CEDH · CASELAW;COMMUNICATEDCASES;ENG — 9 janvier 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 29 January 2024   FIRST SECTION Application no. 1880/19 J.M. against Poland lodged on 20 December 2018 communicated on 9 January 2024 SUBJECT MATTER OF THE CASE The application concerns criminal proceedings against the applicant, in the course of which he was allegedly denied an opportunity to examine the witnesses against him. On 27 December 2016 the applicant was indicted on nine counts of child sexual abuse. The Ostrołęka Regional Prosecutor asked the trial court not to examine the alleged victims in a hearing and, instead, to play the video recordings of their testimonies. Their interviews had taken place in 2012, before the applicant had been charged with any criminal offence. On 2 October 2017 the Kętrzyn District Court convicted the applicant on four counts (Nos. III to VI) and sentenced him to 2 years’ imprisonment. It appears that the court relied primarily on the submissions of the victims, whose depositions had been played or read out at the hearing. The court discontinued the proceedings concerning the counts Nos. I and II that were statute-barred and acquitted the applicant of charges Nos. VII to IX. The applicant appealed. At a hearing of 18 June 2018, the Olsztyn Regional Court dismissed the applicant’s motion to have all alleged victims and certain other witnesses examined because it was “clearly aimed at prolonging the proceedings”. On 29 June 2018 the Regional Court amended the legal characterisation of the applicant’s offences, sentenced him to 2 years in prison, suspended for a probationary period of 5 years, and fined him 10,000 Polish zlotys (2,290   euros). Invoking Article 6 §§ 1 and 3 (d) of the Convention, the applicant complains that his four convictions were based on untested evidence given by the victims during the pre-trial investigation.   QUESTIONS TO THE PARTIES 1.     Has the applicant’s right to a fair trial, including a right to examine or to have examined witnesses against him, under Article 6 §§ 1 and 3 (d) of the Convention, been breached in that neither the applicant nor his lawyer had been given an opportunity, at any stage of the proceedings, to examine the victims of the offences of which the applicant was convicted (W.L., N.P., K.P., P.G.)?   2.     In particular, having regard to the principles established by the Court in its judgment in the case of Schatschaschwili v. Germany   [GC], no.   9154/10, ECHR 2015:   (a)     Was there a good reason for admitting as evidence pre-trial statements made by the witnesses referred to in question no. 1 and subsequently played and read out at the trial?   (b)     Were the applicant’s convictions of sexual abuse against the witnesses referred to in question no. 1 based solely or to a decisive or significant extent on the evidence that they had provided?   (c)     Have there been sufficient counterbalancing factors to compensate for the difficulties caused to the defence as a result of the fact that it had been unable to question the witnesses referred to in question 1? In particular, what measures were taken, and which additional counterbalancing measures could have been taken by the domestic prosecution authorities and by the domestic courts to safeguard the applicant’s defence rights?