Communicated on 6 October 2020 Published on 26 October 2020

FIRST SECTION

Application no. 41668/17 Piotr KOCZYK against Poland lodged on 23 May 2017

STATEMENT OF FACTS

The applicant, Mr Piotr Koczyk , is a Polish national who was born in 1974 and lives in Warsaw. He is represented before the Court by Mr A. Pietryka , a lawyer practising in Warsaw.

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

The applicant was accused, inter alia , of being a member of an organised armed criminal group. The main witness who informed the police of the activities of this group was a certain M.S., who made his statements before the prosecutor during the investigation. In his statements M.S. provided a detailed account of the criminal activities in issue. He explained that in 2002 ‑ 03 and in 2006 he had made contact with some members of the gang. As a suspect in another set of criminal proceedings, M.S. identified a number of its members, including the applicant, whose pseudonym in that group was “Horse” ( KoÅ„ ). M.S. submitted that the applicant was friends with other members of the group.

In the course of the court proceedings M.S. refused to testify. The record of his statements that had previously been given dur ing the investigation were read out by the trial court in so far as relevant. On several occasions the applicant applied to the court to have M.S. heard at the trial. The court did not allow his applications on the grounds that M.S. had a special witness status (different to that of a crown witness) and was thus entitled to refuse to testify, pursuant to Article 182 § 3 of the Code of Criminal Procedure. M.S. was in fact a defendant in a separate trial which concerned the same allegedly criminal activities of the gang.

On 2 July 2014 the Warsaw Regional Court ( Sąd Okręgowy ) found the applicant guilty, inter alia , of being a member of an organised armed criminal group in particular period of time (charge no. XXV) and sentenced him to two years imprisonment (no. VIII K 66/10). The court stated that the framework of the operations of the gang, the gang ’ s hierarchy and the applicant ’ s role, had been established on the basis of the pre-trial submissions of M.S. Additional information in respect of particular incidents involving various co-accused had come from the submissions given by eight other witnesses. As to the applicant, it was a certain H.W. and a certain A.W. who had testified that Horse had been with the gang and that his role had been to threaten people with force. The trial court stated that the direct evidence incriminating the applicant was that provided by M.S.

The applicant appealed, arguing, inter alia , that the trial court had breached criminal procedure by excessively relying on the practice of reading out the investigation statements of the main witness.

On 3 February 2016 the Warsaw Court of Appeal ( SÄ…d Apelacyjny ) upheld the first-instance judgment in the part concerning, inter alia, the applicant ’ s conviction for being a member of an organised armed criminal group –charge XXV (no. II AKa 304/15). The appellate court observed that the criminal proceedings against M.S. had been terminated on 14 February 2012. Consequently, when M.S. had been summoned to the hearing of 7 November 2012, he had not had a right to refuse to testify. The court nevertheless considered that those procedural shortcomings had not had any significant impact on the applicant ’ s situation. Firstly, it observed that there would have been no benefit in re ‑ hearing M.S. ’ s testimony as the applicant had wanted only to cross ‑ examine the witness without pointing to any discrepancies in his statements. Secondly, it emphasised that M.S. ’ s statements had been supported by corroborating evidence from two other witnesses – H.W. and A.W. The appellate court noted that H.W. had changed his testimony and had no longer indicated the applicant as a member of the group. However, it observed that his earlier statements had been credible in the light of M.S. ’ s evidence.

The applicant lodged a cassation appeal with the Supreme Court. He alleged a breach of his defence rights invoking, inter alia , Article 6 § 3 (d) of the Convention. He stated that the trial court had read out the statements of M.S., which had constituted crucial evidence in his case and had been obtained by the prosecution. By doing so the court had prevented the applicant from putting questions to that witness. The applicant concluded that the trial court had breached criminal procedure by not allowing him to cross-examine M.S.

On 17 January 2017 the Supreme Court ( Sąd Najwyższy ) dismissed the cassation appeal lodged by the applicant as manifestly ill-founded without providing any reasoning (no. II KK 257/16).

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

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.

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

“ § 1. A motion 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 motion,

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

4) the evidence cannot be obtained,

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

The Code provides for a right not to testify for witness who, in another case under investigation, is accused of being involved in the offence concerned (Article 182 § 3).

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

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 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 as evidence as an accused may also be read out.”

COMPLAINT

The applicant alleges a breach of Article 6 §§ 1 and 3 (d) of the Convention, arguing that his defence rights were unduly curtailed as he could not cross-examine M.S. The applicant claims that the statements of M.S. were the main and crucial evidence against him.

QUESTION TO THE PARTIES

Did the applicant have a fair hearing in the determination of the criminal charge against him? Reference is made to his conviction of being a member of an organised armed criminal group (charge no. XXV). 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 M.S. 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)?