Communicated on 7 March 2019
FIRST SECTION
Application no. 34308/18
Marek PALMOWSKI
against Poland
lodged on 2 July 2018
STATEMENT OF FACTS
The applicant, Mr Marek Palmowski, is a Polish national, who was born in 1962 and lives in Warsaw. He is represented before the Court by Ms Barbara Błachucka, a lawyer practising in Warsaw.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 8 July 2010 a criminal investigation was opened against the applicant on the suspicion that he had performed sexual acts on a girl aged four.
On 7 September 2010 the alleged victim was questioned by a judge in the presence of a court-appointed expert in psychology, the prosecutor and the child’s mother. Under the law, the interview could not be attended by the applicant but it could have been attended by a lawyer on his behalf. At the material time, the applicant was not represented. The questioning lasted fifty minutes and was video-recorded. On three occasions during the interview, the child described having been subjected to a form of sexual penetration by the applicant – for example, she stated that “Uncle was not nice because he was putting his little finger into my bum”.
On 29 September 2010 the applicant was officially charged and on 12 April 2011 he was indicted.
It is unknown when the applicant first became represented by a lawyer.
On an unspecified date in 2015 the trial court refused to grant a request by the applicant’s lawyer to have the alleged victim re-interviewed in the lawyer’s presence, on the grounds that the child’s guardians had not consented to a further interview, as on 10 June 2015 the alleged victim’s mother had refused to consent to the child being questioned further.
The following materials, inter alia, were examined by the trial court in the course of the first-instance proceedings: (i) statements made by the alleged victim during the questioning on 7 September 2010; (ii) records of a gynaecological examination undertaken on 2 July 2010 which showed no damage to the child’s genitals or anus; (iii) submissions made by the applicant and his “not guilty” plea; (iv) testimony given by the alleged victim’s parents, recounting various instances when the child had wet herself and shown fear or unusual behaviour, how she had had a tantrum after staying alone with the applicant, and describing the child’s behaviour such as vaginal auto-stimulation and showing her intimate parts to fellow children; (v) the report and the subsequent court testimony of the expert in psychology who had been present at the girl’s questioning in 2010 and who stated that she had not appeared to be lying or to have been manipulated, and that her behaviour had been consistent with the general pattern seen in young victims of sexual abuse; (vi) results of a polygraph test, to which the applicant had agreed, which revealed that he had a link (ma związek) to the acts of which he was accused; (vii) a report by an expert in sexology, which concluded that the applicant was heterosexual, psycho-sexually immature and did not show any signs of a sexual deviation such as paedophilia; (viii) records from the applicant’s past admissions to psychiatric hospitals for personality disorders.
The court thus established that the victim’s family had been living in the applicant’s house and that the girl, and her younger sister, had at times been alone with the applicant. On those occasions, the applicant had taken off the child’s underwear, put his finger into her anus and threatened to beat her if she told anyone.
On 11 September 2015 the Glubczyce District Court convicted the applicant of performing sexual acts on a minor and sentenced him to two years’ imprisonment. The first-instance court expressly stated in its reasoning that its findings of fact had been based primarily on the statements made by the victim which had been made credible by the remaining evidence.
The applicant appealed against that judgment, arguing inter alia, that the questioning of the child in 2010 had been chaotic and leading, hence inconclusive and unreliable, and that the first-instance court should have granted the applicant’s lawyer’s request to have the child questioned anew, in the lawyer’s presence.
On 5 April 2016 the Opole Regional Court obtained a report from the psychologist who had interviewed the victim in 2010, on the question of whether the child should be questioned again. In the expert’s opinion, it was generally undesirable to subject minors who had been victims of sexual abuse to repeated questioning. Moreover, since the events in question, the child had been functioning well. Consequently, reviving her memories could cause her unnecessary distress. Lastly, the expert observed that the value of such questioning would be greatly diminished in view of the lapse of time and the psychological phenomenon of erasing damaging experiences from one’s memory.
On 20 June 2016 the Opole Regional Court obtained an additional report from a different expert in psychology who had recently interviewed the child and concluded that the girl was in very good psychological shape and did not remember the events giving rise to the case. The expert concluded that further questioning of the child was absolutely unjustified as, on the one hand, it could traumatise her and, on the other hand, information so obtained would be unreliable in view of the passage of time.
On 27 March 2017 the Opole Regional Court dismissed the applicant’s appeal. The court first observed that the first-instance court had clearly erred in so far as it had refused to allow the child to be interviewed in the presence of the applicant’s lawyer on the grounds that the child’s guardians had not consented to such questioning. Such consent had not been required under the applicable law. However, the court then concluded that, in view of the reports drawn up by the two psychologists in 2016, subjecting the child to a new round of questioning at that stage was not called for, mainly as it could harm her health.
On 20 February 2018 the Supreme Court dismissed a cassation appeal by the applicant, fully endorsing the reasoning of the lower court.
B. Relevant domestic law and practice
Article 185a of the Code of Criminal Procedure (“the CCP”), as in force at the material time, provided:
“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 shall 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 requests a new interview.
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.”
In accordance with Article 147 § 2 (2) of the CCP, unless there are technical obstacles, an interview with a victim, as referred to in Article 185a, should be filmed.
In its judgment of 24 November 2009 (case no. III KK 176/09) the Supreme Court held:
“In cases in which victims of the crimes specified in chapters XXV and XXVI of the Criminal Code are under 15 years old, one should strive to ensure that the suspect already has a defence lawyer at the time of the first interview with the victim. An interview under Article 185a should be held after charges have been brought against the suspect, that is at the in personam investigation stage of the proceedings, and not at the in rem stage. At that stage it is possible for a court to appoint legal aid counsel for the suspect if he has not yet appointed his own lawyer. In such situations, in most cases, it will therefore be possible to preserve the principle of a single interview with the minor and the right of the accused to a defence will not be affected.”
COMPLAINT
The applicant complains, relying on Article 6 of the Convention, that his right to a fair trial was breached in that he was denied the opportunity to have a second interview with the child conducted in the presence of his lawyer.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of the criminal charge against him? In particular, did the limitations on the rights of the defence in the applicant’s case give rise to a breach of the requirements of Article 6 § 1 of the Convention, taken together with Article 6 § 3 (d)?
2. The parties are also asked to inform the Court when a lawyer was first appointed to represent the applicant in the criminal proceedings which gave rise to the present application.
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