CEDH · CASELAW;CLIN;ENG — 23 janvier 2018

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Poland - 58683/08 Judgment 23.1.2018 [Section IV] Article 6 Article 6-3-d Examination of witnesses Conviction based on co-accused’s statements with no possibility of confrontation: violation Facts – In 2006 a number of individuals, including the applicant, received criminal convictions for fraudulently purchasing mobile telephones at preferential rates. Their guilt was established largely on the basis of statements by the principal defendant, P.N., a telephone sales agent, who had confessed to the police that he had organised the fraud using a similar method for all the defendants, indicating that they had all been aware of the illegality of their contracts. At his request, P.N. had been exempted from appearing at the trial. Consequently, his statements had merely been read out in open court without any possibility for the other defendants to put questions to him. Law – Article 6 §§ 1 and 3 (d): The case-law principles concerning the use of statements by an absent witness applied by analogy to the statements of an absent co-defendant. The present case had to be distinguished from that of Riahi v.   Belgium ( 65400/10 , 14   June 2016) where the absent witness had first been interviewed by the police and then by the investigating judge: here, the absent co-defendant had only been questioned by the police and never by a prosecutor or judge. The national courts had taken the view that the examination in open court of the person who had given the impugned statement was not necessary for the establishment of the truth. It was true that he had the status of defendant and had exercised his rights under the Code of Criminal Procedure. Even if he had been summoned to the hearing, he might well have exercised his right to remain silent. In those circumstances his appearance at the trial would not have guaranteed the possibility of obtaining additional information from him. However, it was not apparent from the reasoning of the domestic judgments, (a) whether the impugned statements had been regarded as decisive or (b) whether the courts had examined in depth the question of the consequences of P.N.’s absence for the establishment of the truth or the existence of safeguards to counterbalance the disadvantages for the applicant’s defence. (a)     The weight of the impugned statements in the applicant’s conviction – The courts had indicated that they had based the conviction on the entire body of evidence in the case file, taken as a whole. However, in the Court’s view it was undeniable that P.N.’s statements had played a decisive role in the applicant’s conviction. To be sure, in order to demonstrate that the offence attributed to the applicant had been perpetrated and to ascertain his degree of guilt, the courts had been required to establish criminal intent and an awareness, on his part, of the unlawfulness of the acts in question. The statements made by the other defendants on this point had not been unequivocal and they had not all shown explicitly that all the accused had acted in full awareness or with the same degree of criminal intent. As the sole eye-witness of the offences, P.N. was in fact the only one who could shed light on these issues. None of the other evidence admitted by the national courts could settle the question of the applicant’s criminal intent to any greater extent, as it merely corroborated the impugned statements. (b)     The existence of counterbalancing procedural safeguards – Neither a judge nor the applicant himself had been able to observe P.N. during his interview in order to assess his credibility. While the courts had examined this credibility in the light of the other evidence available, there was nothing in the file to show that they had attached less weight to it on account of the defence’s inability to question P.N. or because the judges had nor seen or heard him. However rigorous it might be, scrutiny by the trial judge was nevertheless an imperfect means of ascertaining the credibility of such a statement, since it did not have the benefit of the information that could be gleaned through a confrontation in open court between the accused and the accuser. As to the fact that the relevant provisions of the Code of Criminal Procedure had granted P.N. certain specific rights, including the right to refuse to make any statements or to answer certain questions without having to provide explanations, this was certainly important for the assessment of the overall fairness of the proceedings, but nevertheless not decisive. In the Court’s view, the possibility of challenging the incriminating statement by adducing evidence or calling witnesses was not capable of counterbalancing the fact that the applicant had not had, at any stage of the proceedings, an opportunity to test the sincerity or reliability of the witness by challenging his testimony. The fact that the applicant had not made any request for that purpose during the trial at first instance did not alter that finding, because at that stage he had not been assisted by a professional. In sum, the applicant had not had a sufficient or appropriate opportunity to challenge statements which constituted the decisive evidence against him in his conviction. Conclusion: violation (unanimously). Article 41: EUR 2,000 in respect of non-pecuniary damage. (For the relevant principles and criteria, see Al-Khawaja and Tahery v. the United Kingdom [GC], 26766/05 and 22228/06, 15   December 2011, Information Note 147 ; and Schatschaschwili v.   Germany [GC], 9154/10, 15   December 2015, Information Note   191 )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes