FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 32723/96
by Józef STRĘCIWILK
against Poland
The European Court of Human Rights (Fourth Section), sitting on 19 September 2000 as a Chamber composed of
MrG. Ress, President,
MrA. Pastor Ridruejo,
MrL. Caflisch,
MrJ. Makarczyk,
MrV. Butkevych,
MrJ. Hedigan,
MrsS. Botoucharova, judges,[Note1]
andMrV. Berger, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 11 August 1995 and registered on 22 August 1996,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having deliberated, decides as follows:
THE FACTS
The applicant is a Polish national, born in 1953 and living in Dzwola, in Poland.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 15 May 1993 the applicant had a car accident in which C.Ł., a passenger of his car, died as a result of injuries, and R.M., another passenger, suffered serious injuries. Apparently on 16 May 1993 criminal proceedings were instituted against the applicant on charges of causing a traffic accident occasioning death and serious bodily harm.
On 4 November 1994 the first hearing was held before the Janów Lubelski District Court in these proceedings. Subsequently the court held four further hearings. At the last one, on 29 December 1994, the District Court convicted the applicant of causing a traffic accident occasioning death and serious bodily harm. The court heard eight witnesses, including R.M., persons who had immediately arrived at the scene of the accident and had taken the applicant and other victims out of the car.
The court established that on the critical date the applicant, while driving his car, had met R.M. and J.F. They had intended to spend some time in a beer bar in C. As the bar had been closed, the applicant had proposed to see his friend S.K., but, as he had no alcoholic beverages at home, the applicant and R.M. had gone to a shop in G. They had drunk some vodka, and later an unspecified amount of beer, first at S.K.’s place and later in a shop in C. On their way back home the applicant had stopped to pick up C.Ł. Shortly afterwards the applicant had lost control of the car, driven off the road into a ditch alongside it, and there hit a concrete water pipe. As a result of the crash, C.Ł. suffered grave injuries and subsequently died. R.M. also suffered serious injuries, including a brain concussion. The court further observed that three hours after the accident, the applicant had a blood test taken, which showed that he had 0,8 pro thousand alcohol in his blood. The court further considered that the applicant’s arguments according to which it had not been him who had been driving, but C.Ł., amounted only to an inept attempt of burdening the victim with the responsibility for the accident, which did not find support in any other evidence. In particular, the testimony of persons who had taken the injured passengers out of the badly damaged car, clearly indicated that the applicant had been in the driver’s seat. Their testimony was logical and corresponded to each other. In establishing the facts the court further had regard to an expert opinion of R.N., a physician, and to a further expert report of D.K., a specialist in traffic problems. The court also took into consideration a medico-psychiatric report on the applicant as well as a report of a psychologist.
The court sentenced the applicant to two years of imprisonment. The enforcement of the sentence was stayed for five years of probation. The court considered that the applicant’s personality and the fact that he did not have any criminal record militated for the staying of the enforcement of the sentence. He had also shown contrition proportionate to the tragic consequences of his offence. The court further observed that a significant factor which had bearing on its position as regards the staying of the sentence was the fact that the applicant had five dependants: four children and a wife who had serious mobility problems. Thus, the societal aims of the sentence would be best served if the enforcement of the prison sentence was stayed. The court also imposed on the applicant a fine of 20,000,000 (old) Polish zlotys, and forbade him to drive for eight years.
Both the prosecutor and the applicant lodged appeals against this judgment. At the hearing held on 20 March 1995, the Tarnobrzeg Regional Court quashed the part of the judgment staying the enforcement of the sentence. This judgment subsequently became final.
On 7 March 1996 the Rzeszów Court of Appeal reopened the proceedings against the applicant on the ground that the second-instance court had considered the appeals against the judgment of 29 December 1994 despite the fact that the applicant’s lawyer had not attended the hearing held before the Tarnobrzeg Regional Court on 20 March 1995, whereas his presence would have been necessary in order to ensure an effective defence of the applicant’s procedural rights. The court also ordered the case to be reconsidered by the Tarnobrzeg Regional Court.
On 15 April 1996 the Tarnobrzeg Regional Court reconsidered the prosecutor’s and the applicant’ s appeal against the judgment of 29 December 1994. The court quashed the part of the judgment by which the prison sentence had been stayed and that relating to imposition of the fine. The remainder of the judgment was upheld.
The applicant’s lawyer lodged with the Regional Court a cassation appeal to the Supreme Court against this judgment, arguing in particular that the first-instance court had failed to give convincing grounds for its judgment, in particular by failing to adduce circumstances which had led it to a de facto increase in the sentence by quashing the part staying its enforcement for a period of five years. On 31 July 1996 the Regional Court declared the cassation appeal admissible.
On 12 August 1996 the Tarnobrzeg Regional Prosecutor lodged its pleadings in the cassation proceedings with the Supreme Court, submitting that the applicant’s argument according to which the Tarnobrzeg Regional Court had failed to sufficiently justify this part of the decision by which the staying of the sentence had been quashed, was well-founded. However, this could not in itself be regarded as a sufficient ground for the quashing of the contested judgment by way of a cassation judgment, as this shortcoming did not amount to a flagrant breach of procedural provisions of the Code of Criminal Procedure, justifying that the judgment be quashed by the Supreme Court.
On 23 August 1996 the applicant lodged additional pleadings with the Supreme Court.
On 19 February 1997 the Supreme Court quashed the judgment of the Tarnobrzeg Regional Court of 15 April 1996 and remitted the case for reconsideration.
On 23 September 1997 the Tarnobrzeg Regional Court, having reconsidered the case, quashed the part of the first-instance judgment by which the court stayed the enforcement of the sentence. It upheld the remainder of the judgment.
The applicant filed again a cassation appeal against this judgment with the Supreme Court. He submitted that the first-instance court had been in flagrant breach of law in that it had refused to call a specialised institute in order to give a comprehensive forensic expert opinion, such as to include both medical aspects of the case and considerations of specialists in traffic problems, in order to reconstruct the course of material events and establish the facts of the case. It was further stated that the court had relied on an opinion of an expert in traffic issues which was incomplete, as shown by the fact that its author had indicated that an expert report should be submitted to the court in order to assess the exact degree of the applicant’s drunkenness at the material time.
On 8 June 1998 the Supreme Court dismissed a cassation appeal considering it unfounded. The court stressed that the applicant’s request to have a further expert opinion prepared had been in fact aiming at having the facts of the case established, and at having them assessed by an expert, whereas this was a cardinal duty of the court in criminal proceedings. It was not for any expert to take the place of the court in this respect. As regards the complaint that the expert opinion relied on by the court had been incomplete, the Supreme Court considered that it had contained a detailed analysis of circumstances which had led the expert to the conclusion that the applicant had been driving the car at the time of the accident, and that the applicant had not advanced any arguments capable of effectively calling these conclusions into question. As to the assessment of the applicant’s inebriated state, it was true that the expert had stated that his conclusions had been rather an estimate. However, the applicant’s state had also been established on the basis of the blood test taken several hours after the accident, which permitted a conclusion that his alcohol intake had been higher than permitted by law. As regards this part of the cassation appeal which called into question the reasonableness of the assessment of evidence given by witnesses R.M. and W.B. , it was not for the cassation court to assess the ability of the witnesses to reconstruct the material events. This was a task of the first-instance court which had had direct contact with the witnesses and had been in the best position to appreciate their submissions. The first-instance court had done so, and the appellate court had accepted its conclusions. In the light thereof, the Supreme Court found no grounds, which would cast doubt on their correctness.
On 15 April 1999 the Supreme Court dismissed the motion to reopen the proceedings, considering that the applicant’s allegations that witnesses W.B. and R.M. suffered from alleged psychiatric ailments sufficient to call into question their abilities of perception did not constitute a ground justifying the reopening of the proceedings, as defined by law.
COMPLAINT
The applicant complains under Article 6 §§ 1 and 3 (d) of the Convention that the proceedings were unfair in that the courts refused to order an expert opinion of a scientific institute specialising in traffic problems. The courts erroneously relied on an expert opinion of R.N., who did not have knowledge adequate to address properly the questions put to him by the court. He assessed the applicant’s alleged state of drunkenness without the requisite accuracy. Moreover, the courts failed to order that evidence be submitted to them from the blood tests and fingerprints left in the car, in particular in order to establish who had been driving the car at the time of the accident.
The applicant also complains that his lawyer was absent at the hearing before the Tarnobrzeg Regional Court on 20 March 1995 which entailed for him a severe breach of his defence rights.
He finally complains about the length of the proceedings.
THE LAW
1.The applicant first complains under Article 6 of the Convention about the assessment of evidence made by the courts in his case.
Article 6 § 1, in so far as relevant, reads as follows:
“In determination … of any criminal charge against him, everyone in entitled to a fair ..... hearing within a reasonable time....”
The Court first recalls that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties in the Convention. In particular, it is not its function to deal with errors of facts or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and national courts (see the Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, § § 45 and 46; the Bricmont v. Belgium judgment of 7 July 1989, Series A no. 158, p. 31, § 89; the Garcia Ruiz v. Spain judgment of 21 January 1999, § 28, to be published in the Court’ s official Reports).
The Court notes that the applicant essentially calls into question the manner in which the courts assessed evidence pointing out to his guilt. In this respect the Court recalls that its task is to ascertain whether the proceedings considered as a whole, including the way in which the evidence was taken, were fair (see, for example, the Mantovanelli v. France judgment of 18 March 1997, Reports 1997-II, pp. 436–37, § 34, and the Bernard v. France judgment of 23 April 1998, Reports 1998-II, p. 879, § 37).
The Court observes that the courts based their findings on the testimony of eight witnesses, including R.M., the survivor of the accident, and persons who, after the accident, had been taking the victims out of the damaged car. Moreover, the courts had also regard to expert evidence, furnished by both a specialist in traffic problems and by a physician. They also made efforts in order to establish the personal circumstances concerning the applicant such as would have a bearing on the sentence, by ordering a psychological report and another, submitted by a psychiatrist.
The Court finds no indication that the applicant was prevented from properly arguing his case or from submitting his arguments to the courts, the more so as before the first-instance court he was represented by counsel. The factual and legal reasons for the first-instance court’s decision were set out at length and detailed description was made of the reasoning on which the court relied when making its finding that the applicant had been driving the car at the material time. Moreover, the findings regarding the applicant’s drunkenness were made on the basis of laboratory tests. The applicant did not adduce any other evidence capable of casting doubt on the courts’ findings in this respect. The Court finally notes that the case was examined three times by the second-instance courts, which did not find any grounds on which to quash the first-instance judgment as to the applicant’s guilt. Accordingly, there is no appearance of a violation of the applicant's right to a fair hearing under Article 6 § 1 of the Convention
2.The applicant also complains that his lawyer was absent at the hearing before the Tarnobrzeg Regional Court on 20 March 1995, which entailed for him a severe breach of his defence rights.
The Court notes that it appears from the decision of the Rzeszów Court of Appeal of 7 March 1996 that the applicant’s lawyer was absent at the hearing before the appellate court held on 20 March 1995, and that it was on that ground that the Court of Appeal re-opened the criminal proceedings against the applicant, considering that on account of that fact he could not defend himself effectively. The judgment given on 20 March 1995 was subsequently quashed and the proceedings were conducted again. As the judgment given in alleged breach of principle of equality of arms ceased to exist following an action taken ex officio by the State authorities, the applicant cannot claim to be a victim of a violation of his defence rights in this respect.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4.
3.The applicant finally complains about the length of the proceedings.
The Court notes that the reasonableness of the length of the impugned proceedings must be assessed in the light of the particular circumstances of the case and with regard to the criteria laid down in its case-law, in particular the complexity of the case, and the conduct of the applicant and of the relevant authorities (see, among many other authorities, the Philis v. Greece (no. 2) judgment of 27 June 1997, Reports of Judgments and Decisions 1997-IV, p. 1083, § 35).
The Court notes that the proceedings started on 16 May 1993, a day after the accident, when investigations cocerning the accident were instituted. On 20 March 1995 the Tarnobrzeg Regional Court gave the second-instance judgment which, under the Code of Criminal Procedure applicable at that time, was final. Subsequently, on 7 March 1996, the Rzeszów Court of Appeal reopened the proceedings, acting ex officio. By the judgment of 15 April 1996 the Tarnobrzeg Regional Court reconsidered the appeal against the first-instance judgment. The Supreme Court quashed this judgment on 19 February 1997 and the case was reconsidered again by the second - instance court. The final judgment was given by the Supreme Court on 8 June 1998. The proceedings have thus lasted five years and twenty-two days.
The Court finds that the proceedings did not disclose particular complexity. The courts had to establish the circumstances of a traffic accident, in which no other vehicle had been involved. The first instance court heard ten witnesses and four experts and gave its judgment after five hearings.
As regards the conduct of the applicant, the Court finds no indication that he contributed to the length of the proceedings.
As to the conduct of the authorities, the Court notes that the proceedings, in their investigative phase and before the trial court, lasted from 16 May 1993 to 29 December 1994. The trial was conducted speedily, from 4 November to 29 December 1994, and the final decision of the second-instance court was given on 5 March 1995. On 7 March 1996 the Rzeszów Court of Appeal reopened the proceedings and quashed the second-instance judgment. The Regional Court re-examined the case after one month and eight days. It is true that there was a delay of ten months between the judgment of the Regional Court and the subsequent judgment given by the Supreme Court on 19 February 1997. However, during the period under consideration the case was examined three times by the appellate court and twice by the highest judicial authority, the Supreme Court.
Having regard to these particular circumstances and looking at the proceedings as a whole, the Court finds that there is no appearance of violation of the applicant’s right to have his case heard within a reasonable time, guaranteed by Article 6 § 1 of the Convention.
It follows that this part of the application is likewise manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4.
4.Insofar as it can be understood that the applicant’s complaint about the length of proceedings relates also to the proceedings by which the Supreme Court dismissed his motion to have the trial re-opened, the Court first recalls that, the right to a new trial is not a right guaranteed by the Convention (Eur. Comm. HR, no. 24469/94, Dec. 2.12.94, D.R. 79, p. 141; no. 7761/77, Dec. 8.5.78, D.R. 14, p.171) and Article 6 § 1 does not apply to the proceedings whereby a request for a new trial is examined (no. 7761/77, Dec. 8.5.78, D.R. 14, p. 171). It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention and must be rejected under Article 35 § 3 of the Convention.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Vincent BergerGeorg Ress
RegistrarPresident
[Note1]Judges names are to be followed by a COMMA and a MANUAL LINE BREAK (Shift+Enter). When inserting names via AltS please remove the substitute judge’s name, if necessary, and the extra paragraph return(s). (There is to be no extra space between the judges’ names and that of the Section Registrar.)
Full & Egal Universal Law Academy