CASE OF ŠTULÍŘ v. THE CZECH REPUBLIC
No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses)
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo
5. The applicant was born in 1967 and lives in Prague. 6. In the period between 30 December 2005 and 8 June 2006 the applicant was found to have addressed emails to C., his former partner, stating, among other things: “... It is this [C.] that I wish to see; I don’t want to meet the other one again. I gave up the possibility of keeping her at bay by any means (such as pictures of her injecting drugs, pictures of her offering prostitution services or pictures of her masturbating), because I have so much respect for her that I did not want to spend any more hours trying to pull off dirty tricks on her, naively believing that the second time I would be able to open her eyes to the truth. ... You say that you are scared of me. Well, get rid of that fear finally; otherwise we cannot even be very good friends ... I suggest we draw a line under the past, particularly the evil period, and turn over a new leaf. In the same spirit, I suggest not talking about the evil things ever again; otherwise you will not be able to get rid of your fear ... ... Are we really only able to talk to each other when I yell at you or tie you up or abduct you in my car, or do I have to think up a similar dirty trick? Do I have to become evil before you can hear me out and are willing to talk to me? You are not going to believe me, but it hurt me that I had to lower myself to that level. ... It’s a pity that one has to abduct you or tie you up, in other words simply use means of physical restraint in order to make you listen and carefully think about and evaluate what they have told you. I would be happier if you could do so without such actions ... ... promise made in the car ... Because I have not humiliated you either, although I had a good opportunity to do so. I could have taken pictures of you, forced you to make a porn movie and sent it to all those people in England. I could have forced you to sign whatever I wished for, and I know that you would forced yourself to sign whatever I wished and I know that you would have done it at that moment. Do not wonder about the things I am able to think about; wonder about why I have not done so ... I will tell her everything about what I have done to you as well as why I have done it; I will give her your contact details, and maybe she can help us become closer ... I told the psychologist everything about what I have done to you, ... how I was bad to you, including the threats I have recently made in order to make you hear me out. When I told her about how I tied you up, she replied that I must not do that to you ever again and that I should be glad that you have not turned me in ... On Monday, it will be one month since that last time I threatened you and intimidated you ... ... all my threats are really just my defensive response to various feelings of injustice ... When you were at my place, I could have done whatever I wanted with you; but I’m not like that, it is hard to hurt you in any way because I love you ... If you cannot accept it, I will not do anything more than what I have repeated a thousand times when we made that agreement at Christmas ... I will do or pay someone to do something that will harm you. Ranging from pettiness to heavy force that would be in violation of the law ... [C.], I’m slowly starting to realise that my feelings for you are heading towards freezing point and hatred is starting to prevail ...” 7. On 7 June 2006 C. made a statement about the applicant’s threatening telephone calls and emails at the police station in Surrey (the United Kingdom). On the next day, upon police advice, she changed her telephone number and email address. 8. On 23 June 2006 the Prague 1 District Prosecutor’s Office (obvodní státní zástupce) received an anonymous criminal complaint containing allegations of the sexual abuse of children. The female informer indicated that a certain C. had confessed that she had participated in sexual abuse whilst working as an au pair in the United Kingdom. 9. In July 2006 several individuals including the applicant were questioned in connection with the criminal investigation into the criminal complaint. 10. On 13 July 2006 C.’s mother made a statement at the police station in Prague 1 according to which the applicant had tied C. up in his apartment and had shown her a bag in which he intended to carry her away. She stated, in particular, that: “On 6 June 2006, my daughter called me, asking me whether I had time and that maybe I should sit down. She informed me that she had not been dating [L.], as she had claimed the entire time she dated [the applicant], but that instead she had been dating [the applicant], who had allegedly threatened and was currently still threatening her with physical annihilation if she would not resume her relationship with him; he had also demanded that [C.] continue to have sexual relations with him. She decided to tell me about the entire matter only after he had allegedly sent her an email with the words ... ‘and don’t forget that you have a family – mother, brother – back at home’ ... Given her experience of him, [C.] considers it very likely that this threat could be carried out by [the applicant]. Since that time she had changed her email address and phone number; she also informed me that she had changed her place of residence in England because she did not want to have contact with him any more. In addition, my daughter informed me that she had also reported the entire matter in England, where she had been questioned about the matter after suffering a mental breakdown there. This condition of my daughter was caused by the actions of the [applicant], who had continuously been sending her emails and threatening her. My daughter said that she had these emails at her disposal ... In addition, I learned from my daughter that [the applicant], during the period when he was communicating and was able to communicate with her, had told her that she could come back to him, that she was in no danger from him because he had started seeing a psychologist ... in order to reduce or eradicate his violent behaviour, which he was aware of and had been using against her – against [C.] ...” 11. On 19 July 2006 C.’s female friend D.B. stated that, in a letter of 28 January 2006, C. had confided in her about the forcible coercion by the applicant, which had taken place on 29 December 2005. She further stated that, at about the same time, C. had called her from the United Kingdom, telling her that the applicant had been menacing her and her family with threats to their lives. In addition, she said that the applicant had contacted her by SMS, by phone and by email. She submitted the letter to the police. 12. On 7 August 2006 the police asked the Prague 6 District Prosecutor’s Office to apply for an “urgent or non-repeatable measure” (neodkladný nebo neopakovatelný úkon) pursuant to Article 158a of the Code of Criminal Procedure (hereinafter “the CCP”), and the following day an interview with C. was conducted. The request included a very detailed justification explaining that the applicant had forcibly coerced C. in the Czech Republic as well as in the United Kingdom, where she had filed a criminal complaint. At the time of making that request, C. had been living and working in the United Kingdom but arrived back in the Czech Republic for the purpose of her interview on 8 August 2006. Her employment and the distance between the place of her employment and Prague, where she was interviewed, made it impossible for her to travel more often to the Czech Republic, where she did not feel safe anyway, given the prior events. 13. On the same day, a prosecutor at the District Prosecutor’s Office asked the Prague 6 District Court (obvodní soud) to secure the presence of a judge during C.’s interview, which was to be carried out as an urgent and non-repeatable measure. 14. On 8 August 2006 the police interviewed C. as a witness in the presence of a judge pursuant to Article 158a of the CCP. At that time, the applicant had not been charged and was therefore not present at the interview. C. stated at the outset that: “... [S]ince September 2005 I have been working as an au pair in the United Kingdom. ... I arrived in the Czech Republic on the basis of an agreement with the police authorities of [the Czech Republic] and upon the advice of my employer, ..., who is a police officer, after the actions of [the applicant] reached such an intensity that I started to be really scared.” She further stated that the applicant had not come to terms with the fact that she had broken off their intimate relationship. She described in detail the acts of intimidation conducted by him in the form of phone calls, SMS messages, emails, letters and verbal threats. She also stated that on 29 December 2005, between 12 noon and 4.30 p.m., she had been present in the applicant’s flat, where he had tied her to the bed, partially undressed the lower part of her body, and threatened to drug her with heroin, to carry her out from the flat in a large bag and to hand her over to unspecified persons to be trafficked to Turkey for 100,000 CZK (EUR 3,622) unless she promised to resume their intimate relationship, which she had broken off on 25 December 2005. According to her, the applicant had threatened to take pornographic pictures of her or to record a porn movie with her, which he would then send to her employer in the United Kingdom and the company which had acted as intermediary in finding her a job in the United Kingdom. Furthermore, on 1 January 2006 they had been in a car together and the applicant had threatened to throw C. into a snowdrift and drive off, or to kill both her and himself in a deliberate car accident. C. also stated that the applicant had searched through her mobile phone contacts to find the number of her female friend D.B., whom he had contacted at a later date. C. wrote an explanatory