FOURTH SECTION

CASE OF BRZUSZCZYŃSKI v. POLAND

( Application no. 23789/09 )

JUDGMENT

STRASBOURG

17 September 2013

FINAL

24/03/2014

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Brzuszczyński v. Poland ,

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

Ineta Ziemele, President, David Thór Björgvinsson, Päivi Hirvelä, George Nicolaou, Zdravka Kalaydjieva, Vincent A. De Gaetano, Krzysztof Wojtyczek, judges, and Fatoş Aracı , Deputy Section Registrar ,

Having deliberated in private on 27 August 2013 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 23789/09) 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 nationa l, Mr Piotr Brzuszczyński (“the applicant”), on 29 April 2009 .

2 . The applicant was represented by Mr J. Jerzmanowski, a lawyer practising in Wars aw . The Polish Government (“the Government”) wer e represented by their Agent, first Mr J. Wołąs iewicz and, subsequently, Ms J. Chrzanowska, both of the Ministry of Foreign Affairs.

3 . The applicant alleged that his trial had been unfair, in breach of Article 6 of the Convention.

4 . On 28 March 2011 the application was communicated to the Gove rnment. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1959 . He is currently serving a prison sentence for aiding and abetting murder and extortion of a ransom.

6 . The murder was committed by a certain R.N. on 19 May 2001.

7 . The applicant and R.N. were apprehended on 6 June 2001. R.N. had a loaded gun on him.

8 . R.N. was questioned four times: twice on 7 June 2001 (at 14:20 and 19:55 hours), and then on 8 June and 25 July 2001.

9 . On 7 June 2001 R.N. broke down. He confessed to the murder of E.U. and stated that he had received the gun from the applicant in order to commit the murder and that he and the applicant had been planning to split the victim ’ s money. R.N. confirmed those facts in his statements of 8 June and 2 5 July 2001. He mentioned twice the exact place where he had received the gun from the applicant (in Kobyłka, near th e Zepter warehouse).

10 . When heard for the fourth time on 25 July 2001, R.N. changed his statements slightly. This time he stated that one unnamed man had also been present at the moment of the killing of the victim and that he himself had also been kidnapped and that the kidnappers had ordered him to dig a grave for himself. At some point, R.N. broke off his statement , explaining that he had to think everything through and that he would write everything down and send a letter to the prosecutor.

11 . On 31 August 2001 R.N. committed suicide by hanging himself in his prison cell.

12 . On 23 May 2002 the prosecution filed with the Warsaw Regional Court a bill of indictment against the applicant . He was charged with (I) aiding and abetting the murder of E.U. committed by R.N. by means of providing the gun in full knowledge that it would be used to kill E.U. (Article 18 § 3 in conjunction with Article 148 § 2 (4) of the Criminal Code) and with (II) i llegally possessing the gun with a silencer . The applicant and a certain P.D. were also charged with (III) attempted extortion of ransom from E.U. ’ s family.

13 . The applicant denied any involvement in the crime. He stated that he had not possessed any gun and had not provided it to anyone. P. D. also denied any involvement in extortion.

14 . The Regional Court reclassified the first charge to aiding and abetting armed robbery.

15 . On 27 May 2003 the Warsaw Regional Court found the applicant guilty of aiding and abetting armed robbery by means of providing the gun to R.N. and of illegal possession of the gun. It also convicted the applicant of aiding and abetting extortion. The court sentenced the applicant to a cumulative penalty of eight years ’ imprisonment. In respect of the first charge, the trial court held that there had been no irrefutable evidence that the applicant had known that the gun would be used to kill E.U.

16 . The court relied on the statements made by R.N. in t he course of the investigation which it considered credible. R.N. had pointed to the spot where the body was buried and described his preparations for the murder. He stated that about a week before the murder, he had asked the applicant for a gun, explaining that he needed it to obtain some money. Apparently he had said that he was planning on killing somebody but had not said whom. R.N. also stated that he had informed the ap plicant that he had committed a murder using the applicant ’ s gun. Apparently the applicant had told him to get rid of the gun; however R.N. had failed to do so. R.N. also stated that since the victim had had no money on him, the applicant had come up with the idea of trying to extort a ransom from the family.

17 . The court found that R.N. ’ s statements concerning the applicant and P.D. as well as their respective roles in the impugned offences were reliable. The court reasoned that R.N. had had no reason to lie about the applicant ’ s participation in the crime. The court stated that it would have been useful to hear R.N. in court but that it had been impossible owing to his death.

18 . On 25 August 2003 the applicant appealed. He pointed out that the court had relied only on some parts of R.N. ’ s testimony , ignoring the parts which were inconsistent with the presumed version of events. The applicant also pointed out that the court had ignored testimonies made by R.N. ’ s friends and ex-wife, who had testified that R.N. had possessed a gun a long time before the murder. In addition, some other witnesses stated that R.N. had never told the truth. Another witness testified that R.N. had been taking drugs. Therefore, the applicant ’ s lawyer maintained that the statements made by R.N. could not serve as the proof of the applicant ’ s guilt.

19 . The prosecutor also filed an appeal. He submitted that the evidence in the case was sufficient to convict the applicant of aiding and abetting murder.

20 . On 9 December 2003 the Warsaw Court of Appeal quashed the trial court ’ s judgment.

21 . The appellate court found that the proceedings before the first-instance court had been flawed. The trial court had failed to examine all the evidence gathered and the assessment of evidence had lacked consistency. It noted that while the trial court had been entitled to rely on the statements of R.N., it had been required to carry out a particularly thorough assessment of it since it had not been possible to hear this witness before the court . In its assessment of evidence the trial court had failed to address the evidence of a number of witnesses ( D . I . , M . A . , J . G . , M . F . , A . K . -N . , M . Ł . , H . D . , D . T . , D . C . and R . M . ) . The appellate court instructed the trial court to (I) establish whether the gun used for murder had been provided by the applicant or had been in the possession of R.N., (II) consider admitting evidence with regard to establishing or excluding the pre se nce of the applicant ’ s fingerprints on the gun, and (III) establish whether the applicant had possessed a gun permit.

22 . The case was remitted to the trial court.

23 . The Warsaw Regional Court held 19 hearings. It gave judgment on 27 November 2007 . The applicant was convicte d of aiding and abetting murder, illegal possession of a gun and aiding and abetting extortion of a ransom. The court sentenced the applican t to a cumulative penalty of 15 years ’ imprisonment. P.D. was convicted of dealing in stolen goods and attempted extortion of a ransom and sentenced to 4 years ’ imprisonment. The judgment ra n to 135 pages.

24 . The trial court established the facts of the case on the basis of statements of the two accused: the applicant and P.D., the statements of R.N. as well as evidence of some 40 witnesses , including members of the victim ’ s family, police officers who had questioned R.N., the wife of R.N. as well as creditors and friends of R.N. It further relied on documentary evidence, including inter alia , the notice of disappearance, the protocol of autopsy, the pro tocol of inspection of the site and the expert opinions.

25 . The applicant pleaded not guilty and refused to testify. The second defendant, P.D. pleaded not guilty and refused to testify.

26 . The trial court found the following in its judgment of 27 November 2007.

27 . The applicant r a n a car r epair business. He cooperated with R.N. who supplied dam aged cars to the applicant. They were close friends and business partners. In 2000 t he applicant and R.N. began experiencing financial difficulties. Both promised to deliver cars to their customers and took advance payments, but subsequently failed to respect the agreement s and delayed in re paying the money ( evidence of witnesses H . D . and D . T . ) . Both the applicant and R.N. had considerable debts. At one point the applicant ’ s wife proposed to sell the house of her parents in order to pay the applicant ’ s debts. The trial court established that the applicant had had financial difficulties which he could not normally re solve. He t herefore had a motive to obtain money illegally.

28 . R.N. had also been experiencing serious financial difficulties ( evidence of witnesses D . I . , R . T . and M . R . ). He was unable to pay his debts and his behaviour indicated that he would seek to obtain money by any means. According to one witness (W . S . ), R.N. fell into a “debt paranoia”. For this reason, at the end of April 2001 , R.N. moved out of his house and began hiding from his creditors. R.N. decided to pretend that he had a car for sale and kill the person interested in purchasing it. R.N. informed the applicant about his plan , obtained the promise of his support and carried out the murder.

29 . R.N. was hiding from his creditors in M otel Europa, M otel Max, M otel Komorek and a worker ’ s hostel in Warsaw consecutively . At the same time he met the second defendant P . D . The applicant had regular telephone contact with R.N. as indicated by the evidence of mobile telephone traffic . The applicant also visited R.N. in the Europa and Max motels at least three times. In the middle of May 2001 t he applicant brought R.N. a coat, trousers and a pair of shoes. Later, on about 17 or 18 May 2001 he supplied R.N. with hygiene products. The applicant , knowing the reason for R.N. ’ s hiding , did not break off contact with him but instead helped him. Ther e was no conflict between them. The applicant , however , had attempted to demonstrate that he had had no contact with R.N. before 19 May 2001 and had had nothing to do with the crime. Nonetheless , this assertion did not stand up in the light of the evidence.

