ROZUMECKI v. POLAND
Inadmissible
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Yonko Grozev
1. The applicant, Mr Paweł Rozumecki, is a Polish national, who was born in 1980 and is detained in Łomża. He was represented before the Court by Mr J. Brydak, a lawyer practising in Warsaw. 2. 3. On 18 June 1997 two people were shot dead in Komorów, in a forest area situated near allotment gardens. The victims were later identified as cell phone dealers who were at the same time robbed of several cell phones. Their bodies were buried in the ground after the shooting. 4. The events were witnessed by three people (hereafter: the anonymous witnesses nos. 2, 5 and 6) from a distance of approximately 125 metres, who at that time were in the nearby forest. Whereas the anonymous witness no. 2 started paying attention to a suspicious group of people even before the shots were fired, the other persons only witnessed the aftermath of the shooting. 5. On the same day the anonymous witness no. 2 notified the Police by phone of the alleged offences and indicated the scene of the crime. 6. At the crime scene the police secured material evidence, in particular the bodies of the victims. The victims’ car was found at a distance of approximately 700 metres from the crime scene. In the subsequent analyses the fingerprints of the applicant’s sister M.R. and of a certain M.T. were found on the car. M.T.’s and the applicant’s individual scents and a certain K.M.’s scent were detected in the car. The analysis of telephone connections of the victims and the applicant’s sister allowed the prosecution authorities to establish the identity of another person involved: a certain A.B., who was seen by several witnesses waiting in his car in the allotment gardens near the forest. Eventually, the buyers of the stolen cell phones were established and recognised M.R., M.T. and A.B. as their sellers. The stolen cell-phones were secured by the police. 7. On 9 September 1997 the anonymous witness no. 2 was heard by the prosecution authorities. A decision on keeping his personal data confidential was issued by the Warsaw Regional Prosecutor (Prokurator Okręgowy) on 23 October 1997. 8. The prosecution authorities arrested four people on suspicion of participation in the commission of the double murder and aggravated robbery. The applicant’s sister M.R. was arrested on 19 June, A.B. was arrested on 20 June, K.M. - on 14 October and M.T. – on 9 December 1997. 9. On 22 October 1997, the applicant, who was at that time seventeen, left for Mexico with his mother. 10. On 12 December 1997 the Warsaw Regional Prosecutor decided to press charges against the applicant and issued an international wanted notice (list gończy) on suspicion of double murder and aggravated robbery. 11. On 18 March 1998 the Warsaw Regional Prosecutor severed the determination of the charges against the applicant to a separate set of proceedings. The investigation against the applicant was suspended because he remained in hiding. 12. Meanwhile, the proceedings against the applicant’s sister, M.R., and three other persons A.B., K.M. and M.T. were continued. Initially, the applicant’s sister and M.T. testified that K.M. had shot the victims. Subsequently, M.T. withdrew his testimony claiming that it was “suggested” to him by the police and that K.M. did not take part in the events. Also M.R. withdrew her statements against K.M. eventually claiming that a third unknown person shot the victims. 13. The anonymous witness no. 5, a person whom the anonymous witness no. 2 revealed in his subsequent testimony as having accompanied him on the day of the events in question, testified for the first time in March 1999. 14. On 6 August 1999 the Warsaw Regional Court (Sąd Okręgowy) convicted M.R., and K.M. of double murder and aggravated robbery, M.T. of aggravated robbery and A.B. of handling stolen goods. 15. On 24 January 2001 the Warsaw Court of Appeal (Sąd Apelacyjny) upheld the convictions of M.R., M.T. and A.B. but remitted the case for re-examination as regards the charges against K.M. 16. On 18 July 2002 the Warsaw Regional Court acquitted K.M. The judgment became final. 17. On 30 August 2006 the applicant was deported from the United States of America and the investigation against him was resumed. 18. On 5 September 2006 the Warsaw District Court decided to remand the applicant in custody relying on the reasonable suspicion that he had committed double murder and robbery. 19. On 14 May 2007 the Warsaw Regional Prosecutor lodged a bill of indictment against the applicant with the Warsaw Regional Court. 20. The Warsaw Regional Court heard the anonymous witnesses nos. 2 and 5 on 5 February 2008. The presiding judge conducted the hearing, the prosecutor, the applicant’s lawyer and another professional judge from amongst the members of the bench sitting in the applicant’s case participated in the hearing via video-link. They could ask the witnesses questions. For unspecified reasons the applicant was not allowed to participate in the hearing. 21. On 15 July 2008 the Warsaw Regional Court convicted the applicant of double murder and aggravated robbery and sentenced him to a cumulative penalty of twenty-five years’ imprisonment. 22. The court established that the applicant had been fully aware of his sister’s plans to kill and rob the victims. On the day before the planned crime, a hole was dug in the ground. On 18 June 1997 the applicant and M.T. awaited at the agreed place. M.R. travelled with the victims in their car and asked them to stop there on the pretext of searching for an address of a client. It was the applicant who shot the victims and immediately drove off in their car to a place near the allotment gardens where A.B. awaited in another car. They reloaded the cell phones and the victims’ personal things into that car. Meanwhile, M.R. and M.T. buried the bodies in the ground and disappeared in the forest. The applicant drove back to the crime scene but, as no one was there, he drove off again and abandoned the victim’s car 700 metres away. The perpetrators drove off together in A.B.’s car towards Pruszków and proceeded to sell the cell phones. 23. The court found the applicant’s testimony that he had arrived at the crime scene only after the shots incredible and unsupported by any other evidence apart from his sister’s statement. The applicant claimed to have been unaware of his sister’s plans and stated that he had waited for his sister with A.B. Only after hearing the shots he had arrived at the crime scene and then drove off in the victims’ car in an attempt to “help” his sister. M.R. testified that the applicant had not been at the crime scene during the shooting and had only arrived after the shots. It was another person, whom she refused to identify, who shot the victims. 24. The court noted that A.B. did not confirm that the applicant had been with him. M.T. testified that he did not remember the events. However, it was the testimony of the anonymous witness no. 2 which was crucial to contradict the version of the applicant and his sister. This witness testified that his attention had been drawn by a loud argument of a group of five people. The witness heard four shots altogether, at that moment he saw silhouettes of three people, one of them a woman. Whereas he did not see a gun, on the basis of characteristic movements he stated that a man who was standing the closest to him was the shooter. After the shooting the perpetrators started to drag something and then a car drove off, which came back shortly afterwards and left again. During that time a woman and a man, after having buried something in the ground, left the crime scene. 25. The court considered that the testimony of the anonymous witness no. 2 was logical and consistent and that on its basis it was possible to establish who shot the victims. This witness was a third person, with no personal relations to any of the perpetrators. It followed from that testimony that it was the applicant who shot the victims. The anonymous witness no. 5 confirmed this testimony as regards several circumstances but could not give a clear chronological account of the events. 26. The applicant appealed against the first-instance judgment. He challenged the assessment of evidence by the first-instance court. He argued, in particular, that the evidence of the anonymous witness no. 2 did not confirm that the applicant had been the shooter. He further argued that, in violation of the provisions of the Code of Criminal Procedure his requests for evidence had been refused. 27. On 13 November 2008 the Warsaw Court of Appeal quashed the impugned judgment and remitted the case for re-examination. It considered the applicant’s complaint about the assessment of evidence well-founded. It found that the first-instance court had failed to analyse the evidence in its entirety and that it had established certain facts without a sufficient basis in evidence. Moreover, despite the applicant’s lawyer’s request in this regard, the first-instance court had failed to hear as a witness a person who at the time of the events in issue had been with the anonymous witnesses nos. 2 and 5. 28. The appellate court also considered that, when re-examining the applicant’s case, the first-instance court should carefully establish the extent of the applicant’s criminal responsibility. Whereas the applicant had confirmed that on 18 June 1997 he had been present at the crime scene, the court should establish whether he had shot the victims and, if not, if it had been his intention that the victims be shot, or whether it had been only his intention to commit a robbery. 29. During the retrial the Warsaw Regional Court heard the anonymous witnesses no. 2 and 5 on 30 April and 4 September 2009, respectively. All the members of the bench were present at those hearings. The applicant and his lawyer participated in the hearings via audio link and could ask the witnesses questions. 30. On 8 September 2009 the trial court inspected the crime scene (oględziny miejsca zdarzenia) and the place from which the anonymous witnesses had observed the events. The prosecutor and the applicant’s lawyer were present. 31. As regards the third person accompanying on 18 June 1997 the anonymous witnesses nos. 2 and 5, on 25 May 2009 the trial court decided that the circumstances which could reveal the identity of this witness should be also kept confidential due to the character of the case and the witness’ fear of reprisals. The witness was to be referred to hereafter as “the anonymous witness no. 6” and was summoned to appear before the court. 32. The anonymous witness no. 6 failed to attend the hearings scheduled for 4 September and 13 October 2009. 33. On 18 November 2009 the Warsaw Regional Court decided not to hear the anonymous witness no. 6 as the attempts to summon this witness had been futile. 34. On 19 November 2009 the Warsaw Regional Court gave a judgment and convicted the applicant of double murder and aggravated robbery and sentenced him to a cumulative penalty of fifteen years’ imprisonment. 35. The court found that the applicant’s role in the offences could be established mainly on the basis of the evidence given by the anonymous witness no. 2 assessed in the light of the results of the inspection of the crime scene carried out by the court. According to the first and the most precise testimony given shortly after the events, which this witness confirmed during subsequent questioning, after the shots he had seen a woman and three men at the crime scene. Immediately afterwards, the woman and one man started dragging something on the ground and the two other men drove off in a white car. The anonymous witness no. 5 also stated that he had heard several people speaking and that immediately after the shots a white car drove off. Whereas the applicant claimed that he had arrived at the crime scene only after having heard the shots from the place where he had awaited with A.B., the court considered that it would have been impossible to cover this distance within merely few seconds. Accordingly, he was present at the crime scene during the shooting. 36. The court further found that, while on the basis of the available evidence it could not be established whether it had been the applicant who shot the victims, his intent of murder was evident due to the earlier preparations undertaken, namely the grave-like hole which had been dug in the ground. The court found that the applicant acted in complicity with M.R. and an unidentified person in committing the murders. 37. Finally, the court considered that there were no reasons to question the credibility of the anonymous witnesses, having regard to the fact that they had immediately notified the police about the crime. Moreover, they had testified in a careful and moderate manner, taking into account the considerable distance from which they had witnessed the events. 38. The applicant appealed against the first-instance judgment. He challenged the assessment of evidence by the trial court arguing that the testimony of the anonymous witnesses could not constitute a basis for establishing a number of people present during the shooting at the crime scene. The anonymous witness no. 2 stated that before the shooting he had seen a group of five people, but - after two people had been shot – he was to have seen four people. The anonymous witness no. 5 did not add anything substantial. He further referred to Article 6 §§ 1 and 3 (d) of the Convention arguing that in accordance with the Court’s case-law a conviction should not be based solely or to a decisive extent on the evidence of anonymous witnesses. He also challenged the first-instance court’s decision not to hear the anonymous witness no. 6 and requested the appellate court to rectify this shortcoming. 39. In the course of the criminal proceedings the applicant’s detention on remand was continually prolonged by the domestic courts. The last decision was issued in this regard on 23 September 2010, the Warsaw Court of Appeal dismissed the applicant’s appeal against an extension of his detention. 40. On 12 November 2010 the Warsaw Court of Appeal heard the anonymous witness no. 6. All of the members of the bench were present at the hearing. The applicant and his defence lawyer participated in the hearing via video link. They were allowed to ask questions. The witness confirmed in his testimony that he had been with the anonymous witnesses nos. 2 and 5 on that day, that he heard the shots and saw a woman with some men there. He could not give any details as regards the number of people present. 41. On 19 November 2010 the Warsaw Court of Appeal altered the first-instance judgment and convicted the applicant of aggravated robbery. It sentenced him to a cumulative penalty of fourteen years’ imprisonment. 42. The appellate court agreed with the first-instance court’s finding as regards the applicant’s presence at the crime scene during the shooting. It observed that the applicant’s version that at the time of the shooting he had been with A.B. at a distance of approximately 200-250 metres from the crime scene was not corroborated by any other evidence apart from his sister’s testimony which she had moreover withdrawn during the retrial. Not only was his version inconsistent but also contradicted by other evidence obtained in the proceedings. 43. The appellate court agreed with the first-instance court’s finding that it was the evidence of the anonymous witness no. 2 which allowed it to establish the role of the applicant in the commission of the offences. It noted that this witness consistently testified that immediately after the shots he had seen a woman and three men at the crime scene and that two of those men had immediately driven off in a white car. It further observed that also the anonymous witness no. 5 confirmed this extremely prompt departure of the car after the shots. Having regard to the fact that all of the perpetrators, including the applicant, submitted that the applicant himself had started the car and driven off towards A.B., his presence at the crime scene during the shooting was certain. 