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FOURTH SECTION

CASE OF T.K. v. LITHUANIA

(Application no. 14000/12)

JUDGMENT

STRASBOURG

12 June 2018

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of T.K. v. Lithuania,

Ganna Yudkivska, President,
Vincent A. De Gaetano,
Paulo Pinto de Albuquerque,
Faris Vehabović,
Egidijus Kūris,

Georges Ravarani,

Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,

PROCEDURE

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

8. By a judgment of 20 October 2011, the Kaunas City District Court convicted the applicant of having caused physical pain to each of the boys (Article 140 § 2 of the Criminal Code) and of attempting to influence a witness (Article 233 § 1 of the Criminal Code - see paragraph 69 below). The court established that in 2009 the applicant had several times been physically violent towards Ra.K. and Ro.K. The court relied on statements given by social workers who had seen bruises on the boys' bodies and in whom the children - who since 15 October 2009 had been living in a care institution - the "Pastogė" children's home, because V.K. could not guarantee their safety at home - had confided. The court also referred to the testimony which the children had given to forensic psychiatrists, statements given by police officers, and V.K.'s testimony. The psychiatrists had concluded that the children were afraid of the applicant; they had openly told them that he had been beating them. The psychiatrists recommended that the children not be questioned further [during those criminal proceedings] in order to avoid the applicant exerting an influence on the children's testimony, bearing in mind the fact that - while visiting the children in the children's home - he had already asked them not to recount his actions. The psychiatrists had no objective or subjective information indicating that V.K. had exerted any influence on the children's testimony.

9. The Kaunas City District Court also established that on 4 November 2010 the applicant had caused negligible health impairment to V.K. by inflicting bruises and scratches to her head, belly, elbow and knee, and that although a pre-trial investigation in that regard had been discontinued, V.K. had been informed that it was possible for her to bring a private prosecution against the applicant under Article 140 of the Criminal Code (see paragraph 69 below). The court also established that the applicant had attempted to influence V.K. to change her testimony by threatening her, even after the start of the court proceedings in the case concerning the alleged physical violence against the two boys. Having noted that the applicant had three prior convictions, the records of which had not yet expired, the court found him guilty and sentenced him to deprivation of liberty for ten months. However, given that pending the trial the applicant had been detained from 29 November 2010 until 20 October 2011, the court deemed that he had already served his sentence. Accordingly, the applicant was released in the courtroom.

A. Criminal proceedings against the applicant on charges of sexual assault and possession of pornography

1. The pre-trial investigation

10. As it transpires from the documents in the case file, in July 2011 V.K. lodged a complaint with a prosecutor, alleging that the applicant had shown pornographic films to their children and had sexually abused their children in their home. When questioned by the pre-trial investigator on 29 July 2011, V.K. stated that the abuse had taken place during the period between 24 April 2009, when V.K. had been treated as an in-patient in hospital for an illness unrelated to this case, and 15 October 2009, when V.K. had moved to a social care home (nakvynės namai) in Kaunas and the children had been placed in the Pastogė children's home. V.K. also stated that she had learned about this abuse on 27 May 2011, when her sons had confided in her after confiding in her family members Z.S. and V.F. (see also paragraph 14 below).

12. V.K. was again questioned on 18 August 2011. She confirmed that she had known about her obligation to deliver the children for questioning on 22 August 2011 and promised to deliver them (see paragraph 17 below).

14. On 5 August 2011 the investigator questioned a number of witnesses. Among those witnesses was Z.S. (the mother of the husband of V.K.'s sister). Another witness was V.F. (Z.S.'s daughter). These two witnesses stated that they had learned on 27 May 2011 from Ra.K. and Ro.K. that the applicant had showed them pornographic films and that he had also abused them sexually by asking them to perform oral sex on him - as shown in those films. Also on 27 May 2011 Z.S. and V.F. had given the same information to the boys' mother, V.K.

15. When questioned, A.A., one of the boys' schoolteacher, told the pre-�trial investigator that she had not noticed any alarming changes in the boys' behaviour. Neither had she observed any improper behaviour on the part of the applicant towards that boy. Another witness, a former work colleague of the applicant, stated that the applicant had raised the boys together with V.K.; he added that they had had family quarrels, but that that was nothing exceptional. According to that witness, the applicant had taken good care of the two boys.

16. On 17 August 2011 the prosecutor wrote to V.K., informing her that the two boys were to be questioned by the pre-trial investigation judge. V.K. was informed that she had an obligation to bring her sons for questioning and that she had a right to be present during that questioning.

