AS TO THE ADMISSIBILITY OF
Application No. 29261/95
by Oleg KORNIENKO
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 10 September 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
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 10 July 1994 by
Oleg KORNIENKO against Poland and registered on 15 November 1995 under
file No. 29261/95;
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
30 October 1996 and the observations in reply submitted by the
applicant on 3 January and 1 April 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, who describes himself as a person without
citizenship, was born in 1964 in Novaya Kakhovka, Kherson province, in
the former Soviet Union, currently Ukraine. The applicant is in prison
in Poland. Before the Commission he was initially represented by his
sister Valeria Shoutova, and later by Ms. Romana Orlikowska-Wronska,
a lawyer practising in Sopot, Poland.
The facts of the case as submitted by the parties may be
summarised as follows.
A. Particular circumstances of the case
On an unspecified date in 1993 the applicant went to Poland where
he engaged in trade.
On 5 June 1993 the applicant and another person with whom he was
living were arrested and charged with a murder, which had been
committed the previous night. The police found under the applicant's
bed a gun and fired cartridges which corresponded to the weapon of the
crime. It was undisputed that the victim was approached by the
applicant, the other arrested person and a third suspect, who had fled.
It was disputed, however, whether the applicant or the third suspect
fired the gun.
On 5 June 1993, following his arrest, the applicant was
interrogated by the police. The minutes state that before making any
statement the applicant was "informed of the rights of the accused
person". It appears that he received a written statement of these
rights, in the Polish language, which he subsequently signed. The
parties have not submitted a copy of this written statement.
The interrogation commenced in the presence of an interpreter,
a Ms. F. The applicant denied the charges against him stating that it
had been the third suspect who had shot the victim.
When the interrogation was at its end the applicant signed the
minutes and Ms. F. left. Immediately thereafter, as recorded in the
minutes, the applicant stated that he changed his mind and wanted to
say the truth. Thereupon Mr. W., a policeman who knew Russian, stepped
in as an interpreter. The applicant maintains that he was told that
Polish law was very favourable to those who confessed. The applicant
confessed that he had fired the gun which killed the victim.
Two days later, on 7 June 1993, the applicant was interrogated
again, with Ms. F. serving as an interpreter. The applicant maintained
that he had made the fatal shot and gave more details. The minutes
state that at the beginning of this interrogation the applicant was
told, inter alia, that he had a right "to appoint legal counsel".
Several days later the applicant revoked his confession and
stated that he had been induced to confess through false promises.
On an unspecified date the competent prosecutor ordered a
psychiatric examination of the applicant as there existed serious
reasons to doubt the applicant's sanity. The parties have not
substantiated the results thereof.
For the first five months or more following his arrest, the
applicant did not have any contact with a lawyer.
On 14 October 1993 the competent prosecutor requested the
Regional Court (S*d Wojewódzki)in Ostrol*ka to appoint an ex officio
lawyer to represent the applicant. The prosecutor stated that there
existed doubts as regards the applicant's criminal responsibility,
apparently in respect of his sanity, and referred to Section 70
para. 1(2) of the Code of Criminal Procedure.
On an unspecified date the Regional Court appointed an ex officio
lawyer. The lawyer was notified of his nomination on 20 October 1993.
He visited the applicant for the first time in December 1993.
On 2 December 1993 the preliminary investigations were concluded.
On 4 December 1993 the prosecution authorities prepared the indictment
and sent the case to the Regional Court.
The Court held hearings on 9 February, 12 April and 19 October
1994. The applicant in his submissions stated that his confession
immediately after his arrest had been forced by the police. He
asserted that the third suspect, the person who had fled, had shot the
victim and then had thrown the gun under his bed in order to frame him.
On 12 April 1994 he requested that the prosecutor be ordered to inform
the Court about the efforts undertaken to find the whereabouts of the
third suspect. On 19 October 1994 the applicant's lawyer
unsuccessfully requested a stay in the proceedings until the arrest
of the third suspect, whose examination was considered to be crucial
for establishing the facts.
At the hearing on 12 April 1994 the Court heard Mr. W., the
policeman who had served as an interpreter during the applicant's
examination by the police. Asked whether the applicant had been told
to confess, Mr. W. answered: "I do not exclude that the interrogator
pronounced words to the effect that Polish law was very lenient and
that therefore he should confess."
On 19 October 1994 the Court convicted the applicant of
premeditated murder and sentenced him to fifteen years' imprisonment.
The Court relied on the applicant's confession, on forensic evidence
and on evidence given by witnesses. The other accused was sentenced
to two and half years' imprisonment.
The applicant's lawyer appealed against this judgment to the
Warsaw Appeals Court (S*d Apelacyjny). In his submissions the lawyer
stated inter alia that the applicant had been put under pressure to
confess. On 14 March 1995 the Appeals Court confirmed the applicant's
conviction and sentence.
B. Relevant domestic law
According to Sections 70 and 71 of the Code of Criminal Procedure
legal representation of an accused person is mandatory where he is
deaf, dumb or blind and where there exist justified doubts as to his
sanity.
According to Section 268 of the Code of Criminal Procedure, read
in conjunction with other relevant provisions, at the preliminary
investigation stage of the criminal proceedings the accused person can
appeal against an act of a prosecutor to the higher prosecutor.
COMPLAINTS
1. The applicant complains under Article 6 para. 3 of the Convention
that there have been breaches of his defence rights in the course of
the criminal proceedings against him. Thus, he did not have any
contact with a lawyer for more than four months after his arrest. Also
he was interrogated without an interpreter and was forced to confess.
These violations were part of a deliberate strategy of the police,
which in fact took advantage of his vulnerable position of a person
without any knowledge of the Polish language and of Polish law. Later
the courts relied exclusively on his confession and refused to take the
necessary steps for the arrest and the examination of the third
suspect, although his name was known.
2. The applicant also complains, invoking Article 6 of the
Convention, that he was convicted wrongly and that the courts wrongly
assessed the evidence before them. Thus, the courts found that the
applicant had fired the gun and that he had planned the killing in
advance, whereas in reality the murderer had been another person who
had fled. Moreover, there has been a violation of Article 14 of the
Convention because the applicant was discriminated against on the basis
of the fact that he came from the former Soviet Union.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 10 July 1994 and registered on
15 November 1995.
On 27 June 1996 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
30 October 1996, after an extension of the time-limit fixed for that
purpose. The applicant replied on 3 January and 1 April 1997, also
after an extension of the time-limit.
On 3 December 1996 the Commission granted the applicant legal
aid.
THE LAW
The applicant complains under Article 6 (Art. 6) of the
Convention of alleged breaches of his defence rights during the
preliminary investigation against him. He also complains, invoking
Articles 6 and 14 (Art. 6, 14) of the Convention, that the Polish
courts decided wrongly and that he was a victim of discrimination.
Article 6 (Art. 6) of the Convention, insofar as relevant,
provides as follows.
"1. In the determination of ... any criminal charge against
him, everyone is entitled to a fair ... hearing ...
...
3. Everyone charged with a criminal offence has the following
minimum rights:
a. to be informed ... in a language which he understands
and in detail, of the nature and cause of the accusation against
him;
b. to have adequate time and facilities for the
preparation of his defence;
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;
d. to examine or have examined witnesses against him and
to obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him;
e. to have the free assistance of an interpreter if he
cannot understand or speak the language used in court."
The Government submit that the applicant has failed to exhaust
all domestic remedies within the meaning of Article 26 (Art. 26) of the
Convention. Thus, he has not appealed against the decisions and the
orders delivered during the preliminary investigation stage which
allegedly infringed his rights. According to Section 268 of the Code
of Criminal Procedure he could challenge any act of the investigation
authorities. Furthermore, he did not lodge a request to be provided
with an ex officio lawyer.
The Government further submit that the application is in any
event manifestly ill-founded. There were no breaches of Article 6
paras. 3(a) or 3(b) (Art. 6-3-a, 6-3-b) of the Convention because upon
his arrest the applicant was informed of the charges against him and
of their legal qualification under Polish law. Nor was there a breach
of para. 3(d) of Article 6 (Art. 6-3-d). Thus, the third suspect whom
the applicant wanted to examine as a witness had fled. Furthermore,
the courts did not consider indispensable to hear the third suspect as,
in the light of other evidence, it emerged that it had been the
applicant who had committed the murder.
As regards the complaints related to para. 3(e) of Article 6
(Art. 6-3-e) of the Convention, the Government submit that the
applicant has been interrogated always in the presence of an
interpreter with a good knowledge of Russian. The fact that Mr. W.,
a policeman, served as an interpreter during the second part of the
interrogation on 5 June 1993, did not affect in any way the applicant's
rights. Thus, Mr. W. was not acting at the same time as an
interrogating officer and an interpreter, but performed only the latter
function. Furthermore, he was fluent in Russian because he had been
forced to live in the former Soviet Union for several years after the
Second World War. Moreover, all relevant documents, as required by
Section 62 of the Code of Criminal Procedure, were submitted to the
applicant in translation.