44. However, taking into account that the anonymous witness saw three men at the crime scene, namely the applicant, M.T. and an unidentified individual, the applicant could not be found to be the shooter. Moreover, contrary to the first-instance court’s findings, the criminal intent of murder could not be inferred solely from the applicant’s presence at the crime scene. On the other hand, having regard to his prompt actions as regards the stolen property, the appellate court found that the intent of committing the robbery was clearly established. 45. It further agreed with the first-instance court’s finding that the testimony of the anonymous witness no. 2 was fully credible. It added in this regard, that not only this witness did not know the applicant personally, but also the witness had never identified the applicant as the perpetrator. What is more, the first testimony was given by this witness when the applicant had not been a suspect in the investigation. Some minor inconsistencies in the statements given by this witness at different stages of the proceedings were natural given the passage of time. Moreover, the differences in the number of people before and after the shooting in the account of this witness could be explained by the nearness of the forest, in which some of the perpetrators could have hidden. They thus could not be held against the witness. Both the evidence of the anonymous witness no. 5 and of the anonymous witness no. 6 generally confirmed the account of events as given by this witness. 46. As regards the applicant’s argument challenging the conviction as based solely or to a decisive extent on the evidence of anonymous witnesses, the Court of Appeal found as follows: “It should be recalled that this witness does not directly, or even indirectly, state that [the applicant] was present at the crime scene, or – for that matter – that he was the perpetrator. The [anonymous] witness no. 2 had not previously known [the applicant] and did not identify him in the proceedings. He also did not describe any features which could indicate his identity. Accordingly, the conviction in the present case is not, as suggested by the applicant, solely based on the evidence of the anonymous witness. The facts as established by the appellate court result from the analysis of the entirety of evidence gathered which cumulatively constitutes a basis for finding the accused guilty of the offence [of robbery]. In this connection it should, however, be acknowledged that the evidence in question is circumstantial evidence. The testimony of the anonymous witness no. 2 thus constitutes a basis for establishing a “circumstantial fact”(“poszlaka”) that, immediately after the two victims had been shot, two of the four people present at the crime scene moved towards the car of the victims and drove off from there. Only after linking this fact with other [facts] clearly established in the present case, in particular such as: that it was [the applicant] (as the first one) who after the shots started the victims’ car and drove off in it from the crime scene (which [the applicant] confirms), the fact that [the applicant] reloaded the stolen cell phones to another car, and that he abandoned the victims’ car at a park place, and the fact that he participated in selling the stolen phones ... this enables [the court] to establish the chain of facts from which the categorical conclusion as to the existence of the “main fact” is drawn, namely that [the applicant] is guilty of [robbery]. The certainty of the conclusion as regards [the applicant’s] guilt derives from linking logically the above facts into the chain of facts, entirely excluding a possibility of a different interpretation of the events in issue.” 47. On 19 October 2011 the Supreme Court (Sąd Najwyższy) dismissed the applicant’s cassation appeal as manifestly ill-founded (oczywiście bezzasadna). No reasons were given for this ruling. 48. Article 184 of the Code of Criminal Procedure as in force at the relevant time provided, in so far as relevant, as follows: “1. In case of a justified fear of danger to life, health, freedom or significant property of a witness or of a person close to the witness, the court, and in the preparatory proceedings the prosecutor, may decide to keep confidential the circumstances which could reveal the identity of the witness, in particular the personal data of the witness, if they are of no relevance to the outcome of the case.(...) 2. If a decision referred to in paragraph 1 is issued, the circumstances referred to in this provision should be known only to the court and the prosecutor (,,,). The records of the testimony of the witness shall be made accessible to the accused and the defence in a manner preventing the disclosure of the circumstances referred to in paragraph 1. 3. The witness shall be heard by the prosecutor, and by the court – which may designate one judge from amongst the members of the bench to carry out this task – in a place and in a manner preventing the disclosure of the circumstances referred to in paragraph 1. The prosecutor, the accused and the defence have a right to participate in the hearing of the witness. (...) ... 5. The witness and the accused, and in the proceedings before the court also the prosecutor, may appeal against the decision on keeping confidential the circumstances referred to in paragraph 1 with a time-limit of three days. (...)”