17. On 22 August 2011 the applicant's sons were questioned at the premises of the Kaunas police. The records indicate that persons who arrived at the police station were: a Kaunas City District Court judge, the prosecutor, the pre-trial investigator, a representative of the child welfare authority, a psychologist from Kaunas police and the boys' mother, V.K. Those people agreed that the boys would be questioned and that a video and audio recording would be made. The questioning itself took place in a special room for the questioning of children (vaikų apklausos kambarys); the boys were questioned by the psychologist, and it appears that no other person was in that room during the boys' questioning. The psychologist assured the boys that the content of their testimony would be known only to the judge. The boys described the details of how the applicant had sexually abused them in 2009. One of them, Ro.K., who at that time was seven years old, stated that "I am aware that I should not perjure myself (žinau, kad nebūtų melagingų parodymų)" because "my mother said so". He also told the psychologist that the mother had also told him that "if I and my brother say nothing, and are silent, then our father [the applicant] would be released from prison, and our mother would be put in prison". The boy said that he was not angry with his father; he only wanted for his father not to know where he and his brother lived.

19. On 23 September 2011 the Kaunas City District Court ordered a forensic psychological examination of Ra.K. and Ro.K. Two forensic experts - a child psychologist and a child psychiatrist - then questioned the boys in Vilnius between 20 October and 21 November 2011. The experts concluded that the children were able to remember events that had taken place in 2009. The children had no tendency to fantasise or to imagine things. The psychologists, however, emphasised that the boys' testimony could have been affected by the long period of time - two years - that had elapsed since the events in question. Moreover, both parents exerted both direct and indirect sway over the children: V.K.'s direct and indirect influence was illustrated by Ro.K.'s statements that his mother would go to prison if he stayed silent (see paragraph 17 above), and the applicant's indirect impact on the children was illustrated by the fact that they feared physical violence. The psychologists recommended that the boys not take part any further in the pre-trial investigation, and nor in the court proceedings, because this would be too stressful for them.

20. On 23 November 2011 the applicant was arrested. He was searched and placed in pre-trial detention, where he remained until his conviction was upheld by the Court of Appeal on 9 December 2013 (see paragraph 51 below).

21. When questioned by the pre-trial investigator on 24 November 2011, V.K. stated that she was very much afraid of the applicant. She noted that in the past he had been physically violent towards her and the children. Having learned that he had been released from prison on 20 October 2011 (see paragraph 9 in fine above), she feared retaliation and that he would search for her and for the children in order to make them change their testimony in the proceedings regarding the alleged sexual violence.

22. On 25 November 2011 V.K. gave her agreement to the child welfare authority that both children would be placed in a care institution.

23. As later confirmed by the child welfare authority during the criminal proceedings in respect of the applicant, on 5 December 2011 the Kaunas Municipality gave temporary guardianship of Ra.K. and Ro.K. (laikinoji globa) to a children's home (vaikų globos namai) in Kėdainiai, because from 1 December 2011 onwards V.K. could not be located and the children's parents could not take care of them. The children were placed in the children's home in Kėdainiai.

24. In December 2011 the applicant asked the prosecutor to organise a confrontation (akistata) between him and V.K. The prosecutor refused the request, considering that there were no essential discrepancies between their respective testimony. Moreover, according to the prosecutor, "V.K.'s testimony [was] not the only evidence on the basis of which the question of the applicant's criminal liability would be decided". The prosecutor likewise denied the applicant's request that a confrontation be staged between him and the witnesses V.F. and J.S., deeming that there were no essential contradictions between their and the applicant's respective versions of events. By a final ruling of 8 February 2012 a pre-trial investigation judge of the Kaunas City District Court upheld the prosecutor's decision.

26. On 20 March 2012 the applicant lodged a written request for the prosecutor to stage a confrontation between him and the two children. He argued that they had incriminated the applicant when questioned by the experts only because they had been swayed by their mother. The applicant accordingly requested that a new forensic examination of the children be undertaken now that the boys resided at the children's home and were free of their mother's influence. He drew the prosecutor's attention to the civil court's decision of 2 November 2011 whereby the court had acknowledged that V.K. had acted dishonestly (see paragraphs 54-58 below). The applicant also asked the prosecutor to obtain the applicant's previous criminal file (see paragraphs 8 and 9 above), alleging that already in the course of those proceedings witnesses had stated that V.K. had been "coaching" (moko) the children what to say to the authorities, as was the case in the present proceedings. The applicant emphasised that the case-file material in respect of the previous criminal case also contained the records of the questioning of his children, and that from that material it was plain that V.K. had been lying. He also asserted that the earlier material proved that in autumn 2009 V.K. had already planned to accuse the applicant of sexually abusing his children. The applicant requested that a psychiatric examination (psichiatrinė ekspertizė) be performed on V.K.

