EHRM, 09-01-2007, nr. 47986/99

‘In the course of the trial it was established that J.S.-T. was not residing in the territory of Poland (see the letter of the Consular Department of the Embassy of the United States of America, p. 482). For that reason, the statements that she had made in the investigation were read out as witness testimony.

Assessing the above-mentioned testimony as well as the remaining material before it, this court has found the following:

The whole structure of the bill of indictment was in principle based on J.S.-T.'s confession that she had made in the investigation. On account of mistakes committed already at the investigative stage and having regard to general guarantees [for a defendant] laid down in the Code of Criminal Procedure, it has to be considered that this evidence does not suffice to find the defendants guilty of the offences with which they were charged.

Even without questioning the prosecutor's decision to release J.S.-T. … which, in the context of the letter from the Consular Department of the American Embassy appears to have a dubious basis, it is impossible not to question the statement made in the reasoning for that decision, namely that the evidence collected was [at that time] complete. In passing, it should be noted that the inquiries were still under way and the investigation itself was terminated on 23 September 1994. Having regard to the material gathered up to that stage, including evidence given by [J.S.-T.] it was simply necessary to confront [her] with her co-suspects, in particular with [the applicant].

That, however, was not done and, for all practical reasons, could not be done at the trial stage. Had it been done, it would have been possible to clarify a number of facts which, maybe even in J.S.-T.'s absence, would have enabled [the court] to determine properly the charges against the other defendants.

For procedural reasons, J.S.-T.'s statements are to be considered as witness testimony and as such are to be assessed. Yet when assessing [her statements], it must be taken into account that they do not have the quality of [witness] testimony given under pain [of being criminally liable for perjury] but are the statements of a suspect with all the consequences thereof, including the possibility that J.S.-T., for the reasons only known to herself, did not tell the truth or the whole truth.

Moreover, this part of the evidence was not heard directly by the court and this, for obvious reasons, made it impossible for it to verify and assess fully [her statements]. Assessing this evidence from the point of view of its credibility, it cannot be said to have the quality of consistency from the beginning of the proceedings.

In view of the foregoing, this court, finding it impossible for it to verify this evidence, cannot rely on it to conclude that the defendants' guilt has been proved beyond a reasonable doubt.

It must also be noted that this evidence concerns mainly [the applicant]. There is no direct indication that A.I., when crossing the border…, knew that the car had been obtained by crime. …

The testimonies of both defendants cannot be considered credible because they [changed their statements], although in their final version presented at the trial they were closely consistent. … However, the defendants' and, in particular, A.I.'s guilt is not obvious even on the basis of their testimonies. …

Having regard to the foregoing and to the fact that there is no convincing and trustworthy evidence of the defendants' guilt, this court has acquitted them. …’

‘… we should inform you that we cannot help you because the supplied address of the person you search for does not exist in the San Francisco address directory (on 40^th street there are no such low numbers and the postal code concerns another state). You are asked to check the address once again; perhaps the correct address is in the Sokółka District Court's possession. If the person that you search for has changed her address we will certainly not be able to find her because in the United States there are no registers of residents and no duty to register one's place of residence. …’

‘… that on 3 April 1994 in Łódź, acting together and in agreement with A.I. assisted J.S.-T. to sell a ‘Mercedes-Benz 200E’ car registered under number MUD 9552 valued at 850,000,000 [old] Polish zlotys …[and, in particular] knowing that the car had been obtained by crime, hired A.I. to take that car abroad…’

‘On 2 April 1994 J.S.-T., who had a permanent residence in San Francisco, hired a Mercedes 200 E from the Sixt-Budget company in Frankfurt. The car was hired for a period from 2 to 10 April 1994. The rental agreement included a ban on driving the car to the countries of Eastern Europe, Denmark [and] Italy (p. 13).

On 3 April 1994 J.S.-T. accompanied by a P.M. arrived at Łódź in the hired car. In Łódź they met the defendant Jan Gossa, an acquaintance of P.M. The defendant proposed to take the car abroad to former USRR, where it would be sold. He [the defendant] stated that he knew a person who was willing to drive the car. The amount received from the sale was to be shared.

On the same day the defendant put J.S.-T. in contact with A.I. The meeting took place in the car park, where J.S.-T. handed the car documents to AI. AI left the car park in the ‘Mercedes’ (statements of J.S.-T., pp.93–94).

On 4 April 1994 at 2.40 a.m. A.I. arrived at the Kuźnica Białostocka road border check-point and attempted to cross the Polish-Belarusian border in the Mercedes 200 E. During the border control the officers of the Border Guards decided to check if the car was being searched for in Germany. They were alerted by the fact that A.I. declared that he was travelling as a tourist to Moscow and Sochi, but did not have any luggage. In addition, after having verified internal records, it was established that he [A.I.] had previously crossed the border driving a different car.

On 4 April 1994 at 1.40 p.m. information was received from the Kołbaskowo border check-point that the car was appropriated to the detriment of the Sixt-Budget rental company (p.7). The value of the Mercedes amounts to approximately PLN 85,000. It was returned to the company, which on 4 April 1994 had notified that the car was appropriated.

By a final judgment of the Białystok Regional Court of 16 October 1996 … A.I. was convicted of the offence specified in Article 215 § 2 of the Criminal Code, consisting in the fact that on 3 April 1994 in Łódź he had assisted J.S.-T. in selling a ‘Mercedes-Benz 200E’ car registered under number MUD 9552 valued not less than 85,000 PLN to the detriment of the company Sixt-Budget GmbH, in that knowing that the car had been obtained by crime he took it with a view to driving it abroad and was sentenced to 12 months' imprisonment and a fine of PLN 5,000 (case file no. III K 132/96).

The defendant Jan Gossa did not confess to the act with which he had been charged. He refused to give evidence before the court, and thus the court revealed his statements made during the investigation.

…

The court did not consider the applicant's statements credible. He was questioned on few occasions and [each time] he made differing statements. Those statements vary in essential respects: as to acquaintance with J.S.-T., as to contacts with her and as to reasons for handing the car to A.I. If the applicant's evidence given at the [original] trial that he had had nothing to do with the attempted taking of the ‘Mercedes’ abroad was to be considered credible, then the defendant would have had no reasons to provide, directly after his arrest, false information, [which was] different from the version [of events] which he had eventually presented.

The court, when determining the facts of the case, considered credible the statements made by J.S.-T, questioned as a suspect, on 5 May 1994. In those statements, J.S.-T. had presented in detail her contacts with the defendant and A.I. Her statements are logical and convincing. She was questioned in the presence of an interpreter and her lawyer. She had unrestrained freedom to express herself. The facts stated by her do not only incriminate the defendant and A.I., but they also confirm her guilt.

Those statements do not lose their credibility on account of the fact that they differ from J.S.-T.'s statements made directly after her arrest, namely that the defendant without her consent had lent the car to his friend. He [the defendant] had the car keys because he had parked the car in the car park. That version of events, although similar with the defendant's first statement, is not credible.

A.I. saw the rental agreement when taking the car. A.I. has lived in Germany for 8 years and could not have any difficulties in understanding the clause in the agreement which forbade driving the car to the countries of Eastern Europe. J.S.-T. also knew the content of the rental agreement, and thus was aware of this ban. The next assertion of the defendant and A.I. that the latter was to drive the car to Minsk or Vilnius on her [J.S.-T.'s] instructions did not find any support in the evidence. A.I. at the time of his arrest on the border had stated that his destination was Moscow or Sochi, so completely different destinations [from those previously referred to].

In the light of the evidence obtained in the case the applicant's guilt does not raise any doubts. It was the defendant who was the mastermind of the sale of the car abroad. The amount received from the sale was to be shared.

The defendant was fully aware that J.S.-T. was not the owner of the car. She resided permanently in the United States. She drove to Łódź in the hired Mercedes which was registered in Germany. J.S.-T. was a party to the rental agreement and she gave her consent to the sale of the car. She also handed over the documents and the car keys to A.I. to whom she had been directed and put in contact with by the defendant. A.I. was to drive the car abroad. At the moment of the handing of the car to A.I. it was appropriated to the detriment of the Sixt-Budget company, the owner of the car.

The defendant's actions constituted [the offence specified in] Article 215 § 2 of the Criminal Code. The defendant, acting together and in agreement with A.I. assisted J.S.-T. in selling a ‘Mercedes-Benz 200E’ car registered under number M-UD 9552 valued not less than 85.000 PLN … [and, in particular] knowing that the car had been obtained by crime, hired A.I. to take that car abroad…’

‘… The alleged breach of [the applicant's] procedural rights cannot be upheld. The legal grounds for declining to hear J.S.-T. before the court are laid down in Article 337 §§ 1 and 2 of the Code of Criminal Procedure. Under that provision, the court may — even if the parties object — decline to take measures to summon a witness and confine itself to reading out the records of statements previously given by him or her as a defendant or suspect. The application of that provision is an exception to the rule of the direct examination of witnesses and does diminish the accused person's defence rights, in particular in situations where there has been no prior confrontation between him and a witness whose testimony is later read out. It must however be stressed that Article 337 of the Code of Criminal Procedure does not oblige the court to exhaust all possibilities of producing a witness from abroad at the trial, even if he or she resides in a neighbouring country. … Of course, the trial court is empowered, apart from the application of the measure under Article 337…, to make efforts to ensure the direct examination of a witness from abroad. But those efforts make sense only if there are prospects of success. It is known — also to the author of the appeal — that the [previous] attempts made by the court in that respect were futile and that future ones would fail. As early as 1995 the Regional Court asked the Embassy of the United States of America for information as to whether J.S.-T. lived at the address that she had supplied. The reply was evasive and should be interpreted as a refusal to furnish any information on that matter. A further confirmation of the firmness of that position is found in the letter of the Polish diplomatic service (see the letter of the Consul General of the Republic of Poland in Los Angeles, p. 482).

A pre-condition for securing an appearance of a witness from abroad is that the authority conducting the proceedings knows his or her address. Bearing in mind the obligation to observe all procedural rules attached to summoning a witness from a foreign country, a summons cannot be sent if his or her address is unknown or if it is clear that the address is false. It that context, it should be recalled that the applicant's ‘private’ enquiries were to no avail (see … the letter of 7 October 1996…).

In conclusion and having regard to the grounds for the appeal, the [trial] court would not have been able to satisfy the requirement of the ‘proper and effective summoning of the witness J.S.-T. for the trial’. Consequently, this argument is ill-founded and, indeed, this court could have stopped at this point because the appellant's further arguments do not concern the court's actions but the actions of the investigative authorities and, also, the appellant does not challenge the logic of the conclusion reached by the trial court. Yet there is a need to make the following remarks.

First of all, J.S.-T. was released because she put up bail of PLN 10,000. Until that time, that is to say, for a month, she was in custody. The [applicant] was treated in the same way but on more favourable conditions: he was released after 17 days and the security in question was PLN 8,000.

Secondly, evidence obtained under Article 337 must be assessed with a particular thoroughness. The assessment of J.S.-T.'s testimony must be very careful, not least because she was charged with theft of the car in question and supplied a false address. The Regional Court, did, however, manage the task. The best proof is the fact that the [appellant] does not even try to challenge the arguments relating to J.S.-T.'s testimony, which are presented in the reasoning of the contested judgment. It can only be recalled that the trial court took notice of the circumstances surrounding the last questioning of J.S.-T. (by the prosecutor and in the presence of her lawyer) and of the importance of those statements for her criminal responsibility. The court of first instance did not overlook the fact that those statements differed from the previous ones. There is no material proof to conclude that her statements incriminating [the applicant] were made in consequence of her agreement with the investigating authority and, in particular, that they were the price for her release. If her release can be looked on from this angle, the price for her release — although lawful — was the security in question.

Apart from the above-mentioned arguments of the trial court, there is one more reason to believe J.S.-T. and not to believe [the applicant]. His subsequent statements differ in respect to a number of principal points, points that were enumerated by the trial court. That court rightly noted that [the applicant], when questioned for the first time, had no reason to present a version of events that differed from those later presented. That was decisive for the trial court when, in making a choice between [the applicant's] statements and the last version presented by J.S.-T., it rejected his testimony. She also changed her statements but she had an interest in concealing the truth. Yet, if [the applicant] was not in any criminal conspiracy with other persons involved in the case, he had no reason to conceal the true circumstances capable of showing that he was not involved in the activities of those persons.

The applicant's letter to the court dated 17 July 1997 reinforces the conclusions reached by the Regional Court rather than supporting his own credibility. A new circumstance emerges [from that letter], namely that the car in question was to return from Minsk (so, it was to return to Poland and then to Frankfurt am Main, where it had been hired) with medicines for P.M. So, there was no car theft, and therefore no assistance in selling property obtained by crime. Multiplying different versions results in none of them being considered credible.

Two further, significant elements should be added to the arguments of the trial court.

A.I., when heard by the prosecutor on 6 April 1994, said, among other things, that ‘… [the applicant] came and offered me to get paid — he asked whether I would drive a ‘Mercedes’ to Minsk since his acquaintance was to deliver a hired car there.’ [That] witness both earlier and in the present case, in [the applicant's] presence, confirmed those statements and [the applicant] did not object. [The applicant] himself stated that he suggested A.I. as a driver because he had a German passport. Of course, [the applicant] knew of the arrival of the car on German licence plates. If one combines all these facts which, given [the applicant's] more than average intelligence and the fact that his decisions are well considered (see the psychologist's report, pp. 138–139) presented [him] with an exceptionally easy task, it must be concluded that [the applicant] had full knowledge and fulfilled all elements [i.e. had the necessary actus reus and mens rea] for the offence in question.

Since, for all the above reasons, the assessment made by the court of first instance was compatible with the [principles laid down in] Article 4 § 1 of the Code of Criminal Procedure and consistent with the principles of logical thinking and common sense, no grounds for allowing the [applicant's] appeal have been found. …’