CASE OF FĄFROWICZ v. POLAND
No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial;Article 6-3-d - Examination of witnesses) (Article 6-3-d - Examination of witnesses;Article 6 - Right to a fair trial)
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
5. The applicant was born in 1971 and lives in Nowy Sącz. 6. On 27 January 2006 the applicant was arrested on suspicion of car theft and subsequently remanded in custody. On an unspecified later date he was charged with selling drugs. The charges concerning car theft were severed to be dealt with in another set of proceedings. 7. On 15 February 2006 a certain JH, a minor, was questioned by the police in respect of the car theft. On 27 February 2006 JH was questioned by the police in respect of the charge of selling drugs between September 2005 and 10 February 2006. He admitted that he had been selling drugs which he had received from the applicant. The questioning took place in the presence of a psychologist. 8. In her report dated 1 March 2006 the psychologist observed that JH’s cognitive processes had functioned at the level commensurate to his age. She noted that his interpretation of the facts could have been slightly changed on account of his fear of the consequences of his acts. There could also have been minor inconsistencies with regard to the amount of drugs sold by the applicant to other persons. She also noted that JH had willingly presented the facts related to the drug transactions involving him and other persons. 9. JH was heard by the police as a juvenile suspect but no preventive measures were applied. The charges against him were to be examined separately by the Division for Family and Minors of the Nowy Sącz District Court. That court ordered an inquiry to be carried out at his home. On 10 July 2006 the report of the inquiry was submitted to the District Court. According to the report, JH had left Poland for the USA on 17 March 2006 and his parents did not know his address or telephone number. JH had not informed his parents of his plans to leave Poland and he had merely called them from the airport. 10. On 7 September 2006 the District Court requested the police to establish JH’s place of residence. On 18 September 2006 the police informed the court that JH had been in Chicago as from April 2006 and that he was expected to return to Poland in the summer of 2008. 11. On 17 October 2006 the Nowy Sącz District Court decided not to institute proceedings against JH. It had regard to the fact that he had been in the USA since April 2006 and in those circumstances it would be impossible to apply to him the measures provided in the Juvenile Procedure Act (ustawa o postępowaniu w sprawach nieletnich). 12. On 19 August 2006 the prosecution filed a bill of indictment against the applicant with the Nowy Sącz Regional Court. The applicant was charged with offering drugs to a minor, JH, and with seven counts of selling drugs to JH, PK, SB, KJ, GS, TK and RG between June 2004 and 27 January 2006. The prosecutor requested the court to hear seventeen witnesses, including JH. 13. There were five other defendants in the case (WZ, GS, KJ, MG and TK) who were also charged with drug trafficking offences. Two of them, WZ and GS, were additionally charged with car theft. On 3 October 2006 the trial court severed the charges against MG and TK. 14. On 28 August 2006 the Nowy Sącz Regional Court scheduled hearing dates for 3, 9, 13, 16 and 17 October 2006. JH was summoned to testify on 9 October 2006. On 11 September 2006 JH’s mother informed the trial court that JH resided in the USA where he was attending school. She produced photocopies of the plane tickets. On 18 September 2006 the police confirmed the above and informed the court that the date of JH’s return to Poland was unknown. 15. On 9 October 2006 the trial court again summoned JH to give evidence on 17 October 2006. The police were asked to serve the summons or to establish the date of his return to Poland. On 13 October 2006 the police informed the court that the summons could not be served since JH was still in the USA and the date of his return remained unknown. 16. On 18 October 2006 the trial court again summoned JH to testify at the hearing. It also requested police assistance in establishing the date of his return to Poland. The police informed the court in their two letters of 26 October 2006 that JH was in Chicago. They notified the court that the date of his return to Poland was still unknown. They also reported that, according to the information obtained from JH’s parents, JH would remain in the USA for several years as he was attending school. 17. The trial court held five hearings as scheduled and one additional hearing on 15 November 2006. At the hearing held on that date the prosecutor requested the court to read out the statements JH had made to the police. The applicant and his counsel objected. They argued that those depositions were the main incriminating evidence against the applicant and that they wanted to put questions to JH at the hearing. The trial court decided that JH’s statements should be read out pursuant to Article 391 § 1 of the CCP since the witness was permanently abroad and his date of return to Poland remained unknown. It noted that in those circumstances it was not possible to grant the applicant’s request to hear JH at the hearing. 18. The Nowy Sącz Regional Court gave judgment on 16 November 2006. It convicted the applicant as charged and sentenced him to four years’ imprisonment and a fine of PLN 2,000. It further ordered him to make a payment of PLN 5,000 to an association assisting drug addicts. 19. The trial court established that the applicant had sold drugs as alleged in the bill of indictment. In this respect it relied on the statements of JH who had been heard by the police as a juvenile suspect. JH stated that the applicant had sold drugs to GS, TK, SB, RG and KJ in his presence. In his evidence, he described in detail the factual circumstances of those transactions and distinguished between transactions at which he had been present from those of which he had only heard. The trial court considered JH’s evidence reliable, having regard to its detail, certainty and consistency. The reliability of his evidence was enhanced by the fact that JH had known all the defendants well and had had no motive to incriminate them. Furthermore, the trial court considered that JH’s evidence was objective since he had not concealed any facts which might have put him in a negative light as he admitted that he had been selling the drugs for the applicant to KJ, GS, PK and AB and that he had stolen the car. On 14 February 2006 JH together with the two co-accused WZ and GS had stolen a car which indicated that they had trusted each other. 20. The applicant pleaded not guilty and decided not to testify. He stated that he had not sold or offered drugs to other persons and had not possessed them. He refused to answer any questions from the court and the parties. 21. According to the trial court, the credibility of the statements given by JH was supplemented by other evidence. Those statements were not the only incriminating evidence as they were confirmed in certain respects by evidence from PK, KJ, GS and WZ. Furthermore, JH’s statements were not undermined by the findings of the psychologist who had assisted in his questioning. 22. In respect of witness PK, the trial court considered credible the statements which he had given during the investigation. When questioned at that stage he stated that JH had received drugs from the applicant and had been selling them to others. PK had also confirmed that JH had offered drugs to his friends. That evidence corroborated the relevant statements of JH. PK had also confirmed JH’s statement that the applicant had proposed to manufacture drugs in PK’s garage. During the trial, PK changed his version of events and denied that the applicant had supplied drugs to JH, but the trial court refused to accept his change of testimony as PK had offered no explanation for it. 23. KJ was a friend of JH and the applicant. The court found reliable the evidence she had given during the investigation, namely that she had bought drugs from JH, GS and WZ, and that she had offered and taken amphetamine with the applicant. The latter fact contradicted the applicant’s assertion that he had had nothing to do with drugs. At the trial, KJ denied those statements. However, the trial court noted that she had not explained the reason for the change in her testimony and considered credible her original statements. Furthermore, KJ’s testimony during the investigation was corroborated by JH’s statements. KJ denied that the applicant had sold her drugs. However, the trial court did not find this evidence reliable, having regard to the consistent statements of JH and to the lack of a motive on the part of JH to incriminate the applicant and KJ. 24. The trial court considered credible the statements of GS that he had purchased drugs from JH. The latter confirmed that he had been selling drugs received from the applicant to others persons, including GS. GS was also buying drugs from the applicant and selling them to others as confirmed by the statements of JH and KJ. In view of those statements, the court rejected GS’s subsequent denial at the trial that he had anything to do with drugs. 25. The applicant appealed. He argued that the trial court had breached criminal procedure by reading out the depositions of JH which had been made during the latter’s questioning by the police. He also submitted that the trial court had relied on JH’s statements although they had not been corroborated by other evidence in the case. The applicant lastly claimed that the court had erred in its establishment of the facts of the case. 26. On 17 April 2007 the Kraków Court of Appeal held a hearing and upheld the trial court’s judgment for the most part. It amended it only to the extent that it deleted one count of selling drugs by the applicant to PK since JH had stated that he had not witnessed that particular transaction. 27. Otherwise, the Court of Appeal found that the trial court had correctly established the facts, basing itself on a comprehensive assessment of all the evidence. It had explained why it had considered JH’s statements credible and why it had disregarded the applicant’s evidence since he had limited himself to denying the charges against him. It stressed that the applicant had not put forward any rational arguments to contest the duly substantiated findings of the trial court. 28. The Court of Appeal noted that JH had described precisely various details concerning the purchase of drugs from the applicant, such as the type of drugs, price, quantity, dates of transactions, form of payment, etc. It underlined that JH’s version of events, namely that he had been selling drugs received from the applicant and offering them to his friends, had been confirmed by PK and KJ during their questioning in the course of the investigation. The fact that PK, when heard at the trial, had changed his earlier version of events could not be considered credible as he had not given a plausible explanation for this change. PK had also confirmed JH’s statement that the applicant had proposed to manufacture drugs in PK’s garage but that proposal had been refused. The fact of JH’s offering drugs to friends had also been confirmed by GS and WG during their questioning in the course of the investigation. 29. The Court of Appeal accepted the findings of the trial court that JH, being a close acquaintance of the applicant, GS, KJ, PK, SB, TK and RG, had objectively described the applicant’s actions and that he had not been in conflict with the applicant. In his statements, JH had not concealed facts which incriminated him. He had consistently stated that GS, KJ, SB, RG and TK had purchased drugs from the applicant in his presence. He distinguished those situations from transactions at which he had not been present. The Court of Appeal also noted that before his questioning as a juvenile suspect, JH had been advised that he had the right to refuse to make statements. 30. As regards the lack of cross-examination of JH, the Court of Appeal stated: “The allegation of the breach of procedure by the trial court is not sustainable. The appeal setting out the above allegation does not specify which provisions were breached; it would appear from the grounds of the appeal that it concerns Article 391 § 1 of the CCP, which the trial court relied on when reading out the statements of JHJH at the trial, and that the court took the decision to read out the statements of that witness after having established objectively and unequivocally that the precondition specified in Article 391 § 1 of the CCP had been met (his uninterrupted long stay abroad), and then only just before closing the trial. The defendant [the applicant] does not dispute that the circumstances specified in Article 391 § 1 of the CCP in respect of witness JH were correctly ascertained, admitting expressly that the witness went away and has lived abroad. In this procedural situation the trial court had the right to read out the statements of that witness, a minor, given at the time when he was questioned as a suspect (the fact that the trial court did not invoke § 2 of Article 391 of the CCP does not have any ility of that evidence (reading out a witness’ statements), the circumstances in which it was obtained and the credibility of those statements by corroborating them with other evidence obtained in the case, as already explained. The parties and the defence had an opportunity to react directly to those statements [of witness JH]....” 31. On 22 June 2007 the applicant filed a cassation appeal with the Supreme Court. He stated that the trial court had read out JH’s depositions and by doing so had prevented the applicant from putting questions to that witness. He alleged a breach of his defence rights, invoking Articles 6, 7 and 391 § 1 of the CCP and Article 6 § 3 (d) of the Convention. 32. The applicant argued that the trial court and subsequently the Court of Appeal had based their verdict exclusively on JH’s evidence and had disregarded the evidence of KJ, GS and WZ as being contradictory to the former evidence. In respect of PK, the applicant argued that his statements given at the pre-trial investigation stage had to be carefully analysed since he could not confirm them at the hearing as he had been undergoing drug therapy. 33. The applicant claimed that the courts had not used all available means to secure the attendance of JH at the trial. Furthermore, JH had been treated leniently by the authorities as he had been allowed to leave the country despite his admission that he had been selling drugs. Lastly, the applicant informed the Supreme Court that JH had returned to Poland and that he could have been questioned in respect of the charges against the applicant. 34. On 24 June 2007 JH was arrested by the police for drunken driving in Poland. On 25 June 2007 he was questioned by the Zakopane District Prosecutor. On the same day the Zakopane District Court convicted him of drunken driving in summary proceedings and sentenced him to a suspended prison term and a fine. It also banned him from driving for one year. JH was further placed under the supervision of a court officer. 35. On 5 November 2007 the Supreme Court dismissed the applicant’s cassation appeal as manifestly ill-founded. It held, in so far as relevant: “When formulating them [arguments in the cassation appeal] the applicant completely disregarded Article 519 of the CCP, which entitles the parties to lodge a cassation appeal exclusively against the final judgment of the second-instance court. Nonetheless, in the present case the author of the cassation appeal repeated the same assertions which he had raised earlier in an ordinary appeal, making only such modifications which supposedly complied with the requirements specified in Article 523 § 1 of the CCP. The same circumstances, which had earlier served as the basis for an assertion that the trial court had made errors in respect of its factual findings, were now being used to formulate arguments of a procedural nature. However, the assessment of their content and the reasons for the cassation appeal leads to the conclusion that as a matter of fact the author intended again to attempt to undermine the credibility of particular sources of evidence and to challenge the factual findings made on that basis. However, in the light of the binding regulation such an attempt in cassation appeal proceedings cannot be effective. (...) It cannot be overlooked that the arguments of the cassation appeal in the present case are in fact directed against the trial court’s judgment. It was the trial court which assessed the credibility of particular sources of evidence and determined the quantity of drugs which had been trafficked; it was also the Nowy Sącz Regional Court which made use of the measure provided in Article 391 of the CCP in order to disclose statements made by the then minor JH (...) The issue of the correctness of admitting and relying on JH’s statements was also subject to ordinary review by the second-instance court. The Court of Appeal could not infringe Article 391 of the CCP since it did not make use of the measure provided in it. Even now the appellant has not substantiated [his contention] that the restrictions on the opportunity to release depositions or statements by persons listed in that provisions were breached. (...) However, the digressions as to the possibility of taking evidence from JH, and the conducting of evidentiary proceedings with the participation of the defendant [the applicant] at the current stage of the proceedings, at a time when the case has finally been determined and no breach of the law (still less a manifest breach – Article 523 § 1 of the CCP) has been substantiated, do not fit within the framework of the model of cassation appeal proceedings. The repeated reliance on all those circumstances additionally reinforces the conclusion that the arguments presented in the cassation appeal constituted nothing but an attempt to circumvent the obligation stemming from Article 519 of the CCP, which stipulates that a second-instance judgment shall be the subject of a cassation appeal.” 36. Article 390 § 1 of the 1997 Code of Criminal Procedure (“the CCP”) provides: “The accused has a right to be present during the taking of evidence in the proceedings.” 37. Article 391 of the CCP reads 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 pursuant to Article 333§2 [i.e. because upon the lodging of the bill of indictment the prosecution has 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] have been made in 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.”