Communicated on 6 January 2015

FOURTH SECTION

Application no. 18825/14 Zbigniew SZCZEPURA against Poland lodged on 26 March 2014

STATEMENT OF FACTS

The applicant, Mr Zbigniew Szczepura , is a Polish national, who was born in 1968 and lives in Cibórz .

A. The circumstances of the case

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

On 18 February 2002 the Zielona Góra Regional Prosecutor ( Prokurator Okr ę gowy ) took over an investigation from the German prosecution authorities into a robbery committed on 17 December 1996 in Grossrosseln [case no. V Ds. 3/02].

The investigation was taken over on the basis of new information revealed by a certain A.S. during questioning in another set of criminal proceedings before the Zielona Gór a Regional Prosecutor [case no. VI Ds 37/01 ] (see also Szczepura v. Poland , application no. 62427/13). A.S. submitted that he had assisted the applicant and two other persons, who he also identified, in a car theft and the robbery of a currency exchange office on the territory of Germany. At that time he resided in France near the German border. The other persons met with him under the pretext of buying a used car. He alleged that he had not been fully aware of their criminal intentions.

A.S. was subsequently charged with aiding and abetting car theft and robbery. O n 19 December 2002 he was heard as a suspect in the investigation. He confirmed his earlier testimony as regards the applicant and the other persons having committed the offences. He admitted that he had known about their intentions beforehand and aided them by driving them and handling the stolen money. The first attempt to steal a car, which was made without the participation of the applicant, was unsuccessful. Subsequently, the applicant joined the group and in December 1996 they visited A.S. again. This time they succeeded in stealing a dark ‑ coloured Audi with German licence plates, which they intended to use for a robbery. The next day, they arrived at the currency exchange office when the only employee was closing. They locked her inside the office and stole the day ’ s earnings from her car. A.S. did not take part in the robbery but drove the group back from a car park located near a Cora supermarket in Forbach , where they deserted the car. He submitted that h e had subsequently lear ned from them that altogether 120,000 deutschmarks (DM) had been stolen . They also handed him the coins they had stolen and asked him to bring them to Poland to the person who had helped them to organise the robbery.

On an unspecified later date the applicant was charged with car theft and robbery committed together with other persons. All the suspects pleaded not guilty and refused to testify. Only one of them, a certain J.K., was confronted with A.S. during the investigation.

By way of international criminal assistance two direct witnesses , I.B. and E.S . , were heard before the German authorities. They testified that they had seen three men and their car in front of the currency exchange office. They, however, could not describe the men in detail. The German authorities also handed over several other pieces of evidence and documents confirming a number of particular circumstances as submitted by A.S.

On 10 September 2003 a bill of indictment was lodged with the Å» ary District Court ( S Ä… d Rejonowy ) against the applicant and four other persons including A.S.

On an unspecified date the determination of the charges against A.S. was severed to an other set of proceedings. On 10 June 2006 the Żary District Court convicted him as charged and sentenced him to a cumulative sentence of two years ’ imprisonment sus pended for five years [case no. II K 1227/03 ].

The proceedings against the applicant and the other defendants were continued [case no. II K 845/05 ]. Th e applicant was granted a legal ‑ aid lawyer in the proceedings.

The trial started on 14 January 2008. The Żary District Court held altogether eleven hearings in the case until 25 March 2009.

It first summoned A.S. to testify at the hearing scheduled for 15 February 2008. The summons, sent to his home address in Poland by post, was returned as unclaimed.

The trial court agai n summoned A.S. to testify on 7 April 2008. The police were asked to serve the summons to the same address. On 7 April 2008, after receiving information from the police that A.S. did not reside at this address, the trial court asked them to establish his current place of residence. It also requested the Consulate General of the Republic of Poland in Paris to serve the summons on A.S. at his address in France. All those actions were futile, the place of residence of A.S. remaining unknown.

O n 10 June 2008 a wanted notice ( list gończy ) was issued against A.S. in another set of proceedings before th e Żary District Court [case no. II K 1614/02].

At the hearing of 6 October 2008 the trial court noted that the wanted notice against A.S. remained in force and his whereabouts were still unknown. According to the police, he presumably resided abroad. The trial court decided that the statements given by A.S. before the prosecution authorities should therefore be read out.

The applicant objected, arguing that those depositions were the main incriminating evidence against him and that he wanted to put questions to A.S. at the hearing. He subsequently testified in reply to the read ‑ out statements, pleading not guilty and denying any participation in the offences.

On 31 March 2009 the Żary District Court convicted the applicant as charged and sentenced him to a cumulative sentence of four years ’ imprisonment. It established that on 16 December 1996 in Grossrosseln he had committed a car theft togethe r with two other persons. On 17 December 1996 they had used the stolen car to commit the robbery of the currency exchange office in the same town.

The District Court considered that the statements of the applicant and the other accused could not be relied on as they were in contradiction with the evidence of A.S. which, in contrast, the court found to be credible. It further noted that the assessment of credibility of the depositions of this witness was of fundamental importance for the verdict. It considered that, as the whereabouts of A.S. were unknown and he was presumed to reside abroad, the trial court was entitled under the domestic law to read out his depositions from the investigation no matter their relevance in the case.

The District Court found the evidence of A.S. to be credible:

“It should be noted that this witness was initially an accused in the present proceedings. In the court ’ s opinion it is improbable that he would “invent” an offence and accuse himself of its commission to the point of his final conviction. The court also considers that A.S. gave such a detailed account of the events that he must have participated in them. Firstly, the evidence obtained from the German authorities confirms that there were three perpetrators of the robbery. Just as the witness stated. A.S. also correctly described where the car had been stolen, he stated the brand of the car and its colour and indicated the place where it had been deserted. He knew the details of the robbery such as that the employee was to be locked in the currency exchange office when she was closing. (...) The court also considers that the passports of two defendants T.S. and E.U. were important evidence in the case. According to their passports, T.S. and E.U. crossed the border in Frankfur t (Oder) on 16 December 1996. The passport of [the applicant] has not been found. However, the court established that he was with the other defendants. This means that they entered the territory of Germany on the day before the robbery. (...)”

The District Court analysed in detail the evidence collected by the German authorities concerning the circumstances of the car theft and the amount of money stolen from the currency exchange office. It considered that this evidence supplemented the information given by A.S. It also referred to the statements of two direct witnesses I.B. and E.S. who had confirmed that there had been three perpetrators, that they had driven a dark ‑ coloured Audi in the direction of the French border and that they had locked the employee inside the office .

Lastly, the court noted that some of the witnesses testified that A.S. had been prone to boasting and “showing off”. However, in the light of the circumstances supporting his statements in the case, the credibility of his depositions could not be questioned merely on this basis.

The applicant appealed against the first ‑ instance judgment. He challenged the trial court ’ s decision to read out the statements of A.S. He also argued that the statements of A.S. were the sole evidence for his conviction and that they could not be considered reliable in the circumstances of the case.

On 16 January 2012 the Zielona Góra Regional Court ( S Ä… d Okr Ä™ gowy ) upheld the first ‑ instance judgment. It accepted the findings of the trial court as based on a comprehensive assessment of all the evidence. It observed that the trial court had made several attempts to serve the summons on A.S., both to his Polish and French addresses, which had been to no avail. It also noted that the whereabouts of A.S. remained unknown despite the fact that a wanted notice had been issued against him. Accordingly, the trial court was entitled to read out his statements from the investigation on two grounds, namely that it had been impossible to serve the summons on him and that he resided abroad.

It dismissed the arguments of the defence that further attempts should have been made to summon A.S., in particular that the trial court should have relied on international legal assistance in that regard, due to the content of the depositions. It held:

“It is true that the first-instance court had before it voluminous and detailed depositions of A.S., which were also supported by other evidence obtained in the proceedings. In this situation it cannot thus be questioned that it was sufficient to read out these statements. It is also of relevance that after several years from the events in issue, witness A.S. could not in any event be expected to remember all the details.

At the same time, the defendants were not automatically deprived of their defence rights merely because the trial court had read out the statements of A.S. They were entitled to comment on those statements and, in particular, to give evidence themselves.”

After noting that the statements of A.S. were in fact the sole direct evidence for the applicant ’ s and the other defendants ’ convictions, the Regional Court went on to describe them chronologically. It considered that A.S. was consistent in his depositions as regards the relevant facts. It also held:

“It should be taken into account that A.S. was describing events which had taken place several years earlier. Moreover, his first depositions were given entirely spontaneously, when he was heard in another set of proceedings. In this context some contradictions are understandable. After such a long period of time he could not have remembered all the details or recalled the events in their entirety all at once. (...). It is of relevance that with the passage of time A.S. was able to describe the events in greater detail. It could have resulted from the fact that initially he did not remember all the facts – as noted above, he only mentioned the events “in passing”. Had he, on the other hand, laid out all the details right from the beginning and repeated them consistently afterwards, this should all the more raise doubts as to his honesty. Also the initial tendency to diminish his role in the criminal activities is to be noted (...). However, the number of details which he provided confirms that he must have participated in the events. He consistently indicated the roles of the other perpetrators. He also stated that he feared their retaliation. In the opinion of the appellate court, had he intended to falsely accuse the defendants, his account would have been much more certain. He could have tried to incriminate the other defendants further and he could have limited his own role even more (...). Moreover, had he been lying, he would have risked not only criminal responsibility for the false accusations, but also the retaliation of the other accused. It is also impossible to find any reasons why he would have falsely accused the other defendants. None of the defendants pointed to any such reason.”

Finally, the Regional Court held that it was of key relevance for the finding that the statements of A.S. were credible that his depositions were confirmed by the remainder of the admitted evidence. It referred to the evidence described in detail by the first ‑ instance court concerning the car and the amount of the stolen money, the statements of two direct witnesses I.B. and E.S. and the passports of defendants T.S. and E.U. It noted that it was immaterial that the courts did not have the applicant ’ s passport.

The applicant lodged a cassation appeal. He alleged that his defence rights had been unduly restricted as he could not question A.S., whose statements had been the sole evidence for his conviction.

On 4 September 2013 the Supreme Court ( SÄ…d Najwy ż szy ) dismissed the applicant ’ s cas sation appeal as manifestly ill ‑ founded ( oczywiÅ›cie bezzasadna ) . It gave no reasoning for its decision. The applicant was served with the decision on 2 October 2013.

B. Relevant domestic law

Pursuant to 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 the previous testimony, 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 by virtue of Article 333 § 2 [namely, because upon lodging the bill of indictment the prosecution 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] 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 i n 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.”

COMPLAINT

The applicant complains , invoking Article 6 § 3 (d) of the Convention , that his trial was unfair because he had no opportunity to examine a witness whose evidence was decisive for his conviction. He also alleges that the trial court did not make all reasonable efforts to secure the attendance of this witness.

QUESTION TO THE PARTIES

Did the applicant have a fair hearing in the determination of the criminal charge s against him , in accordance with Ar ticle 6 § 1 of the Convention? In particular, was there a violation of Article 6 §§ 1 and 3 (d) of the Convention on account of the use of the testimony obtained from witness A.S. who could not be questioned by the defence at any stage of the criminal proceedings (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, §§ 118 – 147 , ECHR 2011 )?