As regards the alleged breach of Article 6 para. 3(c)
(Art. 6-3-c) of the Convention the Government explain that Polish law
does not provide for a mandatory participation of a legal counsel in
criminal proceedings. Such participation is obligatory only in cases
under Sections 70 and 71 of the Code of Criminal Procedure, where,
inter alia, there are doubts as regards the accused person's sanity.
In all other cases it is up to the accused person to request an ex
officio lawyer.
The Government state that the applicant could have had legal
counsel appointed for him at any stage of the proceedings. Moreover,
from the minutes of his interrogation of 5 June 1993 it allegedly
follows that he was aware of this possibility because he was informed
of his rights. As the applicant did not lodge a request for an ex
officio lawyer, it can be assumed, in the Government's view, that he
decided to defend himself without the assistance of legal counsel. It
was only after the prosecutor found that there were doubts as regards
the applicant's sanity, that on his own motion he asked the Regional
Court to appoint legal counsel for him.
The applicant disputes the Government's assertions as regards the
exhaustion of domestic remedies. In his view he was in a situation
where the investigation authorities which handled the proceedings
should have taken all measures to prevent any prejudice which he might
suffer as a result of his not being familiar with the Polish language
and Polish law. As this was not done the Government cannot claim that
the applicant should have lodged requests, for example, to replace the
interpreter or to appoint an ex officio lawyer.
The applicant submits further that the only thing about which he
was informed, as it can be seen from the minutes of his interrogation
on 7 June 1993, was that he could appoint a lawyer of his own choosing,
but not that he had a right to an ex officio lawyer paid by the State.
Furthermore, the applicant states that he appealed against his
conviction and requested leave for an extraordinary appeal, thus
exhausting all relevant domestic remedies.
The applicant alleges that the documents presented to him,
including the written statement of his rights, were not translated into
Russian, the language he understood. There was only an oral
interpretation which was not recorded. As a result it was impossible
for him to verify whether the interpretation had been correct and
complete. Nevertheless he was made to put his signature on the minutes
and other documents, under the phrase: "I have read [the documents]
and, as they are correct, I sign". In the applicant's view this
practice is unacceptable as he plainly could not have read documents
written in Polish.
Also, it was inadmissible that Mr. W., a policeman, served as an
interpreter. It is essential, in the applicant's view, that the
interpreter be impartial and independent. In fact, this is required
by Sections 159 para. 3 and Sections 176 et seq. of the Code of
Criminal Procedure which stipulate, inter alia, that the legal
requirements applicable to expert witnesses apply also in respect of
interpreters. As a result an interpreter can be excluded if, for
example, he had been involved in the case. Similarly, Mr. W. could
not be impartial and objective as he was a subordinate of the body
which carried out the investigation.
The applicant maintains that the situation in which he was put
as a consequence of the alleged breaches of his rights was not
accidental, but was used to exert pressure on him to confess. In
practice he was able to have a lawyer only at a later stage of the
proceedings. However, had he been informed properly of his right to
an ex officio lawyer from the very beginning, he would have requested
one. This situation resulted to certain extent from the fact that the
Code of Criminal Procedure does not provide for the mandatory
participation of a lawyer in cases where the accused person does not
have a command of the Polish language.
As regards para. 3(d) of Article 6 (Art. 6-3-d) the applicant
submits that despite his firm position, throughout the proceedings,
that the third suspect had shot the gun and was therefore the person
who killed the victim, the prosecution authorities did not undertake
any steps to find this person and did not even issue a warrant for his
arrest. As a result the State was responsible for the impossibility
to have the third suspect examined as a witness.
The applicant finally states that it was not him who shot the
victim. Thus, no reasonable person would commit a murder and then
bring the gun home and leave it under his bed. Also, he was a victim
of the prejudice which exists in Poland against people from the former
Soviet Union.
The Commission need not decide whether the applicant has
exhausted all domestic remedies as the application is in any event
inadmissible for the following reasons.
The Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties in the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention. The Commission refers, on this point, to its constant
case-law (see eg. No. 25062/94, Dec. 18.10.95, D.R. 83, p. 77).
As regards the applicant's complaints about the fairness of the
proceedings, the Commission recalls that the guarantees of Article 6
para. 3 (Art. 6-3) of the Convention are specific aspects of the right
to a fair trial in Article 6 para. 1 (Art. 6-1) of the Convention (see,
Eur. Court HR, Edwards v. the United Kingdom judgment of 16 December
1992, Series A no. 234-B, p. 34, para. 33, with further references).