letter to D.B. She had also phoned her mother and had confided in her about the intimidation by the applicant. C. also stated that the applicant was seeing a psychotherapist. As the intimidation continued, C. filed a criminal complaint at a police station in the United Kingdom on 7 June 2006. She also stated: “Upon the advice of the police in the United Kingdom, on 8 June 2006 I changed my mail address, after 9 June 2006 I also changed the number of my mobile phone and at the advice of my employer, I have also the confidential employment that [the applicant] or his eventual messengers could not contact me. ... ... I was asked to make comment on the email notice which was made anonymously at the Prague 1 District Prosecutor’s Office on 23 June 2006 at 10.48 a.m.. ... I do not know any girl who would meet me in a club in the United Kingdom; I do not know any such girl who would know the information about me, which were written in this denouncement. ... The information indicated in this denouncement corresponded to what [the applicant] knows about me, what I foolishly told him in the past.” At the end of the interview, C. submitted copies of her email exchanges with the applicant and a tape recording of his voice messages, and made available SMS messages on her mobile phone for transcription. 15. On 25 October 2006 a judge at the Prague 6 District Court ordered the compilation of a list of incoming and outgoing telephone calls from the applicant’s mobile phone between 20 December 2005 and 31 July 2006. On 26 October 2006 he ordered the compilation of a list of communications executed from three mail-boxes between 14 February and 30 June 2006 and between 1 January and 30 June 2006, respectively. On 31 October 2006 the judge ordered the compilation of a list of communications carried out from several of the applicant’s other mail-boxes in the period from 25 December 2005 to 30 June 2006, and also the provision of information on the total number of communications logged in these mailboxes between 25 December 2005 and 18 October 2006. On the same day, the judge ordered the compilation of a list of outgoing telephone calls from the applicant’s land line on 9 June 2006 between 11 a.m and 3 p.m. 16. On 5 April 2007 criminal proceedings were initiated against the applicant for unlawful restraint (omezování osobní svobody) in concurrence with coercion (vydírání), defamation (pomluva) and false accusation (křivé obvinění). 17. In April 2007 a search was conducted in both the applicant’s flat and the commercial premises where he ran his business, upon the search orders issued on 16 and 18 April 2007 respectively. The applicant was arrested on 20 April 2007 and was charged with unlawful restrain, coercion, defamation and false accusation, and released afterwards. 18. The police continued to gather evidence during 2007 and 2008. They obtained an expert psychiatric opinion on the applicant’s health, analysed his computer, carried out a search of his flat and questioned a number of witnesses. 19. On 27 April 2007 C.’s mother was interviewed. She stated, in particular, that: “On 6 June 2006 ... my daughter called me at work, started crying on the phone ... She told me that ... she had been dating [the applicant] the entire time. [She] continued crying a lot, which made me realise that this was not all there was to it. It made me feel physically sick. She continued the story, saying that when she was at home for Christmas [the applicant] had abducted her. She had agreed to meet him somewhere in Prague they met normally and agreed to go out for a drink in the evening. But he said that he needed to change clothes so they would first drive to his place and then go out later in the evening. In the apartment, however, he tied her up and menaced her with horrible threats. At that time, she did not tell me any details. ... At the same time, during our phone conversation we came onto the topic of the threatening emails that [the applicant] had been sending her the entire time. She said that she had not paid much attention to them but that lately it had got completely out of hand and ... he had started threatening to kill her and, finally, had sent her an email saying that she should not forget that she had her entire family in Prague, specifically mentioning her mother and brother, and that she should not forget that he knew where we lived. ... I personally contacted the psychologist ... She confirmed that my daughter had phoned her as well. She said that she had advised her ... to immediately cut off all contact with [the applicant] ... I told her about what [the applicant] had done to my daughter at Christmas 2005 and she essentially replied that [the applicant] had also told her about it and that she had strictly forbidden him to ever do such a thing again ... [C.] told me that in December 2005, when she was in his flat, [the applicant] had tied her up, threatened to kill her, to traffic her, to make a movie of her taking drugs or a porn movie; he had also searched through her handbag and taken a piece of paper with her home address or had written it down, had searched through the address book in her mobile phone and had accessed her electronic mail box after forcing her to give him the password ...” 