FOURTH SECTION
DECISION
Application no. 42446/06
by Franciszek LASKA
against Poland
The European Court of Human Rights (Fourth Section), sitting on 6 September 2011 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 21 September 2006,
Having regard to the declaration submitted by the respondent Government on 12 July 2010 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Franciszek Laska, is a Polish national who was born in 1961 and lives in Tarnow. He was represented before the Court by Ms K. Wislocka-Sieprawska, a lawyer practising in Krakow. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry for Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In 2005 the nursery attended by the applicant’s daughter J. (born in 1998), informed the police that she might have been sexually abused by her father.
In May 2005 an investigation was instituted during the course of which J. was questioned by a judge and the prosecutor on an unknown date. The applicant was not represented by a lawyer at that time and was not given an opportunity to put questions to J.
The applicant was subsequently brought before the Tarnów District Court on charges of having sexually abused J. by touching her sexual organs. He denied the charge. The court did not hear evidence from J. at the hearing but read out the statement she had made during the investigation.
On 9 November 2005 the Tarnów District Court convicted the applicant of sexual abuse of a child and sentenced him to 2 years and 8 months’ imprisonment. In its assessment of the evidence, the court preferred J.’s testimony, which it found more credible than that of the applicant and his witnesses. It found that J. had been able to give a clear, detailed account of the events.
The court refused the applicant’s request to hear evidence from J. in person as it considered that such an ordeal might be harmful to her, taking into account her level of development and the nature of the issue in question. In addition, an expert psychologist had expressed the view that J. should not be forced to talk about the events, which were traumatic for her.
The applicant appealed against this judgment to the Tarnów Regional Court on the ground that neither he nor his lawyer had been present when J. was questioned. On 9 March 2006 the Tarnów Regional Court upheld the first-instance court’s judgment. In response to the applicant’s allegations of a breach of procedure, it stressed that the District Court had examined the applicant’s request and rejected it on the basis of an expert’s opinion.
The applicant’s further cassation appeal was dismissed by the Supreme Court on 6 July 2006. The Supreme Court relied on the principle contained in Article 185a of the Code of Criminal Procedure, which provided that a child witness could be called to give evidence again during the trial only if it was clear that this would not be harmful to him or her.
B. Relevant domestic law and practice
In 2005 the Code of Criminal Procedure was amended and a new Article 185a inserted:
Ҥ 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.
§ 2 The interview shall be conducted at a court hearing with the participation of an expert psychologist. The prosecutor, defence 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.”
COMPLAINTS
The applicant complained under Article 6 of the Convention that his right to a fair trial had been breached in that he had been denied the opportunity to put questions to J. He further complained that neither he nor his lawyer had been present when J. had been questioned.
THE LAW
The applicant complained about the breach of the right to a fair trial. He relied on Article 6 § 1 of the Convention taken together with Article 6 § 3 (d) to the Convention which, in so far as relevant, provide as follows:
Article 6 § 1
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Article 6 § 3 (d)
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;”
By letter dated 12 July 2010 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“The Government hereby wish to express – by way of the unilateral declaration – their acknowledgement of the violation of the applicant’s right to have a fair hearing in the determination of the criminal charge against him as required under Article 6 § 1 of the Convention taken together with Article 6 § 3 (d). Consequently, the Government are prepared to pay the applicant the sum of PLN 6,450 [EU which they consider to be reasonable in the light of the Court’s case law. (...)
The sum referred to above , which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention of Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at the rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.”
In a letter of 12 August 2010 the applicant expressed the view that the sum mentioned in the Government’s declaration was unacceptably low.
The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the case to be continued.
To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03).
The Court has established in a number of cases, including those brought against Poland, in particular its practice concerning complaints about the violation of one’s right to a fair trial (see, for example, W.S. v. Poland, no. 21508/02, 19 June 2007).
Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of this application (Article 37 § 1(c)).
Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this application (Article 37 § 1 in fine).
Accordingly, it should be struck out of the list.
In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously.
Takes note of the terms of the respondent Government’s declaration un Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Fatoş AracıNicolas Bratza
Deputy RegistrarPresident
Full & Egal Universal Law Academy