Communicated on 3 February 2015

FOURTH SECTION

Application no. 58113/09 Franciszek IRZYK against Poland lodged on 26 October 2009

STATEMENT OF FACTS

The applicant, Mr Franciszek Irzyk , is a Polish national who was born in 1951 and lives in Wiśniowa . He is represented before the Court by Ms W. Chmielowska , a lawyer practising in Kraków .

A. The circumstances of the case

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

1. Background to the case

The applicant was an activist of a political party, “ Samoobrona ”. During one of the party meetings he met a certain E.Z. who had been a member of the same party since 2002.

In 2005 E.Z. had some financial problems and she was seeking employment opportunities. She asked the applicant whether he could find a job for her. The applicant put E.Z. in contact with S. Ł ., a member of the Polish parliament ( pose ł na Sejm) from the same party. In December 2005 E.Z. went to Warsaw to meet S. Ł . First, they met in the Sejm building and subsequently moved to the Sejm hotel where E.Z. and S. Ł . had sexual intercourse. S. Ł . told E.Z. that she had to obey his orders if they were to work together.

In 2006 a so-called “sex scandal” broke out in Poland. It concerned public figures, including activists of the Samoobrona party who, in connection with exercising public functions, offered and accepted personal benefits of a sexual nature.

On 6 December 2006 the applicant telephoned E.Z. asking her whether she had given any information to the press. He referred to an article “ Praca za seks ” (“Work for sex”) published in the daily Gazeta Wyborcza on 4 December 2006.

On 8 December 2006 E.Z. was heard by the prosecutor as a witness in the investigation concerning the scandal. In the course of her interview she described her relations with S. Ł . and with the applicant.

On 9 December 2006 the applicant again phoned E.Z. asking her whether she had been heard as a witness by the Kraków Regional Prosecutor. E.Z. declined. The applicant also informed E.Z. of difficulties experienced by S. Ł . caused by the investigation in the so-called “sex scandal” and by sexual behaviours of some Samoobrona party members. The applicant requested of E.Z. that she talk to him later, the same day. This conversation was recorded by journalists from a TV channel “TVN” who had invited E.Z. to participate in one of its popular programmes.

The applicant did not telephone E.Z. on the same day. E.Z. tried to reach him five times without success and finally left a message on his voice mail.

On 10 December 2006 the applicant again phoned E.Z. and asked her if she had been heard by the prosecutor the previous day. E.Z. replied that she had not.

On 12 December 2006 E.Z. phoned the applicant at the telephone number provided by the TVN channel. The conversation was recorded by journalists working for the station. The applicant again asked E.Z. whether she had been heard by the prosecutor and when she confirmed that she had, he started to instruct her how she should testify when she would be heard again. He told her not to accuse anyone and not to disclose that she had had sexual intercourse with Samoobrona activists. He also suggested that she testify that in the Kraków party headquarters the relations between employees were “normal”. E.Z. understood these words as a form of incitement to give false testimony and as a form of protection of S. Ł . by not disclosing information about his sexual affairs with women who were members of the Samoobrona party.

2. The applicant ’ s criminal conviction

On 14 June 2007 the applicant was heard as suspect by the Łódź District Prosecutor.

On 29 February 2008 a bill of indictment against the applicant was prepared and, on 3 March 2008, lodged with the Kraków District Court.

The testimony of E.Z. given in the investigation phase of the proceedings was consistent with the contents of the recorded telephone conversations. However, in the proceedings before the trial court E.Z. decided to change her version of events and submitted that the applicant had in fact only requested her not to disclose to the prosecutor that they had had sexual intercourse. The court found E.Z. ’ s testimony given in the judicial phase of the proceedings not to be credible. It held that, “the witness ’ s (E.Z. ’ s) submissions as regards the change of her version of events as well as her explanation of some of the accused ’ s statements made in the telephone conversation are illogical and naïve”.

The court went on to say that the applicant ’ s conviction had been based on the “entire evidentiary material, in particular on the contents of the telephone conversations with E.Z. recorded between 6 and 12 December 2006”. However from the court ’ s reasoning it emerges that after it had found E.Z. statements not to be credible, the actual basis for the conviction was the recorded telephone conversations.

On 13 January 2009 the Kraków District Court found the applicant guilty of attempted obstruction of criminal proceedings and incitement to give false testimony and sentenced him to 8 months ’ of deprivation of liberty suspended for a probation period of 4 years. The court heard several witnesses, among them E.Z., the journalists who had recorded the conversations and the applicant himself.

On 3 March 2009 the applicant ’ s lawyer appealed against the first instance judgment. He claimed, in particular, that the first-instance court had not respected the principle of the free assessment of evidence. He further asserted that there was a violation of Article 424 of the Code of Criminal Proceedings (see the relevant domestic law, below) claiming that the first-instance court had based its judgment exclusively on evidence which spoke against himself and ignored the circumstances which spoke in his favour and, further, it had done so without a detailed reasoning and without indicating which facts it had found to be proved and on what evidence it based its findings.

In the reasoning of the appeal the applicant ’ s lawyer explained that:

“ the court had wrongly assessed the testimonies given by E.Z. and her motivation; her behaviour was not spontaneous; it was inspired by journalists who exercised pressure on her and manipulated her ... ”

The applicant ’ s lawyer concluded his appeal by the following words:

“the overall assessment of evidence leads to clear c onclusion that the accused is a victim of carefully planned and precisely executed journalistic provocation and the prohibited acts referred to in the bill of indictment are groundless and find no sup port in the collected evidence.”

On 6 May 2009 the Kraków Regional Court upheld the challenged judgment finding that the first-instance court assessed evidence properly, “in accordance with life experience and Article 7 of the Code of criminal proceedings”, which states the principle of free assessment of evidence (see relevant domestic law below).

A cassation appeal was not available in the present case.

B. Relevant domestic law and practice

1. The relevant provisions of the Criminal Code

Article 13 § 1 provides as follows:

“Whoever with the intent to commit a prohibited act directly attempts its commission through his conduct which, subsequently however does not take place, shall be held liable for an attempt”.

Article 13 § 2 provides as follows:

“Whoever, willing that another person should commit a prohibited act, induces the person to do so, shall be liable for incitement.”

Article 233 § 1 provides as follows:

“Whoever, in giving testimony which is to serve as evidence in court proceedings or other proceedings conducted on the basis of law, gives a false testimony or conceals the truth shall be subject to the penalty of deprivation of liberty of up to three years.”

Article 239 § 1 provides as follows:

“Whoever obstructs or frustrates penal proceedings by aiding a perpetrator to evade penal liability and especially whoever hides the perpetrator or obliterates physical evidence of the offence or undergoes penalty for a sentenced person shall be subject to the penalty of deprivation of liberty for a term between three months and five years.”

2. The relevant provisions of the Code of Criminal Proceedings

Article 7 provides as follows:

“The authorities conducting the proceedings shall make their decisions on the basis of their own conviction, upon all evidence taken assessed at their own discretion, with due consideration to the principles of sound reasoning, knowledge and personal experience.”

Article 242 provides, in so far as relevant, as follows:

“The reasoning [of a judgment] should contain:

1. indication which facts have been found by the court to be proven or unproven, on what evidence it based its findings in this respect and reasons for which it did not accept the evidence to the contrary.”

COMPLAINT

The applicant complains under Article 8 of the Convention that his criminal conviction was based on illegally obtained evidence.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted domestic remedies as required by Article 35 § 1 of the Convention? Reference is made to the contents of his appeal against the first-instance judgment.

2. Did the applicant have a fair trial within the meaning of Article 6 § 1 of the Convention? Reference is made to the fact that the applicant ’ s conviction was based on telephone conversations recorded by journalists in cooperation with one of the witnesses in the criminal proceedings.