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FOURTH
SECTION
CASE OF JAKUBCZYK v. POLAND
(Application
no. 17354/04)
JUDGMENT
STRASBOURG
10 May
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Jakubczyk v.
Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Päivi
Hirvelä,
Ledi Bianku,
Zdravka
Kalaydjieva,
Nebojša Vučinić,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 12 April 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17354/04) against
the Republic of Poland lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by a Polish
national, Mr Ryszard Jakubczyk (“the applicant”),
on 22 April 2004.
- The
applicant was represented by Ms M. Gąsiorowska, a
lawyer practising in Warsaw. The Polish Government were represented
by their Agent, Mr J. Wołąsiewicz of the Ministry
of Foreign Affairs.
- The
applicant alleged that his rights under Article 6 §§ 1
and 3 (d) of the Convention had been violated, as he had
had no opportunity to examine the main witnesses in the criminal
proceedings against him.
- On
24 April 2008 the President of the Fourth Section decided to
give notice of the application to the Government. It was also decided
to rule on the admissibility and merits of the application at the
same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1952 and lives in Kielce.
A. Investigation and trial
- On
13 December 2000 the police entered premises in B., owned by one
of the applicant’s associates, where they discovered a chemical
laboratory, substances that turned out to be precursors necessary for
the production of narcotics, and various appliances, inter
alia, for the production of pills.
- On
15 December 2000 the applicant was arrested by the police.
On 17 December 2000 the Kielce District Court (Sąd
Rejonowy) decided to remand him in custody on suspicion of
producing psychotropic substances.
- Subsequently
his detention was extended.
- On
11 December 2001 the applicant was indicted before the Kielce
Regional Court (Sąd Okręgowy) on charges of leading
an organised criminal gang that between 1996 and 15 December
2000 had produced large quantities of amphetamine, heroin and
cocaine. Simultaneously, three other persons were indicted in the
same set of proceedings.
- At
the same time the prosecutor severed other charges against the
applicant related to illegal transport of psychotropic substances to
Austria and other European countries and releasing drugs into
circulation in those countries.
- On
15 January 2002 the trial court held the first hearing in the
case.
- On
27 November 2002 the Kielce Regional Court held a hearing at
which the prosecutor sought to read out statements made by a certain
W.P. as well as by J.K., B.S., and G.C. The applicant’s lawyer
objected to this, submitting that the statements in question had been
made before the Austrian courts in another set of criminal
proceedings in which those individuals had been the accused, and thus
they had not received a warning about criminal liability for making
untruthful statements. He also submitted that the Polish authorities
had made no attempt to hear those individuals in Poland at the
preparatory stage of the proceedings. Moreover, he challenged the
legal basis that could allow statements made before foreign courts to
be read out.
Nevertheless,
the trial court decided to read out the statements made by W.P. and
others. The court based its decision on Article 587 of the Code
of Criminal Procedure and others, which allowed statements made by
both witnesses and accused in another set of proceedings to be read
out. It agreed that it had not been obvious whether this provision
could be applicable to a situation where the actions of foreign
authorities had not been taken at the request of the Polish
authorities; however this doubt had been dismissed by the Supreme
Court in its decision of 28 March 2002. The Regional Court
examined the rules of Austrian Criminal Procedure and concluded that
they did not conflict with the principles and guarantees provided by
the Polish legal order.
- At
a hearing held on 20 February 2003 the trial court started
reading out the statements of W.P. and others. The applicant
contested the truthfulness of W.P.’s testimony.
- On
19 March 2003 the applicant’s lawyers requested the trial
court, inter alia, to hear witnesses W.P. and B.S. in
person before the trial court in order to confront them. They pointed
to discrepancies in their statements which could only be verified by
hearing them in person before the trial court.
- On
the same date the Regional Prosecutor submitted to the court his
reply to the applicant’s request, in which he was not opposed
to W.P. and B.S. being heard by a delegated judge, as they had not so
far been heard by the Polish authorities in connection with this set
of proceedings.
- On
26 March 2003 the Kielce Regional Court refused the applicant’s
request for W.P. and B.S. to be heard in person without specifying
the reasons for the refusal.
B. The first instance judgment
- On
30 May 2003 the trial court gave judgment in the case. The applicant
was convicted of the following offences, committed on an unspecified
date between 1997 and 15 December 2000:
1)
storing and possessing large quantities of psychotropic substances,
2)
storing, owning and acquiring equipment necessary for illegal
production of psychotropic substances, and
3)
producing large quantities of psychotropic substances, particularly
amphetamines.
