PROCEDURE

The case originated in an application (no. 22695/03) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Arkadiusz Demski (“the applicant”), on 27 June 2003.

The applicant, who had been granted legal aid, was represented by Ms B. Słupska-Uczkiewicz, a lawyer practising in Wrocław. The Polish Government were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

The applicant alleged that his rights under Article 6 §§ 1 and 3 (d) of the Convention were violated as he had had no opportunity to examine the main witness in the criminal proceedings against him.

On 8 January 2007 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1971 and lives in Głogów.

On 12 June 2000 Ms M.Ł. informed the police that her 17 year-old granddaughter (M.H.) had been raped by the applicant and J.K. Subsequently, the police opened an investigation into the allegations.

M.H. was questioned by the police on 12 June and by a prosecutor on 5 July 2000.

The police were unsuccessful in their attempts to arrest the applicant as he had gone into hiding.

On 6 July 2000 M.H. was heard by the Jelenia Góra District Court, at the request of the prosecutor, pursuant to Article 316 § 1 of the Code of Criminal Procedure. Apparently, the prosecutor had attempted to notify the applicant of the hearing, but he had been absent from his place of residence.

On 17 August 2000 the Jelenia Góra District Court ordered that the applicant be detained on remand for a period of seven days from the day of his arrest. On 6 September 2000 the prosecutor issued a warrant for his arrest.

On 20 September 2000 the applicant was arrested by the police and placed in pre-trial detention.

On 20 December 2000 the co-accused was arrested by the police and detained on remand.

On 15 January 2001 the applicant was indicted before the Jelenia Góra Regional Court (Sąd Okręgowy).

On 26 July 2001 the Jelenia Góra Regional Court gave judgment. The applicant was convicted as charged and sentenced to four years’ imprisonment. The court established the following facts. On 10 June 2000 M.H., who was at that time 17 years old, met the applicant, J.K. and another man in a bar called “DIK”. The men were aggressive and intimidating, particularly J.K., who wanted to become M.H.’s boyfriend. They told her to come to the same bar the next day at 5 p.m., which she did. On 11 June 2000 the applicant and J.K. again threatened M.H. in the bar. Afterwards, J.K. went with her to a toilet where he harassed her. The applicant then led M.H. out of the bar and together with J.K. they went to the latter’s house. The applicant and J.K., taking turns, repeatedly raped M.H. in the basement of the house. They threatened to kill M.H. if she told anybody about it. The following day M.H. spoke about the incident to her grandmother, who informed the police.

The applicant and J.K. did not confess. They stated that they had met M.H. in the bar where they arranged a meeting for the next day with the purpose of having sex. They admitted that they had had sexual intercourse with M.H. but denied having raped her.

As regards the grounds for the conviction the trial court stated as follows: “The explanations of J.K. and [the applicant] regarding the rape of M.H. were considered untruthful. Their account came down to a statement that on 11 June 2000, in the DIK bar, M.H. had voluntarily agreed to meet the accused the next day to have sex with them, only she did not want to do it with both of them at the same time, but one after the other. From the accused’s explanations it also appears that afterwards she went upstairs with them to J.K.’s apartment where she was given a glass of water by his sister. Then they all returned to the DIK bar. As the explanations of both accused are contrary to the testimonies of M.H. [they have been considered untruthful]. During the preparatory proceedings, [M.H., who was] questioned three times, described in identical terms the course of events of 10 and 11 June 2000... Taking into account the age of M.H. and her personality as described in the psychologist’s report, detailed below, it is no surprise that it was out of fear of the accused that she went [back] to the bar on 11 June 2000. ... [After having left the bar] throughout the whole of the journey [the applicant] held [M.H.] firmly by the hand, making it impossible for her to leave, and threatened to kill her if she cried or talked. It is not surprising that, despite the fact that she had been close to a police station, M.H. did not try to call for help. ... [in the basement] M.H., being afraid of the accused and that [the applicant] would carry out the threats he had made, which were fully backed up by J.K. as his behaviour proves, submitted herself to all the demands of the accused and had with [the applicant] and J.K. repeated vaginal, anal, and oral sexual intercourse. One cannot be surprised by the victim’s behaviour given the huge physical advantage of the accused and taking into account the place in which M.H. had found herself, namely a basement. The victim could not have counted on anybody’s help in such a place and she believed that putting up any resistance would have been pointless. ... The truthfulness of M.H.’s testimonies is confirmed by the testimonies of witnesses R.K. [bartender], M.Ł [grandmother], and P.N., D.K. and E.C. [work colleagues]. R.K. could not say much about M.H.’s time in the bar and the accuseds’ behaviour towards her. When questioned in the preparatory proceedings she had stated nevertheless that she had urged J.K. to leave M.H. alone ... From the testimonies of M.Ł, P.N., R.K. and E.C. it appears that M.H. told them, crying, that she had been raped ... From the psychologist’s report ... it appears that M.H. is a girl of average intelligence, with a normally developed capacity for logical thought, orientation in the world around her, and awareness of norms and moral and social behaviour ... She has a strong feeling of injustice and feels guilty that she was not able to react differently in a threatening situation. Her statements were coherent and logically linked. According to the expert they do not have the characteristics of a lie or confabulation ... M.H. was only examined by a gynaecologist on 12 June 2000. No injuries were established ... The test excluded the presence of semen ... A lack of abrasions ... cannot prove that sexual intercourse had not taken place, because since M.H. had not put up any resistance such injuries would not necessarily have occurred, [although they] could have occurred ... The circumstances examined above allowed the court to believe that the accused, acting together and in agreement, threatening to beat M.H. up and using force by holding her arms, had raped her on 11 June 2000.”

