Communicated on 6 January 2015

FOURTH SECTION

Application no. 62427/13 Zbigniew SZCZEPURA against Poland lodged on 11 September 2013

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.

In 2001 the Żary District Prosecutor ( Prokurator Rejonowy ) opened an investigation concerning an organised criminal group involved in car thefts committed in Germany and the subsequent smuggling and handling of the stolen cars in the period from 1998 until 2001 [ case no. 2 Ds. 1115/01 ] .

On an unspecified date in 2001 the investigation was taken over by the Zielona Góra Regional Prosecutor ( Prokurator Okr ę gowy ) [case no. VI Ds. 37/01 ].

A certain A.S. was identified as the person who had smuggled the cars to Poland and had subsequently handled the stolen goods. He was heard as a suspect in both of the investigations. He admitted to smuggling between forty and fifty stolen vehicles from Germany and subsequently selling the stolen cars to unsuspecting buyers. He gave a detailed account of the actions of the organised criminal group and revealed several other persons involved in the group and their respective roles. He identified the applicant as the leader of the group and as the person who had first contacted him and involved him in the criminal activities of the group.

He submitted that the applicant had engaged him to cross the Polish border with the stolen cars because he was legally residing in France at that time. Each time it was the applicant who informed him where and when he should pick up the cars. The cars had already had their vehicle identification numbers replaced. Each time the applicant and his co ‑ operators provided A.S. with French licence plates. They also provided him with other forged documents. Sometimes he prepared some of the documents himself. After crossing the border A.S. sold the cars in his own name for the prices indicated by the applicant. Subsequently, the applicant paid him his remuneration.

When testifying, A.S. indicated his permanent address in France and his current address in Poland.

A.S. also revealed information concerning other offences allegedly committed by the applicant and himself in 1996 in Germany. In 2002 the Zielona Góra Regional Prosecutor started a separate investigation conc erning those offences [case no. V Ds. 3/02 ] (see also Szczepura v. Poland , application no. 18825/14).

On an unspecified date in 2002 the determination of the charges against A.S. was severed to a separa te set of proceedings [case no. VI Ds 67/02 ].

On 30 September 2002 the Zielona Góra Regional Prosecutor brought charges against the applicant. The applicant pleaded not guilty and refused to testify.

On 19 November 2002 A.S. testified as a witness in the investigation against the applicant. He repeated his earlier depositions and submitted several further details. He submitted that he no longer had any place of residence in Poland.

In the course of the investigation the prosecution identified and seized thirty ‑ four cars which had been stolen in Germany and subsequently sold in Poland by A.S to unsuspecting buyers. It was established that in all of the vehicles similar modifications had been introduced. The buyers had been provided with similar forged documents.

On 19 December 2002 the prosecution filed a bill of indictment with the Å» ary District Court ( S Ä… d Rejonowy ). The applicant was charged with leading an organised criminal group consisting of several persons, some of them unidentified. He was further charged with thirty ‑ four counts of organising ( sprawstwo kierownicze ) car thefts committed by other persons in Germany. The bill of indictment concerned five other accused charged with membership in the criminal group, car thefts and handling stolen goods.

On 3 February 2003 the case was transferred to the Zielona Góra Distric t Court [case no. II K 296/03 ].

Meanwhile, o n 10 June 2008 a wanted notice ( list go Å„ czy ) was issued against A.S. in a separate set of proceedings before the Å» ary District Court [ case no. II K 1614/02 ]. The wanted notice was issued to secure the execution of a detention order of 28 September 2007. Apparently, the whereabouts of A.S. had been unknown since 2005.

On 8 September 2008 the applicant requested the Zielona Góra District Court to grant him a legal ‑ aid lawyer. He argued that he had to dismiss his privately hired counsel due to lack of sufficient funds. He submitted that he had been detained for seven years and had no gainful employment nor financial means or other property. He als o argued that the case was of a complex nature.

The tr ial was eventually opened on 18 September 2008. At the hearing the District Court refused the applicant ’ s request for a legal ‑ aid lawyer. It found that there were no grounds under the domestic law to grant his request.

The trial court held altogether thirteen hearings during which it heard the accused and the witnesses. In particular, o n 28 October 2008 it heard a certain A.Sz . who had bought one of the stolen cars. A.Sz . confirmed his statements from the investigation and submitted that he had known the applicant for twenty years and that it had been the applicant who had offered him the car and had negotiated with him. He testified that he had paid the price of the vehicle to the applicant.

On 4 November 2008 the trial court heard a witness S.B. who had previously been convicted in a separate set of proceedings. S.B. confirmed his earlier testimonies and admitted to having replaced the vehicle identification numbers of approximately ten cars. He submitted that initially it had only been the applicant who had contacted him about the jobs, subsequently it had also been A.S.

Meanwhile, as regards A.S., the District Court established on the basis of information gathered in other sets of criminal proceedings that his place of residence in Poland was unknown and that, consequently, it was impossible to serve the summons on him.

Eventually, o n 6 May 2010, despite the requests of the applicant and the other parties to continue the attempts to summon A.S., the Regional Court read out the statements of A.S. made in the investigation and in another set of criminal proceedings against the applicant before the Zielona Góra Regional Prosecutor [ case no. V Ds. 3/02] (see also Szczepura v. Poland , no. 18825/14).

Subsequently, the applicant testified, denying his leading role in the o ffences and attributing it to A.S.

On the same date the applicant requested that two persons, S.W. and Z.P., be called as witnesses. He alleged that they had been in contact with A.S. and had cooperated with him in handling and selling cars. He also argued that his motion was all the more relevant as not all of the persons who had participated in committing the offences had been identified.

The District Court refused the motion finding the requested evidence irrelevant. If those witnesses were to testify about their relations with A.S., as requested by the applicant, their evidence would be of no relevance for the charges against the defendants.

On 17 June 2010 the District Court requested the prosecution authorities to establish whether A.S. resided in France.

The prosecution sought information from the International Police Co ‑ operation Bureau of National Police Headquarters ( Biuro Mi Ä™ dzynarodowej Wspó Å‚ pracy Policji Komendy G Å‚ ównej Policji ). On 27 October 2010 the Police obtained the same address from French authorities. It was also found that A.S. had a residence permit in France that was valid until 7 March 2016.

On 8 February 2011 the District Court held another hearing. It noted that the prosecution had failed to act as requested as it had failed, in particular, to gather information about whether A.S. owned or rented property under the address in France. The applicant and the other defendants requested that A.S. be heard directly before the trial court. The prosecution requested that A.S. be heard before the Consulate General of the Republic of Poland, after confirming that he resided at the address in France. The District Court refused all the motions, finding that it was impossible to establish the whereabouts of A.S. It noted, in particular, that the earlier attempts to serve the summons on A.S. in 2008 by the Consulate General of the Republic of Poland had been futile.

On 8 February 2011 the Zielona Góra District Court gave judgment and convicted the applicant of having led an organised criminal group and having organised thirty ‑ four car thefts committed by other persons. The court sentenced him to a cumulative penalty of five years ’ imprisonment. The other defendants were partly acquitted for lack of evidence.

The court observed that the statements of A.S. were the main evidence for the applicant ’ s conviction. There was good reason to read out the testimony of A.S. as his whereabouts were unknown and it was impossible to summon him.

The District Court further found that, in the light of the statements of A.S., the applicant ’ s guilt was undoubtable as regards both of the charges against him. It established that the applicant contacted the other members of the criminal group and made the key decisions concerning both the car thefts and the other actions of the criminal group. In this regard, the trial court also referred to the statements of a witness S.B. who confirmed that it had usually been the applicant who contacted him about replacing the vehicle identification numbers. The trial court established on the basis of the material evidence that each of the thirty ‑ four cars had been stolen and subsequently handled in a similar manner. Accordingly, it found that the applicant ’ s participation in all of the thirty ‑ four counts of car theft was sufficiently demonstrated.

The District Court considered that the applicant ’ s statement, that it was A.S. who had solicited his help, was not credible. It was not corroborated by any other evidence and the content of his testimony was adjusted to match the statements of witnesses and to explain them in his favour.

