IRZYK v. POLAND
Inadmissible
Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer
1. The applicant, Mr Franciszek Irzyk, is a Polish national who was born in 1951 and lives in Wiśniowa. He was represented before the Court by Ms P. Borzymowska, a lawyer practising in Krakow. 2. The Polish Government (“the Government”) were represented by their Agent, Mrs J. Chrzanowska of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant was an activist for the political party “Samoobrona”. During one of the party meetings he met a certain E.Z., who had been a member of the same party since 2002. 5. In 2005 E.Z. had some financial problems and was seeking employment opportunities. She asked the applicant whether he could find a job for her. The applicant put E.Z. in contact with S.Ł., a deputy in the Polish parliament (poseł na Sejm) who was a member of the same party. In December 2005 E.Z. went to Warsaw to meet S.Ł. They met at first in the Sejm building and subsequently went to the Sejm hotel, where E.Z. and S.Ł. had sexual intercourse. S.Ł. told E.Z. that she would have to obey his orders if they were to work together. 6. In 2006 a so-called “sex scandal” erupted in Poland. It involved public figures, including activists of the Samoobrona party who had offered and accepted personal benefits of a sexual nature in connection with exercising public functions. 7. On 6 December 2006 the applicant telephoned E.Z. to ask her whether she had given any information to the press. He referred to an article “Praca za seks” (“Work for sex”) published in the daily Gazeta Wyborcza on 4 December 2006. 8. On 8 December 2006 E.Z. was heard as a witness by the prosecutor in the investigation into the scandal. In the course of her interview she described her relationship with S.Ł. and with the applicant. 9. On 9 December 2006 the applicant again phoned E.Z. to ask her whether she had been heard as a witness by the Kraków Regional Prosecutor. E.Z. said that she had not. The applicant also told E.Z. that S.Ł. had experienced difficulties as a result of the investigation into the so-called “sex scandal” and the sexual conduct of some Samoobrona party members. The applicant asked E.Z. if he could talk to her again later the same day. Their phone conversation was recorded by journalists from the TV channel “TVN”, who had invited E.Z. to participate in one of its popular programmes. 10. The applicant did not telephone E.Z. again that day. E.Z. tried to reach him five times without success and finally left a message on his voice mail. 11. The applicant phoned E.Z. on 10 December 2006 and asked her if she had been heard by the prosecutor the previous day. E.Z. replied that she had not. 12. On 12 December 2006 E.Z. phoned the applicant using the telephone number provided by the TVN channel. The conversation was recorded by journalists working for the station. The applicant again asked E.Z. whether she had been heard by the prosecutor and when she confirmed that she had, he started to instruct her as to how she should testify when she was questioned again. He told her not to accuse anyone and not to disclose that she had had sexual intercourse with Samoobrona activists. He also suggested that she testify that relations between employees were “normal” at the Kraków party headquarters. E.Z. understood these words as amounting to a form of incitement to give false testimony and a form of protection for S.Ł. by withholding information about his sexual affairs with women who were members of the Samoobrona party. 13. On 14 June 2007 the applicant was heard as a suspect by the Łódź District Prosecutor. 14. On 29 February 2008 a bill of indictment against the applicant was prepared and lodged with the Kraków District Court on 3 March 2008. 15. On 12 January 2007 the Łódź Regional Prosecutor issued a decision allowing minidiscs containing recordings of the telephone conversations with E.Z. to be included in the applicant’s case-file as evidence. The applicant was informed of his right to appeal against this decision within a period of 7 days. He did not appeal. 16. On 13 January 2009 the Kraków District Court found the applicant guilty of attempted obstruction of criminal proceedings and incitement to give false testimony and sentenced him to 8 months’ deprivation of liberty suspended for a probationary period of 4 years. The court heard several witnesses including E.Z., the journalists who had recorded the conversations, and the applicant himself. 17. The testimony of E.Z. given in the investigation phase of the proceedings was consistent with the contents of the recorded telephone conversations. However, in the proceedings before the trial court E.Z. decided to change her version of events and submitted that the applicant had in fact only requested her not to disclose to the prosecutor that they had had sexual intercourse. The court found the testimony given by E.Z. in the judicial phase of the proceedings to be not credible. It held that, “the witness’s (E.Z.’s) submissions as regards the change of her version of events as well as her explanation of some of the accused’s statements made in the telephone conversation are illogical and naïve”. 18. The court went on to say that the applicant’s conviction had been based on the “entire evidentiary material, in particular on the contents of the telephone conversations with E.Z. recorded between 6 and 12 December 2006”. However from the court’s reasoning it is evident that, after it had found E.Z.’s statements not to be credible, the actual basis for the conviction was the recording of the telephone conversations. 19. On 3 March 2009 the applicant’s lawyer appealed against the firstinstance judgment. He claimed, in particular, that the first-instance court had not respected the principle of free assessment of evidence. He further asserted that there had been a violation of Article 424 of the Code of Criminal Procedure (see relevant domestic law, below) since the firstinstance court had based its judgment exclusively on evidence which weighed against him and ignored facts which weighed in his favour. Moreover, it had done so without any detailed reasoning and without indicating which facts it had found to be proved and on what evidence it had based its findings. 20. In the reasoning set out in the appeal, the applicant’s lawyer explained that: “the court had wrongly assessed the testimony given by E.Z. and her motivation; her behaviour was not spontaneous; it was inspired by journalists who exercised pressure on her and manipulated her...” 21. The applicant’s lawyer concluded his appeal by the following words: “the overall assessment of evidence leads to the clear conclusion that the accused is a victim of carefully planned and precisely executed journalistic provocation and the prohibited acts referred to in the bill of indictment are groundless and find no support in the collected evidence”. 22. On 6 May 2009 the Kraków Regional Court upheld the challenged judgment, finding that the first-instance court had assessed the evidence properly, “in accordance with personal experience and Article 7 of the Code of Criminal Procedure”, which sets out the principle of free assessment of evidence (see relevant domestic law below). 23. A cassation appeal was not available in the present case. 24. Article 13 § 1 provides as follows: “Whoever with the intent to commit a prohibited act directly attempts its commission through his conduct which, subsequently however does not take place, shall be held liable for an attempt”. 25. Article 13 § 2 provides as follows: “Whoever, willing that another person should commit a prohibited act, induces the person to do so, shall be liable for incitement”. 26. Article 233 § 1 provides as follows: “Whoever, in giving testimony which is to serve as evidence in court proceedings or other proceedings conducted on the basis of law, gives a false testimony or conceals the truth shall be subject to the penalty of deprivation of liberty of up to three years.” 27. Article 239 § 1 provides as follows: “Whoever obstructs or frustrates penal proceedings by aiding a perpetrator to evade penal liability and especially whoever hides the perpetrator or obliterates physical evidence of the offence or undergoes penalty for a sentenced person shall be subject to the penalty of deprivation of liberty for a term between three months and five years.” 28. Article 7 provides as follows: “The authorities conducting the proceedings shall make their decisions on the basis of their own conviction, upon all evidence taken assessed at their own discretion, with due consideration to the principles of sound reasoning, knowledge and personal experience.” 29. Article 242 provides, in so far as relevant, as follows: “The reasoning [of a judgment] should contain: 1. indication which facts have been found by the court to be proven or unproven, on what evidence it based its findings in this respect and reasons for which it did not accept the evidence to the contrary.”