27. On 6 April 2012 the prosecutor refused the applicant's requests. He considered that a confrontation between the applicant and the two children could be a traumatic experience for the latter. The prosecutor also considered that there were no grounds for ordering a fresh psychiatric examination of the two boys, because, in his view, the earlier expert reports had been properly reasoned, comprehensive, and had raised no doubts. The prosecutor also refused the applicant's request that the material relating to his previous criminal conviction be added to the file pertaining to the instant case, noting that the judgment regarding his earlier conviction (nuosprendis) had been added to his case file, but holding that other material from the earlier criminal case file had not constituted evidence directly relevant to the circumstances being investigated in the instant criminal case. Lastly, the prosecutor considered that there was no information in the file which could lead one to doubt the testimony of V.K. or her credibility.

29. In reply to the applicant's complaint about V.K.'s lack of interest in her sons, in April 2012 the Children's Rights Ombudsman, E.Ž., informed him that as at that time V.K. had not visited their sons at the children's home, she was not interested in their lives, and she was keeping her residential address secret. The child welfare specialists of Kaunas and Kėdainiai tried to establish V.K.'s residential address and intended to ask a court to limit V.K.'s parental rights in respect of the two boys.

31. By a final decision of 1 June 2012 the Kaunas City District Court refused the applicant's request for the prosecutor to be removed as not impartial.

2. The trial court's judgment

34. On 4 October 2012 the Kaunas Regional Court considered that V.K. should be questioned, "because her testimony [was] important for the criminal case". When V.K. did not appear at three court hearings held on 17 September, 27 September and 4 October, the court ordered the police to find her and bring her in.

36. On 20 September 2012 the applicant asked the trial court for two social workers, J.J. and A.P., who had seen his family in 2009, be summoned and examined. The trial court secured their attendance, and on 4 October 2012 those two social workers testified that they had not observed the children talking about sex or stating that they had been violated sexually. On the same day the applicant asked that another witness, D.V., who was a family friend, be examined. The court granted the request and D.V. testified in court that there had been fights between the applicant and V.K., but that the children had not shown any interest of a sexual nature.

37. On 23 November 2012, in court proceedings that were closed to protect the rights of the children, the Kaunas Regional Court found the applicant guilty of sexual violence against his children. The applicant and his lawyer took part in the court hearings. The applicant questioned the two witnesses, Z.S. and V.F., the cross-examination of whom the prosecutor had refused earlier (see paragraphs 14 and 24 above). Other witnesses - Ra.K.'s and Ro.K.'s teachers and their guardians at the children's home - testified in court that the two boys were serious and honest. Those witnesses stated that the boys had told them that the applicant had been physically violent, but that they had not mentioned having been abused sexually. The applicant did not confess to committing sexual abuse. However, the court found him guilty on the basis of the testimony that Ra.K. and Ro.K. had given to the pre-trial investigation judge on 22 August 2011 (see paragraph 17 above). The trial court also gave weight to the testimony that the boys had given to the child psychologist and the child psychiatrist (see paragraph 19 above). The trial court noted that, according to those experts, Ra.K. and Ro.K. were not prone to fantasising; the children were also able to understand and remember the facts on which the charges of sexual assault against the applicant were based. The court's verdict was also based on the testimony of Z.S. and V.F. In reply to the applicant's argument that V.K. had pressured her sons to testify against him, the trial court noted that Z.S. and V.F. had been the first people the boys had told about the abuse; they had only told their mother later. There was no evidence in the file that V.K. had influenced the boys' testimony. Lastly, the trial court noted that the applicant had acknowledged having been physically violent towards his sons, which was confirmed by the earlier judgment under which the applicant had been convicted of acts of violence (see paragraphs 8 and 9 above).

3. The proceedings before the Court of Appeal

41. By letters of 28 December 2012 and 20 May and 23 August 2013, as well as during the appellate court hearing of 25 October 2013, the applicant asked the Court of Appeal to make sure that V.K. would be summoned to appear before the Court of Appeal so that he could question her. The applicant pointed out that he had been wrongfully accused of exerting sexual violence towards his children by V.K., and that, because he had not been able to have her cross-examined, he had not had a fair trial.

42. On 20 May 2013 the applicant also provided the Court of Appeal with (i) a number of documents from the Pastogė children's home and (ii) V.K.'s written explanations to the child welfare authorities. The applicant submitted that those documents proved that V.K. had intended to wrongfully accuse the applicant, and that she had "got rid of the children (atsikratė) immediately after (vos tik po)" they had been questioned and the expert examinations had been concluded, on 23 November 2011 (see paragraphs 19, 22 and 23 above). The applicant asked the Court of Appeal to add those documents to the case file.

43. During the hearing of 6 June 2013 before the Court of Appeal the applicant reiterated his request that V.K. be summoned for examination. He provided documents relating to V.K.'s place of work and the conclusions reached by the Children's Rights Ombudsman (see paragraph 29 above). The appellate court added those documents to the file. The prosecutor agreed with the applicant's request for V.K. to be summoned and examined. The prosecutor noted that since the applicant had provided documents regarding V.K.'s place of work, "it was possible to take measures to determine V.K.'s place of residence and to try to summon her for examination before the court". The Court of Appeal decided to examine the evidence, and to grant the applicant's request and to summon V.K. for examination.

44. Exercising his right to conduct his defence, the applicant also lodged a number of other requests. However, the Court of Appeal refused each and every one of them. In particular, the court considered irrelevant the applicant's request for the summons of one of his children's school teacher, his neighbours, and doctors who had treated V.K. because although those people could provide information about interaction within the applicant's family, "none of them could provide information about the circumstances of the crime committed". Similarly, although requested by the applicant, so far it had not been necessary to call and question the forensic experts who had examined the two children (see paragraph 19 above), because the reports issued by those experts had been provided and the court had a right to examine them and to rely on them. The Court of Appeal considered that it could always come back to the applicant's request for the cross-examination of the experts in court, should it consider that those expert reports needed clarifying. As for the applicant's request that certain documents be added (see paragraph 42 above), the appellate court stated that those concerned only V.K.'s personality, and were therefore unrelated to the applicant's crime. Lastly, the appellate court deemed that the applicant's request for the addition to the current case file of materials - the minutes of court hearings and the children's psychological reports from the applicant's earlier criminal case file (see paragraph 8 above) - was without purpose (netikslingas) because those materials concerned the applicant's earlier crime.

45. During the appellate court hearing of 25 October 2013 the applicant repeated his request for V.K. to be cross-examined in court, stating that this was indispensable if his right to a fair trial were to be respected. In his view, she had accused him of committing sexual crimes against the children and had coached them to lie in this respect. He underlined that he had had no possibility to question V.K. before the trial court.

46. The Court of Appeal noted that a summons had been sent to V.K. to two different addresses in Kėdainiai and in Kaunas, but that these had been returned to the court marked "does not live at this address (negyvena)" and "uncollected (neatsiėmė)". Another summons had been sent to V.K.'s workplace; however, the office administrator had explained in writing that V.K. was on maternity leave. The Court of Appeal also had information that V.K. was registered as living within the Kaunas Municipality, but no specific residential address for her was registered. The social insurance authorities informed the court that V.K. was on maternity leave and was receiving maternity benefits, but there was no information about her place of residence.

49. Having discussed the issue, the Court of Appeal decided that the proceedings could continue without V.K.'s participation, deeming that the court had taken all possible measures to locate her. The Court of Appeal also stated that the trial court had not relied on V.K.'s testimony when finding the applicant guilty.

51. By a ruling of 9 December 2013 the Court of Appeal rejected the applicant's appeal. It observed that notwithstanding the trial court's and the appellate court's efforts to summon V.K. for questioning, she could not be located. Even so, the applicant's guilt was proved by other pieces of evidence in the case, all which were consistent with each other. According to the psychologists, Ra.K. and Ro.K. did not have a tendency to fantasise, which would have precluded them from accurately depicting the facts. When questioned by the pre-trial investigation judge and by forensic experts, the boys were mature enough to understand what had happened to them, given that they were then seven and nine years old. Even though the applicant asserted that Ra.K. and Ro.K. had been influenced by their mother, V.K., the applicant's power over them was equally strong. The court dismissed the applicant's accusation that V.K. had had a motive for inciting the boys to accuse their father of sexual violence and for influencing their testimony. For the appellate court, even though V.K. had accompanied the boys to their questioning, she had not taken part either in the boys' questioning by the pre-trial investigation judge or in their questioning by the forensic experts. Likewise, although the pre-trial investigation had been opened on the basis of a complaint by V.K. in July 2011, the charges against the applicant had been brought only after the boys' questioning in August 2011, when credibility of V.K.'s complaint had been verified. Even so, the trial court had not relied on V.K.'s testimony in finding the applicant guilty. The Court of Appeal also found that the statements given by the witnesses Z.S. and V.F. about what the applicant's children had told them were basically identical and consistent with other evidence, such as psychiatrists' reports; therefore, there was no reason not to believe those statements. Even though the applicant had tried to challenge those two witnesses as not being impartial, asserting that they were members of V.K. family, the appellate court found no objective basis for believing that those two witnesses had had any motive for incriminating the applicant. Moreover, neither of the two witnesses was a "close relative" of V.K. within the meaning of that term under Lithuanian criminal law (see paragraph 69 below). Lastly, it was the court's prerogative to decide what evidence to take into account. As for the applicant's request that his neighbours, his sons' teachers and his work colleagues be questioned in order to prove that in 2009 he had worked long hours and had therefore had no practical opportunity to sexually abuse his children, the Court of Appeal deemed that there was no reason to believe that the testimony given by those people would outweigh the entirety of the rest of the incriminating evidence in the case, which for that court was consistent.

4. The Supreme Court's decision

B. The civil proceedings regarding the child support

54. In July 2011 V.K. started civil court proceedings, asking that the applicant be required to pay child support in respect of her two children, Ro.K. and Ra.K. During the court hearings it came to light that the applicant was the biological father of only one of those children - Ro.K. In court V.K. confessed to having lied in her civil lawsuit, and acknowledged that the biological father of Ra.K., born in June 2002, was a certain man whose surname she did not remember. V.K. also stated that she had started closely communicating (artimai bendrauti) with the applicant in August 2002, and had asked him to agree to give his surname to the boy so that she could receive social benefits. Afterwards, on 3 May 2004 a son, Ro.K., had been born to them. V.K. testified that the applicant had taken care of both children. V.K. also stated that she did not work, received social benefits, and lived not in the social housing allocated to her in Kėdainiai, but in a rented flat in Kaunas. She acknowledged that from October 2009 until February 2011 both boys had lived in the Pastogė children's home and that they had been taken care of by the State, but nevertheless asked that the applicant should be ordered to pay her child support in respect of the previous three years.

55. In its decision of 2 November 2011 the Kėdainiai District Court held that V.K. had been "dishonest (nesąžininga)", because she had misled the authorities about the true paternity of her son Ra.K. in order to cheat them into granting her social benefits. To make matters worse, she had also withheld from the court the fact that the boys had been in the care of the State between 2009 and 2011, and had claimed child support for this period during which she had not been actually taking care of them.

57. In 2012, the child welfare authority in Kėdainiai lodged a civil claim, seeking that the applicant be required to reimburse it for the money it had spent in respect of Ro.K. The authority pointed out that on 25 November 2011 V.K. had brought both boys to them and had signed an agreement that both children would be placed in the children's home in Kėdainiai (see paragraph 22 above), stating that she planned to move abroad. For that reason, in December 2011 the Kėdainiai Municipality had granted temporary guardianship (laikinoji globa) in respect of both boys to the children's home. The representative of the child welfare authority also stated that during the hearing of 2 November 2011 V.K. had confessed that the applicant was not Ra.K.'s biological father (see paragraph 55 above). Despite being aware of this fact, the applicant had taken no steps to challenge or to annul his status as Ra.K.'s father. On the contrary, he had written letters in which he recognised both boys as his sons and promised to live with them and to take care of them when he was released from prison. The representative of the child welfare authority also pointed out that V.K. had placed the children in the children's home in Kėdainiai "by deceit (apgaule)"; she had also refused the social housing offered to her and deregistered from her official place of residence in Kėdainiai. According to information received from the charity organisation Caritas, V.K. had also stolen things (dirbdama apsivogė) at her workplace; she lived somewhere in Kaunas and did not work, and she also was keeping her actual residential address secret.

58. On 23 July 2012 the Kėdainiai County District Court allowed the claim. It noted that the applicant was detained pending the criminal case, and V.K. would not visit her children in the children's home - she "was not interested in their lives (nesidomi jų gyvenimu)" and was hiding her place of residence. Given that the applicant had not challenged his paternity of Ra.K., he had all the paternal rights and obligations provided by the law, including the duty to financially support the children (see paragraph 71 below). The court thus ruled that the applicant and V.K. should each pay LTL 300 in respect of each child to the children's home, until the children came of age.

C. The civil proceedings regarding the taking away of the applicant's spectacles

59. During the course of the applicant's arrest on 23 November 2011 (see paragraph 20 above), a body search was performed on him and certain objects, such as his telephone, comb and spectacles were taken. The applicant was placed in pre-trial detention in Kaunas.

