ITEMID: 001-57630
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 1990
DOCNAME: CASE OF AUTRONIC AG v. SWITZERLAND
IMPORTANCE: 2
CONCLUSION: Violation of Art. 10;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;J.A. Carrillo Salcedo
TEXT: 10. Autronic AG is a limited company incorporated under Swiss law and has its head office at Dübendorf (Canton of Zürich). It specialises in electronics and in particular sells 90 cm-diameter dish aerials for home use.
11. Its application relates to the reception in Switzerland of uncoded television programmes made and broadcast in the Soviet Union. They are transmitted to the Soviet satellite G-Horizont (also called Stationar-4), which sends them back to receiving earth stations on Soviet territory, and these in turn distribute them to users. The satellite is a telecommunications satellite and not a direct-broadcasting one: it provides a fixed point-to-point radiocommunication service (number 22 of the Radio Regulations - see paragraph 36 below) and uses the frequencies allotted to radiocommunications. It also transmits telephone conversations, telexes or telegrams and data.
12. In 1982 the only television broadcasts by satellite that could be received in Switzerland by means of a dish aerial were those from G-Horizont.
13. In the spring of 1982 Autronic AG applied to the Radio and Television Division of the Head Office of the national Post and Telecommunications Authority (PTT). It requested permission to give a showing at the Basle Trade Fair (Mustermesse) from 17 to 26 April 1982 of the public television programme that it received direct from G-Horizont by means of a private dish aerial, its object being to give a demonstration of the technical capabilities of the equipment in order to promote sales of it.
14. The Division wrote to the Soviet Union’s embassy in Berne, which on 21 April conveyed the Soviet authorities’ consent for the duration of the fair.
15. On 7 July 1982 Autronic AG made a similar approach in order to give demonstrations at the FERA exhibition, which was to be held in Zürich from 30 August to 6 September 1982 and covered the latest developments in radio, television and electronics.
16. The Radio and Television Division again applied to the Soviet embassy, but did not receive a reply. On 14 and 26 July and on 6 August it informed Autronic AG that without the express consent of the Soviet authorities it could not allow reception of the G-Horizont broadcasts and that the Radio Regulations (see paragraph 36 below) required it to prevent such reception.
17. As Autronic AG was anxious to give further demonstrations, it applied to the Radio and Television Division, on 1 November 1982, for a declaratory ruling (Feststellungsverfügung) that, in particular, reception for private use of uncoded television programmes from satellites such as G-Horizont should not require the consent of the broadcasting State’s authorities.
18. The applicant company relied on several arguments: the confidentiality of a programme could not depend on the use of particular frequencies; numbers 1992-1994 of the Radio Regulations gave no indication of which kind of broadcast was to be kept confidential; reception of radio and television programmes intended for and accessible to the general public could be made subject only to the award of a licence under Swiss law, which was available to everybody; and, lastly, the reception in question did not infringe Swiss legislation on intellectual property, because while programmes taken individually could have the status of "works", the same was not true of a whole schedule.
19. On 13 January 1983 the Radio and Television Division rejected the applicant company’s application, stating that it could not grant a receiving licence without the consent of the broadcasting State’s authorities.
20. The Division noted that only duly approved earth stations were entitled to receive signals from telecommunications satellites. In this connection it referred to number 960 of the Radio Regulations, under which each national authority could assign certain frequencies to point-to-point radiocommunications provided that the broadcasts were not intended for direct reception by the general public.
It also stressed the difference between broadcasting satellites and telecommunications satellites. The former transmitted radio and television programmes to an undefined number of receiving stations within a given area, on frequencies expressly reserved for direct reception, while the latter were covered by the secrecy of broadcasts which all member States were obliged to ensure under Article 22 of the International Telecommunication Convention and numbers 1992-1994 of the Radio Regulations (see paragraphs 34 and 36 below). It added, lastly (translation from German):
"As to whether a broadcast is intended for direct reception by the general public, the decisive factor is accordingly not the content of the radiocommunication transmitted (a television programme, for example) but the mode of its transmission, in other words its classification as a telecommunication. It follows that radio or television programmes transmitted via a telecommunications satellite cannot be received in a country unless the telecommunications authority of the broadcasting State ... has given its permission to the telecommunications authority of the receiving State. This will ensure compliance with the provisions on the secrecy of telecommunications. There is no apparent reason why telecommunications authorities should not be able to keep certain radiocommunications secret since they are under an obligation to ensure that the provisions of the International Telecommunication Convention and of the Radio Regulations are complied with."
21. On 14 February 1983 Autronic AG lodged an appeal (Beschwerde) against the Radio and Television Division’s decision but this was rejected by the Head Office of the PTT on 26 July.
The Head Office began by holding that it had jurisdiction and that the company had an interest, worthy of protection, in having the disputed decision set aside under section 48 of the Federal Administrative Procedure Act.
It went on to set out its reasons for dismissing the appeal. Protection of the material information could not depend on whether the broadcasts were intended for the general public, since as a rule it was not known, at the time of transmission by telecommunications satellites, which broadcasts were intended for general use. Furthermore, Article 10 (art. 10) of the European Convention on Human Rights secured only the right to receive information from generally accessible sources, which telecommunications satellites were not. Lastly, it was irrelevant that the broadcasts were ultimately intended for general use, as the obligation to keep the transmitted data secret subsisted at the time of broadcasting.
22. On 13 September 1983 Autronic AG lodged an administrative-law appeal with the Federal Court against the decision of the Head Office of the PTT. It applied to have that decision set aside and sought a judgment which would clarify the legal situation for the future; it asked the court in particular to rule that reception for private use of uncoded broadcasts emanating from telecommunications satellites and intended for the general public should not be subject to the broadcasting State’s consent.
23. In reply to a request for information made by the Radio and Television Division of the Head Office of the Swiss PTT, the Head Office of the Soviet Union’s Gostelradio said the following in a telex of 7 February 1984:
"With reference to your letter of 9 January 1984, we should like to inform you that the programmes transmitted by ‘Stationar 4’ [G-Horizont] are not satellite broadcasts intended for foreign countries. The programmes are intended for Soviet television viewers and are our internal affair. On the other hand, we have no technical means of preventing them from reaching other countries, particularly Switzerland. As regards the international use of the signal, only discussion and settlement of the problem at world level will provide a solution."
24. On 9 July 1984 the Federal Court put a number of questions to the parties about the factual and legal position. The Head Office of the PTT replied on 22 August and the applicant company on 31 August.
25. On 10 June 1985 the rapporteur informed Autronic AG that the Federal Court had not yet been able to consider the appeal and that the company had until 16 August 1985 to submit any further observations.
26. On 26 June 1985 the Radio and Television Division sent the Netherlands telecommunications authorities the following telex:
"...
In connection with the judgment of a request, we would like to know on which conditions reception of TV programmes via telecommunications satellites is permitted in the Netherlands. Please let us also know if the Soviet communications satellite G-Horizont Stationar is received in your country (by cable operators).
..."
The Netherlands authorities replied on 1 July 1985 as follows:
"... The conditions for reception of TV programmes by cable operators in the Netherlands seem to be quite similar to those in your country.
The Netherlands PTT issues licences to cable operators, separate for each particular TV program. With such a licence the operator can install his own TVRO antenna, although it is advisable for him to consult with PTT for frequency co-ordination purposes in order to avoid interference from terrestrial microwaves.
...
A few years ago some reception of the G-Horizont satellite did indeed take place.
This was considered illegal because of the absence of agreements with the USSR program provider and satellite operator, and the cable operators were so informed.
..."
In response to a similar request for information, the Finnish telecommunications authorities stated the following on 8 July 1985:
"...
We have permission from the Telecommunications Ministry of USSR to receive as an experiment the [G-Horizont] signal up to 31.12.1985. Authorization for distribution has been given in seven cases so far."
27. The Federal Court gave judgment on 10 July 1986 and served the text on Autronic AG on 11 November.
The court held that the appellant company was seeking a review in the abstract of the legal position, whereas in reality it could only complain of the ban on receiving the disputed broadcasts during the FERA exhibition. There was, however, no point in ruling on the admissibility of the appeal, since at all events the company had failed to show that it had an interest worthy of protection.
Apart from G-Horizont, there was no other satellite over Europe at the time whose broadcasts were receivable by means of a domestic dish aerial. Autronic AG picked up the signals from the Soviet satellite because there was no alternative source. As long as this situation continued, there would be practically no market for such equipment and only "eccentrics" (Sonderlinge) would be inclined to buy it. Although two other satellites - one German and one French - were to be launched, it remained unclear how they would be used and it was impossible to assess either the interest that direct reception of their broadcasts would arouse or the number of dish aerials that would come into use.
The Federal Court concluded that as it had failed to adduce evidence of any direct economic interest, the applicant company had no interest worthy of protection. It therefore refused to determine the merits of the case.
28. At the present time, there are still only a handful of direct-broadcasting satellites, whereas there are more than 150 telecommunications satellites such as G-Horizont, covering all or part of western Europe and broadcasting all kinds of uncoded programmes intended for the general public.
29. Article 36 § 4 of the Federal Constitution guarantees "inviolability of the secrecy of letters and telegrams".
30. The relevant provisions of the Federal Act of 14 October 1922 regulating telegraph and telephone communications are as follows:
"The Post and Telecommunications Authority shall have the exclusive right to set up and operate transmitting and receiving equipment or equipment of any kind for the electric or radio transmission of signals, images or sounds."
"The competent authority shall be able to issue licences for setting up and operating equipment for the electric and radio transmission of signals, images and sounds."
"The provisions required for the implementation of this Act shall be incorporated into the Ordinance on telegraphs and telephones to be enacted by the Federal Council and in the detailed regulations ..."
31. On 10 December 1973 the Federal Council enacted Ordinance no. 1 relating to the 1922 Act; among other things the Council laid down the scope of television licences:
"1. Licence I for television-receiving equipment shall entitle the holder to operate equipment for the private reception, by means of radio waves or by electric wire, of Swiss and foreign public television broadcasts.
2. Reception of television broadcasts on premises which are not accessible to the public shall be deemed to be private.
3. The licence-holder may himself install his equipment for receiving broadcasts by means of radio waves.
4. A special licence must be held in order to exercise rights vested in the State other than those mentioned in paragraphs 1 and 3, in particular in order to demonstrate how receiving equipment works, to install receiving equipment in the homes of third parties and to arrange for public reception of broadcasts."
32. The revised text of Ordinance no. 1, which was enacted on 17 August 1983, came into force on 1 January 1984. Although it does not apply in the instant case, several of its provisions are worth quoting:
"Licences may be refused where there is good reason to suppose that the telecommunications equipment will be used for a purpose that is
(a) unlawful;
(b) contrary to public morals or public policy; or
(c) prejudicial to the higher interests of the country, of the Post and Telecommunications Authority or of broadcasting."
"Radio- and television-receiving licences shall authorise their holders to receive Swiss and foreign radio broadcasts privately or publicly."
"A community-antenna licence shall entitle the holder to:
(a) Operate the local distribution network defined in the licence and rebroadcast by this means radio and television programmes from transmitters which comply with the provisions of the International Telecommunication Convention of 25 October 1973 and the International Radio Regulations and with those of the international conventions and agreements concluded within the International Telecommunication Union;
...
(f) Transmit programmes and special broadcasting services which, on the authorisation of the Post and Telecommunications Authority, which itself requires the Department’s consent, are received from telecommunications satellites;
..."
"The authorisation referred to in Article 78 § 1 (f) shall be granted where the appropriate telecommunications authority has given its consent and none of the grounds for refusal provided for in Article 19 exist."
33. On 20 December 1985 the Federal Council submitted to Parliament, by means of a communication, a draft decree of general application on satellite broadcasting. The decree, enacted on 18 December 1987 and effective from 1 May 1988, contained an Article 28 concerning foreign programmes, which was worded as follows:
"1. A licence from the [appropriate federal] department shall be required in order to retransmit programmes broadcast by satellite under a foreign licence.
2. Such a licence shall be granted where this is not contrary to the country’s higher interests and where
(a) the PTT finds that the requirements of Swiss and international telecommunications law are satisfied;
...
3. The department may refuse to grant a licence where a State whose licensing system allows a programme does not accept the retransmission on its territory of programmes broadcast under a Swiss licence."
34. The International Telecommunication Convention, which was concluded in 1947 within the International Telecommunication Union and has been revised several times, came into force on 1 January 1975 and has been ratified by all the Council of Europe’s member States. In Switzerland it has been published in full in the Official Collection of Federal Statutes (1976, p. 994, and 1985, p. 1093) and in the Compendium of Federal Law (0.784.16).
Article 22, entitled "Secrecy of telecommunications", provides:
"1. Members agree to take all possible measures, compatible with the system of telecommunication used, with a view to ensuring the secrecy of international correspondence.
2. Nevertheless, they reserve the right to communicate such correspondence to the competent authorities in order to ensure the application of their internal laws or the execution of international conventions to which they are parties."
Under Article 44 member States are bound to abide by the Convention and the Administrative Regulations in all telecommunications offices and stations established or operated by them which engage in international services or which are capable of causing harmful interference with radio services of other countries.
35. The Convention is complemented by three sets of detailed administrative rules (as indicated in Article 83): the Radio Regulations, the Telegraph Regulations and the Telephone Regulations. Only the Radio Regulations are relevant in the instant case.
36. The Radio Regulations date from 21 December 1959 and were likewise amended in 1982 and also on other occasions. They run to over a thousand pages and - except for numbers 422 and 725 - have not been published in the Official Collection of Federal Statutes. The latter contains the following reference to them:
"The administrative regulations relating to the International Telecommunication Convention of 25 October 1973 are not being published in the Official Collection of Federal Statutes. They may be consulted at the Head Office of the PTT, Library and Documentation, Viktoriastrasse 21, 3030 Berne, or may be obtained from the ITU, International Telecommunication Union, Place des Nations, 1202 Geneva."
The following provisions are the ones relevant in the present case:
"Fixed-Satellite Service: A radiocommunication service between earth stations at specified fixed points when one or more satellites are used; in some cases this service includes satellite-to-satellite links, which may also be effected in the inter-satellite service; the fixed-satellite service may also include feeder links for other space radiocommunication services."
"Broadcasting-Satellite Service: A radiocommunication service in which signals transmitted or retransmitted by space stations are intended for direct reception by the general public.
In the broadcasting-satellite service, the term ‘direct reception’ shall encompass both individual reception and community reception."
"Any administration may assign a frequency in a band allocated to the fixed service or allocated to the fixed-satellite service to a station authorized to transmit, unilaterally, from one specified fixed point to one or more specified fixed points provided that such transmissions are not intended to be received directly by the general public."
"In the application of the appropriate provisions of the Convention, administrations bind themselves to take the necessary measures to prohibit and prevent:
(a) the unauthorized interception of radiocommunications not intended for the general use of the public;
(b) the divulgence of the contents, simple disclosure of the existence, publication or any use whatever, without authorization, of information of any nature whatever obtained by the interception of the radiocommunications mentioned [in sub-paragraph (a)]"
37. On 29 September 1983 the Permanent Mission of Switzerland to the international organisations in Geneva put two questions to the International Telecommunication Union, which replied on 31 October, saying inter alia:
"17. With regard to this aspect of [the] practical pursuance [of the principle of secrecy of telecommunications], it is ... important, indeed essential, to note also that no precise measures concerning practical ways of effectively ensuring such ‘secrecy of telecommunications’ are prescribed by either the Convention or the RR [Radio Regulations], but that the RR leave the choice of these practical measures to the administrations of the Union’s Members.
18. That is how it is necessary to understand and interpret numbers 1992 and 1993 of the RR, which stipulate that it is administrations that bind themselves to take the necessary measures to prohibit and prevent: (a) the unauthorised interception of radiocommunications not intended for the general use of the public (... that also applies, of course, to number 1994 of the RR).
19. This means that it is for the administration of each of the Union’s Members itself to take whatever measures it deems necessary to prohibit and prevent on its territory the unauthorised interception of the radiocommunications referred to in number 1993 of the RR. This, incidentally, is in accordance with the first principle laid down in the preamble to the Convention, which is worded as follows: "While fully recognising the sovereign right of each country to regulate its telecommunication ... ". In the case under consideration here ..., it is for the Swiss Administration to put into effect Switzerland’s undertaking to ensure the secrecy of telecommunications by whatever measures it itself considers necessary for the purpose. Such measures may, of course, be different from those regarded as necessary by the administrations of other Members of the Union which have given the same undertaking.
20. With regard, lastly, to the authorisation required for the interception of radiocommunications not intended for the general use of the public ..., it should be inferred from the terms of numbers 1992 and 1993 of the RR that an administration which has committed itself to taking the necessary measures to prohibit and prevent such unauthorised interception in order to ensure the secrecy of telecommunications is also to be regarded as the one empowered to give, where appropriate, the authorisation for such interception on its territory and hence to lay down the terms and conditions on which it grants such authorisation. In the case under consideration here ... it is therefore the Swiss Administration that, with a view to ensuring the secrecy of telecommunications, should decide whether or not such authorisation is to be granted and lay down the terms and conditions it itself considers necessary for the purposes of that decision. By way of a conclusion and a final legal consequence, it should be borne in mind that what was stated in the preceding paragraph also applies, mutatis mutandis, in respect of the authorisation itself."
38. At a session held in Vienna from 14 to 25 June 1982 the European Conference of Postal and Telecommunications Administrations adopted Recommendation T/T2, which reads:
"The European Conference of Postal and Telecommunications Administrations, considering
(a) ...
(b) that fixed-satellite service signals are intended for reception only by known correspondents duly authorised under the Radio Regulations appended to the International Telecommunication Convention;
(c) ...
(d) that there is a risk that the technical development of small earth stations may facilitate the unauthorised reception and use of fixed-satellite service signals, particularly television signals, thus turning the fixed-satellite service into a broadcasting-satellite service, which would be unlawful under the International Telecommunication Convention and the Radio Regulations;
(e) ...
(f) ...
(g) that all ITU Members are under an obligation to apply and enforce the provisions of the International Telecommunication Convention and the Radio Regulations appended to the Convention; ...
Recommends
1. ...
2. that reception of these signals should be authorised only with the consent of the Administration of the country in which the station transmitting to the satellite is situated and of that of the country in which the prospective receiving earth station is located;
3. ..." (translation by the registry)
39. The European Convention on Transfrontier Television, which was drawn up within the Council of Europe and signed on 5 May 1989 by nine States, including Switzerland, is not yet in force. Article 4, entitled "Freedom of reception and of retransmission", provides:
"The Parties shall ensure freedom of expression and information in accordance with Article 10 (art. 10) of the Convention for the Protection of Human Rights and Fundamental Freedoms and they shall guarantee freedom of reception and shall not restrict the retransmission on their territories of programme services which comply with the terms of this Convention."
The Swiss Government made a declaration to the effect that the Confederation would apply the Convention provisionally, in accordance with Article 29 § 3.
VIOLATED_ARTICLES: 10


ITEMID: 001-110261
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF SILICKIENE v. LITHUANIA
IMPORTANCE: 3
CONCLUSION: Preliminary objections dismissed;No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-2 - Charged with a criminal offence);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre
TEXT: 6. The applicant was born in 1971 and lives in Vilnius.
7. On 16 August 2000 M.S., the applicant’s husband, a high ranking tax police officer, was arrested on suspicion of having committed various offences of fraud. He was remanded in custody.
8. Later that month he was charged with forgery, fraud and inappropriate commercial activities.
9. In May 2001 M.S. was charged with more serious offences, including that of smuggling large quantities of alcohol.
10. In February 2002 M.S. was accused of further serious crimes, including forming and leading a criminal association in order to smuggle alcohol and cigarettes in large quantities.
11. In 2000 a criminal investigator froze certain property belonging to M.S., his mother and the applicant. The mother appealed against that decision, pursuant to Article 2441 of the Code of Criminal Procedure (see the Relevant domestic law and practice part below). As a result, on 23 July 2002 the District Court of Kaunas City released some of her assets – an apartment, a garage and a plot of land – the seizure of which was deemed to have been unreasonable. The court noted, however, that the café and shares in a telecommunications company which had been in the possession of the mother of M.S. was property acquired as a result of his criminal activities. The seizure of those items was upheld.
The applicant did not appeal against the seizure of her property.
12. In August 2002 a prosecutor approved a bill of indictment against M.S. and three of his accomplices, K.K., J.M. and V.V. The case was transmitted to the Kaunas Regional Court.
13. On 24 April 2003 M.S. committed suicide in the Lukiškės Remand Prison.
14. On 25 and 28 April 2003 the applicant and the mother of M.S. requested the court to continue the case to enable his rehabilitation. That same day the Kaunas Regional Court decided to continue the proceedings in so far as they concerned the activities of the criminal association organised by the applicant’s late husband. The court appointed a lawyer to defend the interests of the deceased.
15. On 28 May 2003 the Kaunas Regional Court received a request from the applicant and M.S.’s mother to discontinue the criminal proceedings. By a ruling of 2 June 2003 the court dismissed that request, noting that it had already started examining the evidence in the case. It observed that, without having examined the evidence, the court could not establish whether grounds existed to rehabilitate M.S.
16. On 22 January 2004 the Kaunas Regional Court adopted its judgment. It noted that there were no grounds on which M.S. could be exculpated. On the contrary, the court found sufficient evidence to prove that the applicant’s husband, being a State official, had indeed organised and led a criminal association for smuggling purposes between spring 1999 and March 2000. The offenders had succeeded in passing contraband on twenty-two occasions. However, in view of M.S.’s death, the court decided to discontinue the proceedings against him. Three of his co-accused, K.K., J.M. and V.V., were convicted and sentenced to prison sentences ranging from three years six months to six years. Two other co-accused were released from criminal liability because they had cooperated with the authorities and contributed to discovering the crimes.
17. The Kaunas Regional Court ordered the confiscation of certain items of property on the ground that they had been acquired as a result of M.S.’s criminal activities (Article 72 § 3 (2) of the Criminal Code). In particular, the court ordered confiscation of the applicant’s apartment in Vilnius. The court established that the applicant had bought the apartment in August 1999, having obtained a sham loan of 80,000 Lithuanian litai (LTL, approximately 23,000 euros (EUR)) from the mother of V.V. The applicant’s shares in a telecommunications company, to the value of LTL 29,997 (approximately EUR 8,700), were also to be confiscated on the ground that they had been obtained through an off-shore company which the criminal organisation used to hide the proceeds of its crimes. The trial court also ordered confiscation of a café belonging to M.S.’s mother as well as certain other items. Nonetheless, it lifted the seizure of a plot of land, a garden house, and some money and furniture that belonged to the applicant, given that there was no evidence of the illicit origin of that property. For the same reason, the seizure of flats and plots of land belonging to M.S.’s parents was also lifted. Lastly, the trial court ordered confiscation of V.V.’s car on the ground that it had been used as a means to smuggle goods (Article 72 § 2 (2) of the Criminal Code).
The reasons why each item of seized property should or should not be confiscated were set out in eight pages of the judgment.
18. Considering that the trial court’s judgment was erroneous, M.S.’s family hired another lawyer, E.J., to prepare an appeal. As the applicant wrote in her application to the Court, from that moment the lawyer E.J. “de facto represented all persons [who were affected by the confiscation measure]”. Appeals were also lodged by the prosecutor and three convicted persons.
19. In the appeal the lawyer E.J. contended that the criminal proceedings should have been discontinued after M.S.’s death. He also argued, mentioning each item of confiscated property, that those assets had been obtained from legitimate sources and thus the confiscation was unlawful. As concerns the applicant, E.J. averred that there was no proof to find that the apartment and shares in the telecommunications company, both registered in her name, had been obtained from the proceeds of the crimes. For the lawyer, the trial court’s conclusions about the circumstances in which the applicant had acquired the apartment and the shares were factually and legally erroneous.
20. On 25 October 2004 the Court of Appeal upheld the trial court’s judgment. The appellate court emphasised that the persons convicted had acted as an organised group (nusikalstamas susivienijimas) which was the most dangerous form of conspiracy (bendrininkavimas). The group’s criminal activity had lasted many years, was conducted systematically and did great harm to the State. The value of smuggled goods was millions of Lithuanian litai. Taking into account the scale, its systematic nature and the organisational level of the criminal activity, the case could be viewed as exceptional.
21. On the issue of confiscated property the Court of Appeal noted that of all persons whose property had been confiscated, only M.S.’s parents-in-law had testified before the trial court. Even so, they could not explain how they had obtained that property. Furthermore, M.S.’s conspirator V.V. had confirmed that his parents’ financial situation was not good and he could not explain financial transactions by his mother.
22. As regards the applicant, the Court of Appeal also noted that she was well aware of the criminal activities of her husband’s criminal association:
“Even though M.S.’s wife J. Silickienė herself has not been charged [in this case], the examined evidence leaves no doubt that she was well aware of her spouse’s and the other co-accuseds’ criminal activities. ... J. Silickienė was informed each time smuggled goods were loaded or unloaded as well as about the sale of those goods. ... There is evidence that J. Silickienė herself received money which had been paid for smuggled goods. ... Consequently, J. Silickienė without any doubt knew that property which the [trial] court confiscated and which had been registered in her name previously had been obtained as a result of criminal activities.”
23. The appellate court also dismissed the argument by the lawyer E.J. that confiscation was not possible because criminal proceedings against M.S. had been discontinued. Article 72 of the Criminal Code obliged the court to confiscate property which was the proceeds of crime, if third persons to whom the property had been transferred knew about the unlawful origin of that property. Confiscation was in no way linked to whether those third persons had been charged with a crime or convicted. On the contrary, pursuant to the aforementioned provision, confiscation of the proceeds of the crime had to be ordered both when imposing a punishment and when a person has been released from criminal liability and even in the event that he or she had not even been charged with a crime.
24. The Court of Appeal also held:
“...M.S.’s lawyer has unreasonably linked the confiscation of all the property listed in the judgment with the fact that the proceedings had been discontinued against M.S. However, it has been forgotten that not only M.S. but also other persons had been charged in the criminal proceedings in question. Those other persons had smuggled goods together with M.S., and the illicit gains had been obtained together. Some of those co-accused had been released from criminal liability, but three of the co-accused, J.M., K.K. and V.V., were convicted. For Article 72 § 3 of the Criminal Code to be applied, it was not important that the third persons to whom the property had been transferred should be family members or relatives of the person who committed the crime. Moreover, even presuming that it was M.S. who had transferred the property to his wife, his parents and his parents-in-law, it did not mean that that property had been obtained from the criminal activity of him alone. In the present case that property had been obtained as a result of the criminal activities of all co-accused, including those who had been convicted. Furthermore, V.V., who was M.S.’s cousin, had played a very important role in the activities of the criminal organisation. Accordingly, the persons to whom the confiscated property had been transferred were connected by family links not only to M.S., who died, but also to V.V., who was convicted. These circumstances totally rebut the appellant’s contention that the property had been confiscated after the proceedings had been discontinued, because in reality confiscation had been ordered after [the trial court] adopted an accusatory judgment”.
25. Lastly, the appellate court pointed out that the trial court had exceptionally thoroughly set out the reasons why particular items had to be confiscated. In setting out its conclusions the trial court had relied on extensive analysis of the evidence examined in court, devoting a whole chapter of the judgment, eight pages in length, to that. In the appellate court’s view, the trial court’s findings had been reasonable. Even so, the appellate court again went through the evidence and upheld the trial court’s findings, dismissing E.J.’s arguments to the effect that the two confiscated items in the applicant’s ownership had a lawful provenance (see paragraph 19 above).
26. The lawyer E.J. submitted an appeal on points of law. He contended, first, that the criminal proceedings against M.S. should have been discontinued after his death and that confiscation of property was possible only if an accusatory judgment had been adopted. Secondly, he alleged that the property, the confiscation of which had been ordered by the trial court, including that of the applicant, did not meet the requirements of Article 72 § 3 of the Criminal Code. In his submission, no fault of third person whose property was confiscated had been established.
27. On 17 May 2005 the Supreme Court dismissed the appeal on points of law. As regards the confiscation of property, the Supreme Court ruled that confiscation as a penal measure (baudžiamojo poveikio priemonė) could be applied independently of whether the procedure had been concluded by acquittal or conviction, and even in cases where a person had not been charged with a crime (kai asmuo netraukiamas baudžiamojon atsakomybėn). The Supreme Court emphasised that it was a court’s duty to confiscate property which fell under Article 72 §§ 2 and 3 of the Criminal Code. It was noted that, in its judgment, the trial court had thoroughly reasoned its choice as to which items of property should be confiscated as being the proceeds of illegal activities. The Supreme Court acknowledged that most of that property had been found in the possession of third persons. However, given the trial court’s conclusion that those persons knew or should have known about the illicit funding of the items concerned, it was lawful to confiscate them even though those persons had not been charged in the criminal proceedings against M.S. and the criminal organisation.
28. By a judgment of 30 June 2005 of the Kaunas Regional Court the applicant was convicted of misappropriating property and falsifying documents. The court established that she was actively involved in organising unlawful money transfers to off-shore companies used by the criminal organisation led by her late husband, so that the money was hidden. She fully confessed that she had committed the crimes with the aim of helping her husband avoid criminal liability while he was in detention. The applicant was sentenced to four years’ imprisonment.
29. The mother of the applicant’s late husband was convicted of falsifying documents and sentenced to six month’s imprisonment. The court noted that she was merely executing the orders of the applicant, but that they had the common goal of helping M.S.
30. Both the applicant and her late husband’s mother were pardoned under an Amnesty Act.
31. The Code of Criminal Procedure at the relevant time provided that a pre-trial investigator could freeze the assets of an accused, or assets which were acquired in a criminal manner but later were in a third party’s possession, so as to protect a potential civil claim or confiscation order (Article 195 § 1). Appeals lay against such orders of investigators to two court instances (Article 2441).
32. As concerns confiscation of property, at the material time the Criminal Code provided:
1. Confiscation of property shall be the compulsory uncompensated taking into the ownership of a State of any form of property subject to confiscation and held by the offender, his accomplice or other persons.
2. Confiscation of property shall be applicable only in respect of the property used as an instrument or a means to commit a crime or as the result of a criminal act. A court must confiscate:
1) the money or other items of material value delivered to the offender or his accomplice for the purpose of commission of the criminal act;
2) the money and other items of material value used in the commission of the criminal act;
3) the money and other items of material value obtained as a result of the commission of the criminal act.
3. The property transferred to other natural or legal persons shall be confiscated regardless of whether or not those persons are subject to criminal liability, where:
1) the property has been transferred to them for the purpose of commission of a criminal act;
2) when acquiring the property, they were aware, or ought to have been aware and could have been aware that this property, money or the valuables newly acquired by means thereof have been gained from of a criminal act.
