FIFTH SECTION

Application no. 54146/09 Roman BÁTĚK and others against the Czech Republic lodged on 2 October 2009

STATEMENT OF FACTS

The applicants, Roman Bátěk , Radek Blažej and Karel Elsner , are three Czech citizens, born in 1969, 1968 and 1972 respectively. They live in Lanžhot and Břeclav respectively. They are represented before the Court by Mr. D. Strupek , a lawyer practising in Prague .

A. The circumstances of the case

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

From September 2003 to January 2004 the applicants worked at the Lanžhot Customs Office at the border with the Slovak Republic . On 1 December 2003 a police agent infiltrated the team of customs officers on a suspicion of corruption, namely that they took bribes from truck drivers in exchange for granting priority or trouble-free customs clearance. The police agent left the Customs Office on 6 February 2004.

In March and April 2004 numerous drivers were interviewed in the presence of a judge under Article 158a of the Code of Criminal Procedure (hereinafter the “CCP”) as an urgent measure ( neodkladný úkon ). With respect to the applicants, the interviews of four drivers were relevant. Three of them were of Romanian nationality and one of them was a Bulgarian citizen. The applicants, being not yet charged, did not take part in these interviews.

Witness I. P. D. testified that it was a common practice that custom officers asked drivers for documents and checked whether there was some money. If not, the drivers had to wait for hours to be cleared. I.P.D. admitted that he had paid bribes at two or three occasions.

Witness C. D. testified that he had always had to pay five euros in order to avoid inconvenience during the clearance.

Witness S. B. testified he had paid five euros at each of his ten trips when he had had to pass these customs.

Witness A. A. U. confirmed the practice of corruption at the customs office in question but he could not specify any particular person. But he remembered that bribes were received both by male and female customs officers.

In April 2004 the applicants were charged with abuse of authority of a public official under Article 158 § 1 (a) of the Criminal Code in force at that time and receiving a bribe under Article 160 § 3 (b) of the Criminal Code in force at that time. In February 2005 they were officially indicted.

During the trial the applicants argued that the police agent could not see from her place of work other customs officers. Moreover, none of the alleged acts had been filmed by the cameras installed in the premises of their workplace. The applicants also requested that the truck drivers be heard at trial using applicable international instruments on mutual assistance in criminal matters, i.e. the European Convention on Mutual Assistance in Criminal Matters and bilateral treaties on mutual judicial assistance with Romania (treaty of 25 October 1958) and Bulgaria (treaty of 25 November 1976) . They further claimed that their rubber stamps could have been abused, as it was proved in another case which had taken place at the same time when they had been charged.

On 14 December 2005 the Břeclav District Court ( okresní soud ) heard the police agent as anonymous witness ( utajený svědek ) under Article 55 § 2 and Article 209 of the CCP. She gave her testimony outside the court room using an intercom. She did not recall any specific case of receiving a bribe, but only stated that her reports and information therein were fully reliable. These reports were read out at the trial together with the protocols of the interviews of the drivers. The applicants challenged the lawfulness of both the use of the anonymous witness and the mere reading of the protocols of the interviews. According to them, these two sources together with other indirect evidence constituted the basis for establishing the factual background of the case. The first instance court did not address the question of the credibility of the police agent.

On 25 May 2006 the District Court found the applicants guilty as charged. They were sentenced to one year ’ s imprisonment suspended for two years ’ probation. They were also fined CZK 10,000 (400 EUR). The court established the factual background mainly on the basis of the truck drivers ’ testimonies and the statement of the police agent. These testimonies were compared with documents, records of service rotations and the database which linked the applicants to the times of customs clearances of the interviewed truck drivers. The court held that the police agent had identified the customs officers who had been receiving bribes and having checked the database containing the information about lorries which had passed through the customs office, discovered the applicants. The judgment does not specify the reasons why the three truck drivers were not heard at trial. As to the anonymous witness, the court only briefly explained this procedural step by the need not to uncover this police officer.

In their appeal the applicants argued that the drivers could have been heard at trial if the European Convention on Mutual Assistance in Criminal Matters and bilateral treaties on mutual judicial assistance with Romania (treaty of 25 October 1958) and Bulgaria (treaty of 25 November 1976) were applied. They doubted whether they had not been granted criminal immunity for testifying. They also contested the legal grounds and necessity not to disclose the identity of the police agent. According to them, she did not risk danger to her health or any other danger of interference with her fundamental rights as required by Article 55 § 2 of Code of Criminal Procedure. The argument that she could have to intervene again in the future was not sufficient. For instance, she could testify with a mask or under fictitious name. Moreover, the delays between the questions asked at trial and her replies indicated that she had had some paper documents with her or someone with whom she had consulted on her answers before she replied.

On 22 March 2007 the Brno Regional Court ( krajský soud ) rejected the applicants ’ appeal finding their arguments unsubstantiated. It stated that the District Court had regarded the anonymous witness as credible, and even the appellate court found her description of the facts convincing. The court found unsubstantiated the applicants ’ allegation that the anonymous witness had documents or someone with her during her testimony. The appellate court also noted that the interviews of the truck drivers under Article 158 of the CCP had been carried out in conformity with the criminal procedural law since they had no ties with the Czech Republic and the facts of the case had not indicated that they would obtain the immunity or that they would be forced to testify not knowing what was the content of the protocols they had signed.

The applicants filed a constitutional appeal alleging a violation of Article 6 § 3 (d) of the Convention and complaining about the unreasonable length of the proceedings.

On 2 April 2009 the Constitutional Court ( Ústavní soud ) dismissed the constitutional appeal as manifestly ill-founded. It stated that the complaint under Article 6 § 3 (d) had been raised at the previous instances which had given sufficient reasons why the interviews with the drivers and the testimony of the police agent as anonymous witness had been in accordance with the CCP. The court rejected the complaint concerning the length of the proceedings for non-exhaustion of domestic remedies.

B. Relevant domestic law

Code of Criminal Procedure (Act no. 141/1961) , as in force at the material time

Under Article 55 § 2 where the circumstances indicated that a witness or a person close to the witness ran an obvious risk of bodily harm or other serious danger of interference with his/her fundamental rights in testifying, and when it was not possible to ensure the effective protection of the witness in another manner, the authorities were required to take measures to prevent the visual identification of the witness. The witness ’ s name and surname as well as his/her other particulars were not recorded in the statement, but were kept separate from the criminal file and known only to the authorities. The witness had to be informed of the right to have one ’ s identity concealed and to sign the statement using a fictitious forename and surname, by which the person would subsequently be identified. If the reasons for concealing the witness ’ s identity and for separating the witness ’ s particulars ceased to exist, that information would be attached to the criminal file and the witness ’ s identity would no longer be concealed.

Under Article 158a, if it is necessary to question a witness as an urgent or unrepeatable measure during an investigation at a time before anybody has been charged, such an interview can b e conducted on the request of a prosecutor and in the presence of a judge.

Article 158e provides, inter alia , that if criminal proceedings are conducted in respect of particularly serious crimes, the police authority is authorised to use an agent. The latter is a police officer carrying tasks assigned to him/her by the police authority, usually involving concealment of his/her usual activities.

Under Article 209 § 1, the president of the division was to ensure that any witness who had not yet testified did not attend the interview of the defendant or of other witnesses. If there was any doubt that the witness would not testify truthfully in the presence of the defendant, or if the witness or persons close to him or her were at risk of bodily harm, death or any other serious danger, the president of the division was required to take appropriate measures to ensure the safety or to conceal the identity of the witness, or to order the defendant to leave the courtroom while the witness was being questioned. However, once having returned to the courtroom, the defendant had to be informed of the content of the witness ’ s testimony and be given the opportunity to comment on it, and, without meeting the witness in person, might put questions to the witness through the president of the chamber. When the witness ’ s identity was to remain confidential, the president of the chamber was required to take measures in order to prevent the true identity of the witness being revealed.

Article 209 § 2 provides that when a witness whose identity had been concealed was examined at trial, the court, acting of its own motion, was required to take all necessary steps with a view to verifying the witness ’ s credibility.

Under Article 211 § 2 a witness statement given during the pre-trial proceedings shall be read out at trial if the witness has died or gone missing or stays abroad and is therefore unreachable, or has become ill and is not, therefore, in a position to be questioned, or his/her witness statement has been carried out as an urgent measure under Article 158a.

The European Convention on Mutual Assistance in Criminal Matters, binding on the Czech Republic , Bulgaria and Romania (as in force at material time)

Article 1

“(1) The Parties undertake promptly to afford each other, in accordance with the provisions of this Convention, the widest measure of mutual assistance in proceedings in respect of offences the punishment of which, at the time of the request for assistance, falls within the jurisdiction of the judicial authorities of the requesting Party .

( ... ).”

Article 10

Hearing by telephone conference

“(1) If a person is in one Party ’ s territory and has to be heard as a witness or expert by judicial authorities of another Party, the latter may, where its national law so provides, request the assistance of the former Party to enable the hearing to take place by telephone conference, as provided for in paragraphs 2 to 6 .”

At the material time, bilateral treaties on mutual judicial assistance with Romania (treaty of 25 October 1958) and Bulgaria (treaty of 25 November 1976) were still in force.

COMPLAINTS

1. The applicants complain under Article 6 § 3 (d) of the Convention that they did not have an opportunity to examine the drivers interviewed at the pre-trial stage before the applicants were charged and that the police officer testified at trial as an anonymous witness outside the courtroom, both in contradiction with the law. Relying on the Court ’ s case-law, the applicants argue that the defence must have an opportunity to examine witnesses in preliminary proceedings or during the trial and if the witness is not present, respective authorities must adopt reasonable measures securing his presence. This did not happen in the instant case.

2. The applicants further complain that the conditions for granting the police agent anonymity were not met. Moreover, they could not test the reliability of the anonymous witness. The applicants finally criticise the manner of how the police agent was questioned.

QUESTIONS TO THE PARTIES

1. Has there been a violation of Article 6 § 3 (d) of the Convention on account of the use of the testimonies obtained from the three truck drivers who could not be questioned by the defence?

2. Has there been a violation of Article 6 § 3 (d) of the Convention concerning the use of evidence obtained from the anonymous witness ?