30 . The applicant ’ s explanation as to the alleged debt owed by R.N. to him was illogical and contradictory. At first he did not claim that R.N. had owed him any money . Subsequently, he alleged that R.N. ’ s debt had amounted to 20,000-21,000 PLN ; and later he quoted the amount of 150 ,000 -200,000 PLN. The applicant could not explain these inconsistencies. The evidence obtained in the case also demonstrated that R.N. had owed money to third parties but not to the applicant.

31 . The circumstances of the murder of E.U. were clear in the light of the evidence. However, it was necessary to examine what was the role of the applicant in the crime. The applicant pleaded not guilty. He claimed that he had learnt about the fact that R.N. had possessed the gun at the time of their arrest on 6 June 200 1 . In the trial court ’ s assessment , the explanation of the applicant was untrue as it contradicted the other evidence.

32 . The applicant had possessed a Reck Miami 92 gas gun for which he held a relevant permit until the end of 1993. He returned it to the police in June 2000. A witness H.D. ( a friend and customer) noticed a silver gun in the applicant ’ s garage (Reck Miami). The witness D.T. (police officer) was informed by the applicant that he had been in possession of a gun without specifying its type or presenting the relevant permit. The court noted that the applicant had been very careful in not showing the gun for which the permit expired to the police officer. On the basis of the evidence the trial court established that the applicant had been interested in firearms and had possessed a gun. For this reason, he was the right person to be approach ed by R.N. to obtain a gun.

33 . In the trial court ’ s assessment the applicant had provided the gun to R.N. with a view to using it against E.U. Such conclusion was supported first of all by the statements of R.N. who had clearly stated that the applicant had provided him the Walther gun . A lready in his first statements made directly after his arrest, namely on 7 June 2001 at 14:20 hours , R.N. stated that in the middle of May 2001 the applicant had provided him the gun during their meeting in Kobyłka near the Zepter warehouse. The trial court considered the statements of R.N. credible since he had revealed this fact at the very beginning of his questioning and had no time to think the story over. He had further precisely indicated the place of the meeting with the applicant which was in the vicinity of the applicant ’ s home. The gun had been handed over in a plastic bag and the expert did not disclose the applicant ’ s fingerprints on it. This circumstance further supported the credibility of R.N. ’ s statements.

34 . R.N. confirmed the fact of receiving the gun from the applicant during his second quest ioning on 7 June 2001 at 19:55 hours and during the questioning on 8 June 2001 at 14:00 hours. It transpired from his statements that the applicant had asked him to get rid of the gun after the murder, but the applicant had failed to do so. According to the trial court, the applicant had been surprised by the fact that R.N. still possessed the gun. The applica nt stated at the hearing that “he did not know that he [R.N.] ha d the gun”. One of the police officers (D.C.) had noted that the applicant had been surprised by the discovery of the gun on R.N. during the arrest.

35 . According to the trial court, there was no doubt as to the purpose of providing the gun to R.N. Being in a difficult financial situation, R.N. had decided to obtain money by pretending that he had a car for sale. He had needed a gun to frighten the potential buyer (E.U.) , and if this did not work he intended to use it. The applicant ’ s role was to provide help in hiding the corpse. He was to receive half of the amount robbed from the victim. R.N. shared his plan with the applicant who decided to take part in it and to provide a gun to R.N. There was no doubt that the eventual intention of R.N. was to kill the chosen victim and the applicant had been aware of this .

36 . In the trial court ’ s view, R.N. had logically and objectively explained his and the applicant ’ s role in the murder during the first interrogation . He had not been in any way pres surised . The police officer R.M. who questioned R.N. testified that the latter ’ s statements had been spontaneous. R.N. had explained of his own volition the facts concerning the gun, the murder and the hiding. The police officer did not know the case so he could not lead R.N. to provide any particular answers. During the interrogation R.N. enjoyed unrestricted freedom of expression and disclosed facts incriminating both himself and the applicant . The other police officer J.G. confirmed the facts concerning the interrogation of R.N.

37 . According to the trial court, the reliability of R.N. ’ s deposition was strengthened by the fact that R.N. had clearly and in a detailed manner explained his role in the crime. R.N. had mostly incriminated himself while being aware that he would be liable to a severe penalty. In such a situation it would be difficult to assume that R.N. had also intentionally incriminated the applicant. The applicant could not give any reason why R.N. would incriminate him. In the trial court ’ s view there was no such reason since the applicant had been helping R.N. in hiding by supplying him, inter alia , with clothes and hygiene products.

38 . Furthermore, the facts stated by R.N. were corroborated by many other items of evidence obtained in the case, which again strengthened their reliability. In respect of R.N. ’ s making of an appointment with E.U. (the victim) , th is was confirmed by the evidence of witnesses P.U., E.U. (son and wife of the victim respectively) and J.G. In respect of the presence and behaviour of R.N. in a club following the murder , th is was confirmed by the evidence of witnesses J.G., M.F., D.I. and A.U. The facts as stated by R.N. were also confirmed by the search of the site where the victim had been buried, medical documentation, the protocol of autopsy and the opinion of the expert in firearms . The latter concluded that the gun found on R.N. had been used for murder .

39 . These and other items of evidence showed that R.N. had revealed all facts known to him when making his statements. Later, during a site inspection he indicated the location and the manner of hiding the victim ’ s body . After the murder R.N. disposed of his shoes. It was significant that according to statements of the applicant, R.N. requested him to bring him a pair of shoes to the Europa motel in the middle of May 2001.

40 . The trial court examined the evidence of witness es D.I. ( one of the applicant ’ s creditor s ) and M.A. (friend of the applicant) with regard to the fact of possession of the gun by R.N. The witness D.I. stated in the course of the investigation that she had seen a black gun with a silencer in R.N. ’ s house at the night of 27 to 28 April 2001. She changed her testimony when heard during the trial. In the court ’ s assessment, her testimony did not permit to establish when exactly she had seen the gun and what sort of gun it had been. The witness was also a fiancée of M.A. who in turn was a close friend of the applicant.

41 . The witness M.A. stated in the course of the investigation that R.N. had told him that he had bought a gun to protect himself against the mafia. When heard at the trial he changed his earlier statements and stated that R.N. had showed him the Walther gun type . The trial court found that the testimony of M.A. had been biased and aimed at exonerating the applicant. He changed his testimony in important respects and included in it contradictory facts. For these reasons, his testimony was not reliable.

42 . The witness A.K.-N., the wife of R.N. , repeatedly denied that her husband had kept a gun at home. Her testimony was credible as it transpired from the other items of evidence that R.N. had received the gun only after moving out of the ho use .

43 . The testimony of the witness M.Ł. concerning the gun and her contacts with R.N. was not credible. Her testimony chang ed over time and was not corroborated by other items of evidence. In particular, despite her claim that she had met R.N. many times, she was unable to recognise him on photographs showed to her at the hearing. The court considered that M.Ł. had been called to give favourable evidence for the applicant. There was no evidence that R.N. had been taking drugs.

44 . The trial court considered the evidence of mobile telephone traffic between the applicant and R.N. On 18 May 2001 the applicant telephoned R.N. 4 times, on 19 May – 3 times and on 21 May 2001 – 30 times. This evidence showed that the applicant had been in regular telephone contact with R.N. in the period leading to the murde r, on the day of the murder (19 May) and after the crime had been committed. The number of calls made to R.N. on 21 May 2001 was not accidental but was related to the murder. There was no other possible explanation for the number of calls . It was logical that the applicant had been interested in the results of R.N. ’ s actions since he had assisted R.N. in the commission of the crime. The fact that R.N. had not called the applicant on the day of the murder indicated that on that day he had been busy arranging a meeting with the victim ( R.N. telephoned the victim 9 times) and after the commission of the crime he had been occupied with disposing of the evidence related to the murder.

45 . The statements of the applicant made in the investigation were incoherent, contradictory with the depositions of R.N. and the evidence of telephone traffic . The applicant and R.N. also met between 19 May and 6 June 2001. Therefore, the applicant ’ s assertion that R.N. had not taken his calls and that they had been in conflict over R.N. ’ s debt to him was not sustainable. In particular, the applicant visited R.N. on 24 May 2001 in the Max M otel as confirmed by the M otel employees.

46 . The trial court did not consider credible R.N. ’ s statement that he had been kidnapped at the beginning of May 2001. These statements were incoherent and contradictory with his earlier statements. The evidence obtained in the case demonstrated that R.N. had been hiding from his creditors in various lo cations but not that he had been kidnapped.

47 . With regard to the charge of extortion, the trial court found that in the light of R.N. ’ s statements the applicant had participated in this crime . R.N. clearly and logically described the respective roles in the crime. R.N. chose the person who was to demand the ransom (P.D.) and the manner of communicating with the victim ’ s family. The applicant proposed the idea of ransom and supervised the operation. P.D. demanded the ransom. Furthermore, the applicant and R.N. decided on the manner of collecting the ransom. R.N. ’ s statements in respect of the charge of extortion were reliable and logical. R.N. incriminated in equal measure himself and his accomplices. R.N. chose P . D . to demand the ransom because he had b e en unknown to the victim ’ s family. The evidence of telephone traffic demonstrated that on 31 May and 1 June 2001 – when the demand had been made – the applicant had telephoned R.N. 10 and 12 times respectively. The frequent telephone contact on these dates were not accidental but were connected with the planned extortion. It was the objective evidence of the truthfulness of R.N. ’ s statements in respect of the crime of extortion. Furthermore, the expert in voice analysis concluded that the voice recorded during one of the telephone conversations with the victim ’ s son had most likely belonged to P.D.

48 . R.N. had confessed to murder and had precisely described all circumstances of it in three subsequent questionings. There were many items of evidence which unquestionably supported the reliability of R.N. ’ s statements . The trial court noted that the case was very difficult because R.N. had died ; however , a thorough and comprehensive analysis of the evidence permitted the court to determine that the applicant had been guilty of the impugned offences.

49 . On 20 March 2008 the applicant appealed. He argued that the first ‑ i nstance court had wrongly established the facts and had erred in its a ssessment of evidence. In particular, the applicant alleged that the trial court had relied only on some statements of R.N. and had omitted those statements which had been contradictory with the presumed version of events and a s well the applicant ’ s role in the m .

Furthermore, the fact that the applicant provided the gun to R.N. in the middle of May 2001 had been established on the basis of R.N. ’ s statements. However, this fact was contradicted by the evidence of witnesses D.I., M.A., J.G., M.Ł. and the wife of R.N. , A.K.-N.

50 . On 30 July 2008 the Warsaw Court of Appeal dismissed the appeal and upheld the first-instance judgment.

51 . The Court of Appeal found that the allegation of the erroneous establishment of facts by the trial court could not be sustained. The factual findings made by the trial court were fully supported by the evidence examined at the trial. The court had thoroughly analysed the evidence and convincingly explained which evidence it had considered credible and which it had disregarded . It was not disputed that the statements of R.N. had constituted the basis of factual findings made by the trial court.

52 . The Court of Appeal noted that the statements of a co-suspect , called in practice “ incriminating evidence” ( pomówienie ) were a specific sort of evidence, which required particularly thorough and careful assessment. Owing to the death of R.N. and the lack of possibility to hear him directly before the court the assessment in the present case had to be particularly rigorous.

53 . The Court of Appeal noted that t he case-law of the Supreme Court defined the conditions which had to be taken into account in the assessment of this sort of evidence:

1) the nature of an incriminating statement, namely whether it was so-called “simple incrimination” where the culpability was exclusively attributed to a co-accused and the person making the statement wished to clear himself, or “ a complex incrimination” where the accused (the suspect), while confessing to a crime indicated at the same time other persons who were also involved in it;

2) the tim ing of making incriminating testimony, in particular whether the relevant statements were spontaneous, made shortly after the relevant events or after a considerable lapse of time;

3) the motives for making incrimina ting statements and for retracting them;

4) the reliability of incriminating testimony in the light of other evidence, the logic and experience.

Furthermore, (5) it was necessary to establish that the person making the incr iminating testimony had enjoyed unlimited freedom of expression at the relevant time [1] .

54 . The Court of Appeal held, in so far as relevant:

“ In the view of the Court of Appeal, when assessing the statements of R.N. the trial court met the above conditions. The trial court is right when noting that R.N., while making incriminating statements that P.B. [the applicant] and P.D. were involved in the crimes committed by him, had no reason to falsely accuse them. The two accused did not contest the fact that until the time of arrest of R.N. they had good friendly relations with him , and this fact is also confirmed by other witnesses heard in the case.

P.B. [the applicant] was in contact with R.N. at the time when the latter was in hiding and brought him food, change of clothes and hygiene products (testimony of witness I.W., the receptionist at the Max Motel in Emilianów, ... ). Both men were in frequent telephone contact too ( table of telephone calls). ( ... )

The court of first-instance rightly underlines that when incriminating the two accused, R.N. did not attempt to put on them the criminal responsibility for the crimes committed by him; on the contrary he admitted that he was the initiator and executor of crime against E.U., and that the role of P.B. was limited to providing him with a gun and the declaration of assistance in “ getting rid of the corpse” if such a need arose . ( ... )

Assessing the statements of R.N. the trial court correctly points out that R.N. confessed to the murder of E.U. when the police did not know about E.U. ’ s death, since they were only notified of the disappearance and the demand for ransom, and thus the statements made by R.N. were of spontaneous character and in no manner could the persons interrogating him suggest to R.N. the content of his statements ... ”

55 . The Court of Appeal concurred with the trial court that the reliability of R.N. ’ s incriminating testimony was supported by other evidence. The circumstances of E.U. ’ s death were confirmed by the inspection of the location where he had been buried, the medical documentation, and the opinion of the firearms expert . Furthermore, witnesses P.U., E.U and J.G. confirmed the facts prior to the murder, that is to say, the reasons for which E.U. had left for a meeting with R.N. and that at the time he had not had on him the amount of money corresponding to the value of the cars offered for sale.

56 . The Court of Appeal further noted:

“ ... the reliability of R.N. ’ s testimony incriminating P.B. [the applicant] and P.D. is further supported by the analysis of the mobile telephone traffic between R.N. and P.B. [the applicant] which indicates that directly after the murder of E.U., namely on 20 and 21 May 2001 and at the time when the telephone calls were made to the victim ’ s family with the ransom demand (31 May and 1 June 2001) , there was a significant increase in the number of those connections, and more calls were made by P.B. [the applicant]

The above circumstance indicates that P.B. [the applicant] , although not participating directly in the actions undertaken by R.N. and P.D., showed strong interest in the events.”

57 . Furthermore, the opinion of the voice expert and the testimonies of P.U. and E.U. confirmed that , when undertaking action with a view to extorting a ransom from the victim ’ s family, R.N. had decided to engag e a third person, P.D. The latter ’ s voice, unlike that of either the applicant or R.N., had been unknown to the family of E.U.

58 . The Court of Appeal noted that the trial court had not o verlooked the fact that on 25 July 2001 R.N. had changed his statements. The trial court found that the new statements had been illogical, unconvincing and contrary to the evidence obtained in the case , and the Court of Appeal concurred in this analysis.

59 . Next, the Court of Appeal examined the evidence related to the g un used by R.N. It found in this respect as follows:

“Another important issue for the assessment of the reliability of R.N. ’ s statements ( ... ) was to establish since when R.N. had been in possession of the gun and how he had obtain ed it.

The first-instance court, complying with the instructions of the appellate court, considered in a very detailed manner the evidence of witnesses D.I. and M.A., that is, persons who were supposed to know about the possession of the gun by R.N. in the period prior to the o ne indicated by R.N.

Assessing the testimony of D.I., the trial court rightly points out that on the basis of the testimony it is not possible to establish the date on which R.N. supposedly demonstrate d the fact of possessing the gun, since in the successive statement s of this witness there are significant inconsistencies , and [it is not clear] whether the gun allegedly seen was a firearm or a simple dummy. ( ... )

The first-instan ce court rightly notes that D.I. testified that R.N. was in possession of a gun only after the questioning of M.A.; M.A. was a good friend of P.B. and could have been interested in making statements incriminating R.N. and exonerating the accused [P.B.].

The validity of this contention is supported by the fact that in the course of his successive questionings M.A. was changing his testimony, initially stating that R.N. had simply informed him about possessing a gun, and subsequently he added new facts, such as that he had seen the gun, that it was the Walther type of gun and that R.N. had played with the gun in his presence”

60 . With regard to the applicant and P.D., the appellate court noted that their eviden ce had been thoroughly analysed. The trial court had logically and convincingly explained that it had considered their evidence unreliable since it contradicted the deposition of R.N., and was contrary to the logic and experience. The Court of Appeal noted that changes in the statements of R.N. did not disqualify all of his deposition, but had required t he trial court to assess this evidence with particular rigour.

61 . The Court of Appeal concluded:

“In the Court of Appeal ’ s view, contrary to the assertions of both appellants, the first-instance court analysed in a very thorough manner all statements made by R.N. in connection with the other evidence heard in the case, [and] logically and convincingly explained which of these statements and why , were considered credible , and which of them were disregarded and why . ( ... )

Having regard to the above, the Court of Appeal found no grounds to question both the assessment of evidence carried out by the Regional Court and the facts established on the basis of the evidence.”

62 . On 6 October 2008 the applicant ’ s lawyer lodged a cassatio n appeal. The lawyer argued, inter alia , that the conviction had been based solely on the statements of R.N., who would have been a co-accused if he had not committed suicide.

63 . On 10 December 2008 the Supreme Court dismissed the cassation appeal as manifestly ill-founded.

II. RELEVANT DOMESTIC LAW

64 . Article 391 of the Code of Criminal Procedure provides as follows:

“1. If a witness has without good reason refused to testify, or has given testimony different from the previous testimony , 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 by virtue of Article 333 § 2 [namely, because upon lodging the bill of indictment the prosecution 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] were made during 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

65 . The applicant complained that he had been deprived of a fair trial as he had not had the opportunity to examine R.N. and that his conviction had been based solely on the deposition of that witness. The relevant parts of Article 6 §§ 1 and 3 (d) provide 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

66 . 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

67 . The applicant submitted that his right to a fair trial had been breached. In his view, the domestic courts had violated his defence rights because they had disregarded the evidence of the following witnesses: D.I., M.A., J.G., M.F., A.K.-N., M.Ł., H.D., D.T., D.C. and R.M. The Court of Appeal referred to this point in its judgment of 9 December 2003 and stated that the trial court in its judgment of 27 May 2003 had failed to address the evidence of those witnesses. In addition, when examining the case for the second time the trial court had failed to take into account the instructions of the first judgment of the Court of Appeal to admit supplementary evidence. This amounted to a violation of certain provisions of the Code of Criminal Procedure (Articles 5 § 2, 7 and 442 § 3). Furthermore, the same trial court had failed to address the evidence concerning the lack of the applicant ’ s fingerprints on the gun.

68 . The applicant submitted that the incriminating statements of R.N. had been of little evidential value since the trial court had ordered R.N. to undergo a psychological examination . However, the examination had not been carried out due to R.N. ’ s death . In the applicant ’ s view, the decision to submit R.N. to psychological examination indicated that the court had entertained doubts about R.N. ’ s soundness of mind. Moreover, taking into account that R.N. had made contradictory statements it could be concluded that they were of low credibility and should have not constituted the basis for the finding of the applicant ’ s guilt.

69 . In the applicant ’ s submission, the witnesses for the defence were not offered an opportunity to cast doubt on the incriminating statements of R.N. In conclusion, the applicant submitted that Article 6 §§ 1 and 3 (d) of the Convention had been violated in his case.

2 . The Government ’ s submissions

70 . The Government argued that the present case should be distinguished from the case of Van Mechelen and Others v. the Netherlands (judgment of 23 April 1997, Reports of Judgments and Decisions 1997 ‑ III ) which concerned the use in evidence of the testimonies of anonymous witnesses (police officers whose identity was not disclosed to the applicants). In that case the applicants were deprived of their right to examine witnesses against them by an arbitrary decision of the authorities , while in the present case it was caused by an objective obstacle (the death of the co-accused). Moreover, in the case of Van Mechelen and Others the lack of any knowledge about anonymous witnesses deprived the applicants of the possibility to challenge the credibility of those witnesses. By contrast, in the present case the applicant knew who R.N. was, what was his lifestyle, what were his faults. Therefore, t here were no limitations for the applicant to prepare his line of defence.

71 . There were similarities between the present case and the case of Gossa v. Poland ( no. 47986/99, judgment of 9 January 2007 ). In the latter case the failure to examine the co-accused was caused by an objective obstacle (the escape of the co-accused to the United States). The Court pointed out in that judgment that Article 6 §§ 1 and 3 (d) of the Convention required the Contracting States to take positive steps so as to enable the accused to examine or have examined witnesses against him. However, impossibilium nulla est obligatio (§ 55 of the Gossa judgment).

72 . In the present case the applicant and his lawyer had been free to challenge the statements of R.N. by all evidence accessible at the time of the judicial proceedings. That circ umstance spoke in favour of the compliance with the requirements of Article 6 §§ 1 and 3 (d) and in favour of considering the proceedings as a whole to be fair.

73 . The applicant tried to challenge the statements of R.N. . He argued that R.N. had owed him money and that R.N. had incriminated him for this reason. The Government argued that R.N. had mainly incriminated himself in his statements of 7 and 8 June and 25 July 2001. He admitted that he had shot the victim, dug a grave and buried the body. It could be assumed that if R.N. ’ s main intention was to incriminate the applicant he would have presented him as a principal perpetrator of the crime. It could not remain unnoticed that when asked about the amount which R.N. had owed him, the applicant was changing his testimony. The alleged debt varied between 20,000 and 200,000 PLN. The fact that the applicant failed to prove that R.N. owed him money raised the question of why had he remained in constant touch with R.N. (as confirmed by witness evidence and the traffic of telephone calls ) from the second decade of May 2001. Since the clarifications of the applicant were discredited, the trial court relied on the depositions of R.N. which were consistent with the rest of the evidence.

74 . The applicant also tried to demonstrate that R.N. had been using drugs and thus had not been a reliable witness. However, the only witness (M.Ł.) who testified about R.N. ’ s drug usage could not recognise him on the photographs which had been showed to her during the hearing. In sum, the applicant failed to challenge the statements made by R.N.

75 . The t rial court had treated the statements of R.N. with the necessary caution. It examined substantial amount of evidence to determine whether the statements of R.N. had been reliable. It heard 40 witnesses and admitted expert evidence in fingerprints and voice recognition. It further had regard to the results of the autopsy, inspection of the victim ’ s car , photographs and other documentary evidence. The fact that the applicant ’ s fingerprints were not found on the gun did not prove that R.N. had received from someone else since R.N. testified that the gun had been handed over in a plastic bag.

76 . The trial court carefully considered the statements of R.N. in the light of the other evidence in the case and delivered a judgment which was upheld by the Court of Appeal and the Supreme Court. Furthermore, when examining the case for a second time the trial court took into account the recommendations of the Court of Appeal. The later court in its judgment of 30 July 2008 was satisfied that the trial court had made a careful and detailed assessment of R.N. ’ s depositions and had referred to all the other evidence (including testimonies of the witnesses referred to by the applicant).

77 . The Government underlined that the statements of R.N. co uld not have been ignored or set aside since in their crucial aspects (the manner of the commission of the murder, the place where the body was buried, the places of R.N. ’ s hiding after the murder) they had been confirmed by other items of evidence (autopsy, inspection of the victim ’ s car and grave, evidence of witnesses J.G., M.F., M.G., I.W. and A.D.).

78 . The Government averred that the fairness of the trial was guaranteed by the following: (1) granting the applicant and his lawyer full latitude in challenging the statements of R.N. by all evidence available at the judicial stage of the proceedings; (2) carrying out a careful and detailed assessment of the evidence; (3) assessing the statements of R.N. in the light of the other evidence gathered in the case ; and (4) treating the statements of the unavailable witness with the necessary caution and circumspection.

3 . The Court ’ s assessment

(a) Applicable principles

79 . In the judgment of the Grand Chamber in the case of Al ‑ Khawaja and Tahery v. the United Kingdom ( nos. 26766/05 and 22228/06 , § 118, 1 5 December 2011), the Court developed its earlier jurisprudence on absent witnesses. 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 the Court ’ s only concern is to examine whether the proceedings have been conducted fairly (see Gäfgen , cited above, § 162, and references therein ).

80 . 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). W hen 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 ).

81 . 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, w here 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 ( see also, McGlynn v. the United Kingdom (dec.), § 21, no. 40612/11, 1 6 October 2012; and Lawless v. the United Kingdom (dec.), § 25, no. 44324/11, 16 October 2012 ) . 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 ).

(b) Application of the principles to the present case

82 . The Court observes at the outset that R.N. ’ s death made it necessary to admit his statements made in the course of the investigation if his evidence was to be considered. The interests of justice were in favour of admitting in evidence the statements of R.N., which were recorded by the prosecuting authorities in proper form.

84 . However, w here a statement of the absent witness is the sole or decisive evidence against the defendant, its admission as evidence will not automatically result in a breach of Article 6 § 1. In such a case the Court will subject the proceedings to the most searching scrutiny and will examine whether there were sufficient counterbalancing factors in place , including the existence of strong procedural safeguards.

87 . It is to be noted that the domestic courts relied on a substantial body of other evidence corroborating and supporting the statements of R.N. This concerns in particular the uncontested evidence of at least three meetings between R.N. and the applicant during the period when R.N. had been hiding before and after the commission of the crime . The re was also the evidence of their extensive telephone contact at critical times in the lead- up to and aftermath of the murder and the demand for ransom. This evidence led the trial court to dismiss as entirely unreliable the applicant ’ s assertion that he had been in conflict with R.N. over the latter ’ s debt and that his contacts with R.N. had been related to his efforts to recover his debt (see paragraph 30 above) . There was also the evidence that the applicant had been interested in guns and had possesse d a gun up until June 2000 (see paragraph 32 above).

90 . The Court notes that the critical issue in the case, namely the credibility of R.N. and the reliability of his statements , was examined by the domestic courts at length and in great detail (see, Sievert v. Germany , no. 29881/07 , § 65 , 19 July 2012 ; and, a contrario , Tseber v. the Czech Republic , cited above, § 67 , where the reliability of absent witness, whose evidence was decisive in the case, was not properly scrutinised). The domestic courts explained why there were no grounds to assume that R.N. had wrongly accused the applicant or P.D. of involvement in the impugned crimes . In the circumstances of the present case the Court is satisfied that the necessary care was applied in the evaluation of R.N. ’ s statements.

91 . Against this background, and viewing the fairness of the proceedings as a whole, the Court considers that, notwithstanding the difficulties caused to the defence by admitting the statements and the risks involved in doing so, there were sufficient counterbalancing factors to conclude that the admission in evidence of R.N. ’ s statements did not result in a breach of Article 6 § 1 read in conjunction with Article 6 § 3 (d) of the Convention.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the application admissible;

2. 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 September 2013 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Ineta Ziemele Deputy Registrar President

[1] Judgment of the Supreme Court of 11.09.1984 OSNPG 1985/6/85; judgment of the Supreme Court of 15 February 1985 OSNKW 1985 11-12/103.