In the present case, the Commission will consider the proceedings as
a whole, with particular reference to the specific aspects raised by
the applicant.
All the applicant's complaints flow from the events surrounding
the first four months of the preliminary investigation in the case.
The Commission recalls that Article 6 (Art. 6) applies at the
stage of the preliminary investigation of a criminal case. In
particular, Article 6 para. 3 (Art. 6-3) may be relevant before a case
is sent for trial if and so far as the fairness of the trial is likely
to be seriously prejudiced by an initial failure to comply with its
provisions (see Eur. Court HR, John Murray v. the United Kingdom
judgment of 8 February 1996, Reports 1996-I, p. 54, para. 62).
The Commission further recalls that Article 6 (Art. 6) will
normally require an accused to benefit from the assistance of a lawyer
at the initial stages of police interrogation if the consequences of
the accused's attitude are decisive for the prospects of the defence
in subsequent proceedings (see the above-mentioned John Murray
judgment, p. 54, para. 63). In the John Murray judgment, the question
of the accused's attitude was particularly relevant because of the
adverse inferences which could be drawn if he remained silent. In the
present case, the "attitude" was the confession which the applicant was
alleged to have made. What is required in the case of confessions
alleged to have been obtained after alleged undue pressure is a
mechanism by which the undue pressure - in the absence of a lawyer -
can be challenged at court (see No. 9370/81, Dec. 13.10.83, D.R. 35,
p. 75; No. 25605/94, Dec. 28.5.97, unpublished).
As regards the applicant's complaint concerning his legal
defence, it appears undisputed that an ex officio lawyer would have
been appointed, had the applicant lodged a request. The reasons for
the applicant's failure to lodge such a request are disputed, however:
the Government state that the applicant chose to defend himself without
a lawyer, whereas the applicant maintains that he was not informed of
his right to ex officio legal counsel.
The Commission notes that at the beginning of the interrogation
of 5 June 1993 the applicant was provided with a written statement of
his rights, which was apparently translated to him orally by Ms. F.,
a professional interpreter. Furthermore, at the beginning of the
questioning on 7 June 1993 the applicant was expressly told, through
the same interpreter, that he had a right to appoint a lawyer.
Therefore, insofar as Article 6 para. 3(c) (Art. 6-3-c) of the
Convention may have required that the applicant be informed expressly
of his right to free legal assistance, the Commission is satisfied that
the applicant was provided with information which was sufficient, at
the very least, to prompt him to enquire about the possibilities to
appoint a lawyer. The applicant does not claim that, had he done so,
he would not have obtained more detailed information as regards the
appointment of ex officio legal counsel or would not have been able to
lodge a request for free legal assistance.
As regards the complaint that a police officer served as an
interpreter, the Commission notes that this happened only during an
hour or so on 5 June 1993, when Ms. F., the professional interpreter,
had left. Furthermore, it should be noted that the applicant
maintained his confession on 7 June 1993 when he was questioned through
the interpretation provided by Ms. F.
In any event, as regards the complaint that the applicant was
misled to confess, the Commission notes that he was able to raise this
issue at his trial where he could also question as a witness Mr. W.,
the police officer who served as an interpreter. It appears therefore
that the court did not accept the allegation of undue pressure after
having examined the evidence in this respect freely submitted by the
applicant and his lawyer. Also, the issue was again raised before the
Court of Appeal.
Finally, it is not disputed that there has been oral
interpretation for the applicant at all times and that certain
important documents were translated in writing. Furthermore, the
applicant had legal counsel at his trial and before the Court of
Appeal. It has not been claimed that the lawyer was unable to inspect
the files, to verify with his client the accuracy of the minutes
recording his submissions, or to examine other documents.
As regards the applicant's complaint that he was unable to
question the third suspect as a witness the Commission considers that
this cannot be imputed to the respondent State, the applicant's
accomplice having fled.
Given that the Commission's principal task in assessing the
fairness of proceedings is to consider the way in which the courts
handled the case, and given the above considerations of the specific
matters which flow from the initial interviews with the applicant, the
Commission finds no indication that the provisions of Article 6
(Art. 6) were violated in the present case.
Furthermore, the Commission finds that the applicant's
allegations about discrimination contrary to Article 14 (Art. 14) of
the Convention are unsubstantiated.
It follows that the application 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 THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy