AS TO THE ADMISSIBILITY OF
Application No. 26168/95
by Eugeniusz KUBON
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 16 October 1996, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
L. LOUCAIDES
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
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 12 April 1994 by
Eugeniusz KUBON against Poland and registered on 10 January 1995 under
file No. 26168/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
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 1961, is serving a prison
sentence in Nowy Wisnicz prison.
Apparently in March 1993 the applicant was remanded in custody
on suspicion of multiple aggravated theft. On 14 June 1993 the
Myslenice police completed the investigations against the applicant.
On 17 June 1993 the Myslenice Public Prosecutor prepared an
indictment against the applicant. It charged him with aggravated
theft. On 2 July 1993 the indictment was served on the applicant.
On 5 July 1993 the Court held the first hearing. The next
hearing was held on 30 August 1993 and the third one on
12 October 1993. Throughout the proceedings before the court the
applicant was assisted by an officially appointed lawyer.
On 12 October 1993 the Myslenice District Court (S*d Rejonowy)
convicted the applicant of multiple aggravated theft and sentenced him
to four years' imprisonment and a fine of 5 million zlotys.
The Court found that the applicant, in the period from
18 August 1992 to 16 March 1993, had committed four aggravated thefts,
involving burglary in one restaurant and three shops.
The Court heard the applicant, a co-accused A.M. and five other
witnesses. The Court further considered as evidence the fingerprints
found on two sites, the traces of gloves found on one site and later
found among the applicant's belongings, and the footprints found on one
site. The Court had regard to the testimony of three persons, whose
property had been stolen. They stated that certain objects found in
the apartments of the applicant and the co-accused U., belonged to
them. The Court also relied on the testimony of the co-accused A.M.,
a taxi-driver, who had provided transport after the thefts. He
recognised that he had helped the accused and made detailed statements
as to the events concerned and the applicant's role therein. His
testimony was detailed and consistent, and it corresponded to the
evidence given by five other witnesses. A.M. had given his testimony
during the investigation and availed himself of his right not to
testify before the court, but confirmed that his deposition made at the
pre-trial stage was accurate. The Court also considered as evidence
photographs belonging to A.M., found on the site of one theft. The
Court noted that the applicant and the co-accused had refused to
testify during the investigations. Before the Court the applicant had
denied any involvement in the thefts. However, he had not been able
to give any convincing explanation as to his whereabouts on two of the
critical nights and had refused to reply to the questions as to his
whereabouts on two other nights. The accused U. refused to testify
before the Court. The Court concluded that on the whole the evidence
was sufficient to establish that the accused were guilty.
On 21 December 1993 the applicant lodged an appeal against this
judgment.
On 2 February 1994 the Kraków Regional Court (S*d Wojewódzki)
upheld the judgment.
COMPLAINTS
The applicant complains under Articles 5 para. 1 and 6 para. 1
of the Convention that the courts relied on forged evidence and wrongly
assessed the evidence; that he was convicted on insufficient evidence
and that the courts disregarded his requests to take evidence as to his
whereabouts on the critical nights.
The applicant further complains under Article 6 para. 3 (b), (c)
and (d) of the Convention that he did not have sufficient time to
prepare his defence and that the Regional Court accepted the appeal
submitted by the officially assigned lawyer.
THE LAW
1. The applicant complains under Articles 5 para. 1 and 6 paras. 1
and 3 (b), (c) and (d) (Art. 5-1, 6-1, 6-3-b, 6-3-c, 6-3-d) of the
Convention about his conviction by Polish courts and also of the
proceedings concerned.
The Commission has examined these complaints under Article 6 of
the Convention.
Article 6 (Art. 6) of the Convention, insofar as relevant, provides:
"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: ...
...
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 ..."
The Commission recalls that the guarantees contained in
paragraph 3 of Article 6 (Art. 6) of the Convention are specific
aspects of the general concept of fair trial set forth in paragraph 1
of this Article. In the circumstances of the present case, it will
consider the applicant's complaint under the two provisions taken
together (see Eur. Court HR, Isgrò v. Italy judgment of
19 February 1991, Series A no. 194-A, p. 12, para. 31).
With regard to the judicial decisions of which the applicant
complains, 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 to 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 established
case-law (see No. 21283/93, Dec. 5.4.94, D.R. 77-A, p. 81, 88).
The Commission further recalls that the admissibility and
assessment of evidence are primarily matters for domestic courts, and
that States enjoy a certain margin of appreciation in this respect
(cf., mutatis mutandis, Eur. Court HR, Asch v. Austria judgment of
26 April 1991, Series A no. 203, p. 10, para. 26). In particular,
Article 6 para. 3 (d) (Art. 6-3-d) does not give an accused an
unlimited right to obtain the examination of witnesses on his behalf.
The judge may refuse to hear a witness if he considers that the
witness's statement would not be relevant (cf. No. 10486/83, Dec.
9.10.86, D.R. 49 p. 86).
The Commission further recalls that it is for the competent
authorities to decide whether the accused defends himself in person or
with the assistance of a lawyer nominated by himself or designated ex
officio. If he is represented by a lawyer, it is in principle through
the latter that he normally exercises his procedural rights (No.
7138/75, Dec. 5.7.77, D.R. 9 p. 50).
In the present case the Commission observes that the courts had
ample evidence from various sources, including the testimony of five
witnesses and the detailed confession of the one of the co-accused,
made at the pre-trial stage and confirmed before the court. The Court
also had at its disposal the material evidence, such as the
fingerprints found on two sites, the traces of gloves found on one site
and later found among the applicant's belongings, and the footprints
found on one site. The Court was thorough in its consideration of the
credibility of evidence, as appears from the grounds of the judgment.
The applicant, who was represented by a lawyer, had sufficient
opportunity to put forward his arguments and request the taking of
evidence. In these circumstances, the Commission considers that there
is no indication of arbitrariness in the assessment of evidence.
Furthermore, the applicant has not shown that he requested the court
to take any evidence which the court refused to hear. The Commission
further considers that the applicant has not shown in what way the fact
that the court accepted the appeal submitted by the officially assigned
lawyer negatively affected the fairness of the proceedings.
Insofar as the applicant complains that he did not have
sufficient time to prepare his defence, the Commission considers that
he did not substantiate this complaint by indicating the date of
service of the indictment. The Commission further observes that the
applicant was assisted by an officially assigned lawyer. Thus he was
in a position to complain about the alleged belated service of the
indictment and to request an adjournment of the first hearing. He did
not, however, avail himself of this possibility. Moreover, the
Myslenice District Court held at least two further hearings and the
judgment was pronounced in October 1993.
Consequently, in the circumstances of the present case, the
Commission finds no appearance of a violation of the rights of the
defence or of the applicant's right to a fair trial, as guaranteed by
Article 6 (Art. 6) of the Convention.
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