60. It transpires from 25 January 2012 letter from the prosecutor to the applicant that as early as in November 2011 the applicant wrote to the Committee on Legal Affairs (Teisės ir teisėtvarkos komitetas) of the Seimas, complaining about the non-return of his spectacles. The Committee forwarded the applicant's complaint to the prosecutors, and it reached the Kaunas regional prosecutor's office on 2 January 2012. Afterwards, on 25 January 2012 the prosecutor wrote to the applicant that a pre-trial investigation officer would resolve the issue.

61. As can be seen from later court rulings, on 20 March 2012 the applicant submitted a number of requests to the prosecutor, including a repeated request that his spectacles be returned to him. On 6 April 2012 the prosecutor ordered the pre-trial investigator to look into the matter, and the investigator returned that item to the applicant on 20 April 2012.

62. The applicant later started civil proceedings for damages, claiming that the taking away of his spectacles had caused him physical and emotional suffering. He asserted that without spectacles he had had difficulties in reading and writing, and that therefore his eyesight had deteriorated. The absence of spectacles had also resulted in difficulties in communicating with others.

63. By a decision of 26 February 2015, the Vilnius City District Court allowed the applicant's claim, and awarded him EUR 1,000 in compensation for non-pecuniary damage. It held that by taking away the applicant's spectacles the authorities had breached the applicant's property rights, as protected under Article 23 of the Constitution and Article 1 of Protocol No. 1 to the European Convention on Human Rights. Moreover, taking away the applicant's spectacles had been not only unlawful, but had also caused him inconvenience in his private life, which in itself had been "a traumatic experience" and had also "degraded his human dignity (sumenkino žmogiškąjį orumą)", although the court did not elaborate further.

64. The applicant appealed. He argued that the pre-trial investigator had intentionally ignored his numerous oral and written requests for the spectacles to be returned to him because she had understood that without spectacles he would have difficulties in reading the documents in his criminal file. The applicant also stated that the Kaunas remand facility had not had an ophthalmologist on its staff, and that the pre-trial investigator had not allowed him to be sent to Lukiškės Remand Prison in Vilnius (which had had an ophthalmologist) on the grounds that this would extend the criminal investigation. Being detained, he had had only limited possibilities to defend his rights, and his complaints to the State authorities for a long time had remained unanswered. The applicant asked that the sum awarded in non-pecuniary damages be raised.

66. On 22 February 2016 the Vilnius Regional Court partly amended the lower court's decision. The appellate court noted at the outset that certain provisions of the Civil Code and the Code of Civil Procedure applied to the applicant's civil claim (see paragraphs 72 and 73 below). The appellate court acknowledged that there had been no legal grounds for the applicant's spectacles being taken away. However, the court also pointed out that there was no information in the file to the effect that the spectacles which had been taken away during the applicant's search had been prescribed by a doctor. The court noted that, pursuant to Article 45 of the Law on the Execution of Pre-trial Detention (see paragraph 74 below), people in detention were entitled to the same level of medical care as those outside prison, and that healthcare services operated in remand facilities. Accordingly, if the applicant had had problems with his vision, he could have asked the authorities to have his eyesight checked, an opportunity of which he had not availed himself. In this connection the appellate court dismissed as unproven the applicant's argument that, in order to be seen by an ophthalmologist, he would have had to be transferred from a remand facility in Kaunas to Lukiškės Remand Prison in Vilnius, and that the investigator had refused to send him there for examination. Moreover, it was clear from the criminal case file that he had been able to write during the period in detention that he spent without his spectacles. The court noted that on 9, 12, 20 and 27 December 2011 the applicant had submitted various requests to the pre-trial investigator. He also had corresponded with other persons. Having small handwriting, the applicant had successfully managed to write between the lines of a small-squared page. The court also underlined that the applicant's claim that his eyesight had become worse had not been substantiated by medical documents. Lastly, the duration of the time when the applicant had been without spectacles could have been significantly shorter had he acted in a proactive manner and asked the authorities to return them in a timely fashion. The court considered that there was no proof in the file that the applicant had asked for the return of his spectacles earlier than on 20 March 2012. In sum, since the inconvenience caused to the applicant could have been easily resolved had he shown some initiative, and given that his need for spectacles had not been proved, the appellate court considered that an acknowledgement that the spectacles had been taken away constituted sufficient compensation for the damage suffered.

67. The applicant lodged an appeal on points of law. He submitted, inter alia, that the pre-trial detention facility in Kaunas had not had an eye doctor on its staff, and that therefore he had had no opportunity to obtain spectacles in detention. This had caused the applicant serious physical suffering. The applicant relied on the Court's judgments in Kudła v. Poland ([GC], no. 30210/96, ECHR 2000-�XI) and Mandić and Jović v. Slovenia (nos. 5774/10 and 5985/10, 20 October 2011).

