KOPECKÝ v. THE CZECH REPUBLIC
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
The applicant, Mr Zdeněk Kopecký, is a Czech national who was born in 1958 and lives in Ostrava. He was represented before the Court by Ms J. Mlčochová, a lawyer practising in Karviná. The respondent Government were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On an unspecified date in 2001 the applicant was charged with trafficking in women and corrupting the morals of youth. On 18 December 2001 the police notified his counsel that Ms T., the key witness whom the applicant had allegedly taken to Switzerland to carry out prostitution in September 2000, would be questioned by the investigator on 20 December 2001. Counsel informed them that she could not attend the questioning due to a concurrent hearing before a court. Ms T. testified as follows: “[I] was again advised by reading a printed form ‘Notice of witnesses’ and ‘Notice of victims’ ... I fully understood the contents of the notice, and ... I do not have any reason not to testify, I wish to and will testify... I will tell the truth. As to my trip to Switzerland ... with a view to prostitution ... [in] September 2000, ... I travelled with a friend of Mr R., a certain Z., ... Mr R. introduced us on the day on which I received my passport, ... on 6 September 2000. ... [On the next day] Z. picked me up ... at the Hollywood club in Ostrava ... and we travelled to Prague. He knew the purposes of our trip, [that is,] that he was taking me abroad with a view to prostitution. ... After having passed Prague, we met Mr R. in a tavern ... He said that we would continue on to Munich to meet a certain Hans. ..., on the next day we met Hans at a petrol station where we had breakfast and afterwards we got into Hans’s car, Z. leaving his car there. At about 2 p.m., we reached the town of [S.] in Switzerland ... I was handed over to the owner of a club called Joe’s Sauna Club. Z. noted the address of the club and, together with Hans, left ... I have not seen Z. since then.” Ms T. was also shown photographs and identified the applicant as the person with whom she had travelled to Switzerland. On 28 March 2002 the Karviná District Court (okresní soud) heard the applicant, who pleaded not guilty. The hearing was adjourned until 22 April 2002 in order to summon other witnesses, including Ms T. Between April and September 2002 the court adjourned the hearing five more times to summon Ms T. However, despite the attempts of the police to find out her whereabouts and bring her to the court and the court’s search in the central register of citizens in the Czech Republic and Slovakia, Ms T. failed to appear before the court. Therefore, on 23 September 2002 the court, by virtue of section 211(2)(a) of the Code of Criminal Procedure, read out her testimony from the preliminary proceedings. At the end of the trial, the District Court convicted the applicant of trafficking in women and corrupting the morals of youth and sentenced him to three years of imprisonment with three years’ probation. The court held that: “... [The applicant is] incriminated by the testimony of Ms T., which was read out at trial ... since the court did not succeed in assuring her presence at the main hearing; she was no longer at the place of her permanent residence and was probably living at an unknown address in Slovakia. ... The criminal activities of the accused ... are demonstrated by documentary evidence such as the lists ... of telecommunication operations of the accused and Ms T. [and another witness giving evidence against the applicant’s co-accused] and ... the transcriptions of the interceptions of their telephone conversations ... It follows clearly from the material in evidence that [the applicant’s co-accused] in the first place but also [the applicant] knew that the girls, all of whom were not yet identified, were involved in prostitution, both in the Czech Republic and abroad, and it is clear that the accused together with other persons ... participated in managing the prostitution of these girls. ...” On 25 February 2003 the Ostrava Regional Court (krajský soud), further to an appeal by the applicant, upheld the District Court’s judgment. It reiterated that the applicant had been incriminated by the testimony of Ms T., who had been properly advised about her right not to give testimony and about whose questioning the applicant’s counsel had been notified. On 26 August 2003 the Supreme Court (Nejvyšší soud) declared the applicant’s appeal on points of law (dovolání) inadmissible. On 3 March 2004 the Constitutional Court (Ústavní soud) dismissed as manifestly ill-founded a constitutional appeal by the applicant in which he maintained that the ordinary courts had based their findings on Ms T.’s testimony, which had merely been read out at trial. He further submitted that the witness had not been duly advised prior to her interview and that her testimony had therefore been obtained contrary to the law. The court endorsed the conclusion of the ordinary courts that the witness had been duly advised and held that the District Court had made a sufficient effort to summon Ms T. Article 211 § 2 (a) provides that the statement of a witness given in preliminary proceedings may be read out at the trial if the witness has died or has gone missing, is abroad and is thus unreachable, or has become ill and is therefore not in a position to be heard.