On 18 September 2001 the applicant’s lawyer lodged an appeal against the judgment. In particular, he complained that the applicant’s right to defence had been breached and that the testimonies taken from the victim at the investigation stage had been used by the trial court.

On 13 December 2001 the Wrocław Court of Appeal (Sąd Apelacyjny) upheld the first-instance judgment and dismissed the appeal. With regard to the applicant’s allegation that M.H. had not been heard in his presence, the court stated: “In examining whether the above allegation is well-founded, it should be noted that the first-instance court had summoned the victim on several occasions in order to hear her, but she failed to appear [before it]. It appears from the testimonies of M.Ł. - the victim’s grandmother - that since November 2000 M.H. had been living in Germany with her mother, who has a permanent place of residence there. A certificate from a psychological clinic in Germany, which has been treating the victim since January 2001, constitutes proof of her continuing and permanent residence in Germany. The above situation was a ground for the first-instance court’s decision, under Article 391 §1 of the Code of Criminal Procedure, not to hear the witness at the hearing and to read out the statements she had made during the investigation.”

On 14 February 2002 the applicant’s lawyer lodged a cassation appeal on his behalf with the Supreme Court (Sąd Najwyższy). He complained that the victim has only been summoned to the hearing of 21 May 2000 once and that the summons had been sent to an address in Poland even though the trial court had known her new address in Germany. Moreover, according to M.Ł.’s statements the victim has been returning often to Poland as she did not have a permanent place of residence in Germany. The applicant concluded that he had been deprived of the right to put questions to the witness and to confront her with other evidence, which he had repeatedly requested during the trial.

On 11 March 2003 the Supreme Court dismissed the cassation appeal. The Supreme Court stated, in so far as relevant: “...[Article 391 § 1] does not mean that in every case when a witness is abroad an automatic application of an exception from the rule of principle of directness (zasada bezpośredniości) should apply. On the contrary, if the testimonies of witnesses who are abroad are of significant importance to the outcome of the case, they should be summoned to a hearing using all available means, and when that proves impossible, they should give evidence by means of international judicial assistance (Article 587 of the Code of Criminal Procedure). In the context of the present case, while not denying that the prerequisite of “a witness being abroad” was met (the victim permanently left for Germany and due to her psychological troubles she was clearly unwilling to come back for the purpose of testifying in court), in the reasoning of the decision taken pursuant to Article 391 §1 it should have been particularly underlined that the non-appearance of M.H. was a result of ‘obstacles that could not be removed’. The victim – according to the certificates issued by psychologists (Polish and German) – as a consequence of her brutal rape by two perpetrators, remained, one year after the events, under intensive psychological and medical care and suffered from depression and anxiety. A limitless effort to fulfil the principle of directness, within legal boundaries, would be in striking collision with the legitimate interest of M.H. [...]. It would strengthen a false conviction within society that the victim of a crime is placed on the margin of the criminal procedure and is interesting to the relevant authorities only in so far as he or she is necessary to convict an accused or acquit him or her. The interpretation of the term ‘obstacles which could not be removed’, as the genuine possibility of a deterioration of the victim’s mental health as a result of having to appear before a court, has already been set out in the jurisprudence under the 1969 Code of Criminal Procedure. In this connection one cannot but note that the victim was heard in the preparatory proceedings by a court according to the provision of Article 316 § 3 of the Code of Criminal Procedure ... At the time when the court (in the presence of a psychologist) heard the victim, the applicant had been in hiding. Thus, by his own choice he did not participate in this important evidentiary stage of the proceedings and consequently deprived himself of the opportunity to put questions to the witness. The author of the cassation appeal ... failed to indicate what concrete, additional information he would have liked to obtain from M.H ...”