PARTLY DISSENTING OPINION OF JUDGE CASADEVALL

(Translation)

I did not vote with the majority on point 1 of the operative provisions because, in my opinion, the fact that the applicant was unable to examine or have examined the prosecution witness on whose statements his conviction was mainly based also amounted to a violation of Article 6 §§ 1 and 3 (d) of the Convention. To my mind the authorities ’ responsibility for that serious procedural shortcoming is obvious for the following reasons.

1. The main prosecution witness and co-defendant, J.S.-T., was arrested on 6 April 1994. For a month she refused to make a statement. She agreed to do so, in the presence of her lawyer, on 5 May 1994 and on the very next day (6 May) the District Prosecutor, taking the view that “all necessary evidence had been obtained” (see paragraph 20 of the judgment), ordered her release on payment of approximately 2,500 euros bail. She then left for the United States , after supplying a false address. It follows that the witness was under the judicial authorities ’ power and control for a month.

2. The above facts raise three questions:

(a) For what reason was no attempt made to confront the applicant with the witness who was his co-defendant during those thirty days?

(b) Why, after J.S.- T. ’ s statement on 5 May, did the authorities not give the applicant, as a person charged with a criminal offence, the opportunity to examine or have examined the witness against him?

(c) Why was J.S.-T. released immediately on the day after making her statement, thus frustrating one of the applicant ’ s fundamental rights?

The Government did not provide any explanation, and the Court for its part did not give these anomalies, though they have serious implications for the rights of the defence, the attention they deserve.

3. The Regional Court acquitted the applicant at first instance for lack of evidence and precisely because of the doubts raised by J.S.- T. ’ s statement. In that connection the Regional Court pointed out in its judgment: “ ... when assessing [her statements], it must be taken into account that they do not have the quality of [witness] testimony given under pain [of being criminally liable for perjury] but are the statements of a suspect with all the consequences thereof, including the possibility that J.S.-T., for reasons only known to herself, did not tell the truth or the whole truth” (see paragraph 31 of the judgment). On that basis I consider that in the present case, notwithstanding the fact that the term “witness” has an autonomous meaning within the Convention system, the distinction between the statements of a witness, in the true sense of the word, and those of a

co– defendant (who had been released and had left the country leaving a false address) was not without importance.

4. I consider that the arguments which led the majority to find no violation do not stand up to the general principles applicable in the case, set out in paragraphs 51 to 56 of the judgment. The majority have attached particular importance (in paragraphs 58 and 59 of the judgment) to all the unsuccessful efforts made by the Polish judicial authorities to find out the witness ’ s address in the United States so that she could be summoned. On the other hand, they do not appear to have been troubled by the fact that this witness was under the control of the same authorities for a month or by the fact that those authorities decided to release her immediately after she had made her statement, whereas – without any particular effort – they could have enabled the applicant to exercise the right to examine or have examined a key prosecution witness, as guaranteed by Article 6 of the Convention.