FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 58625/00 by Andrzej SASSYN against Poland

The European Court of Human Rights ( Fourth Section) , sitting on 22 October 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr A. Pastor Ridruejo , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi ,

Mr L. Garlicki , judges ,

and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced on 6 August 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Andrzej Sassyn , is a Polish national, a lawyer by profession, who was born in 1933 and lives in Olsztyn .

A. The circumstances of the case

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

On 28 August 1996 the Prosecutor lodged a bill of indictment against the applicant with the Olsztyn District Court, charging him with an offence of verbally abusing a police officer in public. The bill of indictment, drawn up under the provisions of the Code of Criminal Procedure of 1969, then in force, concerning simplified criminal procedure, contained the applicant’s personal data, a statement of the offence against him, a statement that the case was, pursuant to Articles 16 and 21 § 1 of the Code of Criminal Procedure, subject to examination in a simplified procedure, and a list of witnesses and of other evidence to be presented to the court. The statement of charge read as follows:

“[the applicant is] charged with the commission of an offence in that on 16 February 1996 he used against a police officer W.D. during and in connection with his service, words commonly regarded as insulting, i.e. with an offence punishable under Article 236 of the Criminal Code.”

“[skarzÄ…cy jest oskarżony o to, że] w dniu 16 lutego 1996 w Olsztynie znieważyÅ‚ funkcjonariusza policji st. post. W. D. podczas I w zwiÄ…zku z peÅ‚nieniem obowiÄ…zków sÅ‚użbowych , w ten sposób , że używaÅ‚ w stosunku do wymienionego słów powszechnie uznanych za obelżywe , tj . o czyn z art 236 kk .”

Subsequently, at the hearing held on 14 April 1997, the applicant’s counsel requested that the case be transmitted back to the prosecuting authorities, arguing that the procedure according to which the case had been conducted had to be changed from the simplified to the ordinary one, given that the time-limits that the law set for the simplified procedure had elapsed. Consequently, the bill of indictment was required to meet the requirements set out for such a document in ordinary criminal proceedings.

The court dismissed this request. It observed that the shortcoming referred to by the applicant had indeed occurred. However, it was only until the opening of the hearings in the case that such shortcomings could be rectified by remitting the case back to the prosecuting authorities. After the hearings were opened, the law allowed for a number of situations in which a case could be remitted back to the prosecutor, but the present case did not belong to this category.

On 17 July 1997 the Olsztyn Regional Court convicted the applicant under Article 236 of the Criminal Code of verbally insulting the police officer during and in connection with his service and imposed a fine of PLN 1,000 on him, with forty days’ imprisonment in default.

The applicant appealed. He submitted, inter alia , that the court had committed errors of fact in that it wrongly assessed evidence before it and failed to clarify certain discrepancies between the testimony given by the witnesses.

It was further argued that the court had failed to establish certain circumstances relevant for the case. The applicant complained that the court had refused the motion to admit in evidence an opinion prepared by an expert to have certain facts related to traffic issues, relevant to the case, assessed by the expert. It was also submitted that the court had made certain other errors of fact. He also challenged whether the police officer concerned was authorised to carry out the intervention, which had given rise to the incident.

In addition, he submitted that the first-instance court had failed to take appropriate steps in order to ensure that the bill of indictment contained facts grounding the accusation against him. The bill lodged with the court, drafted under the provisions governing the simplified procedure, did not contain written grounds specifying the circumstances of the alleged offence. The applicant referred to resolution III CKN 19/97 of the Supreme Court.

On 18 November 1998 the Olsztyn Regional Court amended the first-instance judgment in that it conditionally discontinued the proceedings, fixing the period of probation of the applicant at one year, and obliged the applicant to apologise to the police officer concerned.

As to the complaint concerning the bill of indictment, the court considered that it was not justified. The court referred to the fact that, as transpired from the case-file, the investigations had not been conducted in compliance with all thee provisions governing the simplified procedure which limited the defence rights of the accused. Subsequently, after the investigations had been completed, the prosecuting authorities had presented the charges to the applicant. He had also been acquainted with the case-file. Consequently, his defence rights were neither limited nor breached.

The court further considered that in the light of the circumstances of the case the sentence imposed on the applicant was flagrantly unfair. The court acknowledged that the applicant’s behaviour was regrettable, but it had not been caused by bad faith, but by the fact that he was upset by the intervention of the police officer and that he had failed to control his emotions. Consequently, neither the degree of the applicant’s guilt nor the danger of the offence he committed were serious enough to maintain the sentence imposed by the first-instance court, in particular in the light of the applicant’s behaviour to date which was above reproach and of his personal qualities. Therefore the proceedings should be conditionally discontinued.

The applicant lodged a cassation appeal with the Supreme Court. He argued, inter alia , that the first-instance court had breached the applicable procedural provisions in that it had failed to remit the case to the prosecuting authorities in order to have the bill of indictment supplemented by the factual arguments grounding the accusation against the applicant in order to secure to the applicant a right to effective defence.

At a hearing before the Supreme Court the Prosecutor of the Ministry of Justice submitted that the complaints advanced in the cassation appeal were unjustified, with the exception that the second-instance court had failed to examine whether the police officer concerned was authorised to carry out the intervention which gave rise to the incident. Accordingly, he requested that the cassation appeal be allowed and the case referred to the first-instance court.

On 9 April 1999 the Supreme Court dismissed the applicant’s cassation appeal. As to the complaint concerning the alleged breach of the applicant’s defence rights, the court stated:

“(...) the author of the cassation appeal was without any doubt right in pointing out that, if the proceedings were initially conducted in the simplified procedure and then that procedure was replaced by the ordinary one, the bill of indictment should contain detailed factual and legal grounds. Therefore the view of the counsel, namely that that shortcoming amounted to a breach of the procedural provisions, was to be upheld.

However, in the circumstances of the present case, there were no grounds on which to find that this shortcoming was a “flagrant” one within the meaning of the applicable provisions of the 1969 Code of Criminal Procedure, and on which to draw the conclusion that this shortcoming had any bearing on the decision of the lower court.

Moreover, the analysis of the case-file did not allow for a finding that the failure to complement the bill of indictment had resulted in a flagrant breach of the accused’s defence rights. One cannot overlook the fact that the accused had already been assisted in the investigations by two lawyers who had showed, both during the investigations and before the court, a significant procedural activity.

Nor was the Regional Court at fault, still less a fault which would justify allowing the cassation appeal, on the grounds that it had laconically dealt with the same complaint in the appellate proceedings. It would be hardly justifiable to set aside the contested [first-instance] judgment and to remit the case for investigations only in order to have the bill of indictment prepared, i.e. only to satisfy a formal requirement, which did not have any bearing on the contents of the contested decision. “

B. Relevant domestic law and practice

a) Bill of indictment:

Articles 295 and 296 of the Code of Criminal Procedure of 1969, applicable in the proceedings concerned, referring to the formal requirements for a bill of indictment, provide, inter alia , that it shall contain the first name and surname of the accused, information as to whether a preventive measure has been imposed on him, a statement of the offence with which he is charged, a detailed description of the facts of the case along with a statement of reasons for the accusation, an indication of the court competent to deal with the case and the evidence upon which the accusation is founded.

b) Substantive criminal law

At the relevant time Article 236 of the Criminal Code provided as follows:

“Anyone who insults a civil servant ... during and in connection with the carrying out of his official duties is liable to up to two years’ imprisonment, to restriction of personal liberty or to a fine.”

“ Kto zniewa ż a funkcjonariusza publicznego ... podczas i w związku z pełnieniem obowiazków służbowych , podlega karze pozbawienia wolności do lat 2, ograniczenia wolności albo grzywny .”

c) Case-law of the Supreme Court as to bill of indictment in simplified proceedings

In its resolution III CKN 19/97 the Supreme Court held that in cases in which the proceedings were initially conducted in simplified proceedings, but were later transformed into ordinary proceedings, either because the time-limits provided for simplified proceedings had expired, or because the case proved to be complex, the bill of indictment had to be completed by including the factual grounds of the accusation, in order to secure to the accused a possibility of conducting an effective defence.

d) Conditional discontinuation of criminal proceedings

Pursuant to Article 27 of the Code of Criminal Procedure of 1969, criminal proceedings could be conditionally discontinued, if the seriousness of the offence, punishable by a prison sentence of less than three years, was not significant, if the circumstances in which it had been committed had been established, if the perpetrator did not have a criminal record and if his personal circumstances and qualities justified a conclusion that he would respect legal order during the probation period.

Under Article 28, the court, when deciding to discontinue the proceedings for the probation period, could impose certain obligations on the accused: to pay appropriate compensation to the victim of the offence, to apologise to him/her, or to carry out certain work in the public interest.

Under Article 29 of the Code, the court could fix a probation period of one up to two years, running from the date on which the judgment became final.

Criminal proceedings could be resumed if during the probation period the offender disregarded the obligations imposed by the court, acted in flagrant breach of public order, or, in particular, committed a new criminal offence.

COMPLAINT

The applicant complains under Article 6 § 3 (b) and (c) of the Convention that the fact that the bill of indictment did not contain factual reasons grounding the accusation against him, made it impossible for him to become acquainted with the arguments of the prosecuting authorities. Had he had such knowledge before the proceedings had started, he would have been in a position to prepare his defence arguments. The failure to include these grounds in the bill of indictment seriously impaired his defence rights.

As the prosecuting authorities failed to submit a reasoned bill of indictment, he did not have an opportunity to learn why his behaviour was considered to amount to a criminal offence.

The fact that he was represented by a lawyer in the proceedings should not have been relied on as justification for the limitation of his defence rights.

The applicant further considers that the position taken by the Supreme Court was controversial in that that court acknowledged that a procedural shortcoming had been committed, but then found that this shortcoming did not have any bearing on the outcome of the proceedings on the merits. The applicant further reiterated the arguments relied on by the Supreme Court in its resolution referred to above, and stressed that that resolution emphasised that a bill of indictment had to be fully motivated to guarantee defence rights to the accused.

THE LAW

1. The applicant complains under Article 6 § 3 (b) and (c) of the Convention that the fact that the bill of indictment did not contain the factual grounds of the case against him making it impossible to be informed of the reasons for the prosecution. Had he had such knowledge before the proceedings had started, he would have been in a position to prepare his defence arguments. The failure to include these grounds in the bill of indictment seriously impaired his defence rights. The Court has examined his complaint under Articles 6 § 1 and 3 (a), which read as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal established by law. ...

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him.”

2. The Court first observes that an issue arises as to whether the applicant can claim to be a victim of a violation of the Convention, given that no final judgment of a criminal court, comprising a conviction and a imposing sentence on him was given in his case.

Pursuant to the Court’s case-law, an applicant who has complained of violations of the procedural guarantees of Article 6 of the Convention in criminal proceedings against him can no longer claim to be a victim if, at the end of the proceedings, he is acquitted. In such cases the alleged violations of Article 6 is rectified by the acquittal (see e.g.; V.Q. v. Italy, No. 44994/98, Dec. 14 March 2002).

Further, i n order to claim to be a victim of a violation, a person must be directly affected by the impugned measure (see, for example, the Buckley v. the United Kingdom judgment of 25 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1288, §§ 56-59 and the Valmont v. the United Kingdom decision of 23 March 1999, unpublished).

In the applicant’s case the courts conditionally discontinued the proceedings against him, and fixed the period of probation for one year. Although no sentence was imposed on him, such a decision, under provisions of Polish law as applicable at the relevant time, could only be given in cases in which it was not open to doubt that a criminal offence had indeed been committed and the circumstances of its commission had been established. Moreover, it remained open for the courts to resume the proceedings at any time during the probation period in the circumstances set out by law, namely if the applicant breached public order or committed a new offence. Consequently, even though the court did not rule on the sentence to be imposed on him, the applicant was sufficiently directly affected by the judgments complained of to consider that he could claim to be a victim of a breach of the Convention.

3. As to the substance of the complaint, the Court recalls that the fairness of proceedings must be assessed with regard to the proceedings as a whole. The provisions of paragraph 3 (a) of Article 6 point to the need for special attention to be paid to the notification of the “accusation” to the defendant. Particulars of the offence play a crucial role in the criminal process, in that it is from the moment of their service that the suspect is formally put on written notice of the factual and legal basis of the charges against him. Article 6 § 3 (a) of the Convention affords the defendant the right to be informed not only of the “cause” of the accusation, that is to say the acts he is alleged to have committed and on which the accusation is based, but also the legal characterisation given to those acts. That information should be detailed ( Dallos v. Hungary , no. 29082/95, 1.3.2001, § 47).

The scope of the above provision must in particular be assessed in the light of the more general right to a fair hearing guaranteed by Article 6 § 1 of the Convention. In criminal matters the provision of full, detailed information concerning the charges against a defendant, and consequently the legal characterisation that the court might adopt in the matter, is an essential prerequisite for ensuring that the proceedings are fair. In this respect it is to be observed that Article 6 § 3 (a) does not impose any special formal requirement as to the manner in which the accused is to be informed of the nature and cause of the accusation against him. Sub-paragraphs (a) and (b) of Article 6 § 3 are connected and that the right to be informed of the nature and the cause of the accusation must be considered in the light of the accused’s right to prepare his defence ( Pélissier and Sassi v. France [GC], no. 25444/94, 25.3.1999, § 51, ECHR 1999-II).

In the circumstances of the present case, the Court acknowledges that the bill of indictment in the applicant’s case in the framework of the simplified criminal proceedings did not contain a detailed statement of facts underlying the charges against him. The applicable provisions of criminal procedure expressly provided that the bill of indictment need not contain, as in ordinary proceedings, the factual grounds on which the accusation was based. It must also be noted that the applicant requested that the bill be amended, but this was refused by the court on formal grounds.

However, the bill of indictment contained information related to the basic elements of the charges brought against the applicant, namely the date, place and context of his act and the identification of the victim, and invoked the relevant substantive provision of the Criminal Code. Taking into account the character of the offence, this information was sufficient to satisfy the requirements of Article 6 § 3 (a) of the Convention.

What is more, the applicable provisions of domestic law on simplified procedure provided that a person charged with a criminal offence be interviewed during the investigations. The law provided that such interview should commence by giving the accused information about the charges proferred against him/her. The applicant does not contend that he was not so interviewed or informed.

Moreover, the Court notes the reasoning of the appellate judgment of the Regional Court. The court referred to the fact that, as transpired from the case-file, the investigations had not been conducted in compliance with all provisions governing the simplified procedure. Therefore the prosecuting authorities had presented the charges to the applicant, even though they were not obliged to do so. He had also been acquainted with the case-file after the investigations came to end. Consequently, his defence rights were neither limited nor breached.

It is further to be noted that the indictment, albeit simplified, did in fact contain a reference to the offence with which the applicant had been charged, i.e. to Article 236 of the 1969 Criminal Code. Moreover, the character of the offence, i.e. insulting a civil servant in connection with his/her service was not such as to require any legal knowledge. Nor was the nature of the facts with which the applicant was charged such as to necessitate a very detailed presentation of charges against him.

Lastly, in the assessment of the case it cannot be overlooked that the applicant is a lawyer himself, who was represented by lawyers. It cannot therefore be maintained that he was in no position to know and understand  sufficiently the charges put forward against him in the proceedings before the courts.

It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President