The case has been communicated in April 2008 and remains pending. Giving a short overview of the facts, it has to be mentioned, that the case is highly controversial as well as  morally difficult, as it concerns specifically sexual abuse of a minor.

    The applicant A.K. was a teacher of mathematics giving his pupil J.K. private lessons by the  consent of J.K.’s parents. On October 2002 B.T., mother of J.K., lodged a complaint at a police station against the applicant, accusing him of sexually abusing her son J.K. The police interrogated J.K., who claimed, that the applicant informed him on his sexual identity (namely that he feels woman and is going to undergo gender correction process) and expressed serious affection towards J.K. During the interrogation J.K. mentioned also fact of sexual abuse of a younger colleague D.G. by the applicant A.K. Further evidence in the case is an opinion of a psychologist, who had confirmed objectivity of J.K. and mentioned strong emotional bond between a minor J.K. and the teacher. The opinion gives a conclusion that therefore J.K. could easily be influenced by the applicant.

At the beginning of the December 2002 B.T. and her son J.K. went to Canada after notifying the flight to the police. Accordingly, pre-determined meeting at a District Court was cancelled. At the same time the applicant has been arrested and remanded in custody for seven months. In 2003 an indictment has been filed against A.K., reproaching him with sexual abuse of J.K. (minor under 15 years), D.G. (minor of 11 years)and also with intimidating a witness. Despite Court’s attempts it was impossible to interrogate B.T. or J.K. personally as well as obtain their address in Canada, the only declaration expressed by B.T. in a letter was a will of maintaining their previous statements.

Throughout the judicial proceedings the applicant claimed to be innocent and denied having committed sexual acts on minors. On July 2004 the District Court found A.K. guilty and sentenced him to 2 years suspended imprisonment sentence and a fine (acquitted only of intimidation). The sentence has been based on evidence of previous interrogation from 2002. One of the statements of the sentence especially deserves attention:

“Despite such problems of sexual identity, the accused assumed a teaching job in primary school of N., he concealed his sexual orientation  teaching small children and even held the position of a class teacher of the one of his classes (Mimo takich problemów identyfikacji płciowej oskarżony podjął pracę w Szkole Podstawowej w N. jako nauczyciel, ukrywał swoje upodobania seksualne, powierzono mu naukę nieletnich dzieci, a nawet wychowawstwo jednej z klas ). “

After the applicant appealed in 2004, the Regional Court overturned the trial decision with respect to the offense committed against D.G. and remitted the case for reconsideration. In parallel, he dismissed the appeal in the part relating to the offense committed against J.K. The judges took the view that the district court did not violate the procedural standards and that because all attempts to locate the residence of J.K. and his mother B.T.  had been unsuccessful and that their hearing, direct or by way of commission, was impossible, the district court had read protocols from their previous interrogations.

In the application, A.K. mentions Article 6 § 1 and 3 d) of the Convention, Article 14 and Article 34. It  would most be worthwhile to focus on violation of two of them: the Article 6 (right to fair process) and Article 14 (prohibition of discrimination).

Usually such cases  concern violations of Article 12 (right to marry and found a family) and Article 8 (right to respect for private and family life). However  this case is a typical one based on violation of Article 14 (prohibition of discrimination) and additionally a case of fair trial. The  Article 6 of the Convention is mentioned clearly in the context of Article 14, that is to say: lack of “due diligence” in Courts proceedings can obviously be explained by discriminatory approach of state’s judicial authorities towards transgender citizens. There is a competition of articles 391 and 585 – 587 of Polish Criminal Procedure Code. In every individual situation it is the competence of the Court to decide how far can it intervene abroad to support collecting comprehensive, detailed and sufficient evidentiary material.  According to Article  587 of Polish Criminal Procedure Code, even if prepared by a foreign state’s authorities, an evidentiary material has it’s legal value as long as it has been collected (performed) in a way not inconsistent with Polish legal order.

In this precise situation, the applicant can logically mention Polish – Canadian Treaty  on Mutual Cooperation In Criminal Matters from 1994 and its very first article stressing the broadness of cooperation between two contracting parties (‘broadest possible’)  in the scope of Criminal Procedure. One failure of a request for information concerning current location of a witness delivered to Embassy in Canada is doubtlessly not a sufficient counterargument on the Court’s side to reason it’s lack of due diligence, especially in such a fragile criminal case.

Attempting to make a short analysis of an Article 6 of the Convention, it has to be observed, that especially the ’impartiality’ of the court, provided by the article, remains in the case of A.K. quite controversial.  The above mentioned ruling of a District Court form 2004 shows uncovered  the Court’s opinion on transgender citizens. According to the Court, it was to the A.K.’s disadvantage in the case, to have taught in primary school without informing openly the employer on his transgenderism. There is namely no law in Republic of Poland, that forces a citizen to inform openly on their sexual orientation or identity when entering into a service relationship. If the above mentioned  Court’s statement was developed,  it would surely be eventually found incompliant with the Article 8 of the Convention (the right to privacy).

The following article provides also in point d) a right to have witnesses examined against, which in the case of A.K. was neglected. Nevertheless, in the context of Article 391 of the Polish Criminal Procedure Code (possibility to read protocols from previous interrogations of witness if he or she remains abroad), it is difficult to argue the violation of the right to fair trial. Obviously, the ratio legis of the provision is to avoid excessive delay and unsolved  cases due to problems in collecting the evidentiary material.  The only possible approach to the matter of point d) of the Article 6 seems to be the lack of ‘due diligence’, which has to be generally based on individual estimation of the Coutr’s efforts to provide the examination of witness.  Additionally, point d) of an Article 6 of the Convention (a ‘confrontation clause’) could be supported by the recent Al-Khawaja and Tahery v. the United Kingdom criminal case judgment, where the European Court of Human Rights found the trial unfair, as the applicant Tahery did not have possibility to question a witness.  

The key aspect of the case is the discrimination on the ground of sexual orientation. In this specific case of A.K. it can also be interpreted broadly from the sort of ‘blanket clause’ used in the Article 14 of the Convention, namely the exact wording ‘or other status’, with regard to the possible grounds of discrimination. ‘Other status’ could be here easily understood as sexual identity. The case of A.K. is still compliant with the provision, as the discrimination that took place is strongly connected with the rights guaranteed by the Convention, here: the right to fair trial.

It can also be argued, on a basis of Protocol 12 (provisions of which are to be treated as additional provisions of the Convention), that the applicant experienced discriminatory treating by a public authority with regard to national law. It could be discussed if the ‘principle of directness’ could be treated in this context as a national law basis. It could be defined ‘in concreto’ as the obligation of a court to examine the evidence in a way of direct contact of the court and the participants of the process with the source of the evidence (here: the witness) and using indirect sources of evidence only when obtaining direct ‘original evidence’ is either impossible or restricted with serious impediment. The difficulty with the principle lies in fact, that there is no exact expression of the ‘principle of directness’ in Polish Criminal Procedure Code, it is a part of polish legal order and functions as a general and basic rule.

The core problem of the case is the statement made by District Court’s in it’s judgment, concerning applicants sexual identity. Without giving any objective criteria, the Court treated finally revealed fact of the applicant’s sexual identity as a clear disadvantage for him, limiting credibility of the applicant, who constantly and at each stage of the procedure claimed innocence. Logically, the applicant responded to the statement by saying, that he covered (or rather didn’t make public) his sexual identity because of negative social approach towards transgender people and because he did not want his professional performance to be affected by the controversial information. It is fully understandable, that he did not want to be perceived by his sexual identity, but by his skills and abilities as a teacher.

One can easily presume, that the Court’s intention was to stress the necessity to inform the employer (probably especially in the field of education) of the sexual identity and sexual orientation of a future worker. Such suggestion may be socially dangerous,  as infringing right to privacy of an individual, especially when expressed in a judgment which is an utterance of viewpoint  of a public authority and has undisputable legal value for practitioners of law. Such official opinions, when made public, maintain negative reception of transgender citizens and preserve their false and unreal image, as socially harmful. As usually, ignorance and stereotypes are the reason of oppression of individual. Not even trying to enter into competences of court by judging the applicant, I may only wish the judgment to be one of the steps towards subduing the stereotype.