Communicated on 14 September 2017

FIRST SECTION

Application no. 9128/13 Lubom í r and Marek PODLIPNÍ against the Czech Republic lodged on 30 January 2013

STATEMENT OF FACTS

The applicants, Mr Lubomí r Podlipný and Mr Marek Podlipn ý , are Czech nationals who were born in 1974 and 1975, respectively, and live in Dobřichovice and Prague, respectively. They are represented before the Court by Mr V. Kotek , a lawyer practising in Brno.

A. The circumstances of the case

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

On 2 January 2003 the police opened an investigation into an allegation of tax evasion under aggravated circumstances which involved the alleged simulation of the business activities of several companies.

On 3 January 2003 the police questioned M.K., a Ukrainian national, as an urgent and unrepeatable measure ( neodkladný a neopakovatelný úkon ). In the course of the interview, the witness was shown several documents relating to one of the companies. He affirmed that he had not signed any of these documents. During the interview, a judge was present.

The applicants, together with three other individuals, were charged jointly with tax evasion under aggravated circumstances on 14 October 2004.

On 31 January 2005 the Regional Prosecution Office ( krajské státní zastupitelství ) asked the Ukrainian authorities – through the medium of mutual judicial assistance – to question O.S., a former business partner of the first applicant.

On 21 July 2005 O.S. was interviewed in Kyiv. He confirmed that in 1999 he had founded a company, together with the first applicant and other individuals. However, he had quit the company in 2000. He was shown several documents relating to a sales contract dating from 2002 and stated that he had been unaware of their existence and had not signed any of them. The applicants ’ lawyer was not informed about the interview.

On 31 October 2005 the first applicant ’ s lawyer consulted the case file. He requested that the questioning of O.S. be repeated in order to allow him the opportunity to put questions to O.S.

On 23 March 2006 the second applicant ’ s lawyer, having consulted the case file, asked the police to disregard O.S. ’ s statement as he had been unable to be present during the interview or to put questions to O.S. in any other way.

The investigator dismissed this request on 28 March 2006.

On 1 February 2007 the prosecutor from the Regional Prosecution Office indicted the applicants, together with three other individuals. The Prague Regional Court ( krajský soud v Praze ) r eturned the case on 27 February 2007 for the purposes of supplementing the investigation. This decision was quashed by the Prague High Court ( vrchní soud v Praze ) on 15 August 2008.

On 29 May 2008 the Regional Court found the applicants guilty. In establishing the factual background it attached special weight to the witness statements, expert opinions and documentary evidence. The court also relied on the statements of M.K. and O.S., which had been collected at the pre-trial stage without any possibility for the accused to ask them questions. As to the assessment of the evidence, the court stated:

“The statement by O.S. demolishes the accused ’ s defence as the witness states that the signature is not his and that he had left the company ... in 2000. ... The statement of M.K. should not be overestimated and the court is of the opinion that his statement is not fully credible ... The accused obtained M.K. ’ s signature ... and used it to their advantage. ... the court dismissed as superfluous a request to adduce additional evidence as it had enough evidence to decide the case.”

On 1 6 January 2009 the High Court upheld the impugned judgment of the Regional Court in respect of the applicants. The appellate court stated:

“The first-instance court gave due consideration to the witness statements made by [M.]K. and O .[ S.] and explained why no additional questioning was necessary. In this regard, the appellate court supports these conclusions ...”

An appeal on points of law ( dovolání ) lodged by the applicants was dismissed by the Supreme Court ( N ejvyšší soud ) on 20 January 2010 .

On 13 August 2012 the Constitutional Court ( Ústavní soud ) dismissed a constitutional complaint ( ústavní stížnost ) lodged by the applicants. It held, inter alia , that the questioning of M.K. and O.S. had been lawful, that this evidence had not been sole and decisive, and that the conclusion regarding the applicants ’ guilt had therefore been based on sufficient evidence.

B. Relevant domestic law

The relevant domestic legal provisions concerning absent witnesses are set out in the Court ’ s decisions in Bátěk and Others v. the Czech Republic , no. 54146/09, § 17, 12 January 2017, and Štulíř v. the Czech Republic , no. 36705/12, § 37, 12 January 2017.

COMPLAINT

The applicants complain under Article 6 §§ 1 and 3 (d) of the Convention about the overall unfairness of the criminal proceedings described above, in particular the fact that their conviction was based on testimony given at the pre-trial stage by witnesses whom they never had a chance to cross-examine before the court.

QUESTIONS TO THE PARTIES

1. Did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 §§ 1 and 3 (d) of the Convention (see Al- Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, ECHR 2011, and Schatschaschwili v. Germany [GC], no. 9154/10, 15 December 2015)? In particular:

(a) Were the applicants able to examine the witnesses testifying against them at any stage of the proceedings? In this connection, what steps did the domestic authorities take to secure the attendance of these witnesses?

(b) Did the statements of those witnesses serve as the sole or decisive evidence for the applicants ’ conviction?

(c) What safeguards did the domestic courts put in place to counterbalance the applicants ’ alleged inability to cross-examine those witnesses?

(d) Were the domestic courts ’ decisions adequately reasoned?