Published on 24 March 2025
 
FIRST SECTION
Application no. 64519/16
Piotr DYMIŃSKI
against Poland
lodged on 3 November 2016
communicated on 5 March 2025
SUBJECT MATTER OF THE CASE
The application concerns criminal proceedings against the applicant in the course of which he was not afforded an opportunity to examine a witness against him.
The applicant and five other persons were indicted for certain drug-related offences. While the Regional Court remitted the case back for further investigation and instructed the prosecutor to allow the applicant and the co‑accused to cross-examine the main witness, A.H., this did not take place since A.H. was in hiding.
 In June 2014 the Regional Court found the applicant guilty of two counts of drug trafficking, sentenced him to 4 years’ imprisonment and fined him 6,000 Polish zlotys (approximately 1,450 euros). It acknowledged that the case was mainly based on A.H.’s pre-trial statements and that the witness had not been cross-examined in the courtroom. However, it noted that the pre‑trial statements were so clear, consistent and coherent that their veracity could not be questioned.
The applicant appealed against that judgment and submitted a notarised written statement in which A.H. had apparently retracted her pre-trial statements.
In May 2015 the Court of Appeal upheld the first-instance judgment. Referring to A.H.’s absence at the trial, it noted that the witness had been in hiding and thus, having her examined in the courtroom was objectively impossible. In any event, it considered that the Regional Court had examined A.H.’s pre-trial statements with due caution. In addition, the Court of Appeal refused to admit the notarised statement into evidence on the ground that it was inadmissible by law.
On 4 May 2016 the Supreme Court dismissed the applicant’s cassation appeal as manifestly ill-founded.
Invoking Article 6 §§ 1 and 3 (d) of the Convention, the applicant complains that his conviction was based on untested evidence.
QUESTIONS TO THE PARTIES
1.  Has the applicant’s right to a fair trial, including a right to examine or have examined witnesses against him, under Article 6 §§ 1 and 3 (d) of the Convention, been breached in that neither the applicant nor his lawyers had been given an opportunity, at any stage of the proceedings, to examine A.H.?
 
2.  In particular, having regard to the principles established by the Court in its judgment in the case of Schatschaschwili v. Germany [GC], no. 9154/10, ECHR 2015:
 
(a)  Was there a good reason for admitting as evidence pre-trial statements made by A.H. and, subsequently, reading them out at the trial?
 
(b)  Was the applicant’s conviction based solely or to a decisive or significant extent on the evidence provided by A.H.?
 
(c)  Have there been sufficient counterbalancing factors to compensate for the difficulties caused to the defence as a result of the fact that it had been unable to question A.H.? In particular, what measures were taken by the domestic prosecution authorities and by the domestic courts to safeguard the applicant’s defence rights?