As regards the credibility of the statements given by A.S. in the course of investigation, the trial court found:

“In contrast to [the applicant] ( ... ) the witness described in detail how he had first been contacted by this accused and the offers [the applicant] had made to him. He described his own increasing involvement in the criminal actions from which he had also obtained substantial profits. A.S. described places near the Polish border where he had picked up the cars, which corresponded to those indicated by another accused J.B. He also indicated places where the cars had been stored in Germany which correspond to the information concerning the car thefts obtained from the German authorities. Furthermore, A.S. referred to the role of S.B. in replacing the vehicle identification numbers, which was confirmed by this witness. A.S. also referred to his own role in preparing and forging the car documents, which he did not try to diminish ( ... ). A.Sz ., who had been the applicant ’ s long-term acquaintance and had bought one of the stolen cars, testified that it had been the applicant who had negotiated with him, who had decided the price of the car and to whom he had paid the money ( ... ).He thus confirmed the statements of A.S. as regards the role of the applicant. The applicant ’ s allegations that it had been A.S. who had solicited his help cannot therefore be accepted. Moreover, several persons who had bought the cars from A.S. confirmed the circumstances of those transactions as submitted by him (...); same for the persons who had aided A.S. in forging the customs documents.”

The applicant appointed a lawyer to appeal against the first ‑ instance judgment. In his appeal he questioned, in particular, the trial court ’ s decision to read out the statements of A.S. from the investigation and the court ’ s refusal to call witnesses S.W. and Z.P. The applicant challenged the credibility of A.S. alleging his possible interest in incriminating him and diminishing his own criminal liability. He also argued that the statements of A.S. were in fact the only evidence upon which his conviction was based, the corroborative evidence listed by the first ‑ instance court being either immaterial to the charges against him, only of partial relevance or of a circumstantial nature.

On 2 February 2012 the Zielona Góra Regional Court ( S Ä… d Okr Ä™ gowy ) dismissed the applicant ’ s appeal and upheld the first ‑ instance judgment in essence. 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 attempts to establish the whereabouts of A.S. but they were to no avail. It found that the trial court was therefore entitled to read out the depositions of A.S. from the investiga tion in accordance with Article 391 of the Code of Criminal Procedure. It also held that the applicant ’ s defence rights had not been unduly restricted as he could have challenged those statements by, in particular, giving evidence himself. The applicant had in fact taken this opportunity.

The Regional Court considered that, when admitting the statements of A.S. as evidence, the trial court was obliged to assess them in a particularly thorough and careful manner. It found that the District Court had successfully dealt with this task and had examined the detailed and voluminous testimony of A.S. meticulously, both on their own and in relation to the other evidence. It went on to observe that the depositions of A.S. were the key evidence for the applicant ’ s conviction but it endorsed the trial court ’ s finding of their credibility. It held:

“In the appellate court ’ s opinion it is of no surprise that there are small contradictions in numerous depositions of A.S. given within a certain period of time. With the passage of time he may have forgotten certain details. On the other hand, the later depositions of the witness may have been more elaborate owing to the questioning techniques applied or because it was impossible for him to recall the events in their entirety all at once. Nevertheless, the witness testified in a consistent manner as regards the relevant facts which renders him credible. The appellate court is of the opinion that, had he repeated all the details consistently in all of his depositions, this would actually raise doubts as to his honesty.”

The appellate court further found that the statements of A.S. were supplemented by other evidence list ed in the grounds for the first ‑ instance judgment. It considered, in particular, that the evidence given by witnesses A.Sz . and Z.B. supported the statements by A.S. concerning the leading role of the applicant in car thefts and the criminal group.

Lastly, the Regional Court agreed with the trial court ’ s refusal to call witnesses requested by the applicant. It found the decision correct and adequately reasoned. It also considered that the applicant ’ s right to defend himself had not been impaired as a consequence.

The applicant lodged a cassation appeal. He challenged the courts ’ failure to hear A.S. and the refusal to call the requested witnesses, alleging that his defence rights had been unduly restricted.

On 27 March 2013 the Supreme Court ( S Ä… d Najwy ż szy ) dismissed the cas sation appeal as manifestly ill ‑ founded ( oczywi Å› cie bezzasadna ). In the grounds for the decision it found that the appellate court had adequately dealt with the applicant ’ s complaints.

B. Relevant domestic law

1. Taking of evidence

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

Under Article 169 of the Code a request for the taking of evidence shall 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 request 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 request,

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

4) the evidence cannot be taken,

5) the request for evidence is clearly aimed at protracting the proceedings. “

2. Examination of witnesses

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 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 appli cant 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.

He further complains, invoking the same provision of the Convention, that he could not obtain the attendance and questioning of witnesses on his behalf.

QUESTIONS 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? In particular:

1. 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 )?

2. Was the applicant able to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him, as required by Article 6 § 3 (d) of the Convention? Reference is made to the domestic court ’ s refusal to call witnesses S.W. and Z.P. requested by the applicant.