EUROPEAN COMMISSION OF HUMAN RIGHTS
SECOND CHAMBER
Application No. 23103/93
A. B.
against
Poland
REPORT OF THE COMMISSION
(adopted on 26 February 1997)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-10) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 11-15). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 16-27) . . . . . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 16-24). . . . . . . . . . . . . . . . . . .3
B. Relevant domestic law
(para. 25-27) . . . . . . . . . . . . . . . . . . .4
III. OPINION OF THE COMMISSION
(paras. 28-48) . . . . . . . . . . . . . . . . . . . . .5
A. Complaint declared admissible
(para. 28). . . . . . . . . . . . . . . . . . . . .5
B. Point at issue
(para. 29). . . . . . . . . . . . . . . . . . . . .5
C. As regards Article 6 para. 1 in conjunction
with para. 3 (c) of the Convention
(paras. 30-47). . . . . . . . . . . . . . . . . . .5
CONCLUSION
(para. 48). . . . . . . . . . . . . . . . . . . . .8
APPENDIX: DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION. . . . . . . . . .9
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a Polish citizen, born in 1949, resident in
Gorlice. He was represented before the Commission by Mr. J. Galkowski,
a lawyer residing in Zywiec.
3. The application is directed against Poland. The respondent
Government were represented by Mr. Krzysztof Drzewicki of the Ministry
of Foreign Affairs.
4. The case concerns the lack of equality of arms in that in the
criminal proceedings against him, the applicant - who was not
represented by a lawyer - was not allowed to be present at a hearing
before the Tarnów Regional Court, whereas the Public Prosecutor was
present. The case raises issues under Article 6 paras. 1 and 3 (c) of
the Convention.
B. The proceedings
5. The application was introduced on 31 May 1993 and registered on
15 December 1993.
6. On 31 August 1994 the Commission (Second Chamber) decided,
pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give
notice of the application to the respondent Government and to invite
the parties to submit written observations on the admissibility and
merits of the applicant's complaints under Article 6 paras. 1 and 3 (d)
of the Convention.
7. The Government's observations were submitted on 28 November 1994.
The applicant replied on 16 January 1995 and submitted additional
observations on 23 June 1995 and 19 October 1995. On 4 July 1995 the
Commission granted the applicant legal aid for the representation of
his case.
8. On 29 November 1995 the Commission declared admissible the
applicant's complaint under Article 6 para. 1 read together with
para. 3 (c) of the Convention. It declared inadmissible the remainder
of the application.
9. The text of the Commission's decision on admissibility was sent
to the parties on 14 December 1995 and they were invited to submit such
further information or observations on the merits as they wished.
10. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
11. The present Report has been drawn up by the Commission (Second
Chamber) in pursuance of Article 31 of the Convention and after
deliberations and votes, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
12. The text of this Report was adopted on 26 February 1997 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
13. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
14. The Commission's decision on the admissibility of the application
is annexed hereto.
15. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
16. 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.
17. 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.
18. 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.
19. 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 given 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.
20. 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.
21. 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.
22. The date of the hearing was fixed for 10 May 1993.
23. On 29 April 1993 the applicant applied to the Regional Court for
legal aid, but he received no reply to this application.
24. 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 heard the prosecutor's
submissions to the effect that the judgment of the lower court should
be upheld. 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.
B. Relevant domestic law
25. The relevant provisions of the Polish Code of Criminal Procedure
read as follows:
< Translation >:
Art. 35 para. 1
"The function of prosecution before all courts is carried out by
the public prosecutor."
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."
Art. 402
"1. The appellate court cannot take evidence.
2. However, the court can exceptionally take evidency at a
hearing (...) if it will expedite the proceedings (...)"
26. The Act on Prosecution Authorities provides that they are
composed of the General Prosecutor and subordinate prosecutors of civil
and military Prosecutor's Offices. The General Prosecutor is the
highest prosecution authority. It is the Minister of Justice which
carries out this function.
27. The public prosecutors are independent in carrying out their
functions. However, they are under an obligation to follow the
directives and orders of a prosecutor of higher rank.
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
28. The Commission has declared admissible the applicant's complaint
relating to the refusal to allow him to attend the hearing before the
Regional Court, whereas the public prosecutor was present.
B. Point at issue
29. Accordingly, the Commission is called upon to consider whether
there has been a violation of Article 6 para. 1 in conjunction with
para. 3 (c) (Art. 6-1+6-3-c) of the Convention.
C. As regards Article 6 para. 1 in conjunction with para. 3 (c)
(Art. 6-1+6-3-c) of the Convention
30. 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 ..."
31. The applicant submits that he was deprived of his right to defend
himself in person before the Tarnów Regional Court, acting as an
appellate court. The right to defend oneself in person is a crucial
element of defence rights. Therefore any limitations in this respect
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.
32. 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 is not necessary. 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.
33. 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.
34. 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.
35. 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.
36. 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.
37. The Commission recalls that the right of an accused person to
participate in person in the trial is a fundamental element of a fair
trial (Eur. Court HR, Colozza v. Italy judgment of 12 February 1985,
Series A no.89, p. 14, para. 27). The criminal proceedings form an
entirety and the protection afforded by Article 6 (Art. 6) does not
cease with the decision at first instance; indeed, a State which
institutes courts of appeal is required to ensure that persons amenable
to the law shall enjoy before these courts the fundamental guarantees
contained in this Article (Eur. Court HR, Ekbatani v. Sweden judgment
of 26 May 1988, Series A, no. 134, p. 12, para. 24).
38. The Commission also recalls that even when an appeal court has
full jurisdiction to review the case on questions both of fact and law,
Article 6 (Art. 6) does not always require a right to a public hearing
and a fortiori a right to be present in person (Eur. Court HR, Kremzow
v. Austria judgment of 21 September 1993, Series A, no. 268, p. 43,
para. 58). However, in assessing this issue regard must be had to the
fairness of the entire proceedings. Regard must also be had to the
scope of the appellate court's powers, the manner in which the
applicant's interests were actually presented before this court,
particularly in the light of the nature of the issues to be decided by
it and the seriousness of the offence and what was at stake for the
applicant (Eur. Court HR, Helmers v. Sweden judgment of
23 November 1990, Series A, no. 212, p. 15. para. 32).
39. The Commission further recalls that the principle of equality of
arms, which is one of the features of the wider concept of a fair
trial, also includes the fundamental right that criminal proceedings
should be adversarial. The right to an adversarial trial means, in a
criminal case, that both prosecution and defence must be given the
opportunity to have knowledge of and comment on the observations filed
by the other party. In particular, it should be ensured that the other
party will be aware that observations have been filed and will get a
real opportunity to comment thereon (Eur. Court HR, Brandstetter
v. Austria judgment of 28 August 1991, Series A, no. 211, p. 27,
paras. 66-67; Borgers v. Belgium judgment of 23 January 1991, Series A,
no. 214, p. 32, para. 27).
40. The Commission observes that in the present case the Regional
Court had full jurisdiction and could make a full assessment of the
applicant's guilt or innocence. Indeed, in his appeal the applicant
challenged the District Court's findings in this respect. He
maintained in particular that the Court had disregarded his
explanations and only considered the evidence for the prosecution as
being credible. He submitted that he was not guilty and further
requested that certain evidence be taken which he considered as crucial
for the assessment of his guilt.
41. It is true that under Article 402 of the Polish Code of Criminal
Procedure concerning the taking of evidence before the appellate court,
the latter cannot in principle take evidence. However, it is not
excluded that the hearing before the appellate court may involve a
rehearing of the evidence if this can expedite the proceedings.
42. The offence with which the applicant was charged normally carried
a risk of a one-year prison sentence. For the applicant this risk was
increased to three years' imprisonment as he was a recidivist. Thus,
what was at stake for him must be regarded as significant.
43. The Commission observes that the applicant expressly requested
to be present at the hearing and this request was refused by the
Regional Court. The Court did so despite the fact that under
Article 401 of the Code of Criminal Procedure it was open to it to
order that the applicant be brought before the court. The Regional
Court was aware that throughout the proceedings the applicant was not
represented by a lawyer, either officially appointed or appointed by
him, and that therefore his interests would not be represented and
protected before the Court.
44. The Commission further observes that the public prosecutor was
present during the hearing before the Court whereas the applicant was
not.
45. As regards the functions of the public prosecutor before the
Regional Court, the Commission notes that the Court heard the
prosecutor's submissions to the effect that the applicant's appeal
should not be allowed. The Commission thus considers that the role of
the public prosecutor was to support the prosecution. Therefore his
opinion cannot in any event be considered as neutral as he recommended
that the applicant's appeal be dismissed. The applicant could not
reply to the prosecutor's submissions; before the hearing he was not
aware of their contents because they had not been communicated to him
in advance. Neither could he reply to them after the hearing, as the
judgment of the Regional Court was pronounced on the same day. The
argument in the present case was not confined to questions of law as
the court had full jurisdiction to assess the applicant's guilt or
innocence. Therefore the applicant had a clear interest in being able
to submit his observations before the case was closed.
46. Thus, the proceedings before the Regional Court did not afford
the applicant an opportunity of challenging appropriately the views
expressed by the public prosecutor. Accordingly, he did not benefit
from a procedure that was really adversarial. As the principle of
equality of arms was not complied with, the proceedings at issue were
not fair.
47. In these circumstances, the Commission considers that the
requirements of a fair trial within the meaning of Article 6 para. 1
read together with para. 3 (c) (Art. 6-1+6-3-c) of the Convention were
not met.
CONCLUSION
48. The Commission concludes, unanimously, that in the present case
there has been a violation of Article 6 para. 1 in conjunction with
para. 3 (c) (Art. 6-1+6-3-c) of the Convention.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy