FIRST SECTION
DECISION
Application no. 59131/11
Mariusz PERLIŃSKI
against Poland
The European Court of Human Rights (First Section), sitting on 26 February 2019 as a Chamber composed of:
Linos-Alexandre Sicilianos, President,
Ksenija Turković,
Aleš Pejchal,
Krzysztof Wojtyczek,
Tim Eicke,
Jovan Ilievski,
Gilberto Felici, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 25 August 2011,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the comments submitted by the Polish Government,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Mariusz Perliński, is a Polish national, who was born in 1971 and is detained in Katowice Prison. He was granted legal aid and was represented before the Court by Ms M. Filipkiewicz, a lawyer practising in Katowice.
2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant, along with a number of other persons, was charged with committing armed robbery as a member of an organised criminal group and with fraud, in both offences as a repeat offender.
5. One of the suspects, D.J., who in the period between January and October 1999 disclosed in his statements to the authorities important information regarding other persons involved in the crimes, was subsequently granted the status of crown witness (świadek koronny; see below, paragraphs 24-25).
6. Between November 1999 and January 2000 the Katowice Regional Prosecutor obtained evidence from D.J. as a crown witness. The statements obtained by the prosecutor, despite constituting separate procedural documents, had in fact been copied and pasted from the statements previously given by D.J. in his capacity as a suspect over the period between January and October 1999.
7. On an unspecified date in 2002 a bill of indictment was lodged with the Katowice Regional Court.
8. On 15 October 2005 the court issued a judgment, convicting the applicant and sentencing him to seven years’ imprisonment.
9. The applicant’s lawyer, the lawyers of several other accused parties and the prosecutor all lodged appeals against this judgment. The applicant’s lawyer did not raise any reservations as regards the statements made by the crown witness D.J. This issue was however raised by the applicant himself in a letter attached to the appeal (this information was provided to the Court by the Government).
10. On 29 November 2005 the Katowice Court of Appeal quashed the challenged judgment and remitted the case for reconsideration. The court found that a number of mistakes had been made by the first‑instance court. In particular, it noted that the first-instance court had not established that the applicant had actually committed the offence of armed robbery and it ordered that the assessment of the evidence be completed, and in particular that the crown witnesses be examined again. It underlined that another crown witness, W.Cz., had directly participated in the events in question and that D.J. had only had indirect knowledge of those events from reports made by some of the participants. The court did not address the applicant’s allegations concerning the inadmissibility of D.J.’s statements because they had not been raised in the formal appeal lodged by the applicant’s lawyer.
11. In the course of the judicial proceedings, in 2004, 2008 and 2011, the applicant lodged various requests for the statements made by D.J. between November 1999 and January 2000 to be declared inadmissible. It appears that his requests remained unanswered.
12. When the case was reconsidered before the Regional Court the applicant requested that D.J. be examined as regards the manner in which he had been questioned during the course of the investigation, in particular as to whether he had been allowed to express himself freely. The applicant also requested an examination of the prosecutor who had questioned D.J. during the course of the investigation. The Regional Court granted the applicant’s first request and dismissed the latter, holding that such evidence would have no significance for the case.
13. On 19 June 2009 D.J. was examined before the Katowice Regional Court, in the applicant’s presence, as to the method of questioning employed by the prosecutor. He testified as follows:
“I was questioned first as a suspect and, subsequently, as a witness, in particular as a crown witness. During the questioning I was given the freedom to express myself, that is, I could freely (swobodnie) explain what I knew about the case. If I remember correctly, the records of my statements reflected what I had in fact said during the interview. I do not recall having signed the earlier prepared written records of my statements without being questioned. So ... I gave statements which were recorded in writing and then after reading out the written records of my statements, I signed them.”
Subsequently, the court read out the statements made by D.J. at the hearing on 28 June 2007. D.J. said that he remembered that he had made such statements and that he confirmed them in their entirety.
After that the applicant was allowed to ask D.J. questions. First, he asked him whether he had seen how the written records of particular interviews were drafted. D.J. replied as follows:
“It is difficult to remember such details after so many years. Generally I can only say that if the records were typed on the computer and the monitor was turned with its back towards my face, I could not see the whole process of typing.
