Communicated on 24 August 2015

FOURTH SECTION

Application no. 59131/11 Mariusz PERLIŃSKI against Poland lodged on 25 August 2011

STATEMENT OF FACTS

The applicant, Mr Mariusz Perliński , is a Polish national, who was born in 1971 and is detained in Katowice Detention Centre .

A. The circumstances of the case

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

The applicant, along with a number of other persons , was charged with committing armed ro bbery while acting in an organis ed criminal group. One of the accused , D.J. , who in the period between January and October 1999 disclosed in his statements important information as regards other persons involved in the crimes, was subsequently granted the status of crown witness ( świadek koronny ) .

Between November 1999 and January 2000 the Katowice Regional Prosecutor obtained evidence from D.J. as a crown witness. The statements obtained by the Prosecutor , despite constituting separate proce dural documents, were in fact copied and pasted from the statements given by D.J. in the period between January and October 1999.

On an unspecified date in 2002 a bill of indictment was lodged wi th the Katowice Regional Court.

On 15 October 2005 the court issued a judgment, and the applicant was senten ced to seven years ’ imprisonment.

The applicant ’ s lawyer, lawyers of several other accused and the prosecutor lodged appeals against this judgment.

On 29 November 2005 the Katowice Court of Appeal quashed the challenged judgment and remitted the case.

In the course of the judicial proceedings , in 2004, 2008 and 2011, the applicant lodged requests for statements by the crown witness from November 1999 - January 2000 to be declared as inadmissible evidence. It appears that h is allegations remained unanswered.

When the case was re-examined before the Regional Court the applicant requested that the witness D.J. be questioned as regards the manner in which he had been heard in the course of investigation, in particular , whether he had been allowed to express himself freely. The applicant also requested to hear the prosecutor who had heard the witness in question in the course of investigation. At the hearing on 22 May 2009 the Regional Court granted the applicant ’ s first request and dismissed the latter holding that this evidence was insignificant for the case.

On 19 June 2009 D.J. was questioned as to the method of his interrogation by the prosecutor and testified that hi s statements had been given “spontane ously. ” He did not remember how his testimony had been recorded by the prosecutor; his statements had been typed on the computer and he could not see the screen because the monitor was turned with its back towards his face. The applicant then reminded the witness that in 2007 he had testified that during his hearing he could see the screen of the monitor and follow everything that the prosecutor noted. D.J. replied that he did not remember the details of his interrogation.

On 19 July 2010 the Katowice Regional Court issued another first instance judgment, in which the applicant was sentenced to five years ’ imprisonment.

The prosecutor as well as the lawyers of several convicted persons including the applicant lodged appeals against this judgment.

On 10 March 2011 the Katowice Court of Appeal upheld the challenged judgment as regards the applicant . The applicant managed to bring his complaint concerning the alleged inadmissibility of evidence in question to the court ’ s attention. It considered that the applicant ’ s complaint in fact concerned the phase of investigation which could not be the matter of examination of the second instance court unless the shortcomings from the investigation “permeated” to judicial proceedings. The Court found that this was not the case since the witness in question had been heard again in judicial proceedings and his depositions were later co mpleted on the basis of Article 391 §§ 1 and 2 of the Code of Criminal Proceedings.

The Court of Appeal also did not find grounds to grant the applicant ’ s request and hear the prosecutor who had questioned the crown witness holding that the request had no significance for the resolution of the case and only aimed at prolonging the proceedings.

On 6 June 2011 the applicant ’ s court-appointed lawyer found no grounds to lodge a cassation appeal.

B. Relevant domestic law and practice

Article 171 § 7 of the Code of Criminal Proceedings (“the Code”) provides, in so far as relevant, as follows:

“Explanations, testimonies and declarations made in conditions excluding the freedom of expression (...) cannot constitute evidence.”

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 the previous one, 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 pursuant to Article 333 § 2 [ for example, because , upon the lodging of the bill of indictment , the prosecution has 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 have been 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 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.”

COMPLAINTS

The applicant complains under Article 6 § 1 and § 3 (d) of the Convention about the unfairness of criminal proceedings against him. He considers that the testimony given by D.J. as a crown witness should not have been admitted by the courts because this evidence had been ob tained unlawfully.

The applicant also complains under Article 6 § 2 claiming that admitting evidence which had been obtained in breach of law amounted to a violation of the principle of presumption of innocence.

QUESTION TO THE PARTIES

Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention? Reference is made to the fact that the testimony given by “ crown witness ” D.J., which served as the basis for the applicant ’ s conviction, had been in large part copied and pasted from the records of his testimony given earlier as an accused in the same set of proceedings.