Lexploria

AS TO THE ADMISSIBILITY OF

Applications Nos. 29692/96

and 34612/97

by R.D.

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 22 October 1997, 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

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 applications introduced on 31 August 1995

and 11 December 1996 by R.D. against Poland and registered on 4 January

1996 and 28 January 1997 under file Nos. 29692/95 and 34612/97;

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 applicant, a Polish citizen, born in 1959, is a civil servant

residing in Walbrzych, Poland. The facts of the case, as submitted by

the applicant, may be summarised as follows:

Particular circumstances of the case

a. Criminal proceedings instituted against the applicant

On 16 September 1994 the Walbrzych District Prosecutor

(Prokurator Rejonowy) charged the applicant with receiving a bribe and

detained him on remand in view of the reasonable suspicion that he had

committed the offence in question. On the same day the prosecutor

confronted the applicant with his co-suspect who had offered him a

bribe, and ordered a search of the applicant's home. The applicant

took part in the search and did not submit any complaints concerning

its conduct. On 28 September 1994, upon the applicant's appeal, the

Walbrzych Regional Court (S*d Wojewódzki) altered the preventive

measure imposed on him and released him under police supervision.

In a letter of 1 February 1995 the applicant requested the

investigating prosecutor to postpone the lodging of a bill of

indictment since, as a result of his illness, he had not been able to

read all the materials contained in the case-file. On 6 February 1995

the prosecutor rejected his request, finding that the applicant had had

sufficient access to the case-file for two days and that, in view of

the fact that his co-suspects were still in detention, any further

delay in submitting the bill of indictment was impossible.

On 10 February 1995 the prosecutor lodged the bill of indictment

with the Walbrzych Regional Court. It comprised twelve different

charges, including an attempt to trafficking in women, against seven

co-accused.

On 24 February 1995 the applicant submitted a petition to the

Chief Justice of the Walbrzych Regional Court. He requested the Chief

Justice to reject the bill of indictment as, in his view, he had been

unlawfully charged with an offence which he had never committed and the

accusation against him had not been based on any sound evidence. In

a letter of 7 March 1995 the Chief Justice informed the applicant that

under Polish law there was no possibility of rejecting a bill of

indictment and that the applicant could put forward all his submissions

concerning the evidence against him during his trial.

Subsequently, on an unspecified date, the Walbrzych Regional

Court officially appointed a defence counsel for the applicant.

On 17 March 1995 the applicant unsuccessfully requested the

Walbrzych Regional Court to grant him permission to impart information

about his trial to the public through the press and television.

The trial court held hearings on 4, 5, 6, 16, 17 and 23 May, on

4 September and 9 November 1995, and on 15 January, 11 March and

15 April 1996. During this time the court heard evidence from seven

co-defendants and eleven witnesses, and considered documentary

evidence. On 15 April 1996 the Walbrzych Regional Court pronounced a

judgment, convicted the applicant of receiving a bribe and sentenced

him to one year and six months' imprisonment, suspended for two years.

On 14 June 1996 the applicant submitted a forty-eight-page

memorandum to the Wroclaw Court of Appeal (S*d Apelacyjny). This

contained the applicant's submissions concerning the establishment of

the facts of his case, the assessment of the evidence presented during

his trial and his opinion about the way in which the relevant criminal

law had been applied. On 24 June 1996 the applicant's lawyer submitted

his appeal to the Walbrzych Regional Court.

On 30 July 1996 the applicant complained to the Walbrzych

Regional Court that the case-file had not been transferred to the

Wroclaw Court of Appeal and that, therefore, he was not able to defend

himself in the appeal proceedings.

On 27 September 1996 the applicant filed a supplementary

memorandum and submitted documents in support of his arguments.

Subsequently, on an unspecified date, the Wroclaw Court of Appeal

officially appointed a new lawyer to assist the applicant in the

appellate proceedings.

On 10 October 1996 the Wroclaw Court of Appeal held a hearing.

The applicant and his officially-appointed lawyer appeared before the

court. The applicant requested the court to read all the evidence

given by him during the trial at first instance. The court rejected

the request, finding that the appellate hearing was limited to the

questions of fact and of law which had been put forward by the parties

in their appeal memoranda and oral submissions, and that reading of

voluminous records of the evidence taken from the applicant was

unnecessary. On the same day the court upheld the judgment of the

court of first instance.

On 12 October 1996 the applicant lodged a notice of a cassation

appeal with the Wroclaw Court of Appeal, requesting the court to serve

him with the reasons for its judgment. He also requested that court

to appoint a new lawyer for him in order to assist him in the

preparation of his cassation appeal. He submitted that his monthly

salary amounted to PLZ 565.90, whereas the costs of court fees and

legal assistance in cassation proceedings would amount to a minimum of

PLZ 1,100.00 and that, therefore, he could not bear such costs without

a substantial reduction in his and his family's standard of living.

On 9 December 1996 the reasons for the judgment of the Wroclaw

Court of Appeal were served on the applicant.

On 23 December 1996 the Wroclaw Court of Appeal dismissed the

applicant's request of 10 October 1996, relating to the appointment of

a lawyer for him in cassation proceedings, and held that the applicant

had failed to prove that he could not afford such assistance.

b. Applicant's requests for criminal proceedings to be instituted

On 12 January 1995 the applicant requested the Walbrzych Regional

Prosecutor (Prokurator Wojewódzki) to institute criminal proceedings

against M.B and A.Ch, prosecutors at Walbrzych District Prosecution

Office (Prokuratura Wojewódzka), on charges of having abused their

powers in the course of the criminal proceedings instituted against him

on 16 September 1994. In particular, he submitted that his detention

on remand and a search of his home had been "unlawfully ordered by the

prosecutors", that at the investigative stage he had not had access to

the case-file and that, finally, "the prosecutors had submitted an

invalid and ill-founded bill of indictment".

Apparently, on an unspecified date, his request was transferred

to the Wroclaw-Sródmiescie District Prosecutor.

On 25 May 1995 the applicant requested the Wroclaw-Sródmiescie

District Prosecutor to institute criminal proceedings against M.B. and

M.Ch.

On 18 August 1995 the Wroclaw-Sródmiescie District Prosecutor

dismissed the applicant's request, finding that the prosecutors had

acted lawfully and diligently throughout the criminal proceedings

complained of, and that there was no indication that their conduct had

amounted to a breach of law or abuse of powers.

On 4 October 1995, upon the applicant's appeal, the Wroclaw

Regional Prosecutor (Prokurator Wojewódzki) upheld the decision of the

prosecutor at first instance and the reasons therefor.

Relevant domestic law and practice

1. Appeal proceedings

Under Section 402 of the Code of Criminal Procedure, an appellate

court shall not be allowed to take evidence pertaining to the essence

of the case. In exceptional instances the appellate court may take

evidence if it is necessary and will expedite the course of the

proceedings.

Section 403 of the Code, concerning the course of an appellate

hearing, insofar as relevant, provides:

"1. An appellate hearing shall begin with an oral report by a

judge rapporteur who shall present an account of the previous

course and outcome of the proceedings, the contents of the

judgment given at first instance and the parties' appeals (...).

2. The parties may submit pleadings, statements and motions

either orally or in writing (...).

3. The president of the court shall allow the parties to

present their arguments in the order established by him. An

accused and his defence counsel shall have the right to present

their arguments after the submissions of other parties."

2. Legal assistance

According to Section 69 of the Code of Criminal Procedure a court

may appoint a lawyer for an accused who has proved that he cannot

afford legal assistance, i.e. that the costs of such assistance would

entail a substantial reduction in his and his family's standard of

living.

Section 71 of the Code of Criminal Procedure lays down the

principle known as "compulsory assistance of a lawyer", providing that:

"An accused must have a defence counsel [of his own choice or

officially appointed] when a regional court is competent to deal

with his case as a court of first instance. The counsel must

take part in the main hearing; he must also take part in any

appellate hearing if the president of the court or the court

itself has found this necessary."

Under Section 75 para. 1 of the Code of Criminal Procedure the

official appointment of a lawyer shall be valid for the entire

proceedings. However, according to domestic practice since 1 January

1996 (the date on which a new cassation appeals procedure was

introduced into the existing system of criminal justice), a lawyer must

again be officially appointed in the cassation proceedings. There is

no appeal against the court's refusal to grant legal assistance.

3. Cassation appeal

As from 1 January 1996, i.e. the date on which the relevant

provisions of a new Law of 29 June 1995 on Amendments to the Code of

Criminal Procedure and Other Criminal Statutes entered into force, a

party to criminal proceedings may lodge a cassation appeal with the

Supreme Court against any final decision of an appellate court which

has terminated the criminal proceedings.

Section 463a para. 1 of the Code of Criminal Procedure, insofar

as relevant, provides:

"1. A cassation appeal may be lodged only on the grounds

referred to in Section 388 [these include a number of procedural

irregularities] or on the ground of another flagrant breach of

law provided that the judicial decision in question was affected

as a result of such breach. ..."

Section 464 of the Code of Criminal Procedure provides:

"1. Parties to criminal proceedings shall be entitled to lodge

a cassation appeal.

2. A cassation appeal which has been lodged by a party other

than a prosecutor shall be filed and signed by a lawyer.

3. Notice of a cassation appeal must be lodged with the court

which has given the [relevant] decision within seven days from

the date on which such decision was pronounced. The appeal

itself must be lodged within thirty days from the date on which

the decision, together with the reasons therefor, was served on

the party concerned."

Under Section 467 para. 2 of the Code of Criminal Procedure, the

court which has given the decision in question is competent to decide

whether the formal requirements of a cassation appeal have been

complied with. If an accused's appeal has not been filed and signed

by a lawyer, it must be rejected. If an appeal complies with the

formal requirements, the case shall be transferred to the Supreme Court

(S*d Najwyzszy). According to para. 4 of the above-mentioned

provision, the Supreme Court shall grant leave to appeal or declare the

cassation appeal inadmissible.

COMPLAINTS

1. The applicant raises various complaints under Articles 3 and 6

paras. 1 and 3 (c) of the Convention. In particular he submits that:

a) his conviction was unjustified since the courts had incorrectly

assessed the evidence presented during his trial, made erroneous

findings of fact and wrongly applied Polish law;

b) the proceedings before the Wroclaw Court of Appeal were conducted

unfairly as the court deprived him of defence rights by appointing a

new counsel for him and rejecting his request for it to read out

records of the evidence taken from him at first instance.

c) the Wroclaw Court of Appeal refused to grant him legal assistance

in the cassation proceedings whereas, according to Polish law, a

cassation appeal must be filed by a lawyer;

2. Under Articles 2, 3 and 5, Article 6 paras. 2 and 3, and Articles

8 and 13 of the Convention the applicant complains that the Polish

authorities arbitrarily rejected his requests that criminal proceedings

be instituted against the investigating prosecutors.

3. He also complains under Article 10 para. 1 of the Convention that

the Polish authorities deprived him of his right to impart information

about his trial to the public.

THE LAW

1. The Commission finds it necessary to join the applications under

Rule 35 of its Rules of Procedure.

2. The applicant complains under Articles 3 and 6 paras. 1 and 3 (c)

(Art. 3, 6-1, 6-3-c) of the Convention that his conviction was

unjustified since the courts had incorrectly assessed the evidence

presented during his trial, made erroneous findings of facts and

wrongly applied Polish law. He also submits that the proceedings

before the Wroclaw Court of Appeal were conducted unfairly as the court

deprived him of defence rights by appointing a new counsel for him and

rejecting his request to read out records of the evidence taken from

him at first instance.

The Commission has examined the applicant's above complaints

under Article 6 paras. 1 and 3 (c) (Art. 3, 6-1, 6-3-c) of the

Convention. These provisions, insofar as relevant, state:

"1. In the determination of ... any criminal charge against

him, everyone is entitled to a fair ... hearing ... before ...

[a] tribunal established by law. ...

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;"

The Commission notes that the applicant failed to file a

cassation appeal as he was refused legal assistance to do so. An

issue, therefore, arises as to whether the applicant has complied with

the requirements under Article 26 (Art. 26) of the Convention as to the

exhaustion of domestic remedies. However, the Commission need not

resolve this question since this part of the application is in any

event inadmissible for the following reasons:

As regards the applicant's complaints about the judicial

decisions given in his case, 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 e.g. No. 7987/77, Dec. 13.12.79, D.R. 18

pp. 31, 45; No. 25062/94, Dec. 18.10.95, D.R. 83, p. 77).

The Commission also recalls that the admissibility and the

assessment of evidence are primarily a matter for regulation by

national law. As a rule, it is for the national courts to assess the

evidence before them, whereas it is the Commission's task to ascertain

whether the proceedings considered as a whole, including the way in

which the evidence was taken, were fair (see Eur. Court HR, Asch v.

Austria judgment of 26 April 1991, Series A no. 203, p. 10, para. 26).

In the present case the Commission finds no elements which would

indicate that the courts went beyond their discretion as to the

assessment of evidence presented in the course of the entire

proceedings complained of. Nor does it consider that the Wroclaw Court

of Appeal, by its decision appointing a new counsel for the applicant

and the refusal to read all the records of the evidence taken from him

at first instance, failed to respect his defence rights. Finally,

assessing the proceedings as a whole, the Commission finds no

indication that they were unfairly conducted in any other way.

It follows that this part of the application is inadmissible as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

3. Under Articles 2, 3 and 5, Article 6 paras. 2 and 3, and Articles

8 and 13 (Art. 2, 3, 5, 6-2, 6-3, 8, 13) of the Convention the

applicant complains that the Polish authorities arbitrarily rejected

his requests that criminal proceedings be instituted against the

investigating prosecutors.

However, the Commission recalls that neither Article 6 (Art. 6)

nor any other provision of the Convention invoked by the applicant

guarantees a right to have criminal proceedings instituted against

third persons (No. 9777/82, Dec. 14.7.83, D.R. 34 p. 158).

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

4. The applicant also complains under Article 10 para. 1 (Art. 10-1)

of the Convention that the Polish authorities deprived him of his right

to impart information about his trial to the public.

The Commission notes that the applicant, save for a copy of his

request of 17 March 1995, has failed to adduce any further

circumstances or documents relating to the substance of this complaint.

The Commission has, therefore, examined it as it has been submitted.

However, after considering the facts of the case as a whole, the

Commission finds that the complaint does not disclose any appearance

of a violation of the rights and freedoms set out in this provision of

the Convention.

It follows that this part of the application in inadmissible as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

5. The applicant finally complains under Article 6 paras. 1 and 3

(c) (Art. 6-1, 6-3-c) that the Wroclaw Court of Appeal refused to grant

him legal assistance in the cassation proceedings, whereas under Polish

law a cassation appeal must be filed by a lawyer.

The Commission considers that it cannot, on the basis of the

file, determine the admissibility of this complaint and that it is

therefore necessary, in accordance with Rule 48 para. 2 (b) of the

Commission's Rules of Procedure, to give notice of this complaint to

the respondent Government.

For these reasons, the Commission,

DECIDES TO JOIN APPLICATIONS Nos. 29692/96 and 34612/97;

DECIDES TO ADJOURN the examination of the applicant's

complaint under Article 6 paras. 1 and 3(c) of the

Convention about the refusal to grant him legal assistance

in the cassation proceedings;

unanimously,

DECLARES INADMISSIBLE the remainder of the applications.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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R.D. v. POLAND

R.D. v. POLAND

LEXI