CASE OF CHMURA v. POLAND
No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-3 - Rights of defence)
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
5. The applicant was born in 1973 and lives in Skarżysko-Kamienna. He was suspected of having participated in an organised criminal gang. 6. On an unspecified date NA, who was a Bulgarian national allegedly involved in procuring prostitution, filed a criminal complaint concerning his abduction and robbery. 7. On 19 April 1999 NA was heard by the prosecutor. He testified that he had been abducted, severely beaten and robbed by several men who had demanded protection money based on the income of foreign prostitutes working under his supervision. NA had identified the applicant as one of his attackers from a photograph. 8. On 23 April 1999 NA identified the applicant during an identity parade. On the same day the applicant and NA were confronted. During the confrontation NA reiterated that he had been severely beaten and robbed by the applicant and his accomplices who had demanded protection money from him. The applicant claimed to be innocent. He stated that he knew NA because he had seen him several times in front of a bar frequented by prostitutes. 9. On 16 July 1999 NA was summoned to testify as a witness in the case. The summons sent to his Bulgarian address was returned with the information that NA was resident in Poland. It appears that subsequently the authorities were unable to locate NA. The investigation was adjourned in order to obtain evidence from another Bulgarian national (ZA) by means of legal assistance from the Bulgarian authorities. 10. On 12 February 2002 the applicant was arrested on suspicion of having kidnapped and robbed NA in November 1998, while acting in an organised criminal gang led by LC. He was charged accordingly and detained on remand on the same day. 11. On 20 February 2002 the applicant was served with the written grounds for his statement of charges. The document stated that in light of the evidence gathered during the investigation, particularly the testimonies of PK (another victim) and NA, there was a reasonable suspicion that the applicant had participated in the abduction and robbery of NA. 12. Simultaneously, in February 2002, the police were still trying to trace NA in order to summon him for further questioning. It appears that he had not returned to Bulgaria and that he had changed his place of residence in Poland. An arrest warrant had been issued for him in a different criminal case in which he was a suspect. On 18 March 2002 the Kielce Regional Prosecutor decided to summon NA for questioning. On the same date NA was arrested and transported for questioning. 13. On 18 March 2002 the applicant’s counsel submitted his power of attorney to the Kielce District Court. On the following day a copy of that document was transmitted to the Regional Prosecutor. 14. On 19 March 2002 the Regional Prosecutor heard NA. NA undertook to appear before the Kielce Regional Court on 11 April 2002 to give evidence. 15. On 19 March 2002 the Kielce Regional Prosecutor requested the Kielce Regional Court to hear NA, pursuant to Article 316 § 1 of the Code of Criminal Procedure (“the CCP”). The prosecutor justified his request by the risk that it might not be possible to hear NA at the trial and submitted that the latter’s testimony would be important for the outcome of the case. NA had been heard by the prosecutor on several occasions during the investigation. However, his whereabouts were not established until 18 March 2002. NA had not been residing at the address indicated to the authorities in 1999 and his current address in Poland remained unknown. The prosecutor’s request also contained a list of suspects and their defence counsel, including the applicant’s counsel. 16. On 20 March 2002 the Kielce Regional Court granted the prosecutor’s request to hear NA on 11 April 2002 and decided to notify the applicant, the other co-accused and their counsel of the hearing. 17. On 2 April 2002 the Kielce Regional Prosecutor informed the applicant’s counsel that he and his client could consult the case file of the investigation from 12 April 2002 and that the date for the final consultation was fixed for 22 April 2002. 18. The applicant submitted that his counsel had not been notified about the hearing scheduled for 11 April 2002 but that he had learned about it by chance and had appeared at it. The Government maintained that the applicant’s counsel had been duly informed. 19. On 11 April 2002 a judge of the Kielce Regional Court heard NA. The hearing was video recorded. The applicant’s counsel requested that the hearing be adjourned on the grounds that he had not had the opportunity to consult the case file of the prosecution, at least as regards the part concerning the previous statements of NA. The prosecutor opposed those requests and submitted that the case file had not been made accessible due to the need to protect the witness. The prosecutor acknowledged that the case file would be made accessible to all authorised persons as from the following day. The court refused the request for adjournment since it was not competent to decide on the issue of access to the case file of the investigation without the prosecutor’s prior permission. The counsel maintained that hearing the witness without his having consulted the case file would in effect prevent him from defending his client. The court decided to proceed with the hearing of NA. The applicant, his counsel and some of the other co-accused left the courtroom in protest. 20. During the hearing NA described the events in which the applicant and his associates had been allegedly involved. He stated that he recognised the applicant as one of the persons who had committed the alleged offences. Subsequently, he replied to questions put by the prosecutor and two of the accused. 21. On 26 April 2002 the prosecution filed a bill of indictment with the Kielce Regional Court. The applicant was charged with having participated in a criminal gang and with having abducted, deprived of liberty and robbed NA on 2 November 1998. Other members of the same criminal gang were charged with extortion, robbery, kidnapping and profiting from prostitution. 22. The trial started in July 2002 and the court held in total twelve hearings up to 28 May 2003. The trial court made several attempts to summon NA to the hearings with the assistance of the police. It also sought the assistance of the Bulgarian embassy in Poland in tracking down NA. All efforts failed. At the hearing held on 13 May 2003 the trial court decided to show the video recording of the hearing of 11 April 2002 at which NA had given his testimony. 23. On 4 June 2003 the Kielce Regional Court convicted the applicant of having participated in an organised criminal group and of having abducted, deprived of liberty and robbed NA. LC and other members of the gang were also convicted. The applicant was sentenced to four years’ imprisonment and a fine. The court based its judgment to a decisive extent on the testimony of NA, who had identified the applicant and the other coaccused as the persons who had abducted him. 24. The trial court underlined that NA had been heard at the preparatory stage of the proceedings pursuant to Article 316 § 3 of the CCP at the prosecutor’s request, having regard to the risk that it might not be possible to hear him at the main hearing. NA was a Bulgarian national and did not have a permanent abode in Poland. The court had unsuccessfully attempted to summon him to appear at the main hearing, but the police’s efforts to locate him had been in vain. The court noted that the applicant’s counsel had requested permission to consult the case file and to adjourn the hearing of NA; however that request was refused in view of the prosecutor’s objection. In this respect the trial court found that the applicant and his counsel had freely forfeited the opportunity to put questions to NA. In the court’s view, even without knowledge of the case file, they could have put questions to the witness in relation to the content of his testimony. 25. On 23 October 2003 the applicant’s counsel lodged an appeal against the judgment. He complained, relying on Article 6 § 1 of the Convention, that the applicant’s defence rights had been breached in that the trial court and the prosecutor had deprived him of the opportunity to have access to the case file of the prosecution prior to the only hearing of the main witness. He maintained that he could not have put questions to the witness without knowing the content of the file, in particular the witness’ previous testimony. In that way he was deprived of a possibility to pinpoint major differences in the statements of NA given at various stages of the investigation. The applicant’s counsel submitted that the case file had been ready before 11 April 2002, as all investigative actions, except for the hearing of NA, had already been completed. The applicant’s counsel argued that this had made the whole trial unfair and that the prosecutor’s actions had amounted to a deliberate hindering of his procedural rights. Moreover, the authorities had allowed NA to leave the country by releasing him and returning his passport although he had committed other offences. Lastly, the applicant’s counsel pointed to certain factual inconsistencies in the statements of NA related, inter alia, to the date of the alleged abduction as well as the applicant’s role in it. 26. On 26 February 2004 the Kraków Court of Appeal dismissed the appeal. It noted that the testimony of NA was the key evidence for the applicant’s conviction. With regard to the allegations that the applicant’s defence rights had been breached, the Court of Appeal established that the applicant and his counsel had been duly summoned and had appeared at the hearing of NA. It reiterated that the decision whether to allow access to the case file at the investigation stage of the proceedings lay with the prosecutor, and that ensuring the confidentiality of the materials at that stage had been important for the outcome of the investigation. It was for this reason that the CCP authorised the applicant’s counsel to examine the case file only at the final stage of the investigation. The fact that the applicant and his counsel were to take part in the hearing of the witness did not make it obligatory for the prosecutor to allow them access to the case file. The prosecutor had noted during the court session on 11 April 2002 that the accused would be progressively allowed to examine the case file as from the following day. 27. The Court of Appeal further noted that it transpired from the minutes of the hearing that the applicant’s counsel had requested the adjournment of the hearing with a view to consulting all the evidence in the case file. However, granting such a request would have resulted in a significant delay. It was therefore reasonable for the prosecutor to have refused leave on account of concerns for NA’s safety, having regard to the fact that some members of the gang were still at large and that the testimony of that witness was the key evidence in the case. In those circumstances the Court of Appeal found that the court had not acted in bad faith when it went ahead with the hearing of NA in accordance with Article 316 § 3 of the CCP. 28. The Court of Appeal observed that had the applicant’s counsel considered it necessary to consult the statements of NA made during the investigation prior to the hearing of NA, and knowing the date fixed for that hearing, he should have filed the relevant request in advance in order to enable the prosecutor to rule on the request. However, the applicant’s counsel failed to do so and thus deprived himself of the possibility to appeal against the prosecutor’s refusal. Moreover, had the applicant’s counsel been present at the hearing of NA, nothing would have prevented him from putting questions to the witness on the basis of the information he had obtained from his client or with respect to the contents of the witness’ testimony given at the hearing. The Court of Appeal concluded that there had been no violation of Article 6 § 1 of the Convention in the case, and the trial court had correctly found that the counsel and the accused had the right, but not the obligation, to participate in the hearing of a witness carried out under Article 316 § 3 of the CCP. By leaving the courtroom they had waived their right to participate in the hearing of the witness. Further, the Court of Appeal considered in detail the issue of the alleged lack of consistency in NA’s statements with regard to the applicant’s role in the abduction; however, it rejected them as illfounded. 29. On 22 July 2004 the applicant’s counsel lodged a cassation appeal with the Supreme Court. He raised similar complaints to those set out in his appeal, maintaining that his lack of knowledge of the content of the case file had made the applicant’s defence illusory. 30. On 8 December 2004 the Supreme Court dismissed the cassation appeal as manifestly ill-founded. 31. Article 316 § 3 of the 1997 Code of Criminal Procedure reads as follows: “If there is a danger that the witness cannot be heard at the hearing, a party or the prosecutor or other body conducting proceedings may submit a request to have the witness heard by a court.” 32. Article 156 § 5 of the Code concerns access to the file during investigation. It provides: “Unless otherwise provided by law, during the preparatory proceedings parties, defence counsel and legal representatives shall be allowed to consult the files and make certified copies and photocopies but only with the permission of the person conducting the preparatory proceedings. With the permission of a prosecutor and in exceptional circumstances access to the files in the preparatory proceedings may be given to another person.”