4. The property transferred to other natural or legal persons may be confiscated regardless of whether or not a person who has transferred the property is subject to criminal liability, where this person ought to and could have been aware that that property may be used for the commission of a serious or grave crime.
<...>
7. When ordering confiscation of property, a court must specify the items subject to confiscation or the monetary value of the property subject to confiscation.”
33. In the legal systems of the Council of Europe Member States the concept of “confiscation” generally refers to a measure the effect of which is permanent deprivation of property by way of transfer of that property to the State. Seven countries (Albania, Germany, Georgia, Moldova, Romania, Sweden and Switzerland) provide for confiscation orders regardless of conviction. This type of confiscation order generally covers property that has been acquired though unlawful activities. As long as the origin cannot be justified, confiscation of such property may be imposed. Criminal liability of the offender is not relevant for the purposes of the confiscation order. For example, in Germany a court may order the confiscation of the proceeds of the crime despite the fact that the proceedings have been discontinued, as long as it can be established that a wrongful act has indeed been committed.
34. Five States (Bulgaria, Estonia, Luxembourg, the Netherlands and the Russian Federation) in principle require conviction as a prerequisite for confiscation whilst allowing for some exceptions to the general rule. In Bulgaria, if it is established or there are reasonable grounds to believe that the suspect committed the offence, confiscation of property acquired through that offence is permitted, even if the suspect is not ultimately convicted because of his or her death. Estonia and the Russian Federation allow confiscation of property which constitutes material evidence in limited circumstances. In the Netherlands, as a rule, a confiscation order will not be available upon the death of the accused. However, confiscation of the property that has already been seized can be imposed if it is plausible that the deceased had indeed committed an economic crime.
Three States (Belgium, France and the United Kingdom) strictly rule out the possibility of confiscation without conviction.
35. Confiscation of property which is the proceeds of a crime may be imposed without conviction in certain circumstances either against third parties in general, or against family members in particular (Bulgaria, Estonia, Germany, Georgia, Moldova, the Netherlands, the Russian Federation, Switzerland and the United Kingdom). Knowledge of the illicit origin of the property, failure to justify its origin, the type of crime at issue and whether or not the third party is a fictitious owner are four most common circumstances in which a confiscation order may be made against property belonging to family members of an accused regardless of their conviction.
36. On 22 December 1994 the Republic of Lithuania ratified the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (1990). The Convention aimed to facilitate international co-operation and mutual assistance in investigating crime and tracking down, seizing and confiscating the proceeds thereof. Parties undertake in particular to criminalise the laundering of the proceeds of crime and to confiscate instrumentalities and proceeds (or property the value of which corresponds to such proceeds).
NON_VIOLATED_ARTICLES: 6
P1
NON_VIOLATED_PARAGRAPHS: 6-1
6-2
P1-1
NON_VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-76497
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF COORPLAN-JENNI GMBH AND HASCIC v. AUSTRIA
IMPORTANCE: 2
CONCLUSION: Violations of Art. 6-1;Not necessary to examine further complaint under Art. 6-1;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 11. In April 1991 the second applicant entered Austria on a tourist visa. He made two unsuccessful requests for a residence permit (Aufenthaltserlaubnis) in February 1992 and April 1994 respectively. In May 1996 he made a new request for a residence permit, which was granted in July 1996 for a period of two years for the purpose of family reunification with his wife and baby daughter, both of whom lived in Austria. His leave to remain was subsequently extended for successive two-year periods.
12. From 1991 onwards the second applicant worked for the applicant company.
13. After the Labour Market Service had advised that an employment permit was required for the second applicant, the applicants lodged a request with the Feldkirch Labour Market Service (Arbeitsmarktservice) on 23 April 1998 for the grant of an employment permit to the applicant company.
14. On 4 June 1998 the Labour Market Service refused the request in accordance with s. 4(6) of the Employment of Aliens Act (Ausländerbeschäftigungsgesetz). It found that the maximum quota fixed for the employment of foreign workers that year in Vorarlberg had been exceeded and none of the exceptional conditions of s. 4(6) of the above Act were met.
15. On 18 June 1998 the applicants appealed. They submitted that the second applicant had been living in Austria since 1991 and was a shareholder in the Jenni Montagen OEG company. They claimed that the second applicant had a right to employment in Austria and referred in that connection to the Geneva Refugee Convention, the European Social Charter and the International Covenant on Economic, Social and Cultural Rights. They further referred to the Association Agreement between the European Union and Turkey and submitted that that treaty had to be applied by analogy to their case.
16. On 22 July 1998 the Vorarlberg Labour Market Service dismissed the applicant company’s complaint and rejected the second applicant’s complaint. It noted that only the applicant company as the proposed employer, not the second applicant, had the right to lodge a request for the grant of an employment permit. According to s. 21 of the Employment of Aliens Act an alien only became a party to proceedings concerning the issue of a work permit if his personal circumstances were relevant to the decision or if there was no employer. In the present case, however, neither of these conditions applied. In particular, the Bregenz Labour Market Service had based its decision exclusively on the situation of the labour market, and in particular the fact that the maximum quota for the employment of foreign workers had been exceeded. For that reason, the second applicant was not a party to the proceedings.
17. As regards the applicant company’s complaint, it noted that only certain refugees – namely, those who had indefinite leave to remain, were married to an Austrian national or had a child of Austrian nationality – were exempted from the regulations of the Employment of Aliens Act. However, throughout the proceedings it had been common ground that the second applicant was not a refugee. The Association Agreement between the European Union and Turkey was not applicable in the present case as the second applicant was not a Turkish national.
18. On 3 September 1998 the applicants filed a complaint with the Administrative Court and requested an oral hearing. They contested the lawfulness of the fixed maximum quota system and the accuracy of the official statistics according to which the maximum quota had been exceeded. They submitted in that connection that, in view of the number of foreign workers in employment that had been given in the official statistics some months before, the number that was now being quoted could not be correct. They further complained that the Labour Market Service had failed to establish objectively in adversarial proceedings that the maximum quota for Vorarlberg had been exceeded.
19. They further submitted that the second applicant had a right to take up employment in Austria and had standing to join the proceedings. The applicant had been living with his wife in Austria since 1991 and they had a daughter who was born in 1995. The applicant was in possession of a settlement permit (Niederlassungsbewilligung) limited in time while his wife and his daughter had been granted indefinite residence permits (Aufenthaltsbewilligung). The applicants referred to Article 17 of the Geneva Refugee Convention and submitted that it should be applied by analogy to nationals of Bosnia and Herzegovina who had come to Austria before the civil war. They further referred to Article 23 of the Universal Declaration of Human Rights, Article 6 of the International Covenant on Economic, Social and Cultural Rights and the European Social Charter. They also relied on Article 6 and Article 8 of the Convention and Article 1 of Protocol No. 1.
20. On 12 October 1998 the Vorarlberg Labour Market Service submitted its comments.
21. On 19 December 2000 the Administrative Court dismissed the applicant company’s complaint and rejected the second applicant’s complaint.
22. As regards the second applicant it found that none of his rights had been violated, as it was in principle for the employer to request the issue of an employment permit. It further referred to the case-law of the Constitutional Court according to which a decision whether or not to issue an employment permit did not concern a “civil right” within the meaning of Article 6 of the Convention.
23. As regards the applicant company’s complaint, the Administrative Court noted that the official statistics showing that the maximum quota had been exceeded constituted documentary evidence which it had been open to the company to contest by adducing proof to the contrary. The company had, however, failed to make any valid objection to the Labour Market Service to the statistical evidence that the maximum quota had been exceeded. The complaint now made before the Administrative Court that the Labour Market Service had failed to establish objectively in adversarial proceedings that the maximum quota for Vorarlberg had been exceeded was unsubstantiated and, in any event, inadmissible, as it had not previously been raised before the Labour Market Service.
24. As regards the reference to the Geneva Refugee Convention and the Association Agreement between the European Union and Turkey the Administrative Court noted that those treaties were not applicable to the present case as the second applicant had never claimed to be a refugee within the meaning of the Geneva Refugee Convention and was not Turkish. It further noted that no right for the second applicant to take up employment could be deduced from the Universal Declaration of Human Rights or the International Covenant for Economic, Social and Cultural Rights.
25. In accordance with s. 39(2) of the Administrative Court Act (Verwaltungsgerichtshofgesetz), the Administrative Court dismissed the applicants’ request for a hearing as it found that an oral hearing was not likely to contribute to the clarification of the case. Referring to its case-law it found that the proceedings did not concern a “civil right” within the meaning of Article 6 of the Convention. This decision was served on the applicants’ counsel on 7 February 2001.
26. Meanwhile, on 23 October 2000, the second applicant’s wife acquired Austrian citizenship. Consequently, the Employment of Aliens Act is no longer applicable to the second applicant.
27. The Employment of Aliens Act (Ausländerbeschäftigungsgesetz) regulates foreign workers’ access to the Austrian labour market. The relevant parts of the Act at the material time were as follows:
28. Section 1 of the Act stated that it was not applicable inter alia to:
- certain refugees who had indefinite leave to remain in Austria, who were married to an Austrian national or who had a child of Austrian nationality (s. 1(2)(a));
- aliens married to an Austrian national if they were in possession of a residence document (Aufenthaltstitel) within the meaning of the Act (s.1(2)(1)); under the Aliens Act (Fremdengesetz) there are two types of residence document: residence permits (Aufenthaltsbewilligung) and settlement permits (Niederlassungsbewilligung). The relevant provisions of the Aliens Act make it easier for aliens married to an Austrian national to obtain a settlement permit.
Under s. 3(8) of the Employment of Aliens Act the competent Regional Labour Office had to certify that the alien concerned fulfilled the requirements of s. 1(2) (l) before he could take up employment.
29. S. 3(1) and (2) of the Act laid down the principle that a proposed employer required an employment permit (Beschäftigungsbewilligung) if he wished to take on a foreign employee. Without such a permit the contract of employment between the employer and the foreign employee was null and void. However, while he was actually employed an alien hired without an employment permit had the same rights against his employer as he would have had if the contract of employment had been valid. If the lack of an employment permit was due to the employer’s negligence, the foreign employee further enjoyed all the rights to which he would have been entitled upon the termination of a valid employment relationship (s. 29).
30. S. 15 of the Act provided that a request could be made for an “exemption certificate” (Befreiungsschein) in respect of aliens who had been continuously legally employed within the meaning of the Act in Austria for at least five years during the previous eight, and for aliens who had been married to an Austrian national for at least five years and had their residence (Wohnsitz) in Austria. The exemption certificate subsequently relieved the alien or potential employer from the obligation to apply for an employment permit. S. 19 provided that the alien concerned could apply for an exemption certificate to the competent Regional Labour Market Service.
31. If an alien had been continuously legally employed within the meaning of the Act for at least 52 weeks in the previous 14 months, he was entitled to request a personal work permit (Arbeitserlaubnis) which was normally valid for one region only and could be restricted to certain kinds of employment (s. 14(a)).
32. S. 19 provided that in order to obtain an employment permit the employer had to submit details of the proposed employment of the individual employee to the Regional Labour Market Service concerned. The application could be made by the alien only if there was no employer.
33. According to s. 4(1) an employment permit could only be granted if the situation and evolution of the labour market so allowed and important public or economic interests would not be harmed. Furthermore, specific conditions listed in s. 4(3) had to be fulfilled.
34. S. 4(b)(1) laid down that the situation and evolution of the labour market only allowed an employment permit to be granted in respect of a proposed foreign employee if there were no prior-ranking foreign job applicants. Prior-ranking foreign job applicants included aliens who were in possession of an exemption certificate within the meaning of s. 15 of the Act or who were in receipt of unemployment insurance payments (Arbeitslosenversicherung) (s. 4(b)(2) and (3)).
35. S. 4(c) provided that an employment permit had to be issued ex officio in respect of Turkish nationals falling within the relevant provisions of the Association Agreement between the European Union and Turkey.
36. Under s. 13(a) the Minister for Labour and Social Affairs could fix maximum quotas for the employment of aliens in a specific region (Landeshöchstzahl) for the following year. S. 4(6) provided that once the maximum quota had been exhausted, no further employment permits could be issued unless there were certain exceptional circumstances.
37. S. 21 provided that, in principle, the foreign job applicant was not a party to the proceedings concerning the issue of the employment permit. Exceptions were made where the personal circumstances of the alien were relevant to the decision or where there was no employer.
38. According to the settled case-law of the Constitutional Court and the Administrative Court a refusal to issue an employment permit under S. 4(1) and (6) of the Employment of Aliens Act could not violate a proposed foreign employee’s rights because he had no legal entitlement to the grant under that Act (see VfSlg 14.347/1995, VfSlg 13617/1993; and the Administrative Court’s decision of 16 November 1995, 94/09/0330).
39. The Constitutional Court and the Administrative Court have further held that the refusal of an employment permit to a proposed employer is not a decision concerning the employer’s “civil rights” (see, for example, VfSlg 13617/1993 and Administrative Court’s decision of 29 October 1997, 95/09/0254 with further references).
40. According to s. 39(1) of the Administrative Court Act, the Administrative Court must hold a hearing after its preliminary investigation of the case if a complainant so requests within the time-limit. S. 39(2) and (6) provides, however, that, notwithstanding such a request, the Administrative Court may decide not to hold a hearing if it is apparent from the written pleadings of the parties and the files relating to the previous proceedings that an oral hearing is unlikely to help clarify the case and that the lack of a hearing will not violate Article 6 of the Convention.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-78870
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF GOSSA v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1 (length);No violation of Art. 6-1 and 6-3-d;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 7. The applicant was born in 1953 and lives in Łódź.
8. On 4 April 1994, at 2.40 a.m. officers of the Polish Border Guards (Straż Graniczna) arrested a certain A.I., a German national of Polish origin, on suspicion of having stolen a car “Mercedes 200E” in which he was travelling to Belarus. The arrest took place after a routine control of his documents on the Polish-Belarusian border. The officers, having learnt that the car had been hired from the company “Sixt-Budget” in Germany, and having found that, according to their records, A.I. had previously several times crossed the Polish-Belarusian border driving different cars, asked the Kołbaskowo Border Guards (a check-point at the Polish-German border) to inquire whether the car was being sought by the German police. It was soon confirmed that since 2 April 1994 the German police had been looking for that car, which had been reported as having disappeared. A.I. was later taken into police custody and brought to the Sokółka District Police Station (Komenda Rejonowa Policji).
9. On 5 April 1994, at 8 a.m., the applicant and a certain J.S.-T., a national of the United States of America, reported to the Sokółka District Police Headquarters. They presented a copy of the contract concluded by J.S.-T. with the “Sixt-Budget” company, from which it appeared that she had hired the car in question for the period from 2 to 10 April 1994.
10. On the same day the applicant was arrested. Subsequently, A.I., J.S.T. and the applicant were questioned by the police as suspects. A.I. was charged with aiding and abetting an unknown person to sell a stolen car. The applicant was charged with aiding and abetting a car theft. J.S.-T. was charged with attempted car theft.
11. A.I. did not confess. He stated that he took odd jobs as a driver at the Świecko border station (on the Polish-German border). He admitted that he had intended to bring the car to Belarus but denied knowing anything about the theft of the car. He maintained that a woman, whose first name was “Elżbieta” and for whom he had already worked, had hired him to drive the car in question from Łódź to Belarus, i.e. to the Minsk airport. He had been paid 500 Deutsche marks (DM) for that service. On 3 April 1994, at about 5 p.m. he had met “Elżbieta” in Łódź. She had been accompanied by another woman resembling a Philippine national. She had handed over to him the car, its documents and the keys.
