FOURTH SECTION

DECISION

Application no . 58113/09 Franciszek IRZYK against Poland

The European Court of Human Rights (Fourth Section), sitting on 28 February 2017 as a Chamber composed of:

Ganna Yudkivska , President, Nona Tsotsoria , Paulo Pinto de Albuquerque, Krzysztof Wojtyczek , Egidijus KÅ«ris , Iulia Motoc , Gabriele Kucsko-Stadlmayer, judges, and Marialena Tsirli, Section Registrar ,

Having regard to the above application lodged on 26 October 2009,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Franciszek Irzyk , is a Polish national who was born in 1951 and lives in Wiśniowa . He was represented before the Court by Ms P. Borzymowska , a lawyer practising in Krakow.

2. The Polish Government (“the Government”) were represented by their Agent, Mrs J. Chrzanowska of the Ministry of Foreign Affairs.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

1. Background to the case

4. The applicant was an activist for the political party “ Samoobrona ”. During one of the party meetings he met a certain E.Z., who had been a member of the same party since 2002.

5. In 2005 E.Z. had some financial problems and was seeking employment opportunities. She asked the applicant whether he could find a job for her. The applicant put E.Z. in contact with S. Ł ., a deputy in the Polish parliament ( pose ł na Sejm) who was a member of the same party. In December 2005 E.Z. went to Warsaw to meet S. Ł . They met at first in the Sejm building and subsequently went to the Sejm hotel, where E.Z. and S. Ł . had sexual intercourse. S. Ł . told E.Z. that she would have to obey his orders if they were to work together.

6. In 2006 a so-called “sex scandal” erupted in Poland. It involved public figures, including activists of the Samoobrona party who had offered and accepted personal benefits of a sexual nature in connection with exercising public functions.

7. On 6 December 2006 the applicant telephoned E.Z. to ask her whether she had given any information to the press. He referred to an article “ Praca za seks ” (“Work for sex”) published in the daily Gazeta Wyborcza on 4 December 2006.

8. On 8 December 2006 E.Z. was heard as a witness by the prosecutor in the investigation into the scandal. In the course of her interview she described her relationship with S. Ł . and with the applicant.

9. On 9 December 2006 the applicant again phoned E.Z. to ask her whether she had been heard as a witness by the Kraków Regional Prosecutor. E.Z. said that she had not. The applicant also told E.Z. that S. Ł . had experienced difficulties as a result of the investigation into the so-called “sex scandal” and the sexual conduct of some Samoobrona party members. The applicant asked E.Z. if he could talk to her again later the same day. Their phone conversation was recorded by journalists from the TV channel “TVN”, who had invited E.Z. to participate in one of its popular programmes.

10. The applicant did not telephone E.Z. again that day. E.Z. tried to reach him five times without success and finally left a message on his voice mail.

11. The applicant phoned E.Z. on 10 December 2006 and asked her if she had been heard by the prosecutor the previous day. E.Z. replied that she had not.

12. On 12 December 2006 E.Z. phoned the applicant using the telephone number provided by the TVN channel. The conversation was recorded by journalists working for the station. The applicant again asked E.Z. whether she had been heard by the prosecutor and when she confirmed that she had, he started to instruct her as to how she should testify when she was questioned again. He told her not to accuse anyone and not to disclose that she had had sexual intercourse with Samoobrona activists. He also suggested that she testify that relations between employees were “normal” at the Kraków party headquarters. E.Z. understood these words as amounting to a form of incitement to give false testimony and a form of protection for S. Ł . by withholding information about his sexual affairs with women who were members of the Samoobrona party.

2. The applicant ’ s criminal conviction

13. On 14 June 2007 the applicant was heard as a suspect by the Łódź District Prosecutor.

14. On 29 February 2008 a bill of indictment against the applicant was prepared and lodged with the Kraków District Court on 3 March 2008.

15. On 12 January 2007 the Łódź Regional Prosecutor issued a decision allowing minidiscs containing recordings of the telephone conversations with E.Z. to be included in the applicant ’ s case-file as evidence. The applicant was informed of his right to appeal against this decision within a period of 7 days . He did not appeal.

16. On 13 January 2009 the Kraków District Court found the applicant guilty of attempted obstruction of criminal proceedings and incitement to give false testimony and sentenced him to 8 months ’ deprivation of liberty suspended for a probationary period of 4 years. The court heard several witnesses including E.Z., the journalists who had recorded the conversations, and the applicant himself.

17. The testimony of E.Z. given in the investigation phase of the proceedings was consistent with the contents of the recorded telephone conversations. However, in the proceedings before the trial court E.Z. decided to change her version of events and submitted that the applicant had in fact only requested her not to disclose to the prosecutor that they had had sexual intercourse. The court found the testimony given by E.Z. in the judicial phase of the proceedings to be not credible. It held that, “the witness ’ s (E.Z. ’ s) submissions as regards the change of her version of events as well as her explanation of some of the accused ’ s statements made in the telephone conversation are illogical and naïve”.

18. The court went on to say that the applicant ’ s conviction had been based on the “entire evidentiary material, in particular on the contents of the telephone conversations with E.Z. recorded between 6 and 12 December 2006”. However from the court ’ s reasoning it is evident that, after it had found E.Z. ’ s statements not to be credible, the actual basis for the conviction was the recording of the telephone conversations.

19. On 3 March 2009 the applicant ’ s lawyer appealed against the first ‑ instance judgment. He claimed, in particular, that the first-instance court had not respected the principle of free assessment of evidence. He further asserted that there had been a violation of Article 424 of the Code of Criminal Procedure (see relevant domestic law, below) since the first ‑ instance court had based its judgment exclusively on evidence which weighed against him and ignored facts which weighed in his favour. Moreover, it had done so without any detailed reasoning and without indicating which facts it had found to be proved and on what evidence it had based its findings.

20. In the reasoning set out in the appeal, the applicant ’ s lawyer explained that:

“the court had wrongly assessed the testimony given by E.Z. and her motivation; her behaviour was not spontaneous; it was inspired by journalists who exercised pressure on her and manipulated her...”

21. The applicant ’ s lawyer concluded his appeal by the following words:

“the overall assessment of evidence leads to the clear conclusion that the accused is a victim of carefully planned and precisely executed journalistic provocation and the prohibited acts referred to in the bill of indictment are groundless and find no support in the collected evidence”.

22. On 6 May 2009 the Kraków Regional Court upheld the challenged judgment, finding that the first-instance court had assessed the evidence properly, “in accordance with personal experience and Article 7 of the Code of Criminal Procedure”, which sets out the principle of free assessment of evidence (see relevant domestic law below).

23. A cassation appeal was not available in the present case.

B. Relevant domestic law

1. The relevant provisions of the Criminal Code

24. Article 13 § 1 provides as follows :

“Whoever with the intent to commit a prohibited act directly attempts its commission through his conduct which, subsequently however does not take place, shall be held liable for an attempt”.

25. Article 13 § 2 provides as follows:

“Whoever, willing that another person should commit a prohibited act, induces the person to do so, shall be liable for incitement”.

26. Article 233 § 1 provides as follows:

“Whoever, in giving testimony which is to serve as evidence in court proceedings or other proceedings conducted on the basis of law, gives a false testimony or conceals the truth shall be subject to the penalty of deprivation of liberty of up to three years.”

27. Article 239 § 1 provides as follows:

“Whoever obstructs or frustrates penal proceedings by aiding a perpetrator to evade penal liability and especially whoever hides the perpetrator or obliterates physical evidence of the offence or undergoes penalty for a sentenced person shall be subject to the penalty of deprivation of liberty for a term between three months and five years.”

2. The relevant provisions of the Code of Criminal Procedure

28. Article 7 provides as follows:

“The authorities conducting the proceedings shall make their decisions on the basis of their own conviction, upon all evidence taken assessed at their own discretion, with due consideration to the principles of sound reasoning, knowledge and personal experience.”

29. Article 242 provides, in so far as relevant, as follows:

“The reasoning [of a judgment] should contain:

1. indication which facts have been found by the court to be proven or unproven, on what evidence it based its findings in this respect and reasons for which it did not accept the evidence to the contrary.”

COMPLAINT

The applicant complained under Article 8 of the Convention that he had been convicted on the basis of illegally obtained evidence.

THE LAW

30. Relying on Article 8 of the Convention, the applicant complained that he had been convicted on the basis of evidence obtained illegally by means of journalistic provocation.

31. The Court, being the master of the characterisation to be given in law to the facts of any case before it (see, among other authorities, Aksu v. Turkey [GC], nos. 4149/04 and 41029/04 , § 43, ECHR 2012 ) considers that the applicant ’ s complaint fal ls to be examined under Article 6 § 1 of the Convention which provides, in so far as relevant:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A. The parties ’ submissions

32. The Government argued that the applicant had not exhausted the domestic remedies available to him, as required by Article 35 § 1 of the Convention.

33. Firstly, they referred to the fact that in his appeal against the first ‑ instance judgment of 13 January 2009 the applicant had failed to raise his complaints sufficiently concerning the allegedly unlawfully obtained evidence. They maintained that in his appeal the applicant had relied on Article 7 of the Code of Criminal Procedure, claiming that the first-instance court had not respected the principle of free assessment of evidence, and on Article 424 of the Code claiming that the first-instance court had based its judgment exclusively on evidence which weighed against him whilst ignoring facts which weighed in his favour and, furthermore, that it had done so without providing detailed reasons or indicating which facts it had found to be proved and on what evidence it had based its findings.

34. Secondly, they submitted that the applicant should have lodged an interlocutory appeal against the decision of the Ł ód ź District Prosecutor of 12 January 2007 allowing the minidiscs containing the recording of the telephone conversation in question to be included in the applicant ’ s case-file as evidence. The applicant was informed of his right to appeal against this decision within the time-limit of seven days (see paragraph 15 above).

35. The applicant submitted that he had properly availed himself of the available remedy and that he had raised the substance of his complaints in the appeal against the first-instance judgment of 13 January 2009. He argued that in the appeal he had raised the issue of “journalistic provocation”, that the journalists had incited the witness E.Z. to talk to the applicant on the phone, that they had provided her with a telephone connection and had actively participated in making the recording. The applicant also cited the last sentence of his appeal, in which he had written that he “had been a victim of carefully planned and precisely executed journalistic provocation”. He concluded by stating that in his appeal his negative attitude as regards the journalistic provocation had been made clear and his objection as regards the use of evidence obtained in this way had been expressed. The essence of his grievance before the Court had therefore been duly submitted to the second-instance court, which had failed to address it in any way; in particular it had not expressed a view as regards the lawfulness of the evidence in question and the admissibility of its use in the criminal proceedings.

36. The applicant further submitted that, as regards the interlocutory appeal against the prosecutor ’ s decision of 12 January 2007, he could not have been reasonably expected to avail himself of that remedy, because at the relevant time he had not known the contents of the minidiscs which had been included in the case-file as evidence. He argued that the content of the recordings had become known to him only on 30 September 2009 when, at the hearing, the trial court had ordered it to be played back in the courtroom.

B. The Court ’ s assessment

37. Although in the context of mechanisms for the protection of human rights the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism, it does not simply require that applications should be made to the appropriate domestic courts and use should be made of remedies designed to challenge impugned decisions which allegedly violate a Convention right. It normally also requires that any complaint intended to be lodged subsequently at the international level should have been aired before those same courts, at least in substance and in compliance with the formal requirements and time ‑ limits laid down in domestic law (see, among many other authorities, Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004 ‑ III ).

38. The object of the rule on exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities) to address allegations of violations of a Convention right and, where appropriate, to afford redress before such an allegation is submitted to the Court (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI). In so far as there exists at national level a remedy enabling the national courts to address, at least in substance, allegations of a violation of a Convention right, it is that remedy which should be used. If the complaint presented before the Court has not been put, either explicitly or in substance, to the national courts when it could have been raised in the exercise of a remedy available to the applicant, the national legal order has been denied the opportunity to address the Convention issue which the rule on exhaustion of domestic remedies is intended to give it. It is not sufficient that the applicant may have, unsuccessfully, exercised another remedy which could have overturned the impugned measure on other grounds not connected with the complaint of violation of a Convention right. It is the Convention complaint which must have been aired at national level for there to have been exhaustion of “effective remedies”. It would be contrary to the subsidiary character of the Convention machinery if an applicant, ignoring a possible Convention argument, could rely on some other ground before the national authorities for challenging an impugned measure, but then lodge an application before the Court on the basis of the Convention argument (ibid.).

39. The Court considers that in his appeal against the judgment of 13 January 2009 the applicant did indeed fail to raise the issue of the allegedly unlawfully obtained evidence and the admissibility of this evidence in criminal proceedings against him. It is true that he expressed his negative views as regards what he considered “journalistic provocation”, and raised complaints as regards the alleged breach of the principle of free assessment of evidence ‒ claiming that the first-instance court had failed to take into account the evidence which weighed in his favour and had relied only on evidence which supported his conviction. However, in the Court ’ s view, the applicant ’ s complaints concerning the credibility of evidence could not be seen as equal to the complaints raised before it. The applicant failed to raise – even in substance – the complaint concerning the lawfulness of the recording which formed the basis for his conviction and the admissibility of that evidence in the proceedings before the court. It appears that in the proceedings before the domestic courts the applicant had chosen to defend himself using arguments other than those which he subsequently raised in his application with the Court.

40. In sum, the applicant did not provide the Polish courts with the opportunity which is in principle intended to be afforded to a Contracting State by Article 35 of the Convention, namely the opportunity of addressing, and thereby preventing or putting right, the particular Convention violation alleged against it (see, among other authorities, Sejdovic v. Italy [GC], no. 56581/00, § 43, ECHR 2006 ‑ II ). The objection that the relevant “effective” domestic remedy was not used by the applicant in the instant case is therefore well-founded.

41. Consequently, the application must be rejected as inadmissible, in accordance with Article 35 §§ 1 and 4 in fine of the Convention.

42. Having found the above, the Court considers that it is not necessary to examine the Government ’ s second plea concerning non-exhaustion of domestic remedies, namely the applicant ’ s failure to contest the Ł ód ź District Prosecutor ’ decision of 12 January 2007.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 23 March 2017 .

Marialena Tsirli Ganna Yudkivska Registrar President