FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 32456/04
by Zdeněk KOPECKÝ
against the Czech Republic
The European Court of Human Rights (Fifth Section), sitting on 30 March 2010 as a Chamber composed of:
Peer Lorenzen, President,
Renate Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark Villiger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 2 September 2004,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Zdeněk Kopecký, is a Czech national who was born in 1958 and lives in Ostrava. He was represented before the Court by Ms J. Mlčochová, a lawyer practising in Karviná. The respondent Government were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On an unspecified date in 2001 the applicant was charged with trafficking in women and corrupting the morals of youth.
On 18 December 2001 the police notified his counsel that Ms T., the key witness whom the applicant had allegedly taken to Switzerland to carry out prostitution in September 2000, would be questioned by the investigator on 20 December 2001. Counsel informed them that she could not attend the questioning due to a concurrent hearing before a court.
Ms T. testified as follows:
“[I] was again advised by reading a printed form ‘Notice of witnesses’ and ‘Notice of victims’ ... I fully understood the contents of the notice, and ... I do not have any reason not to testify, I wish to and will testify... I will tell the truth.
As to my trip to Switzerland ... with a view to prostitution ... [in] September 2000, ... I travelled with a friend of Mr R., a certain Z., ... Mr R. introduced us on the day on which I received my passport, ... on 6 September 2000. ... [On the next day] Z. picked me up ... at the Hollywood club in Ostrava ... and we travelled to Prague. He knew the purposes of our trip, [that is,] that he was taking me abroad with a view to prostitution. ... After having passed Prague, we met Mr R. in a tavern ... He said that we would continue on to Munich to meet a certain Hans. ..., on the next day we met Hans at a petrol station where we had breakfast and afterwards we got into Hans’s car, Z. leaving his car there. At about 2 p.m., we reached the town of [S.] in Switzerland ... I was handed over to the owner of a club called Joe’s Sauna Club. Z. noted the address of the club and, together with Hans, left ... I have not seen Z. since then.”
Ms T. was also shown photographs and identified the applicant as the person with whom she had travelled to Switzerland.
On 28 March 2002 the Karviná District Court (okresní soud) heard the applicant, who pleaded not guilty. The hearing was adjourned until 22 April 2002 in order to summon other witnesses, including Ms T.
Between April and September 2002 the court adjourned the hearing five more times to summon Ms T. However, despite the attempts of the police to find out her whereabouts and bring her to the court and the court’s search in the central register of citizens in the Czech Republic and Slovakia, Ms T. failed to appear before the court. Therefore, on 23 September 2002 the court, by virtue of section 211(2)(a) of the Code of Criminal Procedure, read out her testimony from the preliminary proceedings. At the end of the trial, the District Court convicted the applicant of trafficking in women and corrupting the morals of youth and sentenced him to three years of imprisonment with three years’ probation. The court held that:
“... [The applicant is] incriminated by the testimony of Ms T., which was read out at trial ... since the court did not succeed in assuring her presence at the main hearing; she was no longer at the place of her permanent residence and was probably living at an unknown address in Slovakia. ...
The criminal activities of the accused ... are demonstrated by documentary evidence such as the lists ... of telecommunication operations of the accused and Ms T. [and another witness giving evidence against the applicant’s co-accused] and ... the transcriptions of the interceptions of their telephone conversations ... It follows clearly from the material in evidence that [the applicant’s co-accused] in the first place but also [the applicant] knew that the girls, all of whom were not yet identified, were involved in prostitution, both in the Czech Republic and abroad, and it is clear that the accused together with other persons ... participated in managing the prostitution of these girls. ...”
On 25 February 2003 the Ostrava Regional Court (krajský soud), further to an appeal by the applicant, upheld the District Court’s judgment. It reiterated that the applicant had been incriminated by the testimony of Ms T., who had been properly advised about her right not to give testimony and about whose questioning the applicant’s counsel had been notified.
On 26 August 2003 the Supreme Court (Nejvyšší soud) declared the applicant’s appeal on points of law (dovolání) inadmissible.
On 3 March 2004 the Constitutional Court (Ústavní soud) dismissed as manifestly ill-founded a constitutional appeal by the applicant in which he maintained that the ordinary courts had based their findings on Ms T.’s testimony, which had merely been read out at trial. He further submitted that the witness had not been duly advised prior to her interview and that her testimony had therefore been obtained contrary to the law. The court endorsed the conclusion of the ordinary courts that the witness had been duly advised and held that the District Court had made a sufficient effort to summon Ms T.
Relevant domestic law
Code of Criminal Procedure
Article 211 § 2 (a) provides that the statement of a witness given in preliminary proceedings may be read out at the trial if the witness has died or has gone missing, is abroad and is thus unreachable, or has become ill and is therefore not in a position to be heard.
COMPLAINTS
The applicant complained that he had been convicted on the basis of a sole piece of evidence – the testimony of Ms T. which had been given in the preliminary proceedings and merely read out at trial, as the court had been unable to assure her presence at the hearing. Neither the applicant nor his counsel had had the opportunity to examine the witness. The applicant further submitted that the witness had not been duly advised about her right not to testify before having been interviewed and that her testimony was not sufficiently detailed to be used as the sole piece of evidence against him.
THE LAW
1. The applicant complained that his conviction was primarily based on the testimony of a witness whom he was unable to examine. He also complained that the key witness was not duly advised on her right not to testify, which rendered her testimony inadmissible, and that the testimony was not precise enough to establish his guilt.
The Court analyses this complaint as raising in substance an issue under Article 6 of the Convention, the relevant part of which reads as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(d) to examine or have examined witnesses against him ...”
The Government submitted that the applicant’s counsel had been notified about Ms T.’s questioning and had indicated that she could not attend due to a concurrent hearing before a court. They further submitted that she had neither requested that the questioning be postponed nor arranged to be substituted by another counsel. The Government therefore concluded that the applicant had had the opportunity to examine the witness by way of his counsel. They further asserted that the domestic courts had made a genuine and sufficient effort to secure Ms T.’s presence at the trial and that the applicant’s conviction had not been based solely on her deposition.
In his response to the Government’s observations, the applicant asserted that the two-day period between his counsel’s notification and the examination had not been sufficient to find substitute counsel. As the applicant had been in pre-trial detention, it had not been possible to postpone the questioning either. The applicant admitted that the courts had made a genuine and sufficient effort to secure Ms T.’s presence at the trial. However, unlike the Government, he contended that his conviction had been based solely on her deposition and that the evidence on which the Government relied (transcriptions of telephone conversations) had only been relevant to the criminal activity of the co-accused.
The Court notes at the outset that, since the guarantees of paragraph 3 (d) of Article 6 are specific aspects of the right to a fair trial set forth in paragraph 1 of this Article, it will consider the complaint that there was no opportunity to examine the witnesses at issue under the two provisions taken together (see Meftah and Others v. France [GC], nos. 32911/96, 35237/97 and 34595/97, § 40, ECHR 2002-VII). Moreover, Article 6 §§ 1 and 3 (d), in principle, require that all evidence must be produced in the presence of the accused in a public hearing with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence; as a general rule, paragraphs 1 and 3 (d) of Article 6 require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statements or at a later stage (see, e.g., S.N. v. Sweden, no. 34209/96, § 44, ECHR 2002-V).
The Court has also had regard to its rulings, in a series of cases concerning reliance on witness testimony which was not adduced before the trial court, that Article 6 § 3 (d) of the Convention only required the opportunity to cross-examine such witnesses in situations where this testimony played a main or decisive role in securing the conviction (see S.N. v. Sweden, cited above, § 47). Lastly, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 49, ECHR 2001-II). The Court’s role is confined to ascertaining whether the proceedings considered as a whole were fair (see, mutatis mutandis, Edwards v. the United Kingdom, 16 December 1992, § 34, Series A no. 247-B).
Turning to the present case, the Court first notes that the District Court accepted Ms T.’s deposition in evidence, which was later endorsed by the appellate court and the Constitutional Court. Both those courts responded to the applicant’s arguments and held that the witness had been advised prior to her questioning in accordance with the relevant legislation.
The Court must then establish whether the applicant’s conviction was based solely or to a decisive degree on Ms T.’s deposition. It observes that the District Court’s judgment of 28 March 2002 referred to other pieces of evidence, namely the lists of telecommunication operations and the transcriptions of the interceptions of the telephone conversations of the applicant and the co-accused. However, it remains unclear from that judgment how this evidence incriminated the applicant of the act which he was convicted of. Therefore, whilst the Court accepts that the domestic courts used those other pieces of evidence as corroborating evidence and that they rebutted the applicant’s defence, the Court considers that the applicant’s conviction was based to a decisive degree on Ms T.’s deposition.
In view of this conclusion, the question arises whether the invitation of the applicant’s counsel to the questioning of the witness at the pre-trial stage of the proceedings can be regarded as an adequate and proper opportunity to examine or have examined a witness within the meaning of Article 6 § 3 (d) of the Convention which can justify the admission of Ms T.’s deposition even though she did not attend the trial and could not be questioned then.
The Court observes in this respect that the applicant’s counsel was notified about the questioning two days in advance but, rather than asking for a postponement of the questioning, or complaining that the notice was short, she simply sent her apologies. The Court finds it hard to accept the argument of the applicant that the questioning could not be postponed because he was in pre-trial detention and wanted to be released as soon as possible. In particular, nothing in the case-file suggests that counsel asked for the questioning be postponed, if only to later on the same day or shortly afterwards. Given the importance of the witness, a short postponement would have justified a short period of further pre-trial detention. Finally, the Court notes that there is nothing in the case-file to indicate that the applicant’s counsel attempted to find substitute counsel but failed, or that counsel declined to attend the questioning on the assumption that the witness would appear, and could be questioned, at the trial.
Having regard to the circumstances of the case taken as a whole, the Court finds that the applicant was given a proper and adequate opportunity to have examined the witness against him at the pre-trial stage, as required by Article 6 § 3 (d) of the Convention, and the absence of a later opportunity was compatible with that provision.
It follows that the application must be dismissed as manifestly ill‑founded pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy