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FOURTH
SECTION
CASE OF FĄFROWICZ v. POLAND
(Application no. 43609/07)
JUDGMENT
STRASBOURG
17
April 2012
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 Fąfrowicz v.
Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
David Thór Björgvinsson,
President,
Lech Garlicki,
Päivi
Hirvelä,
George Nicolaou,
Zdravka
Kalaydjieva,
Nebojša Vučinić,
Vincent
A. De Gaetano, judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 27 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 43609/07) against the Republic
of Poland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Polish national, Mr Robert Fąfrowicz
(“the applicant”), on 17 September 2007.
- The
applicant was represented by Ms B. Słupska-Uczkiewicz, a lawyer
practising in Wrocław. The Polish Government (“the Government”)
were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
- The
applicant alleged that his trial had been unfair, in breach of
Article 6 of the Convention.
- On
10 November 2009 the application was communicated to the Government.
It was also decided to rule on the admissibility and merits of the
application at the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1971 and lives in Nowy Sącz.
- On
27 January 2006 the applicant was arrested on suspicion of car theft
and subsequently remanded in custody. On an unspecified later date he
was charged with selling drugs. The charges concerning car theft were
severed to be dealt with in another set of proceedings.
- On
15 February 2006 a certain JH, a minor,
was questioned by the police in respect of the car theft. On 27
February 2006 JH was questioned by the police in respect of the
charge of selling drugs between September 2005 and 10 February
2006. He admitted that he had been selling drugs which he had
received from the applicant. The questioning took place in the
presence of a psychologist.
- In
her report dated 1 March 2006 the psychologist observed that
JH’s cognitive processes had functioned at the level
commensurate to his age. She noted that his interpretation of the
facts could have been slightly changed on account of his fear of the
consequences of his acts. There could also have been minor
inconsistencies with regard to the amount of drugs sold by the
applicant to other persons. She also noted that JH had willingly
presented the facts related to the drug transactions involving him
and other persons.
- JH
was heard by the police as a juvenile suspect but no preventive
measures were applied. The charges against him were to be examined
separately by the Division for Family and Minors of the Nowy Sącz
District Court. That court ordered an inquiry to be carried out at
his home. On 10 July 2006 the report of the inquiry was
submitted to the District Court. According to the report, JH had left
Poland for the USA on 17 March 2006 and his parents did not
know his address or telephone number. JH had not informed his parents
of his plans to leave Poland and he had merely called them from the
airport.
- On
7 September 2006 the District Court requested the police to establish
JH’s place of residence. On 18 September 2006 the police
informed the court that JH had been in Chicago as from April 2006 and
that he was expected to return to Poland in the summer of 2008.
- On
17 October 2006 the Nowy Sącz District Court decided not to
institute proceedings against JH. It had regard to the fact that he
had been in the USA since April 2006 and in those circumstances it
would be impossible to apply to him the measures provided in the
Juvenile Procedure Act (ustawa o postępowaniu w sprawach
nieletnich).
- On 19 August 2006 the prosecution filed a bill of
indictment against the applicant with the Nowy Sącz Regional
Court. The applicant was charged with offering drugs to a minor, JH,
and with seven counts of selling drugs to JH, PK, SB, KJ, GS, TK and
RG between June 2004 and 27 January 2006. The prosecutor
requested the court to hear seventeen witnesses, including JH.
- There
were five other defendants in the case (WZ, GS, KJ, MG and TK) who
were also charged with drug trafficking offences. Two of them, WZ and
GS, were additionally charged with car theft. On 3 October 2006 the
trial court severed the charges against MG and TK.
- On
28 August 2006 the Nowy Sącz Regional Court scheduled hearing
dates for 3, 9, 13, 16 and 17 October 2006. JH was summoned to
testify on 9 October 2006. On 11 September 2006 JH’s mother
informed the trial court that JH resided in the USA where he was
attending school. She produced photocopies of the plane tickets. On
18 September 2006 the police confirmed the above and informed the
court that the date of JH’s return to Poland was unknown.
- On
9 October 2006 the trial court again summoned JH to give evidence on
17 October 2006. The police were asked to serve the summons or to
establish the date of his return to Poland. On 13 October 2006 the
police informed the court that the summons could not be served since
JH was still in the USA and the date of his return remained unknown.
- On
18 October 2006 the trial court again summoned JH to testify at the
hearing. It also requested police assistance in establishing the date
of his return to Poland. The police informed the court in their two
letters of 26 October 2006 that JH was in Chicago. They notified
the court that the date of his return to Poland was still unknown.
They also reported that, according to the information obtained from
JH’s parents, JH would remain in the USA for several years as
he was attending school.
- The
trial court held five hearings as scheduled and one additional
hearing on 15 November 2006. At the hearing held on that date the
prosecutor requested the court to read out the statements JH had made
to the police. The applicant and his counsel objected. They argued
that those depositions were the main incriminating evidence against
the applicant and that they wanted to put questions to JH at the
hearing. The trial court decided that JH’s statements
should be read out pursuant to Article 391 § 1 of the CCP since
the witness was permanently abroad and his date of return to Poland
remained unknown. It noted that in those circumstances it was not
possible to grant the applicant’s request to hear JH at the
hearing.
- The
Nowy Sącz Regional Court gave judgment on 16 November 2006.
It convicted the applicant as charged and sentenced him to four
years’ imprisonment and a fine of PLN 2,000. It further ordered
him to make a payment of PLN 5,000 to an association assisting drug
addicts.
- The
trial court established that the applicant had sold drugs as alleged
in the bill of indictment. In this respect it relied on the
statements of JH who had been heard by the police as a juvenile
suspect. JH stated that the applicant had sold drugs to GS, TK,
SB, RG and KJ in his presence. In his evidence, he described in
detail the factual circumstances of those transactions and
distinguished between transactions at which he had been present from
those of which he had only heard.
The
trial court considered JH’s evidence reliable, having regard to
its detail, certainty and consistency. The reliability of his
evidence was enhanced by the fact that JH had known all the
defendants well and had had no motive to incriminate them.
Furthermore, the trial court considered that JH’s evidence was
objective since he had not concealed any facts which might have put
him in a negative light as he admitted that he had been selling the
drugs for the applicant to KJ, GS, PK and AB and that he had stolen
the car. On 14 February 2006 JH together with the two co-accused WZ
and GS had stolen a car which indicated that they had trusted each
other.
- The
applicant pleaded not guilty and decided not to testify. He stated
that he had not sold or offered drugs to other persons and had not
possessed them. He refused to answer any questions from the court and
the parties.
- According
to the trial court, the credibility of the statements given by JH was
supplemented by other evidence. Those statements were not the only
incriminating evidence as they were confirmed in certain respects by
evidence from PK, KJ, GS and WZ. Furthermore, JH’s statements
were not undermined by the findings of the psychologist who had
assisted in his questioning.
- In
respect of witness PK, the trial court considered credible the
statements which he had given during the investigation. When
questioned at that stage he stated that JH had received drugs from
the applicant and had been selling them to others. PK had also
confirmed that JH had offered drugs to his friends. That evidence
corroborated the relevant statements of JH. PK had also
confirmed JH’s statement that the applicant had proposed to
manufacture drugs in PK’s garage. During the trial, PK changed
his version of events and denied that the applicant had supplied
drugs to JH, but the trial court refused to accept his change of
testimony as PK had offered no explanation for it.
- KJ
was a friend of JH and the applicant. The court found reliable the
evidence she had given during the investigation, namely that she had
bought drugs from JH, GS and WZ, and that she had offered and taken
amphetamine with the applicant. The latter fact contradicted the
applicant’s assertion that he had had nothing to do with drugs.
At the trial, KJ denied those statements. However, the trial court
noted that she had not explained the reason for the change in her
testimony and considered credible her original statements.
Furthermore, KJ’s testimony during the investigation was
corroborated by JH’s statements. KJ denied that the applicant
had sold her drugs. However, the trial court did not find this
evidence reliable, having regard to the consistent statements of JH
and to the lack of a motive on the part of JH to incriminate the
applicant and KJ.
- The
trial court considered credible the statements of GS that he had
purchased drugs from JH. The latter confirmed that he had been
selling drugs received from the applicant to others persons,
including GS. GS was also buying drugs from the applicant and selling
them to others as confirmed by the statements of JH and KJ. In view
of those statements, the court rejected GS’s subsequent denial
at the trial that he had anything to do with drugs.
- The
applicant appealed. He argued that the trial court had breached
criminal procedure by reading out the depositions of JH which had
been made during the latter’s questioning by the police. He
also submitted that the trial court had relied on JH’s
statements although they had not been corroborated by other evidence
in the case. The applicant lastly claimed that the court had erred in
its establishment of the facts of the case.
- On
17 April 2007 the Kraków Court of Appeal held a hearing and
upheld the trial court’s judgment for the most part. It amended
it only to the extent that it deleted one count of selling drugs by
the applicant to PK since JH had stated that he had not witnessed
that particular transaction.
- Otherwise,
the Court of Appeal found that the trial court had correctly
established the facts, basing itself on a comprehensive assessment of
all the evidence. It had explained why it had considered JH’s
statements credible and why it had disregarded the applicant’s
evidence since he had limited himself to denying the charges against
him. It stressed that the applicant had not put forward any rational
arguments to contest the duly substantiated findings of the trial
court.
- The
Court of Appeal noted that JH had described precisely various details
concerning the purchase of drugs from the applicant, such as the type
of drugs, price, quantity, dates of transactions, form of payment,
etc. It underlined that JH’s version of events, namely
that he had been selling drugs received from the applicant and
offering them to his friends, had been confirmed by PK and KJ during
their questioning in the course of the investigation. The fact that
PK, when heard at the trial, had changed his earlier version of
events could not be considered credible as he had not given a
plausible explanation for this change. PK had also confirmed JH’s
statement that the applicant had proposed to manufacture drugs in
PK’s garage but that proposal had been refused. The fact of
JH’s offering drugs to friends had also been confirmed by GS
and WG during their questioning in the course of the investigation.
- The
Court of Appeal accepted the findings of the trial court that JH,
being a close acquaintance of the applicant, GS, KJ, PK, SB, TK and
RG, had objectively described the applicant’s actions and that
he had not been in conflict with the applicant. In his statements, JH
had not concealed facts which incriminated him. He had consistently
stated that GS, KJ, SB, RG and TK had purchased drugs from the
applicant in his presence. He distinguished those situations
from transactions at which he had not been present. The Court of
Appeal also noted that before his questioning as a juvenile
suspect, JH had been advised that he had the right to refuse to make
statements.
- As regards the lack of cross-examination of JH, the
Court of Appeal stated:
“The allegation of the breach of procedure by the
trial court is not sustainable. The appeal setting out the above
allegation does not specify which provisions were breached; it would
appear from the grounds of the appeal that it concerns Article 391 §
1 of the CCP, which the trial court relied on when reading out the
statements of JH once it had been established that he was staying
permanently (for a longer period of time) abroad and thus objectively
it is impossible to hear him directly. There is no doubt in the
circumstances of the case that the court made all possible procedural
attempts to secure the presence of JH at the trial, and that the
court took the decision to read out the statements of that witness
after having established objectively and unequivocally that the
precondition specified in Article 391 § 1 of the CCP had been
met (his uninterrupted long stay abroad), and then only just
before closing the trial. The defendant [the applicant] does not
dispute that the circumstances specified in Article 391 § 1 of
the CCP in respect of witness JH were correctly ascertained,
admitting expressly that the witness went away and has lived abroad.
In this procedural situation the trial court had the right to read
out the statements of that witness, a minor, given at the time when
he was questioned as a suspect (the fact that the trial court did not
invoke § 2 of Article 391 of the CCP does not have any
procedural significance for the justified use of the measure provided
by Article 391 of the CCP in the circumstances of the case), being an
exception to the principle of directness and the principle of oral
proceedings – since the trial court assessed the admissibility
of that evidence (reading out a witness’ statements), the
circumstances in which it was obtained and the credibility of those
statements by corroborating them with other evidence obtained in the
case, as already explained. The parties and the defence had an
opportunity to react directly to those statements [of witness
JH]....”
- On
22 June 2007 the applicant filed a cassation appeal with the Supreme
Court. He stated that the trial court had read out JH’s
depositions and by doing so had prevented the applicant from putting
questions to that witness. He alleged a breach of his defence rights,
invoking Articles 6, 7 and 391 § 1 of the CCP and Article 6 §
3 (d) of the Convention.
- The
applicant argued that the trial court and subsequently the Court of
Appeal had based their verdict exclusively on JH’s evidence and
had disregarded the evidence of KJ, GS and WZ as being contradictory
to the former evidence. In respect of PK, the applicant argued that
his statements given at the pre-trial investigation stage had to be
carefully analysed since he could not confirm them at the hearing as
he had been undergoing drug therapy.
- The
applicant claimed that the courts had not used all available means to
secure the attendance of JH at the trial. Furthermore, JH had been
treated leniently by the authorities as he had been allowed to leave
the country despite his admission that he had been selling drugs.
Lastly, the applicant informed the Supreme Court that JH had returned
to Poland and that he could have been questioned in respect of the
charges against the applicant.
- On 24 June 2007 JH was arrested by the police for
drunken driving in Poland. On 25 June 2007 he was questioned by the
Zakopane District Prosecutor. On the same day the Zakopane District
Court convicted him of drunken driving in summary proceedings and
sentenced him to a suspended prison term and a fine. It also
banned him from driving for one year. JH was further placed under the
supervision of a court officer.
- On
5 November 2007 the Supreme Court dismissed the applicant’s
cassation appeal as manifestly ill-founded. It held, in so far as
relevant:
“When formulating them [arguments in the cassation
appeal] the applicant completely disregarded Article 519 of the CCP,
which entitles the parties to lodge a cassation appeal
exclusively against the final judgment of the second-instance court.
Nonetheless, in the present case the author of the cassation appeal
repeated the same assertions which he had raised earlier in an
ordinary appeal, making only such modifications which supposedly
complied with the requirements specified in Article 523 § 1 of
the CCP. The same circumstances, which had earlier served as the
basis for an assertion that the trial court had made errors in
respect of its factual findings, were now being used to formulate
arguments of a procedural nature. However, the assessment of their
content and the reasons for the cassation appeal leads to the
conclusion that as a matter of fact the author intended again to
attempt to undermine the credibility of particular sources of
evidence and to challenge the factual findings made on that basis.
However, in the light of the binding regulation such an attempt in
cassation appeal proceedings cannot be effective. (...)
It cannot be overlooked that the arguments of the
cassation appeal in the present case are in fact directed against the
trial court’s judgment. It was the trial court which assessed
the credibility of particular sources of evidence and determined the
quantity of drugs which had been trafficked; it was also the Nowy
Sącz Regional Court which made use of the measure provided in
Article 391 of the CCP in order to disclose statements made by the
then minor JH (...)
The issue of the correctness of admitting and relying on
JH’s statements was also subject to ordinary review by the
second-instance court. The Court of Appeal could not infringe Article
391 of the CCP since it did not make use of the measure provided in
it. Even now the appellant has not substantiated [his contention]
that the restrictions on the opportunity to release depositions or
statements by persons listed in that provisions were breached. (...)
However, the digressions as to the possibility of taking evidence
from JH, and the conducting of evidentiary proceedings with the
participation of the defendant [the applicant] at the current stage
of the proceedings, at a time when the case has finally been
determined and no breach of the law (still less a manifest
breach – Article 523 § 1 of the CCP) has been
substantiated, do not fit within the framework of the model of
cassation appeal proceedings. The repeated reliance on all those
circumstances additionally reinforces the conclusion that the
arguments presented in the cassation appeal constituted nothing but
an attempt to circumvent the obligation stemming from Article 519 of
the CCP, which stipulates that a second-instance judgment shall be
the subject of a cassation appeal.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Article 390 § 1 of the 1997 Code of
Criminal Procedure (“the CCP”) provides:
“The accused has a right to be present during the
taking of evidence in the proceedings.”
- Article 391 of the CCP reads as follows:
“1. If a witness has without good
reason refused to testify, or has given testimony different from the
previous one, or has stated that he does not remember certain
details, or if he is abroad, or a summons cannot be served on him, or
if he has not appeared as a result of obstacles that could not be
removed or if the president of the court has declined to summon him
pursuant to Article 333§2 [i.e. because upon the lodging of the
bill of indictment the prosecution has asked that the records of his
testimony be read out at trial], and also when a witness has died,
the records of his previous statements may be read out, [regardless
of whether they] have been made in the investigation or before the
court in the case in question or in another case or in any other
procedure provided for by the law.
2. In the circumstances referred to in
paragraph 1, and also in the case specified in Article 182 §
3, the records of evidence that a witness has given when heard as
an accused may also be read out.”
THE LAW
ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d) OF THE
CONVENTION
- The
applicant complained under Article 6 § 3 (d) of the Convention
that his defence rights had been unduly curtailed as he could not
cross examine JH. He argued that JH’s statements had been
the main evidence against him. The applicant contended that the trial
court should have adjourned the proceedings until it could hear JH.
Furthermore, the trial court had known JH’s address in the USA
but had not taken any action to secure his presence. The applicant
asserted that about a month before the date of the hearing before the
Court of Appeal JH had been deported from the USA to Poland but the
Court of Appeal had failed to hear him.
Article
6 §§ 1 and 3 (d) reads as follows:
“1. “In the determination of ...
any criminal charge against him, everyone is entitled to a fair ...
hearing ... by [a] ... tribunal ...
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. Admissibility
- The
Government argued that the applicant had not exhausted all remedies
provided for by Polish law as he had failed to lodge a constitutional
complaint. The applicant could have challenged the compatibility of
Article 391 of the CCP which regulated the issue of reading out at
the trial the statements made by a witness in the course of the
investigation with Articles 2, 42 § 2 and 45 § 1 of the
Constitution.
- The
applicant disagreed and argued that he had exhausted all relevant
remedies.
- The Court considers that in the circumstances of the
present case the alleged breach of the applicant’s right to a
fair trial cannot be said to have originated from the direct
application of Article 391 of the CCP. Rather, it resulted from the
manner in which this and other provisions of the CCP were interpreted
and applied by the courts in the applicant’s case. However, the
established jurisprudence of the Constitutional Court indicated that
constitutional complaints based solely on the allegedly wrongful
interpretation of a legal provision were excluded from its
jurisdiction (see Długołęcki v. Poland,
no. 23806/03, § 25, 24 February 2009; and R.R. v.
Poland, no. 27617/04, § 116, 26 May 2011). Furthermore,
in the case of Kachan v. Poland (no. 11300/03, §
28-29, 3 November 2009), which concerned an analogous issue under the
Convention, the Court examined and rejected a similar objection filed
by the Government.
42. It follows that the Government’s
plea of inadmissibility on the ground of non-exhaustion of domestic
remedies must be dismissed.
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The applicant’s submissions
- The
applicant maintained that his right to a fair hearing and the rights
of the defence had not been respected. He had been deprived of the
opportunity to question the witness JH at any stage of the
proceedings. JH’s evidence had been the sole evidence against
him. It was all the more important to ensure that he had an
opportunity to question JH since at the time of his questioning JH
had been a minor and according to the psychologist’s report
there had been inconsistencies in his testimony. Furthermore, it
transpired from the minutes of the trial that other witnesses had had
no knowledge of the alleged sale of drugs by the applicant.
- The
applicant referred to Article 390 § 1 of the CCP which
stipulated that the accused had the right to be present during the
taking of evidence in the case and argued that this right was one of
the fundamental guarantees for the accused. Article 391 § 1 of
the CCP provided that a witness’ stay abroad, without
specifying its duration, was a sufficient reason permitting the court
to refer to the earlier statements of such witness. According to
commentators, any obstacle to hearing a witness on account of his
stay abroad should be real and should exist for a relatively
significant period of time. A temporary stay abroad could not justify
the reading out of a witness’ earlier depositions. In the
applicant’s case, JH had temporarily remained abroad and
returned to Poland in the spring of 2007. He had been heard by
a court in respect of another set of proceedings. However, he
had not been heard as a witness in the proceedings against the
applicant.
2. The Government’s submissions
- The
Government argued that the proceedings in the applicant’s case
had been fair. The courts had taken all necessary measures to ensure
JH’s presence at the hearing. The trial court had been informed
that he would not return earlier than the summer of 2008 and
therefore further adjournment of the proceedings would have been
unjustified. It would mean keeping the accused in suspense for one
and a half years. With regard to international judicial assistance,
the Government submitted that the applicant had not formulated any
concrete doubts with regard to JH’s testimony and had not
specified any discrepancies in it. Hence, international judicial
assistance in the applicant’s case was unnecessary from the
legal point of view.
- The
applicant erroneously alleged that at the time when his appeal was
pending JH had been heard by the Nowy Sącz District Court. That
court could not hear JH due to the fact that he was in the USA and it
had subsequently decided not to institute proceedings against him.
With regard to the criminal proceedings against JH, the Government
submitted that he had been sentenced for drunken driving on one
occasion, namely by the Zakopane District Court’s judgment of
25 June 2007, and thus had been present in Poland at that time. The
said judgment had been given after the Court of Appeal had delivered
its judgment in the case.
- The
Government produced a reply from the National Headquarters of the
Border Guard as regards the crossing of the border by JH in the
period between 1 March 2006 and 30 November 2007. According to that
document, JH had left Poland on 15 March 2006 on a plane bound for
Chicago. The Border Guard did not possess any information about JH’s
return to Poland during the relevant period. It did not possess
a complete register of all the persons crossing the Polish
border.
- The
Government argued that the reading out of JH’s depositions had
resulted from the objective impossibility of hearing him as a witness
and had been based on a specific provision of the law. The admission
of those statements in evidence had been necessary and had not
impaired the rights of the defence. The reading out of the
depositions did not exempt the court from the obligation to consider
the credibility of the evidence. In accordance with Article 7 of
the CCP the courts decide on the basis of their own conviction, and
their decision shall be founded upon evidence taken and assessed in
the exercise of their own discretion. In circumstances where
a witness cannot be heard directly, the assessment of his
statements should be particularly careful and meticulous.
- Neither
the applicant nor his counsel had contested the evidence or requested
that it be supplemented. The applicant had not requested an
additional hearing of JH, although his statements constituted grounds
for formulating part of the charges against the applicant.
Additionally, the applicant had been given an adequate and proper
opportunity to challenge those depositions, including after JH’s
statements had been read out by the court. However, the applicant had
exclusively contested their admission in evidence and had not raised
any allegations with respect to their content.
- In
the Government’s view, the trial court had very carefully
indicated the reasons demonstrating why it had considered JH’s
depositions credible and had rejected the credibility of the opposing
evidence. The trial court’s assessment of the evidence had been
logical and coherent. It had been subjected to the Court of Appeal’s
review. The Court of Appeal had upheld the lower court’s
findings. Additionally, the Supreme Court had not detected any
shortcomings which could have warranted the quashing of the Court of
Appeal’s judgment.
- The
Government emphasised that JH’s statements had not been the
only evidence in support of the charges against the applicant. The
facts relating to the applicant’s criminal activity had been
established on the basis of the statements of the defendants GS, KJ,
WZ as well as of the witnesses PK and WG.
3. The Court’s assessment
- In the recent judgment of the Grand Chamber in
the case of Al Khawaja and Tahery v. the United Kingdom
(nos. 26766/05 and 22228/06, § 118, 15 December 2011), the
Court partly modified its earlier jurisprudence on hearsay evidence.
It recalled that the guarantees in paragraphs 3 of Article 6 are
specific aspects of the right to a fair hearing set forth in
paragraph 1 of this provision which must be taken into account in any
assessment of the fairness of proceedings. In addition, the
Court underlined that its primary concern under Article 6 § 1 is
to evaluate the overall fairness of the criminal proceedings (see,
also 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 victims that crime is properly prosecuted
(see, Gäfgen v. Germany [GC],
no. 22978/05, § 175, ECHR 2010 ...) and, where
necessary, to the rights of witnesses (see, amongst many
authorities, Doorson v. the Netherlands, 26 March 1996,
§ 70, Reports of Judgments and Decisions 1996 II).
Furthermore, 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 references therein).
Article
6 § 3 (d) enshrines the principle that, before an accused can
be convicted, all evidence against him must normally be produced
in his presence at a public hearing with a view to adversarial
argument. Exceptions to this principle are possible but must not
infringe the rights of the defence, which, as a rule, require
that the accused should be given an adequate and proper opportunity
to challenge and question a witness against him, either when that
witness makes his statement or at a later stage of proceedings
(see Lucà v. Italy, no. 33354/96, § 39, ECHR
2001 II; Solakov v. “the former Yugoslav Republic of
Macedonia”, no. 47023/99, § 57, ECHR 2001 X).
- There are two requirements which follow from the above
general principle. First, there must be a good reason for the
non-attendance of a witness. Second, when a conviction is based
solely or to a decisive degree on depositions that have been made by
a person whom the accused has had no opportunity to examine or to
have examined, whether during the investigation or at the trial, the
rights of the defence may be restricted to an extent that is
incompatible with the guarantees provided by Article 6 (the so-called
“sole or decisive rule”; see Al-Khawaja and Tahery
v. the United Kingdom [GC], cited above, §
119).
- Where a conviction is based solely or decisively on
the evidence of absent witnesses, the Court must subject the
proceedings to the most searching scrutiny. The question in each case
is whether there are sufficient counterbalancing factors in place,
including measures that permit a fair and proper assessment of the
reliability of that evidence to take place. This would permit a
conviction to be based on such evidence only if it is sufficiently
reliable given its importance in the case (see Al Khawaja
and Tahery v. the United Kingdom [GC], cited above,
§ 147).
- The Court will first examine whether there was a good
reason for the non-attendance of witness JH. It notes that the trial
court made all reasonable efforts to secure JH’s attendance at
the trial. On three occasions the trial court requested police
assistance in the service of the summons and in establishing his
whereabouts (see paragraphs 14-16 above). When those efforts failed
and the trial court was informed by the police that the date of JH’s
return from the USA remained unknown, it decided to read out his
statements at the last trial hearing held on 15 November 2006. The
Court notes that the trial court’s decision to have recourse to
JH’s depositions was based on Article 391 §§ 1 and 2
of the CCP which authorised such a course of action in the case of a
witness’ prolonged stay abroad. It considers that such a
decision was legitimate in the circumstances of the case. The Court
of Appeal observed that the applicant had admitted that JH had gone
abroad and that it had been objectively impossible for the trial
court to hear him. The Court does not subscribe to the applicant’s
argument that the trial court should have adjourned the hearing until
such time as it could hear JH. The Court also considers that the
trial court cannot be blamed for having failed to request
international judicial assistance since it has not been established
that the court knew JH’s address in the USA.
- The
applicant alleged that JH returned to Poland on an unspecified date
in the spring of 2007 and could have been heard by the Court of
Appeal. He raised this argument for the first time in his cassation
appeal filed on 22 June 2007; however the Supreme Court rejected it
as irrelevant at that late stage of the proceedings. The Court notes
that the hearing before the Court of Appeal was held on 17 April 2007
and it appears that the applicant did not argue before that court
that JH had returned to Poland and should have been heard. It
transpires from the documents produced by the Government that JH was
arrested in Poland for drunken driving on 24 June 2007. It
can be assumed that he must have returned to Poland before that date;
however it has not been established that JH was present in the
country at the time of the hearing before the Court of Appeal. In
particular, the Court finds no support for the applicant’s
assertion that JH had been deported from the USA to Poland before 17
April 2007.
- Next,
the Court will examine whether the applicant’s conviction was
based solely or to a decisive degree on the depositions made by JH.
In view of the findings of the trial and the appellate courts (see
paragraphs 21-24 and 28), it observes that the untested statements of
JH were not the sole or decisive evidence for the outcome of the case
against the applicant (see, Gossa v. Poland, no.
47986/99, § 63, 9 January 2007; Biełaj v. Poland,
no. 43643/04, § 62, 27 April 2010; and Jakubczyk v.
Poland, no. 17354/04, §§ 48-49, 10 May 2011).
- The trial court found that JH’s statements
related to the drug trafficking charges against the applicant
were confirmed by ample other evidence in the present case, in
particular the depositions made by PK, KJ and GS during their
questioning in the course of the investigation. It is true that those
witnesses (co-accused) changed their testimony when they were heard
at the trial. However, the trial court rejected their new evidence
and explained why their change of testimony was not credible. The
assessment of evidence and its credibility is in the domain of the
domestic courts and the Court, which is far removed from the trial,
should not gainsay their evaluation (see, mutatis mutandis,
Al Khawaja and Tahery v. the United Kingdom
[GC], cited above, § 154).
- The
Court of Appeal was confronted with the applicant’s allegation
that his conviction had been based on the uncorroborated statements
of JH. However, it rejected those arguments save in respect of one
minor factual detail concerning the sale of drugs by the applicant to
PK which did not affect the safety of the applicant’s
conviction or of the sentence. The Court of Appeal stated that
the depositions of JH were unambiguously confirmed by the evidence of
PK and KJ.
- Furthermore,
the Court is satisfied that the domestic courts scrutinised JH’s
statements rigorously (see paragraphs 19, 22-24 and 28-29 above).
They took into consideration various factors which were of relevance
when it came to assessing their credibility, including the fact that
JH had been a minor at the time of questioning, and the weight to be
attached to those statements (see Gossa, § 62;
Biełaj, § 61; Jakubczyk v. Poland,
§ 50 in fine, all cited above). The domestic courts also
had regard to the report drawn up by the psychologist who had
assisted during JH’s questioning and concluded that her
findings did not cast doubt on the credibility of JH’s
depositions (see paragraphs 8 and 21 above).
- The
Court further notes that at the trial and the appellate hearing the
applicant limited himself to pleading not guilty and refrained from
testifying. He did not question the reliability of JH’s
statements at the hearing and challenged only the reliance of the
trial and the appellate courts on the untested evidence of this
witness (compare and contrast, Jakubczyk, § 50,
cited above).
- Having regard to the foregoing, and viewing the
fairness of the proceedings as a whole, the Court considers that the
lack of opportunity to examine JH at the hearing did not, in the
circumstances of the case, infringe the rights of the defence to such
an extent that it constituted a breach of Article 6 § 1 read in
conjunction with Article 6 § 3 (d) of the Convention. In
reaching this conclusion due weight has been given to the above
finding that JH’s testimony was not decisive for the conviction
of the applicant. The applicant’s trial as a whole was
thus not unfair.
- Accordingly,
there has been no violation of Article 6 § 1 read in conjunction
with Article 6 § 3 (d) of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been no violation of
Article 6 § 1 read in conjunction with Article 6 § 3 (d) of
the Convention.
Done in English, and notified in writing on 17 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early David Thór Björgvinsson
Registrar President
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.
D.T.B.
T.L.E.
SEPARATE OPINION OF JUDGE DE GAETANO
- I
voted with the majority in this case because I am satisfied that,
taking the proceedings as a whole, there was no unfairness in breach
of Article 6. The prosecution did all that was reasonable in the
circumstances to trace JH so that he could give evidence viva voce
at the trial. All the evidence was carefully examined both by the
trial court and by the Court of Appeal. JH’s statements made to
the police were not the only evidence incriminating the applicant.
More critically, the applicant did not seek to challenge JH’s
statements (§§ 20, 62).
- However
I would not have relied to the same extent as the judgment does on
the Grand Chamber judgment of Al-Khawaja and Tahery
(see §§ 53 et seq. of the instant
case). The judgment in Al Khawaja and Tahery
seems to revolve to some extent around a very specific statutory
definition of what is “hearsay evidence”, a definition
that has replaced the previous peculiar common-law definition (or
definitions) (see, for example, the Privy Council decision in
Subramaniam v. The Public Prosecutor [1956] WLR 965 at 970); and this seems to be so notwithstanding what is
stated by the Grand Chamber at § 126. Even among
common-law jurisdictions there is divergence as to what hearsay
evidence exactly encompasses – compare and contrast s. 114(1)
of the [English] Criminal Justice Act 2003 with s. 59(1) of the New
South Wales Evidence Act 1995. Moreover the Grand Chamber also had
before it a plethora of procedural safeguards (under the Police and
Criminal Evidence Act 1984, the Criminal Justice Act 1988 and the
Criminal Justice Act 2003 among others) to counterbalance the
possible prejudice of hearsay evidence or evidence which cannot be
directly tested in open court, which are not necessarily found in
other jurisdictions. Moreover, as was correctly hinted by the
third-party intervenor in Al-Khawaja and Tahery (§ 114 of that
judgment), the question of the admissibility or otherwise of hearsay
evidence is not necessarily bound up with the principle of
confrontation, which is what Art. 6(3)(d) is all about.
- In
the instant case it is not readily appreciated why JH’s
statements should be regarded as hearsay evidence, as suggested in §
53, instead of merely unsworn documentary evidence. While it is true
that the admissibility of evidence is primarily a matter for
regulation by national law and by the domestic courts (Van
Mechelen and Others v. The Netherlands 23 April 1997, no.
21363/93, § 50; Doorson v. The Netherlands 26 March 1996,
no. 20524/92, § 67), it is also true that well established
procedural rules which in essence enshrine the minimum right
guaranteed in Art. 6(3)(d) should not be lightly abandoned
or, worse, whittled down to the point where that minimum right
becomes illusory.
