AS TO THE ADMISSIBILITY OF
Application No. 26173/95
by Stanislaw MLECZKO
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 13 September 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 25 April 1994 by
Stanislaw Mleczko against Poland and registered on 10 January 1995
under file No. 26173/95;
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
Particular circumstances of the case
The facts of the case, as submitted by the applicant, may be
summarised as follows:
The applicant, a Polish citizen born in 1947, is a technician.
He is currently serving a prison sentence in Goleniów prison.
On 12 May 1991 the applicant left Szczecin, returning by night
train on 28 May 1991 in the morning. Having learnt upon his return
that his friend Kl. had been arrested by the police, he went to the
District Prosecutor's office to obtain information about her
whereabouts. He was informed that she had been arrested. He left the
office and sat on the bench outside, whereupon he himself was also
arrested and, on 30 May 1991, remanded in custody.
On 26 February 1993 the Szczecin Regional Court (S*d Wojewódzki)
convicted the applicant of aggravated theft and robbery and sentenced
him to eight years' imprisonment. Four other persons were also
convicted of aggravated theft and robbery. The Court found that during
the evening of 27 May 1991 the five accused had met at the apartment
of K., one of the accused, and broken into a shop in Szczecin and
stolen merchandise. After they had left the shop, they had met two
Swedish citizens J. and L., and invited them to the apartment of K.,
with a view to robbing them. They had spent some time drinking alcohol
in the apartment. Later Kl. had taken L. to the kitchen, whereupon the
applicant and the accused T.B. had beaten him severely until he lost
consciousness and stolen his money and other belongings. Subsequently
the applicant and the accused T.B. had beaten J. After M.B., another
co-accused, had taken J. out of the apartment, the latter had fled.
Later the applicant and T.B. had dragged L. out of the apartment and
left him in the staircase.
The Court thereby relied on the testimony of the accused, as well
as on the statements of the victims of the robbery, which they had made
during the investigations. The judgment further referred to the list
of the stolen objects found in the apartment and on the person of one
of the accused. The applicant denied his involvement in the offences
and stated that he had left Szczecin on 12 May 1991 and come back in
the early morning of 28 May 1991.
The Court further found that there were certain shortcomings in
the evidence in that it consisted mainly of the testimony of the five
accused. The applicant could not have been confronted with the victims
for identification as they had left Poland before he had been arrested.
It had been impossible to hear the victims before the Court as they had
not complied with the summonses. Their testimony during the
investigations had not enabled a full establishment of the facts, as
on the critical night both had been too drunk to have a clear
recollection of the events. It was nevertheless possible to establish
the facts on the basis of the extensive evidence given by the accused,
even though on certain points their testimony was contradictory. With
regard to the applicant's participation in the material events, the
Court considered that K., Kl. and M.B., who had been heard by the
Prosecutor immediately after being arrested and later during the
investigations, had on both occasions stated that the applicant had
participated both in the theft and in the robbery. They had not had
any doubts as to his identity. It was only before the Court that they
stated that his name was suggested to them by a policeman who had
conducted the investigations. Furthermore, before the Court they had
confirmed their earlier statements as to the course of events and
changed them only with regard to the applicant's involvement. In the
Court's view, this negatively affected their credibility in this
respect.
The applicant appealed against the judgment. He complained that
the Szczecin Regional Court had refused to hear the victims with regard
to certain circumstances other than those which had already been
covered by their testimony during the investigations. He contended
that the victims regularly visited Poland; thus the Court had been
wrong in deciding that it would be impossible to effectively summon
them. The applicant also complained that the Court had disregarded the
applicant's argument that he had not been in Szczecin during the
material night. Thus, the conviction was based on insufficient evidence
and the applicant should have been acquitted. He further complained
that he should have been presented to the victims for identification.
On 14 October 1993 the Poznan Court of Appeal (S*d Apelacyjny)
upheld the judgment. The Court considered that the applicant's
conviction was based mainly on the evidence which K., Kl. and M.B. had
given during the investigations. Their evidence fully corresponded to
the statements of the victim J. during the investigations. Kl. had
been arrested in the apartment of K., when she came to find the
applicant's identity card which he had lost there. Moreover, M.B. had
stated during the investigations that the applicant had not only
participated in the robberies and divided the loot, but had played the
role of instigator. The Court had regard to the Swedish crowns and a
watch found on T.B. and to his statements that they had been taken from
one of the victims. As to the theft, the Court considered that the
statements of Kl., K. and M.B. during the investigations corresponded
to the testimony of Kl. and M.B. before the Court. Although M.B. had
said before the Court that he had never met the applicant, the Court
observed that his testimony in this respect was illogical and
contradicted his earlier statements. M.B. had failed to submit any
plausible reason for this change in his statement. Other testimonies,
in particular those of Kl. and K., did not lend credibility to the
applicant's denials as to his involvement. The Regional Court was
justified in its decision not to hear the victims since the summonses
proved ineffective as they resided in Sweden. The fact that the
applicant had not been confronted with them for identification did not
in itself affect the soundness of the judgment. Having considered all
these factors, the Court concluded that the applicant's guilt had
sufficiently been established on the basis of the extensive testimony
given by the accused. Thus the questioning of the victims, one of whom
had been very drunk at the material time, would not have altered the
assessment of his guilt.
Relevant domestic law
Article 402 of the Polish Code of Criminal Procedure concerning
the taking of evidence before the court of second instance provides
that in principle it cannot take evidence. However, it can
exceptionally take evidence at a hearing if it can expedite the
proceedings. The court can at any time take evidence from a document
or an expert opinion.
COMPLAINTS
The applicant complains under Article 6 para. 1 of the Convention
of the criminal proceedings instituted against him and their outcome.
The applicant complains under Article 6 para. 2 of the Convention
that he was convicted on the basis of insufficient evidence as the
Courts proceeded from the assumption that he was guilty. He contends
that he is not guilty.
He further complains under Article 6 para. 3 (d) of the
Convention that the Szczecin Regional Court refused to hear the victims
as witnesses and that he could not question them, either during the
investigations or before the Court. He complains that the Court
refused to hear certain witnesses for the defence who would have stated
that he had not been in Szczecin on the critical night.
THE LAW
The applicant complains of the criminal proceedings instituted
against him and their outcome. He relies on Article 6 paras. 1, 2 and
3 (d) (Art. 6-1, 6-2, 6-3-d) of the Convention.
Insofar as the applicant's complaints relate to a period prior
to 1 May 1993, the Commission 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 by Poland of the rights
recognised in the Convention through any act, decision or event
occurring after 30 April 1993".
In the present case the judgment of the Szczecin Regional Court
was pronounced on 26 February 1993. The Szczecin Court of Appeal
dismissed the applicant's appeal on 14 October 1993. It follows that
the Commission lacks competence ratione temporis to review the
proceedings before the Szczecin Regional Court. These proceedings may
however be taken into account as background to the issue whether those
in the Szczecin Court of Appeal were fair (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 observes that the Court of Appeal had
competence to rectify shortcomings of the taking of evidence before the
Regional Court. If the shortcomings of the taking of evidence by the
lower court were such that they could not have been remedied, the Court
of Appeal could quash the judgment and order that the case be
reconsidered.
Insofar as the applicant complains of the outcome of the
proceedings, submitting in particular that he is not guilty, the
Commission recalls that under 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. 21983/93, Dec. 5.4.94, D.R.
77-A, p. 81, 88).
It is true that the applicant also complains of the proceedings
under Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention.
He first complains that the Szczecin Regional Court refused to hear the
victims as witnesses and that he could not question them, either during
the investigations or before the Court. He also complains that the
Court refused to hear certain witnesses for the defence who would state
that he had not been in Szczecin on the critical night.
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 and public
hearing within a reasonable time by an independent and
impartial tribunal established by law....
2. Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.
...
3. Everyone charged with a criminal offence has the
following minimum rights:
...
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 notes that these complaints are directed against
the proceedings before the Regional Court which, for the reasons stated
above, fall outside the Commission's competence.
Insofar as the applicant can be understood as indirectly
complaining also of the proceedings before the Court of Appeal, the
Commission finds no unfairness in the manner in which the Court of
Appeal examined the applicant's appeal.
It follows that the Commission is not competent ratione temporis
to examine this part of the application insofar as it concerns the
proceedings before the Regional Court and that the complaints are
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention insofar as they concern the proceedings
before the Court of Appeal.
The applicant finally complains under Article 6 para. 2
(Art. 6-2) of the Convention that he was convicted on the basis of
insufficient evidence as the Courts proceeded from an assumption that
he was guilty.
The Commission recalls that the presumption of innocence will be
violated if, without the accused's having previously been proved guilty
according to law, a judicial decision concerning him reflects an
opinion that he is guilty (Eur. Court H.R., Barberà, Messegué and
Jabardo judgment of 6 December 1988, Series A no. 146, p. 31, para. 67
et seq.).
In the present case the applicant does not adduce any argument
which would indicate that the presumption of innocence was disregarded
in the proceedings at issue, other than his criticism of the assessment
of evidence made by the courts. It does not appear from the case-file
that during the proceedings the courts took any decisions reflecting
an opinion that the applicant had committed the acts with which he was
charged.
It follows that the remainder of 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.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy