Lexploria

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)

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MLECZKO v. POLAND

MLECZKO v. POLAND

LEXI