The ECHR judgment of 23 January 2018 in the case of Kushta v. Poland (application No. 58683/08).
In 2008, the applicant was assisted in the preparation of the application. Subsequently, the application was communicated to Poland.
The case was successfully considered a complaint against the verdict on the basis of the testimony of other defendants in the case in the absence of confrontation with witnesses. The requirements of subparagraph (d) of paragraph 3 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms were violated.
CIRCUMSTANCES OF THE CASE
In 2006, several people, including the applicant, were convicted of fraudulent acquisition of mobile phones at a reduced rate. Their guilt was established mainly on the basis of the testimony of the main defendant, P.N., the phone sales manager, who confessed to the police that he had organized a fraudulent scheme using a similar method for all defendants, indicating that all buyers knew about the illegal nature of their purchases. At the request of P.N. he was released from the obligation to personally attend court sessions. Consequently, his testimony was only announced in court, and the other defendants were not given the opportunity to ask questions of P.N.
ISSUES OF LAW
Concerning compliance with paragraph 1 and subparagraph "d" of paragraph 3 of Article 6 of the Convention. The precedent principles regarding the use of the testimony of an absent witness, applied by analogy to the testimony of the absent other defendant in the case.
This case should be distinguished from the case of Riahi v. Belgium (Judgment of 14 June 2016, complaint No. 65400/10), in which the absent witness was first interrogated by police officers and then by an investigating judge. In the present case, the absent defendant in the case was questioned only by police officers and never by a prosecutor or judge.
The domestic courts considered that the questioning in an open court session of the person who gave the impugned statements was not necessary to establish the truth in the case. Indeed, he had the status of a defendant and exercised his rights under the Criminal Procedure Code. Even if he were summoned to court, he could still use the right not to testify. Under such circumstances, the presence of P.N. in the court did not guarantee the possibility of receiving additional information from him.
However, it is not clear from the domestic courts' arguments that: (a) the impugned statements were considered as decisive for the content of the verdict, or (b) whether the courts carefully examined the issue of the consequences of the non-appearance of P.N. to the court to establish the truth in the case or the question of the existence of guarantees that would balance the unfavorable situation in which the applicant's defense was.
(a) Concerning the significance of the impugned evidence for the content of the verdict in the applicant's case. The courts of Poland indicated that they based the verdict on the entire body of evidence in the case. Nevertheless, in the Court's view, it can not be denied that the testimony of P.N. were decisive in the sentencing. Indeed, in order to demonstrate that the offense committed to the applicant was committed, and in order to clarify the extent of his guilt, the courts had to establish the criminal intent and awareness of the illegality of his actions by the applicant. The testimony given by other defendants on this issue was not unambiguous and did not directly testify that all the defendants acted with full consciousness of their actions or with the same degree of criminal intent. As the only eyewitness to the crimes of P.N. in fact, was the only person who could clarify these issues. None of the other evidence recognized by domestic courts as admissible could not have helped in any greater degree to resolve the issue of the applicant's criminal intent, since they only confirmed the testimony of P.N.
(b) Presence of procedural guarantees that would balance the possibility of the applicant's party in the proceedings. Neither the judge nor the applicant saw P.N. while giving them testimony to assess their credibility.
Although the Polish courts assessed the credibility of the evidence in the light of other evidence in the case, nothing in the case file showed that the courts would give them less importance because the defense could not interrogate P.N. or that the judges have not seen or heard P.N. No matter how thorough such a check, however, a study by a judge who conducted a hearing on his case was an inadequate way of verifying the reliability of such statements, since there were no data that could appear during a confrontation in an open trial between the accused and the prosecutor .
As for the fact that the relevant provisions of the Code of Criminal Procedure were guaranteed by P.N. some special rights, including the right to refuse to testify or answer certain questions without explanation, this was certainly important for assessing the fairness of the process as a whole, but, however, was not a decisive factor.
From the Court's point of view, the possibility of appealing the accused testimony by presenting evidence or calling witnesses did not balance the fact that at no stage in the proceedings the applicant had been able to verify the veracity or credibility of the witness's testimony by appealing them.
The fact that the applicant did not file an appropriate complaint during the trial of the first-instance court does not affect this conclusion, because at this stage he was not assisted by a professional lawyer.
Thus, the applicant did not have sufficient or appropriate opportunity to appeal the testimony, which became decisive evidence against him when deciding the sentence.
The violation of the requirements of paragraph 1 and subparagraph "d" of paragraph 3 of Article 6 of the Convention was violated (unanimously).
In application of Article 41 of the Convention, the Court awarded the applicant EUR 2,000 in respect of non-pecuniary damage.