FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42618/98 by P.O. against Poland

The European Court of Human Rights (Fourth Section), sitting on 14 January 2003 as a Chamber composed of

Sir Nicolas Bratza , President , Mrs E. Palm , Mrs V. Strážnická , Mr M. Fischbach , Mr J. Casadevall , Mr R. Maruste , Mr L. Garlicki , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 26 March 1998,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr P.O., is a Polish national, who was born in 1965 and lives in Wrocław , Poland.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant was arrested on 8 July 1995 on suspicion of manslaughter. On an unspecified date the prosecuting authorities filed with the Wrocław Regional Court ( Sąd Wojewódzki ) a bill of indictment against the applicant. The trial court held hearings on the following dates: 11 April, 4 June, 27 and 28 August, 23 and 24 October and 11 December 1996, 6 January, 13 February, 4 March, 21 April and 17 October 1997.

On 31 October 1997 the Wrocław Regional Court gave judgment . The applicant appealed. On 30 January 1998 the applicant requested the Wrocław Court of Appeal ( Sąd Apelacyjny ) to be brought from prison to the hearing. On 12 February 1998 the court refused his request, considering that his presence was unnecessary as the court would decide the case on the basis of the evidence presented to the Regional Court.

On 19 February 1998 the Wrocław Court of Appeal held a hearing and gave judgment . It changed the first-instance judgment in favour of the applicant by reducing the sentence of imprisonment to five years and six months.

On 20 May 1998 the applicant lodged a cassation appeal with the Supreme Court ( Sąd Najwyższy ). On 23 November 2000 the Supreme Court dismissed the applicant’s appeal.

The applicant was represented by a lawyer before all the above mentioned courts.

B. Relevant domestic law

The relevant provision of the Polish Code of Criminal Procedure in force at the material time read as follows:

Article 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.”

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention about the unreasonable length of criminal proceedings against him.

2. The applicant further complains under Article 6 § 3 of the Convention that his right to defend himself was violated by the fact that he had not been granted leave to attend the appeal hearing.

THE LAW

1. The applicant raises a complaint under Article 6 § 1 of the Convention about the unreasonable length of the criminal proceedings against him.

The Court considers that it cannot, on the basis of the file, determine the admissibility of this part of the application and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.

2. The applicant further complains under Article 6 § 3 of the Convention that the appellate court had refused to grant him leave to attend the appeal hearing, and therefore his right to defend himself was violated.

The Court, notes that the present complaint should be examined under paragraph 3 (c) of Article 6.

Article 6 § 3 (c) of the Convention provides, insofar as relevant:

“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 Court recalls that a person charged with a criminal offence should, as a general principle based on the notion of a fair trial, be entitled to be present at the first-instance trial hearing. However, the personal attendance of the defendant does not necessarily take on the same significance for an appeal hearing. Indeed, even where an appellate court has full jurisdiction to review the case on questions both of fact and law, Article 6 does not always entail rights to a public hearing and to be present in person. Regard must be had in assessing this question to, inter alia , the special features of the proceedings involved and the manner in which the defence’s interests are presented and protected before the appellate court (see, inter alia , the Helmers v. Sweden judgment of 29 October 1991, Series A no. 212-A, p. 15, §§ 31–32; and the Kremzow v. Austria judgment of 21 September 1993, Series A no. 268 ‑ B, p. 43, §§ 58–59).

In respect of the present case the Court observes that the applicant asserts that his right to defend himself was violated by a single circumstance, namely, the fact that the appellate court had refused to grant him leave to attend the appeal hearing. The Court further observes that the applicant does not maintain that he was unable - either himself or through his lawyer - to address the court, to submit any comments he wished to make on the observations made by his opponent, or to put forward any submissions on the matters which he regarded as pertinent to or relevant for the outcome of his case.

The Court notes that although the applicant was not present before the Court of Appeal, his lawyer attended the hearing and was given ample opportunity to conduct the applicant’s defence. The Court further recalls that the appellate proceedings were limited to a single hearing and to observations already submitted to the court.

In the light of the particular circumstances of the appeal proceedings, the Court is of the opinion that there is no appearance that the applicant did not have a fair trial in accordance with Article 6 of the Convention.

It follows that this part of the application is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 and that it must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the length of the criminal proceedings;

Declares the remainder of the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President