12. The applicant did not confess and stated that he had known J.S.–T. for some 8 years. He had met her in Łódź on 3 April 1994. She had come in a “Mercedes” that had been hired. They had decided that they would drive the applicant’s car in Poland and she had left the “Mercedes” in a guarded car park. On the same day A.I. had asked him to lend him his car. The applicant, having first asked J.S.-T. for her permission, had lent him the “Mercedes” hired by her. He had handed the car documents and keys to A.I. Later, he had driven J.S.-T. to her friend, P.M. On 4 April 1994, at about 8 p.m., A.I.’s father had come to the applicant’s home and had told him that A.I. had been arrested when crossing the border since it was suspected that the car in question had been stolen. The applicant had informed J.S.–T. and P.M. of what had happened and the three of them had come to the Sokółka District Police Station to present the car documents and explain the situation.
13. J.S.-T. did not confess and stated that, together with P.M., she had flown to Frankfurt am Main from San Francisco on 2 April 1994. She had hired the car in question at Frankfurt airport. She had crossed the Polish border in Zgorzelec (“Goerlitz” in German) and had met the applicant there, as had been arranged previously. The applicant, P.M. and she had gone to Łódź. They had arrived there at about 10-11 a.m. The applicant had taken the car and the car documents from her in order to park it in a safe place. On 4 April 1994 at about 11 p.m. she had learnt from the applicant that the car had been seized by the police as having been stolen and that they had to go to Sokółka to explain the situation. J.S.-T. denied having given the applicant any permission to use or to lend the car. She maintained that she did not know either A.I. or a woman called “Elżbieta” and that she had not been at the Świecko border station.
14. A.I and the applicant were subsequently confronted with each other. A.I. maintained his version of events, refused to give any further evidence and asked the prosecution to hear evidence from the owners of the car. The applicant denied handing over the car to A.I. He explained that J.S.-T. had done it. She had been accompanied by an unknown woman and P.M. He stated that J.S.-T. had asked him to find her a driver who could deliver the car to Minsk or Vilnius. He had recommended A.I. to her and had helped her to contact him.
15. On 6 April 1994 the applicant was remanded in custody until 5 July 1994. On the same day he was heard by the prosecutor. He did not confess. In contrast to what he had originally stated, he maintained that he had not known J.S.-T. before the events in question. He had previously known only P.M, who had called him from the USA to tell him that he would be coming to Poland on a tourist tour. The next day P.M. had called him from Łódź and they had fixed a meeting. Only then had the applicant met J.S.-T. for the first time. P.M. and J.S.-T. had come in the “Mercedes”. They had asked the applicant to deliver the car to Minsk or Vilnius. P.M had said that J.S.-T. had been the owner of the car. The applicant had told them that he could not deliver the car but promised to give them the name of a person who would do so. To this end, he had gone to A.I.’s home and told him of their proposal. A.I. had provisionally agreed. He had arranged a meeting. They had met at a car park. P.M. had come in company with J.S.T. and a woman called “Elżbieta” or “Ewa”. The applicant had introduced A.I. to them. A.I. and the latter woman had gone to the car. The applicant had not, however, been present when they had been talking and when the keys and documents had been handed over to A.I. Nor had he known anything about the payment for A.I. He had learnt from A.I.’s father that A.I. had been arrested. Subsequently, he had called P.M. and complained to him of what had happened. He had reminded P.M. and J.S.T. that they had claimed that the car had not been stolen and asked them to report to the Sokółka District Police Headquarters and explain the situation. They had gone to Sokółka on 5 April 1994. During the conversation with the police officers P.M. had left in the applicant’s partner’s car.
16. On 6 April 1994 the prosecutor ordered that J.S.-T. be detained on remand. She refused to testify.
17. On 6 April 1994 A.I. testified before the prosecutor. He did not confess. He stated that on 3 April 1994 the applicant had come to his father’s home in Łódź and had offered him payment for driving a car, hired by the applicant’s acquaintance, to Minsk. He had agreed. They had later met at the car park next to the railway station. The applicant had been in the company of two women: a woman with, in his words, a “foreigner’s look” and “Elżbieta”, the woman that he had some time earlier met at the Świecko border station. He had been given the car documents and keys. They had agreed to pay him DM 500. He had been assured by the applicant and J.S.T. that the car had been lawfully in their possession. On the same day, after obtaining A.I.’s testimony, the prosecutor ordered that he be remanded in custody.
18. On 22 April 1994 the applicant was released on bail.
19. On 5 May 1994 J.S.-T. decided to testify in the presence of her lawyer and an interpreter. She confessed. She stated that she had flown to Frankfurt am Main from the USA together with her friend, P.M. She had hired the car in question for the period from 2 to 10 April 1994. P.M. had proposed a visit to Poland. She agreed. On 2 April 1994, at 8.30 p.m. they had arrived in Łódź. When they had been parking the car, they had met the applicant. She had not known him before. P.M. had introduced him as a friend of his. The applicant had come with them to P.M.’s home. He had proposed “doing business”, that is to say, taking the car to a former Soviet Union country with the help of a “trustworthy person” in order to sell it and, afterwards, report a “theft” to the police. P.M. had protested but she had agreed. The applicant had gone to find such a “trustworthy person” and had later rung her to inform her of a meeting place. She had gone there with P.M. The applicant had waited with an unknown man. She had given the car, its documents and the keys to that man. On 4 April 1994 the applicant had informed her that the driver had been arrested. He had said that they should “save this man” and asked her to go with him to explain that what had happened had been a “mistake”. P.M. had gone with them to Sokółka as an interpreter. J.S.-T. admitted that she had given false testimony on 5 April 1994. She stated that she regretted it.
20. On 6 May 1994 the Sokółka District Prosecutor released J.S.-T. on bail. The prosecutor had regard, inter alia, to J.S.-T.’s confession and the fact that all necessary evidence had already been obtained. On the same day J.S.T. left for the United States and, since then, her whereabouts have been unknown.
21. On 9 May 1994 the Sokółka District Prosecutor appointed two experts in psychiatry in order to establish whether the applicant could be held criminally responsible for his acts. On 16 June 1994 the Choroszcz Psychiatric Hospital informed the prosecutor that the applicant had failed to appear for his examination. By a letter of 22 June 1994 the applicant was informed by the prosecutor that his failure to undergo a psychiatric examination might be treated as an attempt to obstruct the proceedings. On an unspecified later date the applicant underwent the examination in the Choroszcz Psychiatric Hospital. On 8 August 1994 the psychiatric experts submitted their report to the prosecutor.
22. On 21 September 1994 the District Prosecutor laid additional charges against the applicant. On the following day the applicant and A.I. were summoned to give evidence. They refused to testify. On the same day the applicant was given access to the case file. On 23 September 1994 the prosecutor terminated the investigation against the applicant, A.I. and J.S.T.
23. On 3 October 1994 the Sokółka District Prosecutor (Prokurator Rejonowy) filed a bill of indictment with the Łódź Regional Court (Sąd Wojewódzki). J.S.-T. was charged with attempted car theft. The charge was formulated in the following way:
“... that on 3 April 1994 in Łódź, acting together with [the applicant] and A.I. and with intent to appropriate a “Mercedes- Benz 200E” car valued at 850,000,000 [old] Polish zlotys, which was entrusted to her under a rental agreement concluded with the company “Sixt-Budget” in Germany, instructed through [the applicant] A.I. to deliver [that car] to the C[ommonwealth of] I[ndependent] S[tates] with a view to selling it but she did not complete the offence because, on 4 April 1994, A.I. was arrested on ... the Polish border when driving the car in question...”
24. The applicant was charged with handling stolen goods of a significant value. The charge was formulated as follows:
“... 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 and valued at 850,000,000 [old] Polish zlotys ...[and, in particular] knowing that the car had been obtained by crime, hired A.I. to deliver that car to the C[ommonwealth of] I[ndependent] S[tates] ...”
25. A.I. was charged with handling stolen goods of a significant value. The charge was phrased as follows:
“... that on 3 April 1994 in Łódź, acting together and in agreement with [the applicant] assisted J.S.-T. to sell a “Mercedes-Benz 200E” car registered under number MUD 9552 and valued at 850,000,000 [old] Polish zlotys ... [and, in particular] knowing that the car had been obtained by crime, took it over from [the applicant] in order to deliver it to the C[ommonwealth of] I[ndependent] S[tates] ...”
26. On 10 January 1995 Łódź Regional Court severed the charge against J.S.T. from the case and stayed the proceedings against her.
27. On 10 February 1995 the trial began. A.I. was heard first. He pleaded not guilty and refused to testify before the court. He confirmed the statements he had made in the investigation but explained that it had been the applicant who had contacted him with J.S.-T. He added that he had met J.S.-T. for the first time at the car park where she had given him the car, its documents and the keys. She had been in the company of “Elżbieta”, for whom he had worked previously. A.I. further admitted that, when giving evidence for the first time, he had not revealed certain facts.
28. The applicant also pleaded not guilty and gave evidence. His testimony was consistent with that given on 6 April 1994. He confirmed the statements he had made during the confrontation with A.I. on 5 April 1994. However, he departed from the statements he had made during the first questioning on 5 April 1994.
29. On 19 May 1995 the Regional Court asked, apparently for the second time, the Embassy of the United States of America in Warsaw for information on whether J.S.-T. indeed lived at the address she had supplied to the prosecution. The Regional Court emphasised the urgent nature of its enquiry. In its reply of 2 June 1995, the Consular Department of the Embassy informed the Regional Court that, according to their knowledge, J.S.T. was not at the time staying in Poland.
30. Later, the Regional Court heard evidence from A.I.’s father and M.A., the officer who had arrested A.I. on the border. The applicant’s partner was also called as a witness but she refused to testify.
31. The Łódź Regional Court held hearings on 31 March, 16 May and 3 July 1995. On the latter date the Regional Court acquitted the applicant and A.I. The reasoning for the verdict read, in so far as relevant:
“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. ...”
32. The Sokółka District Prosecutor appealed on 11 October 1995, alleging in essence that the trial court had wrongly assessed the evidence of the defendants.
33. On 19 January 1996 the Łódź Court of Appeal (Sąd Apelacyjny) quashed the acquittal and remitted the case to the Sokółka District Prosecutor. It ordered that a further investigation be carried out.
34. On 30 April 1996 the applicant’s defence counsel was notified that the applicant would be given access to the case file on 17 May 1996. On 16 May 1996 the applicant requested the Sokółka District Prosecutor to give him access to the case file in another part of the country. The applicant did not appear before the prosecutor when summoned. On 29 May 1996 the prosecutor decided to stay the investigation. On 4 June 1996 the prosecutor ordered that the applicant be detained for a period of 7 days in view of his failure to appear before the investigating authority. The prosecutor also issued a wanted notice in respect of the applicant. On 11 June 1996 the applicant appealed against the detention order. On 9 September 1996 he was arrested. On 13 September 1996 the applicant was brought before the Sokółka District Prosecutor and was given access to the case file. He was released later on that same day.
35. In the meantime, the applicant, on his own, tried to establish the whereabouts of J.S.-T. through the Consulate General of the Republic of Poland in Los Angeles. On 7 October 1996 the Consul wrote to him a letter, which read, in its relevant part:
“... 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 40th 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. ...”
36. The charge against A.I. had earlier been severed from the case and he had already been charged separately, although before the same court. On 16 October 1996 the Białystok Regional Court convicted A.I. of handling stolen goods and sentenced him to 1 year of imprisonment and a fine. That judgment became final on an unspecified later date.
37. On 31 October 1996 the Sokółka District Prosecutor filed a new bill of indictment against the applicant with the Białystok Regional Court. The applicant was charged with handling stolen goods of a significant value. The charge was phrased as follows:
“... 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...”
The prosecution called the following witnesses: A.I. (at that time detained on remand), J.I. (A.I.’s father who had already been heard at the original trial), B.P. (the applicant’s partner who had already refused to testify at the original trial), M.A. (the officer of the Border Guards who had stopped A.I. on the border and who had already been heard at the original trial), P.P. (an officer of the Border Guards), and G.O, M.J., T.M. and Z.D. (police officers from the Sokółka District Police).
38. On 19 November 1996 the Białystok Regional Court transmitted the case for examination by the Łódź Regional Court. On 31 January 1997 that latter court requested the Łódź Court of Appeal that the case be transmitted back to the Białystok Regional Court. On 11 February 1997 the Court of Appeal ruled that the case should be examined by the Łódź Regional Court.
39. The Łódź Regional Court held hearings on 23 April and 2 June 1997. On the latter date the Regional Court gave judgment. It convicted the applicant as charged and sentenced him to 18 months’ imprisonment suspended on probation for 3 years and a fine of 2,000 new Polish zlotys (PLN).
The reasoning for the judgment read, in so far as relevant:
“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...”
40. The applicant and the prosecutor appealed. The applicant alleged a breach of his defence rights and of a number of procedural provisions. He stressed that he had been deprived of any opportunity to challenge the statements of J.S.-T. made before the prosecutor and to cross-examine her. He also maintained that the authorities had made no real attempt to secure the attendance of that witness before the court.
41. On 13 November 1997 the Łódź Court of Appeal upheld the conviction but partly altered the sentence imposed. It raised the fine originally imposed to PLN 6,000. The reasoning for that judgment read, in so far as relevant:
“... 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. ...”
42. On 9 December 1997 the applicant was served with the written grounds of the judgment of the Court of Appeal. On 6 January 1998 he filed a cassation appeal with the Supreme Court (Sąd Najwyższy), alleging a breach of Article 6 § 3 (d) of the Convention in that he had been deprived of an opportunity to examine, or have examined, the principal witness against him.
43. On 18 December 1998 the applicant wrote to the Supreme Court and asked for a hearing date to be fixed. On 23 December 1998 the Supreme Court replied as follows:
“... acting on the President of the Section’s instruction, I should inform you that dates for hearings are fixed depending on the date on which a given cassation appeal has been lodged with the Supreme Court and that, at present, the [average] period between the date of the filing of a cassation appeal and the date of a hearing amounts to some 2 years and 6 months. Given that your ... cassation appeal was received at the Supreme Court’s registry on 19 February 1998, it will be heard not earlier than in 2000.”
44. The Supreme Court examined the cassation appeal on 1 December 2000 and dismissed it as being obviously groundless. It decided, pursuant to Article 535 § 2 of the Code of Criminal Procedure, not to provide written grounds for its decision.
45. When the applicant was tried, the rules governing the assessment and admissibility of evidence were contained in the Code of Criminal Procedure of 1969 (“the 1969 Code”) (Kodeks postępowania karnego). The Code is no longer in force. It was repealed and replaced by the Law of 6 June 1997 (commonly referred to as the “New Code of Criminal Procedure”), which entered into force on 1 September 1998.
Article 4 § 1 of the 1969 Code provided:
“Judges shall rule on the basis of their conviction deriving from evidence obtained and founded on their free assessment of evidence [and they shall] draw on knowledge and life experience.”
Article 337 provided, in its relevant part:
“1. If a witness has groundlessly refused to testify, or has given testimony different from the 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 on the ground of irremovable obstacles or if the president of the court has declined to summon him pursuant to Article 296 § 2 [i.e. because upon the lodging of the bill of indictment the prosecution has asked that the records of his testimony be read out at trial], 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, the records of evidence that a witness has given when heard as an accused may also be read out.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1