The applicant then reminded D.J. that in 2007 he had testified that during his interview before prosecutor P., he could see the screen of the monitor and follow everything that the prosecutor had typed. D.J. replied as follows:
“If I said so, as in the records of my statements that were read out, that means that it must have been so. Today I do not remember what it looked like. Moreover, the name of prosecutor P. does not ring any bells with me. I cannot recall now who participated in the interview or who kept the written records.”
14. On 19 July 2010 the Katowice Regional Court issued another first‑instance judgment, in which the applicant was again found guilty and sentenced to five years’ imprisonment.
The court found that the applicant had been a member of an organised criminal group and, in this respect, it based its finding on statements made by three crown witnesses, W.Cz., D.J. and R.A., as well as statements made by a co-defendant, E.S., and two victims, B.T. and Ż.O.
As regards the robbery, the court found that the applicant could only be convicted of abetting that offence. In this respect it relied on the testimony of crown witnesses W.Cz. and D.J. and of a victim, B.T. It referred to a difference between the testimony of W.Cz. and D.J. as regards the applicant’s presence at the crime scene and came to the conclusion that any doubt had to be resolved to the applicant’s advantage.
As regards the conviction for fraud, the court based its judgment on the testimony of crown witnesses W.Cz. and D.J., a victim, Ż.O., and witnesses D.K. and E.Ł.
15. As far as the testimony of W.Cz. was concerned, the Regional Court noted that during the trial and retrial, including crime-scene reconstruction and confrontation between the persons accused, W.Cz. maintained his testimony from the investigation. The court made a detailed analysis of W.Cz.’s statements and explained why it found them logical and credible. It also based its opinion on a psychological expert’s report prepared after a psychological examination of W.Cz. In the course of the proceedings the witness had twice been examined by a psychologist. His statements were found to be credible, logical and free of contradictory elements. The court also referred to the fact that W.Cz. had played an important role in the criminal group, had enjoyed the trust of its leader, J.T., and therefore, as a direct participant in the events in question, had broad knowledge of the activities of the group and the roles of particular members thereof.
16. The court also found that the statements of W.Cz. were corroborated by the statements made by another crown witness, D.J., although his report of the events was only hearsay, because he had not participated in the robbery and fraud. D.J. had been examined during the trial and, subsequently, at retrial. He had confirmed the statements that he had made in the course of the investigation and during the first trial. D.J. had likewise been examined by a psychologist, who had found his statements generally credible; however he recommended “care” in assessing them because he considered D.J. to be “susceptible to suggestion”. The court analysed D.J.’s role in the criminal group, and found that it had been less important than W.Cz.’s role, but considered that the testimony of both crown witnesses was compatible.
17. The prosecutor, as well as the lawyers of several persons convicted, including the applicant, lodged appeals against this judgment.
18. On 10 March 2011 the Katowice Court of Appeal upheld the challenged judgment as regards the applicant. During the retrial the applicant managed to bring his complaint concerning the alleged inadmissibility of evidence to the court’s attention. The Court of Appeal examined the applicant’s arguments and held as follows:
“... contrary to the applicant’s arguments, the crown witness, D.J., had his freedom of expression secured during the trial. D.J. consequently confirmed that nobody had influenced his statements, most recently at the hearing before the first-instance court on 19 June 2009 where he testified that when he had been questioned as a witness he could freely express what he knew about the case.
His statements cannot be undermined by the fact that his testimony to a significant extent reflects the statements which he had made as a suspect in the investigation. It is to be noted that the [applicant’s] complaints in this respect concern the investigation phase of the proceedings and, indeed, the control exercised by the Court of Appeal is only applicable to the judicial phase of the proceedings so it can only refer to the shortcomings of the investigation if those shortcomings “permeated” the judicial proceedings. D.J. has been examined by the court of first instance on many occasions and his testimony was subsequently completed on the basis of Article 391 §§ 1 and 2 of the Code of Criminal Procedure.”
19. The Court of Appeal did not find that there were grounds to grant the applicant’s request to examine the prosecutor who had questioned D.J., holding that the request had no significance for the resolution of the case and only sought to prolong the proceedings.
20. On 6 June 2011 the applicant’s court-appointed lawyer indicated that he could find no grounds to lodge a cassation appeal.
B. Relevant domestic law
21. Article 171 § 7 of the Code of Criminal Procedings (“the Code”) provides, in so far as relevant, as follows:
“Explanations, testimony and declarations made in conditions excluding freedom of expression ... cannot constitute evidence.”
22. Article 391 of the Code provides as follows:
“1. If a witness has, without good reason, refused to testify, or has given a statement different from a 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 [for example, because, upon lodging the bill of indictment, the prosecution has asked that his witness statement 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 during the investigation or before the court in the case in question or in another case or in any other procedure provided for by law.
2. In the circumstances referred to in paragraph 1, and also in the case specified in Article 182 § 3, the statements that a witness has given when heard as an accused may also be read out.”
23. The concept of crown witnesses was introduced into Polish criminal proceedings by the Crown Witnesses Act of 25 June 1997 (ustawa o wiadku koronnym; “the Act”).
24. Under section 2 of the Act, a crown witness is a suspect who is permitted to testify as a witness in accordance with the principles and procedures specified by the Act.
25. Pursuant to section 5.3 of the Act, before a decision on admissibility in evidence of the statements of a crown witness is given, the court shall hear the suspect.
26. Section 6 of the Act provides that if the court decides that the statements of a crown witness are inadmissible as evidence, his or her previous statements, made as a suspect in the proceedings, also cannot be admitted as evidence. In such a case, all steps taken on the basis of the Act shall be considered void and any relevant documents shall be destroyed.
COMPLAINT
27. The applicant alleged a violation of his right to a fair trial on account of the courts’ refusal to declare the evidence of a crown witness inadmissible.
THE LAW
28. The applicant complained that the refusal to exclude the statements of crown witness D.J. from the evidentiary material in the criminal proceedings against him had deprived him of a “fair trial” within the meaning of Article 6 § 1 of the Convention, which reads, in so far as relevant, as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
29. The Government contested that argument.
A. The parties’ submissions
30. The Government first submitted that the Convention did not lay down any rules on the admissibility of evidence and that, according to the Court’s case-law, that matter was primarily for regulation under national law. They further relied on the serious nature of the offences with which the applicant had been charged, which justified the need for evidence given by crown witnesses. According to the Government, the statements given by D.J. had not constituted the sole basis for the applicant’s conviction; in fact his testimony had been of secondary importance because it had been hearsay evidence which only reported what he had been told by direct witnesses. The most important basis for the conviction had been the testimony of another crown witness, W.Cz. His statements had been corroborated by other evidence produced in the criminal proceedings against the applicant. They further submitted that D.J. had been directly examined on numerous occasions before the trial court and he had confirmed that when he had been examined as a crown witness during the investigation, he had been able to express himself “freely” and that after every interview he had signed a written record of his statements. During the trial the applicant had made use of his right to cross-examine D.J. The principle of direct evidence had thus been respected. The Government also noted that the applicant’s lawyer had failed to raise the matter of admissibility of evidence in his appeals. They concluded that the statements made by the crown witnesses had been accurately examined by the trial court, which had explained the grounds on which it found them credible and to what extent and that, therefore, the applicant’s right to a “fair trial” had been secured.
31. The applicant submitted in general terms that the Government had concentrated on the “evaluation of the criminal charge” but had failed to refer to the subject matter of the application concerning “the origins of the protocols”. According to the applicant, it had not been confirmed that D.J. had been able to express himself “freely”.
B. The Court’s assessment
32. According to Article 19 of the Convention, the Court’s duty is to ensure the observance of the engagements undertaken by the Contracting States in the Convention. In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention.
33. While Article 6 of the Convention guarantees the right to a fair trial, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law (see Schenk v. Switzerland, 12 July 1988, §§45-46, Series A no. 140, and Heglas v. the Czech Republic, no. 5935/02, § 84, 1 March 2007).
34. It is not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, unlawfully obtained evidence – may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the alleged “unlawfulness” and, where a violation of another Convention right is concerned, the nature of the violation found.
35. In that context, regard must also be had to whether the rights of the defence have been respected, in particular whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use, as well as the opportunity of examining any relevant witnesses. While no problem of fairness necessarily arises where the evidence obtained was unsupported by other material, it may be noted that where the evidence is very strong and there is no risk of it being unreliable, the need for supporting evidence is correspondingly weaker (see Jalloh v. Germany [GC], no. 54810/00, § 96, ECHR 2006‑IX).
36. At the heart of the applicant’s complaint is the issue of the admissibility of the evidence given by D.J., who was originally questioned as a suspect but a few months later was granted the status of crown witness and questioned again. The records of D.J.’s testimony as a crown witness were, to a large extent, copied and pasted from his previous testimony as a suspect. The applicant argued that such evidence had been obtained in contravention of the principles of criminal proceedings and should not have been admitted by the court as valid evidence. As a suspect, D.J. had not been under an obligation to tell the truth, as opposed to the subsequent situation when he was heard as crown witness.
37. The Court notes that, in the course of the criminal proceedings in question, there were two judgments given by the first-instance court and that the applicant’s lawyer lodged appeals against both of them. In neither of the appeals had the lawyer raised the specific matter of admissibility of the evidence given by crown witness D.J. (see paragraph 9 above). At the retrial the applicant managed to bring that issue to the attention of the Regional Court, which granted his request and decided to examine D.J. again in order to clarify the circumstances of his evidence given in the course of the investigation. During the hearing before the Katowice Regional Court on 19 June 2009 the applicant and his lawyer were both present and could, and did, ask D.J. questions (see paragraph 13 above). It was asserted by D.J. and established by the domestic courts that D.J. had had freedom to express himself and had been given the opportunity to make his statements “freely”. He had signed the written records of his statements after each interview.
38. Furthermore, as noted by the Government, the statements made by D.J. as crown witness did not constitute the sole basis for the applicant’s conviction. In its judgment following the retrial, the regional court explained in great detail the reasoning behind the applicant’s conviction for each offence, and the reasons for which it attached a greater value to the testimony of crown witness, W.Cz. and for which it treated the statements made by D.J. with more caution (see paragraph 15 above). It also explained how the testimony of each of these two witnesses corroborated that of the other and how it had resolved any minor differences between them (see paragraph 17 above). Moreover, the conviction was also based on other supporting evidence (see paragraph 14 above).
39. The applicant’s arguments were further analysed and addressed by the Court of Appeal, which considered the appeals lodged against the first‑instance court after retrial. That court referred to the hearing of 19 June 2009, at which D.J. had been examined at the applicant’s request, and found that the alleged shortcomings relied on by the applicant had in fact only concerned the investigation phase of the proceedings, whereas the appellate court’s scrutiny concerned, in principle, only the judicial phase of the proceedings. The Court of Appeal nevertheless found that D.J. had been examined by the first-instance court on numerous occasions and that the evidence had been considered by the court hearing the retrial. The shortcomings referred to by the applicant had not permeated the judicial phase of the proceedings.
40. Taking into consideration the foregoing, the Court considers that the domestic courts made the necessary efforts to remedy any shortcomings arising from the investigation. In particular, the applicant’s request to examine D.J. again was granted. The applicant was present at the hearing and could ask questions. Moreover, as explained by the domestic courts, D.J.’s statements were treated with caution and did not constitute the sole basis for the applicant’s conviction; there was other strong evidence confirming the course of events as established by the courts. Taking that into consideration, the Court is persuaded that the criminal proceedings against the applicant were “fair” as a whole and that, therefore, the present application is manifestly ill-founded.
41. In the light of these circumstances, the Court declares the application inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 21 March 2019.
Renata DegenerLinos-Alexandre Sicilianos
Deputy RegistrarPresident
Full & Egal Universal Law Academy