the case of M.C. v. Bulgaria, no. 39272/98, ECHR 2003‑XII.
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