CEDH · CASELAW;COMMUNICATEDCASES;ENG — 9 janvier 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s5FFF0A75 { margin-top:0pt; margin-bottom:0pt; font-size:7pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s6B505E72 { margin:0pt; padding-left:0pt } .sE1C9012B { margin-top:14pt; margin-left:29.21pt; margin-bottom:3pt; text-align:justify; padding-left:6.24pt; font-family:Arial } .sFEE73663 { margin-top:14pt; margin-left:35.45pt; margin-bottom:3pt; text-align:justify } .sEE2CCEA4 { margin-top:14pt; margin-left:56.7pt; margin-bottom:3pt; text-align:justify; font-family:Arial } .sFBC99493 { font-style:italic } Published on 29 January 2024   FIRST SECTION Application no. 32663/18 Piotr BRĄCZEK against Poland lodged on 5 July 2018 communicated on 9 January 2024 SUBJECT MATTER OF THE CASE The application concerns a criminal trial against the applicant in the course of which the applicant, as he claims, did not have the opportunity to examine the witnesses whose testimonies served as the basis for his conviction.   On 11 December 2015 the Olsztyn Regional Court ( Sąd Okręgowy ) convicted the applicant of membership in a criminal gang and several drug ‑ related offences. The court sentenced him to 7 years’ imprisonment and fined him 20,000 Polish zlotys (approximately 4,600 euros). It appears that the conviction was based mainly on the testimonies of five co-defendants (D.S., K.K., M.K., S.M. and D.P.) given during the pre-trial investigation, in the absence of the applicant or his lawyer. It appears that all of the witnesses had refused to testify in open court. During these proceedings, the Regional Court had dismissed the applicant’s request to have two defence witnesses (C.B. and L.B.) examined, reasoning that their submissions would be irrelevant for the outcome of the case. At the material time, both witnesses were serving their prison sentences in Norway. It appears that they had been questioned during the pre-trial investigation, with L.B. refusing to make any statements and C.B. denying the applicant’s involvement in drug trafficking. In his motion, the applicant claimed that he had become aware of those testimonies after the case had been referred to the Regional Court. On 28 November 2016 the Białystok Court of Appeal ( Sąd Apelacyjny ) upheld the first-instance judgment in so far as it related to the applicant. On 30 November 2017 the Supreme Court ( Sąd Najwyższy ) dismissed the applicant’s cassation appeal as manifestly ill-founded (served on 10 January 2018). Invoking Article 6 §§ 1 and 3 (d) of the Convention, the applicant complains that his right to a fair trial was violated. In particular, he alleges that his conviction was based on untested evidence given by D.S., K.K., M.K., S.M. and D.P., and that his requests to examine C.B. and L.B. were dismissed.     QUESTIONS TO THE PARTIES Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 §§ 1 and 3 (d) of the Convention? The parties are invited, in particular, to comment on the following matters: Has the applicant’s right to fair trial, including a right to examine or have examined witnesses against him, under Article 6 §§ 1 and 3 (d) of the Convention, been breached in that neither the applicant nor his lawyer had ever been given an opportunity, at any stage of the proceedings, to examine D.S., K.K., M.K., S.M. and D.P.? In particular, having regard to the principles established by the Court in its judgment in the case of Schatschaschwili v. Germany [GC], no.   9154/10, ECHR 2015: Was there a good reason for admitting as evidence pre-trial statements made by D.S., K.K., M.K., S.M. and D.P. and subsequently read out at the trial? Was the applicant’s conviction based solely or to a decisive or significant extent on the evidence provided by D.S., K.K., M.K., S.M. and D.P.? Have there been sufficient counterbalancing factors to compensate for the difficulties caused to the defence as a result of the fact that it had been unable to question D.S., K.K., M.K., S.M. and D.P.? In particular, what measures were taken, and which additional counterbalancing measures could have been taken by the domestic prosecution authorities and by the domestic courts to safeguard the applicant’s defence rights? Has the applicant’s right to a fair trial, including the right to obtain the attendance and examination of witnesses on his behalf, under Article   6 §§ 1 and 3 (d) of the Convention, been breached in that the domestic courts dismissed the applicant’s requests to summon C.B.   and L.B. as witnesses (see Murtazaliyeva v. Russia [GC], no.   36658/05, §§   139 ‑ 168, 18 December 2018)?