CASE OF KOSTECKI v. POLAND
No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-d - Examination of witnesses)
David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
“...the witness in question is abroad, his statements [made during the investigation] have been read out and attempts to establish his current address are immaterial for the outcome of the proceedings.” “With regard to the first charge, i.e. trafficking in drugs, it is first of all the testimonies of persons who were directly involved in the [alleged] criminal activities and who described them in detail, which persuade the court of R. Kostecki’s guilt. It concerns primarily [testimonies] of Ł.K., brothers D.B. and Ł.B. as well as K.M. These witnesses (...) in the course of the proceedings on a few occasions explained in detail their past, indicating persons with whom they had traded in drugs. They indicated not only the names or nicknames of the persons who had sold them drugs, but also indicated their buyers. They also indicated the quantity of drugs sold and their price. What is most important, they described in unison the role of R. Kostecki in the enterprise. It transpires from the testimonies of D.B. and Ł.B. that the defendant [the applicant] proposed to cooperate with them in distributing drugs. They were to sell drugs supplied by Rafał Kostecki and then to pay him back. (...) Ł.K. described cooperation with the defendant in a similar manner. (...) K.M. also made statements incriminating the applicant. (...) It is true that in the course of the [separate] trial in a case before the Białystok Regional Court III K 144/04 K.M. attempted to change his statements and argued that Rafał Kostecki had nothing to do with drugs; however, it was difficult to consider these statements convincing in the light of the earlier coherent and detailed depositions.” “The assessment of the credibility of those testimonies is certainly not affected by the fact that Ł.K. and K.M. could not have been heard directly before the court. These witnesses do not live at their places of residence and the court had good reason to disclose the testimonies of these witnesses in accordance with Article 391 § 1 of the Code of Criminal Procedure.” Ł.K. However, since Ł.K. was abroad at the material time (a request to hear this witness by means of international judicial assistance was dismissed by the decision of 15 September 2006) the court had the right to read out his statements made in the investigation stage of the proceedings. ... The first-instance court correctly dismissed the request to hear other witnesses proposed by the defendant, including those indicated in his pleading of 12 October 2006 (...). The circumstances on which they were to testify would have been irrelevant for the determination of the case, in particular in the light of other items of evidence... The first-instance court did not infringe the principle of directness [pursuant to which all evidence should normally be produced at a public hearing] and the applicant’s right to defence. (...) In any event, M.K., as well as the above-mentioned Ł.K., were abroad. While, K.M. [also] referred to in the defendant’s appeal was beyond the reach of the police. (...) There can be no agreement with the appellants who allege that the first-instance court determined the quantity (and the value) of drugs in an arbitrary manner. On the contrary – as it transpires from the written reasoning of the impugned judgment – the court’s findings in this respect result from detailed (in so far as this is possible in this type of cases) [analysis of] witnesses’ testimonies given – understandably, in particular in the circumstances of the present case – at the initial stage of the criminal proceedings, and in particular the testimonies of D.B. and Ł.B. (...) Significantly, as it transpires from the reasoning of the impugned judgment, the first-instance court took into account the minimum quantity and value [of drugs]. Therefore, it did not infringe Article 5 § 2 of the Code of Criminal Procedure (the in dubio pro reo principle).” “As regards the complaints of an alleged violation of criminal procedure as a result of the trial court’s refusal to hear thirteen witnesses and its reading out of the statements given by Ł.K. before the prosecutor, these are in fact directed against the trial court’s judgment and it is obvious that, in a cassation appeal, only the judgment of the second-instance court may be challenged. The above complaints have already been raised in appeals and have been properly dismissed as ill-founded by the appellate court.” “The time-limit is respected if, before its expiry, a letter was handed over (...) in case of a person deprived of his or her liberty, to the administration of the respective detention facility.” 42. Article 391 of the Code provides as follows: “1. If a witness has without good reason refused to testify, or has given testimony different from the previous one, or has stated that he does not remember certain details, or if he is abroad, or a summons cannot be served on him, or if he has not appeared as a result of obstacles that could not be removed or if the president of the court has declined to summon him by virtue of Article 333 § 2 [namely, because upon lodging the bill of indictment the prosecution asked that the records of his testimony be read out at trial], and also when a witness has died, the records of his previous statements may be read out, [regardless of whether they] were made during the investigation or before the court in the case in question or in another case or in any other procedure provided for by the law. 2. In the circumstances referred to in paragraph 1, and also in the case specified in Article 182 § 3, the records of evidence that a witness has given when heard as an accused may also be read out.” 43. Section 56(1) of the Drug Addiction (Combating) Act 2005 (Ottawa z 29 lipca 2005 r. o przeciwdziałaniu narkomanii) provides as follows: “Whoever markets intoxicating or psychoactive substances or poppy straw or participates in the selling thereof shall be subject to a fine and imprisonment for a term of between six months and eight years.” 44. Section 56(3) of the above-mentioned Act provides as follows: “If the subject of the offence referred to in subsection 1 is a significant quantity of intoxicating or psychoactive substances or poppy straw, the perpetrator shall be subject to a fine and imprisonment for up to ten years.”