FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 77395/01 by Jan WALCZAK against Poland

The European Court of Human Rights (Fourth Section) , sitting on 7 May 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr A. Pastor Ridruejo , Mr J. Makarczyk , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 7 March 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Jan Walczak, is a Polish national, who was born in 1952 and lives in Łódź. He is represented before the Court by Ms Banasik, a lawyer practising in Łódź.

A. The circumstances of the case

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

On 8 August 1997 the Łódź District Court convicted the applicant of uttering threats and battering his wife and sentenced him to four years’ imprisonment, with execution of the sentence stayed for a probationary period of four years. On 9 December 1997 the Łódź Regional Court dismissed his appeal.

The applicant lodged with the Łódź Regional Court a cassation appeal within the thirty days’ time-limit provided for by law, alleging various procedural shortcomings which, in his argument, negatively affected both his defence rights and the outcome of the case. The Regional Court, having examined the appeal, found that it complied with the formal requirements specified by the Code of Criminal Procedure and subsequently forwarded it to the Supreme Court.

On 20 December 2000 the Supreme Court, at a court session held in camera , dismissed his cassation appeal as manifestly ill-founded.

B. Relevant domestic law

Under the Code of Criminal Procedure of 1998 a party to criminal proceedings can lodge a cassation appeal with the Supreme Court against a final judgment of the appellate court, which has terminated the proceedings. The cassation appeal has to be drafted and signed by a lawyer.

A cassation appeal can  be lodged only on the grounds referred to in Article 439 of the Code. These grounds include certain procedural shortcomings, which justify quashing of a first-instance decision, regardless of whether they are invoked by the party lodging any remedy against such decision (for example, wrong composition of the court, lack of legal assistance in cases where such assistance was compulsory, violation of the rules governing jurisdiction of criminal courts, certain breaches of defence rights). A cassation appeal can also be lodged on the ground of another flagrant breach of law, if such a breach negatively affected the judicial decision under appeal.

Article 530 of the Code provides that the court which gave the decision appealed against is competent to decide whether the formal requirements for a cassation appeal are satisfied, and to refuse to accept the appeal, if this is not the case. If the appeal is admissible, it is forwarded to the Supreme Court.

Pursuant to Article 535 of the Code, as amended on 20 July 2000 to take effect as of 1 September 2000, the Supreme Court shall consider the cassation appeal against a judgment at a hearing. However, it is open to the Court to dismiss such appeal at a session held in camera , if it considers that it is manifestly ill-founded. No written grounds shall be prepared for such a decision.

COMPLAINTS

The applicant complains under Article 6 of the Convention that the amendment to the Code of Criminal Procedure, which entered into force on 1 September 2000, long after his cassation appeal had been lodged with the Supreme Court, allowed that Court, after over two years of inactivity, to dismiss his cassation appeal at a session held in camera , without a hearing and without hearing the parties’ arguments. Had the Supreme Court dealt with his case before 1 September 2000, it would have been obliged to rule on his cassation appeal at a hearing. He submits that this breached his right to a fair hearing.

He also complains under Article 7 that this breached the principle of non-retroactivity of the operation of law.

THE LAW

1. The applicant complains under Article 6 of the Convention that his right to a fair hearing was breached in that the Supreme Court, under the amendment to the Code of Criminal Procedure, which entered into force on 1 September 2000, after his cassation appeal was lodged with the Supreme Court,  allowed that Court, after over two years of inactivity,  to dismiss his cassation appeal at a session held in camera , and without hearing the party’s arguments. This, in the applicant’s submission, limited his access to a court.

The Court examined this complaint under Article 6 § 1 and 6 § 3 c of the Convention. Article 6 of the Convention provides so far as is relevant:

“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. ...

Article 6 § 3 c) of the Convention reads:

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; ..."

Where a judicial system provides for appeals, the Court has held that the fundamental guarantees of Article 6 apply. The way in which it applies must, however, clearly depend on the special features of such proceedings (see Delcourt v. Belgium judgment of 17 January 1970, Series A, No. 11, pp. 14-15, § 25-26). The application of Article 6 in respect of appeals involves consideration of the functions, in law and in practice, of the appellate body, its powers and the manner in which the interests of the parties are presented and protected (see Monnell and Morris v. the United Kingdom judgment 2 March 1987, Series A, no. 115, p. 22, § 56; Delcourt v. Belgium judgment , loc.cit , § 26). The Court also needs to consider the equality of arms which is inherent in the notion of fairness under Article 6 (see Delcourt v. Belgium judgment , loc. cit., p. 15, § 28).

In the present case, it should first be noted that the applicable provisions of the Code of Criminal Procedure provide in principle for cassation appeals against judgments to be examined at hearings held in the open court. Parties are entitled to attend, if such a hearing is held.

However, it is also open for the Supreme Court to dismiss the cassation appeal at a session held in camera , without the participation of the parties.  This is limited to cases in which the Supreme Court considers, having examined the written submissions of the party, that the cassation appeal is manifestly ill-founded in that the alleged procedural shortcomings either had not occurred, or have not been substantiated, or that the shortcomings complained of do not fall within the ambit of procedural irregularities which can be relied on in the cassation appeal. In other words, the issue for decision is whether the applicant has demonstrated the existence of arguable grounds, which would justify holding a hearing in the cassation proceedings (cf. Monnell and Morris v. the United Kingdom judgment , loc. cit., p. 22, § 57).

It should also be noted that the applicable provisions require that cassation appeals have to be drafted and signed by lawyers. The applicant, who was represented by a lawyer, had an opportunity to have his arguments developed in a professional manner, appropriate to the nature of the examination effected by the Supreme Court. It should also be observed that the admissibility of the cassation appeal was first examined by the appellate court, in this instance the Łódź Regional Court, as provided for by Article 530 of the Code of Criminal Procedure. Therefore the applicant’s arguments in support of the cassation appeal was subject to a two-tier examination, first as to its admissibility and subsequently on the merits. It is also relevant to note that the prosecutor did not participate in the session of the Supreme Court held in the applicant’s case, nor was he authorised to attend this session.

In the light of the procedure designed for examination of the cassation appeal, seen as a whole, the Court has no reason to doubt that the Supreme Court’s decision was based on a thorough assessment of the relevant factors.

Insofar as it could be understood that the applicant complains about lack of access to a court, the Court recalls that the right to a court, embodied by Article 6 of the Convention, is not absolute and may be subject to limitations. However, the limitations applied cannot restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see, inter alia , Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 44, 12 July 2001, to be published in ECHR 2001-VII).

It must be noted in this connection that that the amendments to the Code of Criminal Procedure which changed the procedure in which the Supreme Court examined cassation appeals, served the aim of accelerating proceedings before that court by expediting the examination of non-meritorious appeals by way of non-reasoned decisions, given at sessions held in camera . This aim must be regarded as a legitimate one in the light of the Convention. Further, the applicant’s case was first examined on the merits by two judicial instances with full jurisdiction as to the facts and law. It cannot therefore be said that the applicant was deprived of access to a court in a manner incompatible with Article 6 of the Convention.

Finally, the Supreme Court dismissed the applicant’s cassation appeal, having found it to be ill-founded. This indicates that the court, having examined the case-file and the arguments of the applicant, considered that there had been no breach of substantive or procedural laws in the proceedings before the lower courts, such as under applicable provisions of law on criminal procedure law would justify quashing the contested judgments . Therefore, the applicant’s appeal was in fact examined on its merits, as the Supreme Court’s examination was not limited to the issues of admissibility of this appeal.

On the whole, and having regard to the scope of the Supreme Court’s examination of the appeal, it must be concluded that there was “a reasonable relationship of proportionality” between the means employed and the aim of accelerating cassation proceedings.

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

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

The Court observes that this provision of the Convention sets forth only the principle lex retro non agit within its meaning applicable to the substantive aspects of criminal law, but does not prohibit that procedural legal provisions change during examination of the case (see, mutatis mutandis ,  the Brualla Gómez de la Torre v. Spain judgment of 19 December 1997, Reports 1997-VIII, p. 2956, § 35) . It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President