LACHOWSKI v. POLAND
Inadmissible
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva
1. The first applicant, Mr Leonard Lachowski, a Polish national, was born in 1927. He died on 31 May 2011. The second applicant, Mr Hubert Lachowski, a Polish national, was born in 1978. The applicants were initially represented before the Court by Mr W. Tomczyk, and, subsequently by Mr B. Zygmont, lawyers practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. 2. On 18 September 2001, following a complaint from a bank, the Wrocław-Stare Miasto Police opened an inquiry (dochodzenie) into attempted fraud by Mr J.M. They relied on Article 286 § 1 of the Criminal Code. 3. On 20 September 2001 the Wrocław-Stare Miasto District Prosecutor opened an investigation (śledztwo) into the forgery of a cheque for 2,000 dollars (USD) and the attempted fraudulent use of that cheque. The prosecutor relied on Articles 310 § 1 and 286 § 1 of the Criminal Code. 4. On 22 October 2001 the Wrocław-Stare Miasto District Prosecutor made an application to the Wrocław Regional Court for the interception and recording of the content of the applicants’ telephone conversations. The prosecutor’s application was made in connection with the investigation against J.M. and other persons suspected of the commission of an offence under Article 310 § 1 of the Criminal Code and other offences. The District Prosecutor requested the court to issue a warrant authorising the interception of the content of the applicants’ telephone conversations, which “may concern the activities of an organised group involved in the putting into circulation of forged securities and aggravated fraud, or indicate planned or already committed offences”. The prosecutor relied on Articles 237 § 1, 237 § 3 (14) and (15), 237 § 5 and 239 of the Code of Criminal Procedure. 5. Among the reasons for her application, the prosecutor stated as follows: “So far it has been established that on 6 September 2001 J.M. attempted to defraud the Citibank in Wrocław of 2,000 USD (the equivalent of 8,251.65 Polish zlotys) by using a Security Pacific National Bank cheque issued on 4 September 2001. It is clear from the evidence obtained in the investigation that the said cheque was forged. Cheques from this bank were removed from circulation in 1992, that is, a year after the Bank of America acquired the Security Pacific National Bank. It further appears from the evidence that the said cheque originated from Leonard Lachowski [the first applicant], and that, in cooperation with other persons, he intends to use these documents [cheques] to defraud large sums of money in the near future. There exists a reasonable suspicion that Leonard Lachowski possesses a large number of forged cheques (about 100) of the same American bank to the value of 2,000 USD each ... In connection with the above, at the current stage of the investigation it is necessary to establish the source from which the said securities originated and Leonard Lachowski’s contact with persons who are cooperating with him in order to put those documents into circulation with a view to defrauding large sums of money. ...” 6. On 25 October 2001 the Wrocław Regional Court (Sąd Okręgowy) granted the prosecutor’s application for leave to intercept the applicants’ telephone conversations for a period of three months. That decision was given in the proceedings against J.M. and others and in respect of the offence under Article 310 § 1 of the Criminal Code and other offences. The court decided to delay the serving of its decision on the applicants until the end of the investigation. It authorised two police officers to make a transcript of the recorded conversations and another officer to read the transcript. The court ordered that the transcript be classified and transmitted to the Wrocław-Stare Miasto District Prosecutor’s Office. 7. The court gave the following reasons in its decision: 8. On 16 November 2001 the first applicant and V.V. were arrested by the police at a bank in Wrocław. 9. On 17 November 2001 the District Prosecutor charged the first applicant with two offences. The first charge was that of putting into circulation between 24 October and 16 November 2001, jointly with others, of a forged Texas Commerce Bank cheque for USD 8,500,000 and attempted fraudulent use of that cheque (Articles 310 § 2 and 286 § 1 of the Criminal Code). Shortly afterwards, the second applicant was charged with the same offence. The second charge against the first applicant was that of storing and transporting on 16 November 2001 a forged Security Pacific National Bank cheque for USD 2,000 (Article 310 § 2 of the Criminal Code). 10. On 19 November 2001 the Wrocław-Śródmieście District Court remanded the first applicant in custody on suspicion of the offences referred to above. His pre-trial detention was extended on a number of occasions. In a decision of 14 February 2002, the Wrocław Regional Court found that the evidence obtained in the case indicated that the first applicant had acted as part of an international criminal group involved in forging securities and putting them into circulation in Poland and abroad. On 7 July 2002 the first applicant was released from detention and other, non-custodial, measures were applied. 11. On 21 December 2001 the Wrocław-Śródmieście District Court remanded the second applicant in custody on suspicion of the offence referred to above. On 13 June 2002 the court released him from detention and imposed non-custodial preventive measures instead. 12. On 28 December 2001 the investigation was taken over by the Department of Organised Crime at the Wrocław Appellate Prosecutor’s Office (Prokuratura Apelacyjna). 13. On 25 September 2003 the Wrocław Appellate Prosecutor amended the charges against the applicants. He specified that the applicants had acted jointly with V.Z. and V.V. The prosecutor additionally invoked Article 294 § 1 of the Criminal Code, which signified that the fraudulent use of the cheque involved a considerable amount of money. 14. By a letter dated 14 June 2004 the Appellate Prosecutor informed the applicants that on the basis of the Regional Court’s decision of 25 October 2001, investigative measures – namely, the interception of telephone conversations – had been carried out pursuant to Article 237 of the Code of Criminal Procedure (“the CCP”). The prosecutor further informed the applicants that the relevant decision and the results of the interception could be consulted at the secret registry of the office of the Wrocław Appellate Prosecutor. 15. On 24 June 2004 the applicants lodged an appeal (zażalenie) against the Regional Court’s decision of 25 October 2001 authorising the warrant, alleging that it had been unlawful on two grounds. 16. Firstly, they argued that the Regional Court had erroneously applied Article 237 §§ 1 and 3 of the CCP in authorising the interception of telephone conversations in respect of an offence which was not included in the list of offences set out in Article 237 § 3. They noted that the aim of the Regional Court’s decision had been to establish the source of the forged cheques. However, at the material time Article 237 § 3 of the CCP did not allow for the application of such measures in respect of the offence of forgery of cheques. Subparagraph 12 of that provision authorised the interception of telephone conversations only in respect of the offence of counterfeiting money (fałszowanie pieniędzy). They underlined that the relevant provision had been amended to include the offence of forgery of cheques, but only with effect from 1 July 2003. 17. Secondly, the applicants alleged that the Regional Court had incorrectly applied Article 237 § 6 of the CCP in authorising a police officer and an interpreter to examine the recorded conversations. They submitted that only the court or the prosecutor, and in urgent cases the police with the agreement of the court or the prosecutor, had the right to do so. However, in their case the recordings had been examined by a police officer and a translator without the required authorisation by the prosecutor. 18. On 5 August 2004 the Wrocław Court of Appeal (Sąd Apelacyjny) dismissed the applicants’ appeal. The decision was served on the applicants’ counsel on 13 August 2004. The Court of Appeal held as follows: “The Court of Appeal finds that the present appeal is unfounded and cannot be sustained. The appeal’s main argument is the assertion that since Hubert Lachowski and Leonard Lachowski [the applicants] were charged with the commission of an offence under Article 310 § 2 of the Criminal Code [putting into circulation a forged cheque], and since this offence was not one of the offences listed in Article 237 § 3 of the CCP at the time of issuing the decision, the interception and recording of their [telephone] conversations was not permitted. However, such an argument cannot be upheld for the following reasons. The investigation carried out by the Wrocław-Stare Miasto District Prosecutor did in fact relate to the putting into circulation of forged securities, but by the members of an organised [criminal] group, in other words, the offence under Article 237 § 3 (14) of the CCP, in respect of which it was permitted to intercept and record telephone conversations at the date when the decision was issued. According to the evidence obtained before the issuing of the decision, Hubert Lachowski and Leonard Lachowski [the applicants] were indeed persons suspected of (osoby podejrzane) acting as part of an organised group, as indicated by the passage from the impugned decision which states: “the content [of those conversations] may concern the activities of an organised group involved in the putting into circulation ...”. It has to be reiterated that a person suspected of [the commission of an offence] (which is referred to in Article 237 § 4 of the CCP) in respect of whom it is permitted to intercept and record telephone conversations is a person “who is suspected of having committed an offence, but who has not yet been formally charged. In respect of such a person there is a supposition that he/she has committed an offence; however, there is as yet no reasonable suspicion of their having committed an offence, and only such reasonable suspicion constitutes a ground to make that person a suspect (T. Grzegorczyk, Kodeks Postępowania Karnego. Komentarz. Wydanie III uzupełnione ... [Code of Criminal Procedure, Commentary, 3rd revised edition] ...). Having regard to the foregoing, it has to be stated that the charge [of committing an offence] under Article 310 § 2 of the Criminal Code laid against the applicants did not provide a ground for tapping their telephones as that was not provided for by Article 237 § 3 of the CCP; nevertheless, the fact that at the same time they were persons suspected of membership of an organised group and of carrying out activities within the framework of such a group did constitute grounds for issuing the impugned decision on the interception and recording of telephone conversations. Thus, the warrant was issued in accordance with the law and consequently there are no grounds for sustaining the arguments put forward in the appeal; moreover, the court was able to authorise a police officer to examine the recordings of the intercepted telephone conversations under Article 237 § 6 of the CCP. The appellant is not right in claiming that under Article 237 § 6 only the prosecutor has the right to examine recorded conversations, because the court has that right also, and with the permission of these two authorities (and not only of the prosecutor), so also do the police. It is further obvious that in the case of a recording in a foreign language all of the above authorities have the right (and even a duty) to seek the assistance of a sworn translator. ...” 19. On 17 August 2004 the Wrocław Appellate Prosecutor filed a bill of indictment with the Wrocław Regional Court against eight accused. The applicants were charged with putting into circulation between 24 October and 16 November 2001, jointly with V.V. and V.Z., a forged Texas Commerce Bank cheque for USD 8,500,000 (the equivalent of 35,000,000 Polish zlotys (PLN)) and attempting to use that cheque fraudulently. The prosecutor relied on Article 310 § 2 in conjunction with Article 286 § 1 and Article 294 § 1 of the Criminal Code. The first applicant was also charged with storing and transporting on 16 November 2001 a forged Security Pacific National Bank cheque for USD 2,000 (Article 310 § 2 of the Criminal Code). Four accused were charged with acting in an organised criminal group. 20. The warrant authorising the telephone tapping and the transcript of the intercepted conversations was deposited in the classified section of the case file. On 3 September 2004 the applicants’ counsel requested that the Regional Court be served with a copy of the warrant. On 23 November 2004 the applicant’s counsel repeated his request and argued that the decision should not be treated as classified. 21. The trial began on an unspecified date in December 2004. At a hearing held on 17 December 2004 the Regional Court refused to serve a copy of the warrant of 25 October 2001 on the applicants’ counsel. It found that the warrant had been classified under the 1999 Protection of Classified Information Act and that the circumstances justifying that decision had not ceased to exist. 22. At a hearing held on 24 February 2005 the trial court decided that the case against the first applicant should be severed from the main proceedings. It further stayed the proceedings against him having regard to his poor medical condition. 23. At a hearing held on 27 March 2007 the prosecutor requested the trial court to rule that the transcript of the intercepted telephone conversations be adduced in evidence but remain confidential. At an earlier hearing on 19 March 2007, counsel for the second applicant had requested that the confidential evidence be declassified. On 12 April 2007 the trial court declassified the warrant of 25 October 2001 and the transcript of the intercepted conversations. That decision was necessary in order to enable the lay members of the trial court, who did not have the relevant security clearance, to hear the evidence obtained under the warrant. 24. On 17 April 2008 counsel for the second applicant objected to the prosecutor’s request, arguing that the evidence obtained as a result of the telephone tapping was inadmissible in law. He relied on similar arguments to those made in his appeal against the Wrocław Regional Court’s decision of 25 October 2001. In particular, he claimed that the impugned decision had authorised the interception of telephone conversations in respect of an offence which was not included in the list of offences set out in Article 237 § 3 of the CCP. 25. The second applicant’s representative further considered that his arguments were not undermined by the Wrocław Court of Appeal’s decision of 5 August 2004 dismissing his appeal. The Court of Appeal had justified the decision authorising the interception of the telephone conversations by the fact that the applicants were persons suspected of acting in an organised criminal group, and had relied on a passage from the Wrocław Regional Court’s decision of 25 October 2001 (“the content [of those conversations] may concern the activities of an organised group involved in the putting into circulation ...”). However, the counsel underlined that the impugned passage was nowhere to be found in the decision of the Regional Court. Only if the Court of Appeal’s assertion that the telephone tapping had been carried out in connection with the activities of an organised criminal group was correct – and there was no indication in the decision to open the inquiry or in the bill of indictment that that was the case – would the District Court have been competent to order such a measure. Lastly, the applicant’s representative argued that the trial court was not bound by any earlier decision pronounced with regard to the admissibility of evidence. 26. At a hearing held on 27 May 2008 the trial court dismissed the applicants’ challenge to the admissibility of the impugned evidence. It found that the Regional Court had not indicated in the operative part of its decision the precise subparagraph of the provision listing the offences under which the interception of conversations could be authorised. However, in the reasons for its decision the Regional Court had justified the order for the interception on the ground that some of the suspected persons were cooperating with a view to defrauding considerable sums of money. In addition, the Court of Appeal had held in its decision that the content of the conversations could relate to the activities of an organised criminal group. In consequence, it could not be sustained that the evidence obtained under the warrant was inadmissible in law. 27. At a hearing on 19 November 2008 the trial court heard the intercepted telephone conversations. 28. On 23 January 2009 the Wrocław Regional Court gave its judgment. The second applicant and V.Z. were convicted of putting into circulation a forged Texas Commerce Bank cheque for USD 8,500,000 (the equivalent of PLN 35,000,000), and of attempted fraudulent use of that cheque. They were sentenced to two years’ imprisonment. 29. The second applicant lodged an appeal against the first-instance judgment. He alleged, inter alia, that the trial court had not properly reasoned its judgment. In particular, he pointed to the fact that the trial court had heard the evidence obtained as a result of the telephone tapping but had failed to refer to it in the judgment. 30. On 28 October 2009 the Wrocław Court of Appeal amended the firstinstance judgment in respect of the second applicant and upheld it for the remainder. It held that the second applicant’s appeal was partly justified; however none of the alleged breaches of the criminal procedure was confirmed. The Court of Appeal agreed with the appellant that he could not be considered to have been an accomplice in the putting into circulation of the forged cheque. It held instead that the second applicant was guilty of aiding and abetting V.Z. in putting into circulation a forged Texas Commerce Bank cheque, and fraudulent use of that cheque. Accordingly, it sentenced him to a suspended term of two years’ imprisonment. 31. With regard to the intercepted telephone conversations and the fact that the trial court had not relied on them as the basis for establishing the facts of the case, the Court of Appeal agreed with the lower court that that evidence was not relevant to the case. The Court of Appeal noted that the lack of any reference to the evidence amounted to a breach of Article 424 § 1 of the CCP; however, this shortcoming had no effect on the validity of the first-instance judgment or the possibility of having it properly reviewed. 32. The second applicant lodged a cassation appeal. 33. On 11 January 2011 the Supreme Court dismissed his cassation appeal as manifestly ill-founded. In such a case the Supreme Court was not required to provide written reasons for its decision. 34. Having regard to the death of the first applicant, the Wrocław Regional Court discontinued the proceedings against him on 21 July 2011. 35. Article 237 § 1 of the Code of Criminal Procedure, as in force at the relevant time, provided: “Following the institution of proceedings, a court, acting at the request of a prosecutor, may order the interception and recording of telephone conversations with a view to obtaining evidence for pending proceedings or preventing the commission of a new offence.” Article 237 § 3 of the CCP provided at the relevant time, in so far as relevant: “The interception and recording of telephone conversations is permitted only when the pending proceedings, or reasonable suspicion of a new offence being committed, concern: 1/ manslaughter, ... 12/ the counterfeiting of money, ... 14/ an organised criminal group, 15/ property of considerable value, ...” Article 237 § 4 read: “The interception and recording of telephone conversations is permitted in respect of a suspected person (osoba podejrzana), an accused (oskarżony), a victim or other person whom an accused may contact, or a person who may be connected with a perpetrator or with an impending offence.” Article 237 § 6 provided: “A court or a prosecutor has the right to play the recordings, and in cases of urgency so also do the police, with the authorisation of a court or a prosecutor.” 36. Article 237 § 3 (12) was amended with the effect from 1 July 2003. Subsequently, that provision authorised the use of interception measures in the case of offences concerning forgery and use of forged money, cheques and other similar instruments. 37. Article 238 § 1 read as follows: “The interception and recording of telephone conversations may be carried out for a period of up to three months, with a possibility of extending it, in particularly justified cases, for another period of up to three months.” Paragraph 3 of Article 238 provided, in so far as relevant: “After the termination of the interception a court shall order the destruction of the recordings if they are not relevant to the criminal proceedings; ...” 38. Article 239 read: “The serving of the decision on the interception and recording of telephone conversations on the person concerned may be postponed for the time necessary for the interests of the case, but until no later than the termination of the proceedings”. Article 240 specified that a decision on the interception and recording of telephone conversations could be appealed against.