Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23103/93

by A. B.

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 29 November 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 31 May 1993 by

A. B. against Poland and registered on 15 December 1993 under file

No. 23103/93;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

28 November 1994 and the observations in reply submitted by the

applicant on 16 January 1995; and his additional observations

submitted on 23 June 1995 and on 19 October 1995;

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 1949, is a miner,

currently serving a prison sentence in Nowy S*cz prison in Poland. He

is represented before the Commission by Mr. Janusz Galkowski, a lawyer

practising in Zywiec.

Particular circumstances of the case

On 31 May 1992 the applicant, who had been released on probation,

was arrested on suspicion of having attempted to steal a car, and on

2 June 1992 he was remanded in custody.

On 19 August 1992 the Public Prosecutor informed the applicant

of charges against him and obliged him to confirm the receipt of the

document containing these charges as of 2 June 1992.

The trial took place on 24 September, 15 October and 25 November

1992 before the Tarnów District Court (S*d Rejonowy). The Court heard

as witnesses the car's owner, his neighbour and the police expert, who

confirmed that the door lock had been tampered with in order to be

opened. In the proceedings the applicant was present, but not

represented by a lawyer.

On 25 November 1992 the District Court convicted the applicant

of attempted theft and sentenced him to three years' imprisonment. The

Court found that the testimony put forward by the witnesses was

exhaustive and logical and that their statements were consistent. The

Court also considered as evidence a bag with instruments which might

have served to open the car lock. This bag had been found in close

vicinity of the applicant at the moment of his arrest. The Court

acquitted the applicant of the offence of having used a stolen identity

card.

The applicant filed an appeal against this judgment with the

Tarnów Regional Court (S*d Wojewódzki). He maintained in particular

that the first instance court had disregarded his explanations and had

considered only the evidence for the prosecution as being credible.

The applicant also requested that his accomplice and two policemen who

had arrested him be heard as witnesses and that he be brought from

prison to the hearing before the Tarnów Regional Court.

On 21 April 1993 the Tarnów Regional Court refused the

applicant's request to be brought before the Court finding that his

presence was unnecessary. It found in particular that the applicant

had given a detailed account of the events before the District Court.

Moreover, in his appeal he had exhaustively presented his complaints

in respect of the contested conviction. The Court considered that the

applicant had sufficient time to submit further observations in

writing, should he wish to do so.

The date of the hearing was fixed for 10 May 1993.

On 29 April 1993 the applicant applied to the Regional Court for

legal aid, but he received no reply to this application.

On 10 May 1993, after a hearing at which the applicant was not

present but where the public prosecutor was present, the Regional Court

dismissed the applicant's appeal. The Court considered that the

District Court had thoroughly assessed the evidence and had carefully

considered the applicant's guilt. This appeared from the fact that the

applicant had been acquitted of one of two charges. The Court found

that the evidence given by the applicant was inconsistent and motivated

by his wish to avoid conviction. Moreover, the applicant had failed

to request further evidence to be taken before the Tarnów District

Court. Only in his appeal had he submitted a request to have the

policemen heard who had arrested him. However, the Court considered

it unnecessary to hear the witnesses as the other evidence presented

to the District Court had sufficiently demonstrated the applicant's

guilt.

Relevant domestic law

The relevant provisions of the Polish Code of Criminal Procedure

read as follows:

< Translation >:

Art. 399.

"A court of appeal shall conduct a hearing when examining a case.

(...)"

Art. 400 para. 1.

"A hearing shall be held irrespective of whether the parties are

present. A hearing shall not be held if the Public Prosecutor

is absent. (...)"

Art. 401.

"If a case is to be examined at a hearing, the court may order

an accused who is detained to be brought to the hearing."

< Original >:

Art. 399.

"S*d rewizyjny rozpoznaje spraw* na rozprawie (...)"

Art. 400 para. 1.

"Niestawiennictwo stron, poza prokuratorem, nie tamuje

rozpoznania sprawy na rozprawie. (...)"

Art. 401.

"Jezeli zarz*dzono rozpraw*, s*d moze zarz*dzic sprowadzenie na

ni* oskarzonego pozbawionego wolnosci."

COMPLAINTS

The applicant complains that the Public Prosecutor did not hear

his accomplice and alleges that certain letters which he had written

to the Public Prosecutor and the District Court were destroyed by the

Public Prosecutor. He submits that the Public Prosecutor served him

with information of charges against him on 19 August 1992, this

information bearing the date of 2 June 1992, and that he was obliged

to sign it against his will.

The applicant further complains about the proceedings before the

District Court. Thus, the Court lacked impartiality. He also

complains of the assessment of evidence and of discrimination, in

particular that a more severe penalty was imposed on him as he was a

recidivist.

The applicant also complains about the proceedings before the

Regional Court. He submits that he was refused leave to be present and

heard by that Court, while the Public Prosecutor was present at the

hearing. He submits that this Court failed to reply to his request for

legal aid and that he was not granted the assistance of an officially

appointed lawyer in the proceedings before this Court.

The applicant relies on Article 5, Article 6 paras. 1, 2 and 3

subparas. (c) and (d), Article 7 para. 1 and Article 14 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 31 May 1993 and registered on

15 December 1993.

On 31 August 1994 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48 para. 2

(b) of the Rules of Procedure.

The Government's written observations were submitted on

28 November 1994. The applicant replied on 16 January 1995 and

submitted additional observations on 23 June 1995 and on 19 October

1995. On 4 July 1995 the Commission granted the applicant legal aid.

THE LAW

1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention about the unfairness of the investigations and of the

proceedings before the Tarnów District and Regional Courts.

Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, reads:

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

him, everyone is entitled to a fair and public hearing ... by (a)

... tribunal ..."

Article 6 para. 3 (c) (Art. 6-3-c) of the Convention provides:

"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..."

a) The Commission first 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 of the rights recognised in the

Convention through any act, decision or event occurring after 30 April

1993".

The Commission notes that the complaints partly concern the

events which occurred during the investigations by the Public

Prosecutor. These investigations ended in 1992. Some complaints

relate to the proceedings before the Tarnów District Court which

pronounced its judgment on 25 November 1992. These complaints concern

events which predate 1 May 1993, i.e. the date on which the

Commission's competence to examine individual applications against

Poland became effective.

It follows that this part of the application is outside the

competence ratione temporis of the Commission and is therefore

incompatible with the provisions of the Convention within the meaning

of its Article 27 para. 2 (Art. 27-2).

b) As regards the proceedings before the Tarnów Regional Court, the

Government submit that the applicant's complaints relating to the

proceedings before this Court are incompatible ratione temporis with

the provisions of the Convention. They also submit that the refusal

to allow the applicant to be present at a hearing before the Tarnów

Regional Court was made before 30 April 1993 and thus the Commission

lacks competence ratione temporis to examine it.

The applicant submits that the Tarnów Regional Court held the

hearing and convicted him on 10 May 1993, i.e. after the date on which

the Commission's competence to examine applications against Poland

became effective. The Tarnów Regional Court could have rectified the

shortcomings of the proceedings before the lower Court, but it failed

to do so. The Commission is thus competent ratione temporis to deal

with his application.

The applicant further submits that he was deprived of his right

to defend himself in person or through legal assistance during the

appeal proceedings before the Tarnów Regional Court which took place

after 30 April 1993, i.e. on 10 May 1993. Therefore the Commission is

competent ratione temporis to examine his complaints in this respect,

notwithstanding the fact that the refusal to bring him to a hearing on

10 May 1993 was taken before 30 April 1993.

The Commission notes that in the present case the judgment of the

Tarnów District Court was pronounced on 25 November 1992. On 21 April

1993 the Tarnów Regional Court refused the applicant's request to be

brought to the hearing before the Court. On 10 May 1993 the Regional

Court held the hearing and dismissed the applicant's appeal. It

follows that the Commission lacks competence ratione temporis to review

the proceedings before the Tarnów District Court. These proceedings

may however be taken into account as background to the issue whether

the applicant's defence rights before the Tarnów Regional Court were

observed (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 further observes that the refusal to allow the

applicant to be present before the Regional Court, even though it was

made before 30 April 1993, subsequently affected the applicant's

position as regards his defence rights in the proceedings before this

Court, which took place after that date. It follows that the

complaints relating to the Regional Court's proceedings cannot be

rejected as being outside the Commission's competence ratione temporis.

2. The applicant complains that he was refused leave to be present

before and heard by the Tarnów Regional Court, while the Public

Prosecutor was present at the hearing. He submits that this Court

failed to reply to his request for legal aid and that he was not

granted an officially appointed lawyer in the proceedings before this

Court.

a) As regards the complaint about the applicant's legal

representation in the proceedings before the Regional Court, the

Government first submit that the applicant did not exhaust domestic

remedies as regards his request for assistance of an officially

appointed lawyer. The letter of 29 April 1993 in which he allegedly

requested such assistance is not to be found in the case-file. They

submit that the applicant has invented this letter and that the

duplicate, which he has submitted to the Commission, appears to be

counterfeit and was made only for the purposes of the proceedings

before the Commission.

The applicant denies this. He contends that he sent his request

for a lawyer to be appointed by registered letter to the Tarnów

Regional Court on 29 April 1993. He contends that he sent an authentic

copy of the letter of 29 April 1993 to the Minister of Justice when

applying for leave to file an extraordinary appeal. The Ministry

allegedly failed to reply and failed to send the copy back. The

applicant further submits that he could not have exhausted applicable

domestic remedies as the Regional Court did not take any decision as

regards his request to have a lawyer appointed. Therefore there was

no decision to be appealed against. The applicant submits that under

Polish law an accused can request to have a lawyer appointed until the

hearing before the appellate court is closed. As the applicant was

refused permission to attend this hearing, he could not ask at the

hearing to have a lawyer appointed.

The Commission notes that there is disagreement as to the facts.

The Commission first observes that the applicant submitted a duplicate

of the copy of his request of 29 April 1993 following the Commission's

request to complete his submissions by submitting information as to

whether he was represented in the proceedings by an officially

appointed lawyer. The applicant has not submitted any relevant

evidence that his request had actually been submitted to the Regional

Court, eg. a copy of the posting slip or confirmation that this request

was posted by the prison authorities. It does not transpire from the

confirmation of the mailing of the letter to the Minister of Justice,

referred to by the applicant, that it indeed contained a copy of the

request in question. Consequently, the Commission concludes that it

has not been established that the applicant had submitted a request to

the Tarnów Regional Court to have a lawyer appointed for the purpose

of the proceedings before that Court.

Therefore this complaint is manifestly ill-founded and must be

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

b) As regards the applicant's personal defence before the Tarnów

Regional Court, the Government submit that the applicant neither

appointed a defence counsel nor demanded to be assisted by an

officially appointed lawyer. Throughout the investigations and the

proceedings before the Tarnów District Court he actively defended

himself, requesting inter alia that evidence be taken and presenting

to the court an extensive account of the material events. The refusal

to allow the applicant to be present before the appellate court was in

conformity with the domestic law, in particular with Article 401 of the

Code of Criminal Procedure. This decision was taken after due

examination of the complaints which the applicant had submitted in his

appeal against the judgment of the Tarnów District Court. The Regional

Court considered in particular that these complaints did not justify

any further taking of evidence as requested by the applicant, as the

evidence in question was not relevant to the issue of the applicant's

criminal liability. Consequently, there was no need for the applicant

to be present. This decision does not appear to be arbitrary. Under

Polish law the evidence is not taken in criminal appeal courts. Had

the court found any deficiencies in the first instance judgment as

regards the taking of evidence, it would have quashed that judgment and

ordered reconsideration of the case.

The Government also submit that the applicant's defence rights

were further safeguarded by the fact that he could have submitted

written observations to the Regional Court.

The applicant submits that he was deprived of his right to defend

himself in person. The right to defend oneself in person is a crucial

element of defence rights. Therefore any limitations in this regard

can be justified only if there is a clear and unequivocal waiver on the

part of an accused. There was no such waiver in the present case; on

the contrary, the applicant expressly requested that he be allowed to

be present at the hearing of the Tarnów Regional Court.

The applicant further submits that this right is of paramount

importance, in particular in proceedings before the court of first

instance. However, the extent to which an accused may be refused to

be personally present in proceedings before an appellate court depends

upon the special features of the proceedings in question. If in such

proceedings the court decides only on points of law, the presence of

the accused can be dispensed with. If, however, the court is competent

to decide both as to the facts and the law, a refusal to allow an

accused to be present at a hearing amounts to a violation of Article

6 para. 3 (c) (Art. 6-3-c) of the Convention. Under Polish law, the

jurisdiction of appellate courts in criminal proceedings is much wider

than that of a court of cassation and encompasses both questions of

fact and law. Regard should be had in particular to Article 402 para.

2 of the Code of Criminal Procedure, which provides that in principle

appellate courts cannot take evidence. However, they can exceptionally

take evidence at a hearing if it will expedite the proceedings.

Therefore, in order for the proceedings to comply with the requirements

of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention, an accused in

detention should be brought before the court. It should be noted in

this respect that in his appeal the applicant asked that certain

evidence be taken. When refusing the applicant's request to attend the

hearing, the Court assumed that he had already submitted all his

arguments. Such an assumption cannot be regarded as justified.

The applicant further submits that the Government principally

rely on Article 401 of the Code of Criminal Procedure. It is true that

this provision does not oblige an appellate court to bring an accused

to a hearing, but leaves this decision to the discretion of the court.

The Government's argument, however, is based exclusively on the

domestic law and entirely disregards the standards established by the

case-law of the Convention organs.

The applicant also submits that he could not respond in any way

to the Prosecutor's submissions to the Regional Court and therefore the

rule of equality of arms was not complied with.

The Government submit that under Polish law the Public Prosecutor

before the appellate court does not exclusively carry out the functions

of a prosecutor, but also acts as guardian of the public interest. The

latter function enables him to submit requests to take evidence for the

defence. In the present case, had the Public Prosecutor requested that

any evidence be taken, the Regional Court would be prevented from its

examination without the applicant being brought before the Court.

Having examined these complaints, the Commission finds that they

raise serious questions of fact and law which are of such complexity

that their determination should depend on an examination of the merits.

These complaints cannot, therefore, be regarded as being manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention and no other ground for declaring them inadmissible has been

established.

3. The applicant complains that he was discriminated against in

that, as he was a recidivist, a more severe penalty was imposed on him

in accordance with Article 60 of the Criminal Code. He invokes Article

14 (Art. 14) of the Convention, which provides:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

Article 14 (Art. 14) of the Convention prohibits discrimination

in the "enjoyment of the rights and freedoms" guaranteed by the

Convention. However, not every difference in treatment violates

Article 14 (Art. 14) of the Convention. The Commission considers that

it is not as such contrary to Article 14 (Art. 14) of the Convention

to impose a more severe penalty on a recidivist, as there may well be

justified reasons for a difference of treatment in that respect. In the

present case, the Commission finds no appearance of a violation of

Article 14 (Art. 14).

It follows that this complaint 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 ADMISSIBLE, without prejudging the merits of the case,

the complaints relating to the refusal to allow the applicant to

attend the hearing before the Regional Court,

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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A.B. v. POLAND

A.B. v. POLAND

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