AS TO THE ADMISSIBILITY OF
Application No. 23103/93
by A. B.
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 29 November 1995, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 31 May 1993 by
A. B. against Poland and registered on 15 December 1993 under file
No. 23103/93;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
28 November 1994 and the observations in reply submitted by the
applicant on 16 January 1995; and his additional observations
submitted on 23 June 1995 and on 19 October 1995;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows:
The applicant, a Polish citizen born in 1949, is a miner,
currently serving a prison sentence in Nowy S*cz prison in Poland. He
is represented before the Commission by Mr. Janusz Galkowski, a lawyer
practising in Zywiec.
Particular circumstances of the case
On 31 May 1992 the applicant, who had been released on probation,
was arrested on suspicion of having attempted to steal a car, and on
2 June 1992 he was remanded in custody.
On 19 August 1992 the Public Prosecutor informed the applicant
of charges against him and obliged him to confirm the receipt of the
document containing these charges as of 2 June 1992.
The trial took place on 24 September, 15 October and 25 November
1992 before the Tarnów District Court (S*d Rejonowy). The Court heard
as witnesses the car's owner, his neighbour and the police expert, who
confirmed that the door lock had been tampered with in order to be
opened. In the proceedings the applicant was present, but not
represented by a lawyer.
On 25 November 1992 the District Court convicted the applicant
of attempted theft and sentenced him to three years' imprisonment. The
Court found that the testimony put forward by the witnesses was
exhaustive and logical and that their statements were consistent. The
Court also considered as evidence a bag with instruments which might
have served to open the car lock. This bag had been found in close
vicinity of the applicant at the moment of his arrest. The Court
acquitted the applicant of the offence of having used a stolen identity
card.
The applicant filed an appeal against this judgment with the
Tarnów Regional Court (S*d Wojewódzki). He maintained in particular
that the first instance court had disregarded his explanations and had
considered only the evidence for the prosecution as being credible.
The applicant also requested that his accomplice and two policemen who
had arrested him be heard as witnesses and that he be brought from
prison to the hearing before the Tarnów Regional Court.
On 21 April 1993 the Tarnów Regional Court refused the
applicant's request to be brought before the Court finding that his
presence was unnecessary. It found in particular that the applicant
had given a detailed account of the events before the District Court.
Moreover, in his appeal he had exhaustively presented his complaints
in respect of the contested conviction. The Court considered that the
applicant had sufficient time to submit further observations in
writing, should he wish to do so.
The date of the hearing was fixed for 10 May 1993.
On 29 April 1993 the applicant applied to the Regional Court for
legal aid, but he received no reply to this application.
On 10 May 1993, after a hearing at which the applicant was not
present but where the public prosecutor was present, the Regional Court
dismissed the applicant's appeal. The Court considered that the
District Court had thoroughly assessed the evidence and had carefully
considered the applicant's guilt. This appeared from the fact that the
applicant had been acquitted of one of two charges. The Court found
that the evidence given by the applicant was inconsistent and motivated
by his wish to avoid conviction. Moreover, the applicant had failed
to request further evidence to be taken before the Tarnów District
Court. Only in his appeal had he submitted a request to have the
policemen heard who had arrested him. However, the Court considered
it unnecessary to hear the witnesses as the other evidence presented
to the District Court had sufficiently demonstrated the applicant's
guilt.
Relevant domestic law
The relevant provisions of the Polish Code of Criminal Procedure
read as follows:
< Translation >:
Art. 399.
"A court of appeal shall conduct a hearing when examining a case.
(...)"
Art. 400 para. 1.
"A hearing shall be held irrespective of whether the parties are
present. A hearing shall not be held if the Public Prosecutor
is absent. (...)"
Art. 401.
"If a case is to be examined at a hearing, the court may order
an accused who is detained to be brought to the hearing."
< Original >:
Art. 399.
"S*d rewizyjny rozpoznaje spraw* na rozprawie (...)"
Art. 400 para. 1.
"Niestawiennictwo stron, poza prokuratorem, nie tamuje
rozpoznania sprawy na rozprawie. (...)"