20. The investigation having been concluded in May 2008, the applicant was indicted for coercion under Article 235 §§ 1 and 2 of the Criminal Code on 16 June 2008. This legal classification of his criminal acts was more serious than that indicated in the notice served on him on 20 April 2007, when he had been charged with deprivation of personal liberty under Article 231 §§ 1 and 2 of the Criminal Code in conjunction with coercion under Article 235 § 1 of the Criminal Code. According to the applicant, he had not been informed about it, contrary to Article 176 § 2 of the CCP. 21. According to the Government, on 10 September 2008 C. apologised through her mother for not being able to attend the hearing before the District Court. 22. The trial started on 14 October 2008. As C. apologised for not attending the main hearing, the statement made by her on 8 August 2006 was therefore read out. The applicant claimed that C.’s residence abroad had not been a sufficient reason for carrying out her interview as an urgent measure and that her statement should not be read out at the trial. He argued that the conditions laid down in Article 211 § 2 of CCP had not been met. 23. The District Court tried to summons C. again. In its letter of 12 March 2009, the court sent a summons to the main hearing to C. through her mother. On 13 March 2009 the District Prosecutor’s Office sent to the District Court copies of the documents justifying the urgent need to interview C., namely the request of 7 August 2006 to secure the presence of a judge during an urgent and non-repeatable measure and the police letter of 7 August 2006. 24. In a letter of 24 April 2009, C. informed the presiding judge that, although she had been summonsed, she was unable to attend the main hearing because she had been working abroad for more than four years and intended to stay abroad on a permanent basis. She stated that the circumstances justifying the applicant’s criminal prosecution were very stressful for both her and her mother. It appears that the District Court did not try to summon C. again. 25. In a judgment of 8 December 2009 the District Court found the applicant guilty of coercion and sentenced him to two and a half years’ suspended prison sentence subject to a probationary period of two years. The court explicitly noted that in finding the applicant guilty, it mainly relied on the testimony of C., but also on a statement made by D.K., a schoolfriend of C.’s, who stated that she had received emails concerning C.; the statement by M.V., C.’s psychotherapist, who testified that C. had confided in her about having been taken somewhere by the applicant against her will; the statement by C.’s mother; a testimony by L.B. implying that the applicant and C. had met at Christmas 2005; expert opinions in cybernetics and computer technology and in psychiatry; the emails sent by the applicant to C. between 30 December 2005 and 8 June 2006; and the letter from C. to D.B., in which C. wrote to her female friend about the applicant’s violent behaviour. 26. The court then stated: “Based on such secured evidence, the court came to a clear conclusion, finding the defendant guilty as indicated in the verdict of the judgment. The defendant denies any such behaviour and actions on his part directed against [C.] as described in the judgment; however, he has clearly been proved guilty by the evidence taken. The court relied in particular on the testimony of witness [C.], who described the defendant’s actions in great detail. The testimony is consistent with further evidence taken. This includes email correspondence, which corroborates the victim’s statement and the victim’s mother’s statement to the effect that the victim had confided in her about everything on 6 June 2006. A brief description of the defendant’s behaviour was also included in the letter sent by the victim to her female friend [D.B.] which was available to the court ... In his expert opinion, the expert concluded that it was absolutely possible and posed no problem for the defendant to use previously prepared straps to tie the victim to bed and partially undress the bottom half of her body, and that it was absolutely possible and posed no problem for him to tie her up in the manner she had described ...” 27. On 13 February 2010 the applicant appealed, raising a number of procedural, factual and interpretational complaints. He claimed, inter alia, that C.’s statement remained uncorroborated evidence on which his conviction was based. 28. In his extensive submissions of 26 March 2010, he requested that C. be questioned in order, inter alia, to clarify the contradictions between the statements given by C., her mother, and her psychologist and the applicant’s testimony. He also suggested that an expert opinion be drawn up by a psychiatric expert to assess the reliability of C. and to complete and assess other evidence, including the hearing of three witnesses who had been rejected without adequate reasoning by the first instance court. He also requested that the Prague Municipal Court (městský soud) postpone the public hearing, without giving any reason in this respect. 29. The hearing before the Municipal Court was held on 30 March 2010 in the absence of the applicant, who had apologised in writing on 29 March 2010 indicating that he could not attend the hearing due to serious personal and family reasons, but agreeing that the court carry out merely the procedural acts allowed by Article 263 § 5 of the CCP and asking, at the same time, to postpone the hearing afterwards. At the hearing he was represented by counsel who, contrary to the applicant’s written appeal, did not request that any further evidence be taken. The court, having rejected the applicant’s request to postpone the hearing, examined his appeal, upholding the conviction of the first instance court. 30. The court found that the applicant’s guilt had been securely established in particular by the statement given by C., which was not the only evidence against the applicant, her statements having been corroborated by further indirect evidence, such as the testimony of her mother, in whom C. had confided at the material time. The appellate court also found that, although C. and her mother had not had a close relationship before, C. contacted her out of fear for her and her brother’s life and described the acts of coercion carried out by the applicant. Witness C.’s mother also claimed that the initial anonymous criminal complaint sent by email to the Prague 1 District Prosecutor’s Office had been sent by the applicant, who had thus lodged a false accusation. Her testimony was examined in detail. The indirect evidence also included text messages sent by the applicant on 5 June 2006 and the criminal complaint filed by C. in the United Kingdom on 7 June 2006. The time concurrence was thus a significant factor, too. 31. As regards the reliability of C. and the assessment of evidence, the court stated: “... the assessment of the evidence is reasonable and convincing, as is [the District Court’s] conclusion concerning the reliability of witness [C.]. The District Court was not wrong in believing this witness, who proved the defendant’s guilt of the criminal acts. The testimony of the victim was not the only convincing evidence against the applicant on which the District Court based its conclusion about the defendant’s guilt, since the defendant’s criminal acts are also proved by a chain of indirect evidence corroborating the testimony of the victim and confirming the credibility of her statements. This includes, in particular, the testimony of her mother ... in whom the victim confided during a phone call on 6 June 2006 in which she described the defendant’s actions, including the way he had tied her up in his apartment, threatened her and sent her threatening emails. The testimonies given by [C.] and her mother ... regarding the relevant facts correspond to the content of the criminal complaint filed by the victim at the police station in Surrey, United Kingdom ... on 7 June 2006. The defendant’s complaint that the unreliability of the victim is proved by the fact that she did not confide earlier in her mother or a close female friend about his alleged behaviour is ill-founded: the evidence taken clearly shows that the victim and her mother did not previously have a particularly close relationship since she did not confide in her mother about her relationship with the defendant. This is understandable given that she was allegedly abused by the mother’s partner (as the victim confided in the defendant). Furthermore, the victim was already back in the United Kingdom at the relevant time (as of 3 January 2006) and her contact with the defendant was conducted solely via mobile phone calls and email correspondence. In these circumstances, the behaviour of the victim appears rather logical and understandable, i.e. confiding in her mother and brother concerning the threats to their health and her life in an SMS message. ... The reliability of the victim and the veracity of her testimony is also corroborated by the emails included in the ... These emails, which were submitted to the police by the victim, correspond case file to her testimony as to the timeframe and the contents ... It is hardly possible for the Municipal Court to believe that the victim would systematically and for many months beforehand prepare all the evidence ... in order to be able to file a criminal complaint against the defendant. In addition to the above, the defendant’s contacts with the victim (which he himself did not deny) and her reliability are also clearly shown in the defendant’s affidavit of 2 June 2006 ..., in which the defendant declared he did not have any financial claims against the victim. Finally, one should not disregard the statement of an impartial witness ... namely the victim’s psychotherapist, who confirmed that the victim came to her because of relational problems with the defendant, confided in her about having been held by the defendant against her will and driven off somewhere in his car, and about his emails threatening to harm her if she left him. All this indirect evidence is interrelated and consistent with the victim’s testimony. Consequently, the defendant’s complaint concerning the unreliability of the victim is ill-founded ... As a result, the District Court correctly believed the testimony given by the victim in relation to this matter, considering her testimony in general to be credible ... The defendant’s behaviour and verbal aggression, as documented in the emails and SMS messages sent by him escalated at a later stage, prompting the victim to file a criminal complaint and change her contact details because she was afraid of the defendant’s behaviour after he threatened to harm her mother and brother. ...” 32. In respect of the applicant’s complaint concerning C.’s interview, which was conducted as an urgent and non-repeatable measure under Article 158a of the CCP, the Municipal Court noted that: “The victim was duly interviewed in the presence of a judge ..., with the unrepeatability of the measure being determined by the long-term residence of the witness in the United Kingdom. The justification of such a procedure and the unavailability of the witness were confirmed by the efforts of the District Court to secure her attendance at the main hearing, which the witness repeatedly failed to attend, providing a written statement to the effect that she was residing abroad on a long-term basis and would not be able to attend the main hearing in the foreseeable future. Therefore, the Municipal Court deemed legal the procedure applied by the District Court whereby, after exhausting the possibility of examining the victim in the main hearing for unavailability due to her residence abroad, it read out the statement she had made ... in the pre-trial proceedings in accordance with Article 211 § 2(a) of the Code of Criminal Procedure. Although this was key evidence, it was not the only evidence proving the defendant’s guilt ...” 33. The appellate court admitted that the prosecutor had violated Article 176 § 2 of the CCP in reclassifying the charges without notifying the applicant. It found, however, that this omission did not impact on the legality and correctness of the reviewed judgment to the extent that a duty to reverse it resulted. 34. On 18 July 2010 the applicant filed an appeal on points of law (dovolání) which was rejected as unsubstantiated by the Supreme Court (Nejvyšší soud) on 30 November 2010. The court stated that the appellate court had not proceeded erroneously in having decided the case in the absence of the applicant, who had not sufficiently substantiated his request to have the hearing postponed. It added that the applicant’s counsel had not requested that further evidence be gathered and assessed and that, therefore, there had been no need to postpone the hearing. 35. On 13 March 2011 the applicant filed a constitutional appeal (ústavní stížnost) which was dismissed by the Constitutional Court (Ústavní soud) in a decision of 1 December 2011 which was served on the applicant on 9 December 2011. Having analysed the testimony given by C., the Constitutional Court found that, although it was direct evidence, it was corroborated by a chain of indirect evidence, especially the testimony of her mother. In respect of the remaining complaints, the Constitutional Court agreed with the findings of the lower courts stating, in particular: “The applicant’s complaints regarding the search in his flat and non-residential premises and lands are unsubstantiated. The search in the applicant’s domicile was carried out in compliance with Article 83 of the Code of Criminal Procedure on the basis of the search order issued by the Prague 6 District Court. The applicant had the opportunity, if he was convinced that the search is unlawful, to lodge a constitutional appeal against this order ... In a constitutional appeal against the final judgment of conviction, it is possible, in connection with a search carried out unlawfully, complain in particular the inadmissibility of concrete pieces of evidence which were gathered and on the basis of which [an applicant] was found guilty. However, the applicant did not expressly submit any concrete evidence which would be gathered illegally. ...” 36. On 30 August 2012 the applicant submitted to the Ministry of Justice a claim for compensation for damages caused by delays in the criminal proceedings under the State Liability Act (no. 82/1998). On 24 September 2012 his claim was rejected as having been introduced outside the six-month statutory time-limit. On 24 May 2013 the applicant filed an action for damages against the Ministry, which appears to be still pending before the Prague 2 District Court.