68. By a ruling of 17 May 2016 the Supreme Court refused to accept the applicant's appeal on points of law for examination, as not raising questions of law.

II. RELEVANT DOMESTIC LAW AND PRACTICE

69. The Criminal Code at the material time read:

Article 140. Causing Physical Pain or a Negligible Health Impairment (Fizinio skausmo sukėlimas ar nežymus sveikatos sutrikdymas)

"1. A person who, by beating or other violent actions, causes a person to suffer physical pain or negligible bodily harm or a short-term illness

shall be punished by community service or by restriction of liberty or by arrest or by imprisonment for a term of up to one year.

2. A person who commits the act indicated in paragraph 1 of this Article in respect of a young child or by torturing the victim

shall be punished by imprisonment for a term of up to two years.

3. A person shall be held liable for an act listed in paragraph 1 of this Article only in the event of a complaint being lodged by the victim or a statement being made by his authorised representative or at the prosecutor's request."

Article 150. Sexual Assault (Seksualinis prievartavimas)

"1. A person who, against a person's will, satisfies his sexual desires through anal, oral or interfemoral intercourse by using physical violence or by threatening the immediate use thereof or by otherwise depriving the victim of the possibility of resistance or by taking advantage of the helpless state of the victim

shall be punished by arrest or by imprisonment for a term of up to seven years.

...

3. A person who carries out the actions listed in paragraph 1 of this Article in respect of a minor

shall be punished by imprisonment for a term of between two and ten years.

4. A person who carries out the actions listed in paragraph 1 of this Article in respect of a young child

shall be punished with imprisonment for a term of between three and thirteen years.

5. A person shall be held liable for an act listed in paragraph 1 of this Article only in the event of a complaint being lodged by the victim or a statement [being made] by his authorised representative or at the prosecutor's request. ..."

Article 153. Sexual Molestation of a Child (Mažamečio asmens tvirkinimas)

"A person who molests a child

shall be punished by a fine or by restriction of liberty or by arrest or by imprisonment for a term of up to two years."

Article 233. Influencing a Witness, Victim, Expert, Specialist or Translator

"1. A person who, in any manner, seeks to influence a witness, victim, expert, specialist or translator to give false testimony or to present false conclusions, clarifications or incorrect translations during a pre-trial investigation or in court or before the International Criminal Court or before another international judicial institution or hinders their arrival when summoned to appear before a pre-trial investigation officer, a prosecutor, a court or the International Criminal Court or another international judicial institution

shall be punished by community service or by a fine or by restriction of liberty or by arrest or by imprisonment for a term of up to two years. ..."

Article 248. Interpretation of Concepts

"1. Close relatives [means] parents (or adoptive parents), children (or adopted children), brothers, sisters, grandparents and grandchildren.

2. Family members of the perpetrator [means] the parents (or adoptive parents), children (or adopted children), brothers, sisters and their spouses ... and also the spouse of the perpetrator or the person living with him in a common-law [partnership] and the parents of that spouse ..."

Article 309. Possession of Pornographic Material

"...

2. A person who produces, acquires, stores, demonstrates, advertises or distributes pornographic material displaying a child or presenting a person as a child

shall be punished by a fine or by imprisonment for a term of up to two years.

...

4. A person who demonstrates or advertises pornographic material shall be considered to have committed a misdemeanour and

shall be punished by community service or by a fine or by restriction of liberty or by arrest. ..."

70. Under Article 178 of the Code of Criminal Procedure, a pre-trial investigator or a prosecutor had authority to choose to perform certain procedural actions, such as to question witnesses. Although a suspect could have asked a prosecutor to perform those actions, such a request was not binding on the prosecutor. A refusal, however, could be appealed against to the pre-trial investigation judge, whose decision would be final.

71. Under the Civil Code both parents have a duty to financially support their underage children (Article 3.192). If the parents (or one of the parents) fail in that duty to financially support their underage children, a court may issue a maintenance order in an action brought by one of the parents or the child's guardian or the State institution for the protection of the child's rights (Article 3.194).

72. As regards civil liability for damage, Article 6.272 § 1 of the Civil Code provides that compensation for damage caused as a result of unlawful arrest as a measure of oppression, of unlawful detention, or of the application of unlawful procedural measures of enforcement, will be afforded fully by the State, irrespective of whether the officials involved in the preliminary investigation or prosecution were at fault.

73. The Code of Civil Procedure reads that the parties have the obligation to substantiate their claims by providing evidence. If that evidence is not sufficient, the court may propose that the parties provide supplementary evidence. As a rule, a court does not gather evidence on its own initiative (Articles 178 and 179).