Art. 401.
"Jezeli zarz*dzono rozpraw*, s*d moze zarz*dzic sprowadzenie na
ni* oskarzonego pozbawionego wolnosci."
COMPLAINTS
The applicant complains that the Public Prosecutor did not hear
his accomplice and alleges that certain letters which he had written
to the Public Prosecutor and the District Court were destroyed by the
Public Prosecutor. He submits that the Public Prosecutor served him
with information of charges against him on 19 August 1992, this
information bearing the date of 2 June 1992, and that he was obliged
to sign it against his will.
The applicant further complains about the proceedings before the
District Court. Thus, the Court lacked impartiality. He also
complains of the assessment of evidence and of discrimination, in
particular that a more severe penalty was imposed on him as he was a
recidivist.
The applicant also complains about the proceedings before the
Regional Court. He submits that he was refused leave to be present and
heard by that Court, while the Public Prosecutor was present at the
hearing. He submits that this Court failed to reply to his request for
legal aid and that he was not granted the assistance of an officially
appointed lawyer in the proceedings before this Court.
The applicant relies on Article 5, Article 6 paras. 1, 2 and 3
subparas. (c) and (d), Article 7 para. 1 and Article 14 of the
Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 31 May 1993 and registered on
15 December 1993.
On 31 August 1994 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48 para. 2
(b) of the Rules of Procedure.
The Government's written observations were submitted on
28 November 1994. The applicant replied on 16 January 1995 and
submitted additional observations on 23 June 1995 and on 19 October
1995.
On 4 July 1995 the Commission granted the applicant legal aid.
THE LAW
1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention about the unfairness of the investigations and of the
proceedings before the Tarnów District and Regional Courts.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads:
" In the determination of ... any criminal charge against
him, everyone is entitled to a fair and public hearing ... by (a)
... tribunal ..."
Article 6 para. 3 (c) (Art. 6-3-c) of the Convention provides:
"3. Everyone charged with a criminal offence has the following
minimum rights:...
c. to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient means
to pay for legal assistance, to be given it free when the
interests of justice so require..."
a) The Commission first recalls that Poland recognised the
competence of the Commission to receive individual applications "from
any person, non-governmental organisation or group of individuals
claiming to be a victim of a violation of the rights recognised in the
Convention through any act, decision or event occurring after 30 April
1993".
The Commission notes that the complaints partly concern the
events which occurred during the investigations by the Public
Prosecutor. These investigations ended in 1992. Some complaints
relate to the proceedings before the Tarnów District Court which
pronounced its judgment on 25 November 1992. These complaints concern
events which predate 1 May 1993, i.e. the date on which the
Commission's competence to examine individual applications against
Poland became effective.
It follows that this part of the application is outside the
competence ratione temporis of the Commission and is therefore
incompatible with the provisions of the Convention within the meaning
of its Article 27 para. 2 (Art. 27-2).
b) As regards the proceedings before the Tarnów Regional Court, the
Government submit that the applicant's complaints relating to the
proceedings before this Court are incompatible ratione temporis with
the provisions of the Convention. They also submit that the refusal
to allow the applicant to be present at a hearing before the Tarnów
Regional Court was made before 30 April 1993 and thus the Commission
lacks competence ratione temporis to examine it.
The applicant submits that the Tarnów Regional Court held the
hearing and convicted him on 10 May 1993, i.e. after the date on which
the Commission's competence to examine applications against Poland
became effective. The Tarnów Regional Court could have rectified the
shortcomings of the proceedings before the lower Court, but it failed
to do so. The Commission is thus competent ratione temporis to deal
with his application.
The applicant further submits that he was deprived of his right
to defend himself in person or through legal assistance during the
appeal proceedings before the Tarnów Regional Court which took place
after 30 April 1993, i.e. on 10 May 1993. Therefore the Commission is
competent ratione temporis to examine his complaints in this respect,
notwithstanding the fact that the refusal to bring him to a hearing on
10 May 1993 was taken before 30 April 1993.
The Commission notes that in the present case the judgment of the
Tarnów District Court was pronounced on 25 November 1992. On 21 April
1993 the Tarnów Regional Court refused the applicant's request to be
brought to the hearing before the Court. On 10 May 1993 the Regional
Court held the hearing and dismissed the applicant's appeal. It
follows that the Commission lacks competence ratione temporis to review
the proceedings before the Tarnów District Court. These proceedings
may however be taken into account as background to the issue whether
the applicant's defence rights before the Tarnów Regional Court were
observed (cf. Eur. Court H.R., Kerojärvi judgment of 19 July 1995,
Series A no. 328, para. 41; mutatis mutandis, Hokkanen judgment of 23
September 1994, Series A no. 299-A, p. 19, para. 53).
The Commission further observes that the refusal to allow the
applicant to be present before the Regional Court, even though it was
made before 30 April 1993, subsequently affected the applicant's
position as regards his defence rights in the proceedings before this
Court, which took place after that date. It follows that the
complaints relating to the Regional Court's proceedings cannot be
rejected as being outside the Commission's competence ratione temporis.
2. The applicant complains that he was refused leave to be present
before and heard by the Tarnów Regional Court, while the Public
Prosecutor was present at the hearing. He submits that this Court
failed to reply to his request for legal aid and that he was not
granted an officially appointed lawyer in the proceedings before this
Court.
a) As regards the complaint about the applicant's legal
representation in the proceedings before the Regional Court, the
Government first submit that the applicant did not exhaust domestic
remedies as regards his request for assistance of an officially
appointed lawyer. The letter of 29 April 1993 in which he allegedly
requested such assistance is not to be found in the case-file. They
submit that the applicant has invented this letter and that the
duplicate, which he has submitted to the Commission, appears to be
counterfeit and was made only for the purposes of the proceedings
before the Commission.
The applicant denies this. He contends that he sent his request
for a lawyer to be appointed by registered letter to the Tarnów
Regional Court on 29 April 1993. He contends that he sent an authentic
copy of the letter of 29 April 1993 to the Minister of Justice when
applying for leave to file an extraordinary appeal. The Ministry
allegedly failed to reply and failed to send the copy back. The
applicant further submits that he could not have exhausted applicable
domestic remedies as the Regional Court did not take any decision as
regards his request to have a lawyer appointed. Therefore there was
no decision to be appealed against. The applicant submits that under
Polish law an accused can request to have a lawyer appointed until the
hearing before the appellate court is closed. As the applicant was
refused permission to attend this hearing, he could not ask at the
hearing to have a lawyer appointed.
The Commission notes that there is disagreement as to the facts.
The Commission first observes that the applicant submitted a duplicate
of the copy of his request of 29 April 1993 following the Commission's
request to complete his submissions by submitting information as to
whether he was represented in the proceedings by an officially
appointed lawyer. The applicant has not submitted any relevant
evidence that his request had actually been submitted to the Regional
Court, eg. a copy of the posting slip or confirmation that this request
was posted by the prison authorities. It does not transpire from the
confirmation of the mailing of the letter to the Minister of Justice,
referred to by the applicant, that it indeed contained a copy of the
request in question. Consequently, the Commission concludes that it
has not been established that the applicant had submitted a request to
the Tarnów Regional Court to have a lawyer appointed for the purpose
of the proceedings before that Court.
Therefore this complaint is manifestly ill-founded and must be
rejected under Article 27 para. 2 (Art. 27-2) of the Convention.
b) As regards the applicant's personal defence before the Tarnów
Regional Court, the Government submit that the applicant neither
appointed a defence counsel nor demanded to be assisted by an
officially appointed lawyer. Throughout the investigations and the
proceedings before the Tarnów District Court he actively defended
himself, requesting inter alia that evidence be taken and presenting
to the court an extensive account of the material events. The refusal
to allow the applicant to be present before the appellate court was in
conformity with the domestic law, in particular with Article 401 of the
Code of Criminal Procedure. This decision was taken after due
examination of the complaints which the applicant had submitted in his
appeal against the judgment of the Tarnów District Court. The Regional
Court considered in particular that these complaints did not justify
any further taking of evidence as requested by the applicant, as the
evidence in question was not relevant to the issue of the applicant's
criminal liability. Consequently, there was no need for the applicant
to be present. This decision does not appear to be arbitrary. Under
Polish law the evidence is not taken in criminal appeal courts. Had
the court found any deficiencies in the first instance judgment as
regards the taking of evidence, it would have quashed that judgment and
ordered reconsideration of the case.
The Government also submit that the applicant's defence rights
were further safeguarded by the fact that he could have submitted
written observations to the Regional Court.
The applicant submits that he was deprived of his right to defend
himself in person. The right to defend oneself in person is a crucial
element of defence rights. Therefore any limitations in this regard
can be justified only if there is a clear and unequivocal waiver on the
part of an accused. There was no such waiver in the present case; on
the contrary, the applicant expressly requested that he be allowed to
be present at the hearing of the Tarnów Regional Court.
The applicant further submits that this right is of paramount
importance, in particular in proceedings before the court of first
instance. However, the extent to which an accused may be refused to
be personally present in proceedings before an appellate court depends
upon the special features of the proceedings in question. If in such
proceedings the court decides only on points of law, the presence of
the accused can be dispensed with. If, however, the court is competent
to decide both as to the facts and the law, a refusal to allow an
accused to be present at a hearing amounts to a violation of Article
6 para. 3 (c) (Art. 6-3-c) of the Convention. Under Polish law, the
jurisdiction of appellate courts in criminal proceedings is much wider
than that of a court of cassation and encompasses both questions of
fact and law. Regard should be had in particular to Article 402 para.
2 of the Code of Criminal Procedure, which provides that in principle
appellate courts cannot take evidence. However, they can exceptionally
take evidence at a hearing if it will expedite the proceedings.
Therefore, in order for the proceedings to comply with the requirements
of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention, an accused in
detention should be brought before the court. It should be noted in
this respect that in his appeal the applicant asked that certain
evidence be taken. When refusing the applicant's request to attend the
hearing, the Court assumed that he had already submitted all his
arguments. Such an assumption cannot be regarded as justified.
The applicant further submits that the Government principally
rely on Article 401 of the Code of Criminal Procedure. It is true that
this provision does not oblige an appellate court to bring an accused
to a hearing, but leaves this decision to the discretion of the court.
The Government's argument, however, is based exclusively on the
domestic law and entirely disregards the standards established by the
case-law of the Convention organs.
The applicant also submits that he could not respond in any way
to the Prosecutor's submissions to the Regional Court and therefore the
rule of equality of arms was not complied with.
The Government submit that under Polish law the Public Prosecutor
before the appellate court does not exclusively carry out the functions
of a prosecutor, but also acts as guardian of the public interest. The
latter function enables him to submit requests to take evidence for the
defence. In the present case, had the Public Prosecutor requested that
any evidence be taken, the Regional Court would be prevented from its
examination without the applicant being brought before the Court.
Having examined these complaints, the Commission finds that they
raise serious questions of fact and law which are of such complexity
that their determination should depend on an examination of the merits.
These complaints cannot, therefore, be regarded as being manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention and no other ground for declaring them inadmissible has been
established.
3. The applicant complains that he was discriminated against in
that, as he was a recidivist, a more severe penalty was imposed on him
in accordance with Article 60 of the Criminal Code. He invokes Article
14 (Art. 14) of the Convention, which provides:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
Article 14 (Art. 14) of the Convention prohibits discrimination
in the "enjoyment of the rights and freedoms" guaranteed by the
Convention. However, not every difference in treatment violates
Article 14 (Art. 14) of the Convention. The Commission considers that
it is not as such contrary to Article 14 (Art. 14) of the Convention
to impose a more severe penalty on a recidivist, as there may well be
justified reasons for a difference of treatment in that respect. In the
present case, the Commission finds no appearance of a violation of
Article 14 (Art. 14).
It follows that this complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES ADMISSIBLE, without prejudging the merits of the case,
the complaints relating to the refusal to allow the applicant to
attend the hearing before the Regional Court,
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy