Published on 19 June 2023

FIRST SECTION

Application no. 28245/18 Roland HARTWIG against Poland lodged on 6 June 2018 communicated on 30 May 2023

SUBJECT MATTER OF THE CASE

The application concerns criminal proceedings against the applicant, a German national, in the course of which he was not afforded an opportunity to examine a witness against him.

On 14 July 2016 the Szczecin-Prawobrzeże i Zachód District Court ( Sąd Rejonowy ) convicted the applicant of several criminal offences, including attempted rape of a certain A.D., sentenced him to two years’ imprisonment, suspended over five years, and fined him 5,000 Polish zlotys (approximately 1,133 euros). The district court relied on A.D.’s pre-trial statements made in the absence of the applicant or his lawyer, and the evidence given by two other witnesses whom the victim had told about the alleged crime.

It appears that the district court had summoned A.D. to give evidence at trial but she had not collected the court correspondence. The court had also made failed attempts to obtain A.D.’s address from various public registers and to contact her by a telephone. The police had also not been able to find A.D. During the trial, a witness testified that A.D. had regularly visited him in prison and had voiced her fear of testifying. Contact information provided by that witness had not led to the establishment of A.D.’s place of residence.

On 26 January 2017 the Szczecin Regional Court ( Sąd Okręgowy ) amended the first-instance judgment and sentenced the applicant to two years’ imprisonment without suspension.

On 6 December 2017 the Supreme Court ( Sąd Najwyższy ) dismissed the applicant’s cassation appeal on account of its manifestly ill-founded nature.

Relying on Article 6 §§ 1 and 3 (d) of the Convention, the applicant complains that his conviction of attempted rape of A.D. was based on untested evidence.

QUESTIONS TO THE PARTIES

1. Has the applicant’s right to a fair trial, including a right to examine or have examined witnesses against him, under Article 6 §§ 1 and 3 (d) of the Convention, been breached in that neither the applicant nor his lawyer had been given an opportunity, at any stage of the proceedings, to examine A.D.?

2. In particular, having regard to the principles established by the Court in its judgment in the case of Schatschaschwili v. Germany [GC], no. 9154/10, ECHR 2015:

(a) Was there a good reason for admitting as evidence pre-trial statements made by A.D. and subsequently read out at the trial?

(b) Was the applicant’s conviction of attempted rape of A.D. based solely or to a decisive or significant extent on the evidence provided by A.D.?

(c) Have there been sufficient counterbalancing factors to compensate for the difficulties caused to the defence as a result of the fact that it had been unable to question A.D.? In particular, what measures were taken, and which additional counterbalancing measures could have been taken by the domestic prosecution authorities and by the domestic courts to safeguard the applicant’s defence rights?