The
court found that the applicant had acted together with three
accomplices; however it acquitted him of the charge of leading an
organised criminal gang. The court sentenced the applicant to nine
years’ imprisonment and a fine.
- The
facts of the case were established on the basis of the following:
1)
expert opinions submitted by nine different experts, including an
opinion prepared in cooperation with the Forensic Institute in
Wiesbaden (Germany);
2)
statements made by thirty three individuals, witnesses and
co accused;
3)
statements made by W.P., B.S. and others heard before the Austrian
authorities, including those read out at the hearing;
4)
documents: records of searches of premises, notes on use of a police
dog and scent identification, records of in situ inspection,
forensic opinions, documents, inspection of pieces of evidence
produced at the hearing, documents held in the secret registry,
documents submitted by witness T.S., photographic documentation of
pieces of evidence, and official correspondence related to pieces of
evidence.
Some
of the evidence referred to above had been collected in another set
of criminal proceedings against the applicant (regarding charges
severed in 2001, see paragraph 10 above).
- In
reconstructing the facts of the case the trial court firstly examined
the type and quantity of chemical substances seized during the search
of five rooms of the laboratory in B. and the possible time frame of
the activity of the laboratory. The written reasons of the judgment
in this respect are detailed and extensive. The court examined at
length the results of the searches of the laboratory, which had
been conducted by several experts, who had collected about 100
samples of chemical substances as well as video and photographic
evidence. The trial court examined the scientific methodology
employed by experts, and the procedures followed, in the light of the
allegations made by the accused that some of the evidence against
them had been fabricated.
- The
court further examined the involvement of each of the co accused
in the activities with which they had been charged. As regards the
applicant, the trial court referred to comparisons made by Polish and
German experts of chemical substances found in the laboratory to
ecstasy pills confiscated in several European countries, notably in
Austria. The experts considered that it was most probable that the
drugs found abroad had been produced in the laboratory in B. The link
between the applicant, the other co accused, and the activity of
the laboratory was established on the basis of various pieces of
evidence examined at length by the trial court as well as
circumstantial evidence.
- The
trial court assessed the credibility of statements obtained from W.P.
and others by the Austrian courts and investigating authorities,
which had been read out at the hearing, and determined that they were
worthy evidence (pełnowartościowy materiał
dowodowy). They enabled the existence of personal connections
between the applicant and drug dealers arrested in Austria, in
particular W.P., to be established The court considered this evidence
to corroborate what had been established by experts, namely that the
drugs found abroad had in fact been produced in the laboratory in B.
The trial court considered that W.P. in his statements had been
incriminating himself to a far greater extent than the applicant.
W.P. considered himself the main organiser of drug related
dealings and depicted the applicant as an ineffective executor of his
instructions.
C. The appellate and cassation proceedings
- On
31 December 2003 the applicant lodged an appeal against the
judgment. He complained in particular that W.P.’s statements,
as well as those of three other witnesses, had been read out before
the trial court although they had not been requested by the Polish
authorities as provided by Article 587 of the Code. The
applicant also contested the trial court’s refusal of his
request for W.P. to be heard in person. Moreover, the appeal
challenged the trial court’s finding that the applicant had
been producing drugs up to 15 December 2000. He submitted that
the condition of the laboratory when it was searched on 13 December
2000 showed that it had not been used recently. Thus the trial court
was wrong to conclude that the applicant had been committing an
offence continuously up to 15 December 2000 and to apply the
more severe legal regulation that entered into force on 12 December
2000.
- The
prosecutor also lodged an appeal, alleging that it had been
sufficiently proved that the applicant had acted as a leader of an
organised criminal gang.
- On
8 April 2004 the Krakow Court of Appeal (Sąd Apelacyjny)
held a hearing and upheld the impugned judgment. The court considered
that the first instance court had been right to read out the
statements of W.P. and others made before the Austrian court and that
it had correctly applied the legal provisions in the light of the
Supreme Court’s interpretation set out in its decision of
28 March 2002. The appellate court also dismissed the arguments
that the applicant had not been producing any illegal substances
immediately before and after 12 December 2000. The court
considered that the police had secured in his laboratory large
quantities of substances for the production of narcotics, with
appliances which had not been dismantled and showed signs of recent
use. According to the court, a laboratory of that kind did not work
steadily and produce constantly, but had periods of stagnation,
waiting for the following stages of the production, but nevertheless
with the intention of continuing such activity.
- In
addition to the above-mentioned circumstantial evidence, the Court of
Appeal analysed at length the statements made by W.P. and other
witnesses heard in Austria and assessed their usefulness and
veracity. It underlined that the applicant had never contested that
he knew W.P. and had met him on several occasions, allegedly in the
capacity of an expert consultant in chemistry. The court noted that
W.P. had disclosed many elements of his dealings, which only in part
concerned the applicant, without attempting to minimise his own role.
His statements were considered logical and trustworthy and
corroborated by those made by other witnesses.
- On
15 July 2004 the applicant lodged a cassation appeal with the
Supreme Court (Sąd Najwyższy).
- On
19 October 2004 the Supreme Court decided not to hear the
cassation appeal and refused to prepare written reasons for its
decision.
II. RELEVANT DOMESTIC LAW
- Article 390 § 1 of the 1997 Code of
Criminal Procedure (“the Code”) provides:
“The accused has a right to be present during the
taking of evidence in the proceedings.”
- Article 391
of the Code provides as follows:
“1. If a witness has without good
reason refused to testify, or has made a statement which differs 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 for good reason or if the president of the
court has declined to summon him pursuant to Article 333 § 2
[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.”
- According
to Article 587 of the Code:
“The official records of inspections, testimonies
given by accused, witnesses or experts, or records of other
evidentiary actions prepared upon a request from a Polish court or
prosecutor, by the courts or prosecutors of foreign countries or by
agencies performing under their supervision, may be read out at a
hearing in accordance with the principles prescribed in Articles 389,
391 and 393. This may be done provided that the manner in which these
actions are performed does not conflict with the principles of legal
order in the Republic of Poland.”
- According
to Article 590 § 4 of the Code, the provision above is
applicable also to evidentiary materials obtained abroad even if the
actions have not been taken at the request of a Polish court or
prosecutor.
- Section 40 (2)
of the 1997 Prevention of Drug Addiction Act (Ustawa o
przeciwdziałaniu narkomanii) provided that production of
large quantities of psychotropic substances was liable to a penalty
of up to five years’ imprisonment. On 26 October 2000 the
Act was amended with effect from 12 December 2000. As required
by the amended section 40 (2) of the Act the offence in
question became liable to a penalty of a minimum of three years’
imprisonment; no maximum liability was set.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1
AND 3 (d) OF THE CONVENTION
- The
applicant complained that the criminal proceedings against him had
been unfair and that he had not been given the opportunity to examine
or have examined the main witnesses against him whose statements had
been the basis for his conviction. He relied on Article 6 §§ 1
and 3 (d) of the Convention, the relevant parts of which
provide:
“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 contested that argument.
A. Admissibility
- The
Government raised a preliminary objection as to the non exhaustion
of domestic remedies by the applicant. They argued that the applicant
could have lodged a constitutional complaint with the Constitutional
Court alleging that Article 590
§ 4 of the Code of Criminal Procedure and others
were contrary to the Constitution.
- The Court reiterates that Article 35 of the
Convention, which sets out the rule on exhaustion of domestic
remedies, provides for a distribution of the burden of proof. It is
incumbent on the Government claiming non exhaustion to satisfy
the Court that the remedy was an effective one available in theory
and in practice at the relevant time, that is to say that it was
accessible, was capable of providing redress in respect of the
applicant’s complaints, and offered reasonable prospects of
success (see Selmouni v. France [GC], no. 25803/94,
§ 76, ECHR 1999 V, and Mifsud v. France
(dec.), no. 57220/00, § 15, ECHR 2002 VIII).
- The Court has also held that the constitutional
complaint in Poland could be recognised as an effective remedy,
within the meaning of the Convention, only where: 1) the individual
decision, which allegedly violated the Convention, had been adopted
in direct application of an unconstitutional provision of national
legislation; and 2) procedural regulations applicable to the revision
of such type of individual decisions provided for the reopening of
the case or the quashing of the final decision in consequence of the
judgment of the Constitutional Court in which unconstitutionality had
been found (see Pachla v. Poland (dec.), no. 8812/02,
8 November 2005, and Szott Medynska, cited above).
- In
this connection, the Court observes that the situation
complained of by the applicant resulted
from the way in which the relevant provisions allowing witness
statements to be read out at a hearing were applied to the
applicant’s case. In that connection the Court points to
the established case law of the Constitutional Court, according
to which constitutional complaints based solely on the allegedly
wrongful interpretation of a legal provision are excluded from its
jurisdiction (see Palusinski v. Poland (dec.), no. 62414/00,
ECHR 2006 XIV, and Bobek v. Poland,
no. 68761/01, § 73, 17 July 2007). Therefore the
Court considers that the constitutional complaint cannot be regarded
with a sufficient degree of certainty as an effective remedy in the
applicant’s case.
It
follows that the Government’s plea of inadmissibility on the
ground of non exhaustion of domestic remedies must be dismissed.
- The
Court further notes that the complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention
and is not inadmissible on any other grounds. It must therefore
be declared admissible.
B. Merits
1. Arguments before the Court
- The
applicant complained that he had not been given the opportunity to
cross examine W.P., a key witness for the prosecution. The
testimonies obtained before the Austrian authorities played an
important role in his conviction. Nevertheless, the domestic
authorities did not attempt to summon W.P. and other witnesses or to
allow the applicant to put questions to them or confront them with
other witnesses.
- The
Government firstly stressed that domestic law allowed the statements
made by W.P. and other witnesses before the Austrian courts to be
read out at the hearing. Moreover, the Government argued that
the applicant’s conviction had not been based solely or to
a decisive extent on those statements. They merely supplemented other
evidence examined by the trial court. Although the applicant did not
have the opportunity to cross examine these witnesses, he had
had an opportunity to challenge their statements in his pleadings
before the courts. The discrepancies in the statements of these
witnesses, raised by the applicant, had been diligently examined by
the Court of Appeal.
- Finally,
the Government noted that the applicant had not been put at a
disadvantage vis à vis the prosecutor, as
those witnesses had never been questioned by a Polish prosecutor
either. In sum, the Government considered that the applicant’s
defence rights had not been restricted in a manner incompatible with
guarantees provided by Article 6 of the Convention.
2. The Court’s assessment
(a) Applicable principles
- The Court reiterates that the admissibility of
evidence is primarily a matter for regulation by national law and as
a general rule it is for the national courts to assess the evidence
before them. The Court’s task under the Convention is not to
give a ruling as to whether statements of witnesses were properly
admitted as evidence, but rather to ascertain whether the proceedings
as a whole, including the way in which evidence was taken, were fair
(see, among other authorities, Van Mechelen and Others
v. the Netherlands, 23 April 1997, § 50,
Reports of Judgments and Decisions 1997 III and
Doorson v. the Netherlands, judgment of 26 March 1996,
Reports 1996-II, p. 470, § 67).
- All the evidence must normally be produced at a public
hearing, in the presence of the accused, 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 Van Mechelen and Others, cited above, p. 711,
§ 51, and Lüdi v. Switzerland, judgment of
15 June 1992, Series A no. 238, p. 21, § 49).
- A conviction should not be based either solely or to a
decisive extent on statements which the defence has not been able to
challenge (see A.L. v. Finland, no. 23220/04, § 37,
27 January 2009). As the Court has stated on a number of
occasions (see, among other authorities, Lüdi, cited
above, p. 21, § 47), it may prove necessary in certain
circumstances to refer to statements made during the investigative
stage. If the defendant has been given an adequate and proper
opportunity to challenge the statements, either when made or at a
later stage, their admission in evidence will not in itself
contravene Article 6 §§ 1 and 3 (d).
The corollary of that, however, is that where a conviction is based
solely or to a decisive degree on statements that have been made by a
person whom the accused has had no opportunity to examine or to have
examined, whether during the investigation or at the trial, the
rights of the defence are restricted to an extent that is
incompatible with the guarantees provided by Article 6 (see
Saïdi v. France, judgment of 20 September 1993,
Series A no. 261-C, pp. 56-57, §§ 43-44;
Lucà v. Italy, no. 33354/96, § 40, 27
February 2001; and Solakov v. the former Yugoslav Republic of
Macedonia, no. 47023/99, § 57, ECHR 2001 X).
Evidence
obtained from a witness under conditions in which the rights of the
defence cannot be secured to the extent normally required by the
Convention should, however, be treated with extreme care (see Visser
v. the Netherlands, no. 26668/95, § 44,
14 February 2002; and S.N. v Sweden, no. 34209/96,
§ 53, ECHR 2002-V).
(b) Application of the above principles to
the facts of the case
- Turning
to the circumstances of the instant case, the Court notes that the
trial court considered as worthy evidence statements made by several
witnesses, in particular by W.P., in the course of their trial before
the Austrian courts. Their statements were read out at the
applicant’s trial and the applicant did not have the
opportunity to challenge them directly. It is a matter of regret that
the trial judge did not reason his decision not to hear W.P. and B.S.
in person, and to allow the applicant’s legal team to question
them (see paragraph 16 above).
- Nevertheless,
the Court considers that the impugned statements were only one
element of the extensive evidentiary material before the domestic
court. In particular, the trial court relied to a great extent on the
expert opinions submitted by a total of nine experts. Most of the
evidence against the applicant came from the equipment seized, and
from about 100 samples of chemical substances found in the laboratory
in B. Moreover, the trial court heard other witnesses, thirty three
of whom were considered valuable for establishing the facts of the
case. Finally, the court had at its disposal extensive documentary
evidence including videotapes, photographs, records of searches of
premises and notes on the use of a police dog (see paragraph 18
above).
The
Court also observes that in the trial under consideration the
applicant was convicted of offences related to production of drugs
and storing equipment and substances for that purpose. The
incriminating statements of W.P. and others were not of decisive
importance for securing the applicant’s conviction on these
charges. It is to be noted that other charges related to illegal
transport of psychotropic substances to Austria and other European
countries and releasing drugs into circulation in those countries
were severed to be dealt with in another set of the proceedings (see
paragraph 10 above).
- There
was thus considerable alternative evidence before the trial court
indicating that the applicant was guilty of the offences with which
he was charged and the statements of W.P. and other witnesses read
out at the hearing only served to corroborate the other evidence
pointing to his guilt (compare and contrast cases concerning child
sexual abuse, S.N. v. Sweden, cited above, § 52;
W.S. v. Poland, no. 21508/02, § 57, 19 June
2007; A.L. v. Finland, cited above, §§ 41-44;
and A.S. v. Finland, no. 40156/07,
§§ 66-67, 28 September 2010).
- In
those circumstances the Court considers that the applicant’s
conviction was not based solely or to a decisive extent on the
statements of the witnesses obtained from the Austrian authorities
(compare and contrast Demski v. Poland, no. 22695/03,
§ 41, 4 November 2008, and Van Mechelen and Others,
cited above, p. 711, § 63).
- The
Court further notes that the applicant was aware of the identity of
the witnesses in question. He had also access to all the statements
used by the court, as they had been read out at the hearing. Although
it had not been possible for the applicant to put questions directly
to the witnesses, he nevertheless questioned their reliability at the
hearings before the trial court, and in his written pleadings, appeal
and cassation appeal.
In
addition, the Court is satisfied that the domestic courts assessed
the statements at issue with the particular care required (see
paragraphs 21 and 25 above). They took into consideration
various factors which were of relevance when it came to assessing
their credibility and the veracity and the weight to be given to
their statements (see Gossa v. Poland, no. 47986/99,
§ 62, 9 January 2007, and Biełaj v. Poland,
no. 43643/04, § 61, 27 April 2010).
- Having
regard to the proceedings as a whole, the Court considers that the
lack of opportunity to examine W.P. and other witnesses at the
hearing did not, in the circumstances of the case, infringe the
rights of the defence to such an extent that it constituted a breach
of paragraphs 1 and 3 (d) of Article 6, taken
together. In reaching this conclusion due weight was given to the
above conclusion that their testimony was not in any respect decisive
for the conviction of the applicant.
The
applicant’s trial as a whole was thus not unfair.
- Accordingly,
there has been no violation of Article 6 §§ 1
and 3 (d) of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained of a violation of Article 7 § 1
of the Convention. He argued that the domestic courts determined
that he had been involved in criminal activity up to 15 December
2000; thus they could apply the new law, which carried a heavier
penalty, and which entered into force on 12 December 2000.
- However, the Court reiterates that, in accordance with
Article 19 of the Convention, its duty is to ensure the
observance of the engagements undertaken by the Contracting Parties
to the Convention. In particular, it is not its function to deal with
errors of fact or law allegedly committed by a national court unless
and in so far as they may have infringed rights and freedoms
protected by the Convention (see García Ruiz
v. Spain [GC], no. 30544/96, § 28, ECHR 1999 I,
with further references).
The
Court finds that the facts of the case do not disclose any appearance
of a violation of the above mentioned provision.
- It
follows that this part of the application is manifestly ill founded
and must be rejected pursuant to Article 35 §§ 3
and 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the applicant’s complaint that he
was denied the opportunity to examine or have examined witnesses
against him admissible and the remainder of the application
inadmissible;
- Holds that there has been no violation of
Article 6 § 1 taken together with Article 6 § 3 (d)
of the Convention.
Done in English, and notified in writing on 10 May 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza Registrar President