74. The Law on Execution of Pre-trial Detention (Suėmimo vykdymo įstatymas) at the material time read as follows:

Article 45. Health care of Detainees

"1. Health care at remand prisons shall be organised and carried out according to a procedure prescribed by law. Detainees shall be provided with the same quality and level of treatment as people at liberty.

2. Health-care services shall operate in remand prisons. ...

4. Any urgent medical assistance which the Prison Department Hospital is unable to provide to a detainee may be provided in a State or municipal health-care institution, while ensuring security related to the detainee. ..."

III. RELEVANT EUROPEAN AND INTERNATIONAL MATERIAL

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

A. The submissions by the parties

77. On 3 November 2015, in their observations to the Court, the Government noted that the civil proceedings regarding the applicant's complaint under Article 3 of the Convention were pending before the Vilnius Regional Court. In their further observations, in reply to the applicant's observations and claims for just satisfaction, the Government noted, on 5 April 2016, that the Vilnius Regional Court had dismissed the applicant's claim for compensation (see paragraph 66 above). They pointed out that the applicant could lodge an appeal on points of law regarding that decision, and that failure to do so would constitute failure to exhaust all domestic remedies. Responding to a request by the Court that they provide the most recent information, on 4 September 2017 the Government wrote to the Court that on 17 May 2016 the applicant's appeal on points of law had been dismissed by the Supreme Court.

B. The Court's assessment

1. Admissibility

2. Merits

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

"1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...

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; ..."

A. The submissions by the parties

1. The applicant

2. The Government

B. The Court's assessment

1. Admissibility

2. Merits

(a) General principles

94. The Court reiterates that the guarantees in paragraph 3(d) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of that Article which must be taken into account in any assessment of the fairness of proceedings. In addition, the Court's primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (see Schatschaschwili v. Germany [GC], no. 9154/10, § 101, 15 December 2015 and Taxquet v. Belgium [GC], no. 926/05, § 84, 16 November 2010, with further references therein). In making this assessment the Court will look at the proceedings as a whole, having regard to the rights of the defence but also to the interests of the public and the victim(s) that crime is properly prosecuted (see Schatschaschwili, cited above, § 101 and Gäfgen v. Germany [GC], no. 22978/05, § 175, ECHR 2010) and, where necessary, to the rights of witnesses (see, amongst many authorities, Al-Khawaja and Tahery, cited above, § 118). It is also notable in this context that the admissibility of evidence is a matter for regulation by national law and the national courts and that the Court's only concern is to examine whether the proceedings have been conducted fairly (see Gäfgen, cited above, § 162, and the references therein).

95. In Al-Khawaja and Tahery v. the United Kingdom, cited above, §§ 119-�147 the Grand Chamber clarified the principles to be applied when a witness does not attend a public trial. These principles may be summarised as follows:

97. The Court must also have regard to the special features of criminal proceedings concerning sexual offences. Such proceedings are often conceived of as an ordeal by the victim, in particular when the latter is unwillingly confronted with the defendant. These features are even more prominent in a case involving a minor. In the assessment of the question of whether or not in such proceedings an accused received a fair trial, account must be taken of the right to respect for the private life of the alleged victim. Therefore, the Court accepts that in criminal proceedings concerning sexual abuse certain measures may be taken for the purpose of protecting the victim, provided that such measures can be reconciled with an adequate and effective exercise of the rights of the defence (see Aigner v. Austria, no. 28328/03, § 37, 10 May 2012, with further references). In securing the rights of the defence, the judicial authorities may be required to take measures which counterbalance the handicaps under which the defence labours (see S.N. v. Sweden, no. 34209/96, § 47, ECHR 2002-�V, and A.S. v. Finland, no. 40156/07, § 55, 28 September 2010).

(b) Application of the principles to the present case

(i). Whether there was good reason for the non-attendance of Ra.K., Ro.K. and V.K. and whether their testimony was "sole or decisive"

(ii). Whether there were sufficient "counterbalancing factors"

(iii). Conclusion

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

A. Damage

B. Costs and expenses

C. Default interest

FOR THESE REASONS, THE COURT

1. Declares, unanimously, the application admissible;

2. Holds, unanimously, that there has been a violation of Article 3 of the Convention;

3. Holds, by six votes to one, that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention;

4. Holds, by six votes to one,

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, EUR 13,000 (thirteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;

5. Dismisses, unanimously, the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 12 June 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea TamiettiGanna Yudkivska
Deputy RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge De Gaetano is annexed to this judgment.

G.Y.
A.N.T.

SEPARATE PARTLY DISSENTING OPINION OF JUDGE
DE GAETANO