Lexploria

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

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KUBON v. POLAND

KUBON v. POLAND

LEXI