Communicated on 5 November 2020 Published on 23 November 2020

FIRST SECTION

Application no. 37370/17 Robert Sebastian SZLEZINGIER against Poland lodged on 16 May 2017

STATEMENT OF FACTS

1 . The applicant, Mr Robert Szlezingier , is a Polish national who was born in 1977 and lives in Warsaw. He is represented before the Court by Mr Dawid Biernat , a lawyer practising in Warsaw.

2 . The facts of the case, as submitted by the applicant, may be summarised as follows.

3 . The applicant was accused of attempted extortion.

4 . The accuser was a certain A.R. She made submissions during the investigation. She testified that on 17 June 2011 she had been threatened for money to allow her to work as a prostitute. Subsequently, she identified the applicant as the author of the threats.

5 . During the court proceedings, A.R. ’ s place of residence was unknown.

6 . On several occasions the applicant applied to the trial court to have A.R. summonsed. The first-instance court tried to establish her address, but to no avail.

7 . The record of A.R. ’ s statements given previously during the investigation were read out by the court.

8 . On 12 November 2012 the Wołomin District Court ( Sąd Rejonowy ) found the applicant guilty and sentenced him to three years imprisonment (no. V K 866/11). The reasoning was based on the evidence which had been given by A.R. The court held that her statements had been unequivocal and that she had pointed to the applicant without hesitation, both during the photo recognition and an identity parade.

9 . In his appeal, the applicant argued, inter alia , that the trial court had breached criminal procedure by excessively relying on the practice of reading out the statements of main witness given during the pre ‑ trial investigation.

10 . On 26 February 2016 the Warsaw Regional Court ( Sąd Okręgowy ) upheld the first-instance judgment (no. VI Ka 791/13). It observed that the trial court had made many attempts to call and hear the witness. The impossibility to find the A.R. ’ s place of residence had left the court with no choice but to read out her statements. The second-instance court stressed that the trial court had thoroughly assessed the credibility of the absent witness, thus attempting to compensate for the lack of cross-examination of the witness.

11 . On 20 December 2016 the Supreme Court ( Sąd Najwyższy ) dismissed the applicant ’ s cassation appeal as manifestly ill-founded (no. II KK 380/16). It considered that A.R. recognised the applicant on the photo. Afterwards, she had pointed to the applicant during the identity parade. The Supreme Court found that there had been no violation of the principle of direct examination of evidence by the court because of the fact the trial court had made many attempts to summon the witness. It concluded that, having regard to the fact that the examination of A.R. before the domestic court had not been possible and that her statements had been credible, reading out her statements had not amounted to a violation of the applicant ’ s rights.

12 . In accordance with Article 167 of the Code of Criminal Procedure (“the Code”) a court can seek evidence either of its own motion or following applications of the parties.

13 . In accordance with Article 169 § 1 of the Code an application for evidence to be taken must specify the evidence and the circumstances that are intended to be determined on its basis.

14 . Article 170 of the Code provides, in so far as relevant, as follows:

“ § 1. An application for the taking of evidence shall be dismissed if:

1) the evidence is inadmissible,

2) the circumstance which is to be determined on its basis is of no relevance to the outcome of the proceedings or has already been determined in line with the application,

3) the evidence is immaterial to the determination of the circumstance in question,

4) the evidence cannot be obtained,

5) the application for evidence is clearly aimed at protracting the proceedings.”

15 . Under Article 390 § 1 of the Code an accused has a right to be present during the taking of evidence in the proceedings.

16 . Article 391 of the Code provides as follows:

“1. If a witness has without good reason refused to testify, or has given testimony different from previous testimony, or has stated that he or she does not remember certain details, or if he or she is abroad, or a summons cannot be served on him or her, or if he or she 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 or her by virtue of Article 333 § 2 [specifically because upon lodging the bill of indictment the prosecution applied to have the records of his or her testimony read out at trial], and also when a witness has died, the records of his or her 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 given as evidence as an accused may also be read out.”

COMPLAINT

17 . The applicant complains about a breach of Article 6 § 3 (d) of the Convention, arguing that his defence rights were unduly curtailed as he could not cross ‑ examine A.R. The applicant claims that the testimony of A.R. constituted the sole and decisive evidence against him.

QUESTION TO THE PARTIES

Did the applicant have a fair hearing in the determination of the criminal charge against him? In particular, was there a breach of the applicant ’ s right guaranteed by Article 6 § 3 (d) of the Convention on account of the fact that the pre-trial statement of prosecution witness A.R. was admitted in evidence without the applicant having a possibility to examine this witness (see Al ‑ Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, §§ 118-147, ECHR 2011; and Schatschaschwili v. Germany [GC], no. 9154/10, §§ 100-131, ECHR 2015)?