FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Applications nos. 29692/96 and 34612/97 by R.D. against Poland

The European Court of Human Rights (Fourth Section), sitting on 15 February 2001 as a Chamber composed of

Mr G. Ress , President , Mr A. Pastor Ridruejo , Mr L. Caflisch , Mr J. Makarczyk , Mr V. Butkevych , Mr J. Hedigan , Mrs S. Botoucharova , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above applications which were introduced with the European Commission of Human Rights on 31 August 1995 and 11 December 1996 and registered on 4 January 1996 and 28 January 1997 respectively, and which were subsequently joined by the Commission,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the Commission’s partial decision of 22 October 1997,

Having regard to the observations submitted by the respondent Government on 5 January 1998 and the observations in reply submitted by the applicant on 5 March 1998 and 28 April 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Polish national, born in 1959 and living in Wałbrzych, Poland. He is represented before the Court by Mrs M. Kostrzewska, a lawyer practising in Wałbrzych. The respondent Government are represented by their Agent, Mr K. Drzewicki, of the Ministry of Foreign Affairs.

A. The circumstances of the case

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

On 16 September 1994 the Wałbrzych District Prosecutor ( Prokurator Rejonowy ) charged the applicant with receiving a bribe and detained him on remand in view of the reasonable suspicion that he had committed the offence in question. On the same day the prosecutor confronted the applicant with his co-suspect who had offered him a bribe, and ordered a search of the applicant’s home. On 28 September 1994, on an appeal filed by the applicant, the Wałbrzych Regional Court ( Sąd Wojewódzki ) quashed the detention order and released him under police supervision.

On 10 February 1995 the Wałbrzych District Prosecutor lodged a bill of indictment with the Wałbrzych Regional Court.  It comprised twelve charges brought against seven co-defendants. Two of the applicant’s co-defendants were indicted on charges of an attempt to trafficking in women.

Subsequently, on an unknown date, the Wałbrzych Regional Court appointed a defence counsel for the applicant.

The trial ended on 15 April 1996. On that date the Wałbrzych Regional Court gave judgment, convicted the applicant as charged and sentenced him to one year’s imprisonment, suspended for two years and a fine. The court further exempted the applicant from paying the costs of the proceedings and court fees at first instance and ordered the State Treasury ( Skarb Państwa ) to cover the legal fees involved in his defence by his officially-appointed lawyer.

On 14 June 1996 the applicant submitted a forty-eight-page memorandum to the Wrocław Court of Appeal ( Sąd Apelacyjny ). That pleading comprised the applicant’s arguments concerning the establishment of the facts of his case, the assessment of the evidence presented during his trial and his opinion about the way in which the criminal law had been applied. On 24 June 1996 the applicant’s lawyer submitted his appeal to the Wałbrzych Regional Court.

On 27 September 1996 the applicant filed a supplementary memorandum and submitted documents in support of his arguments.

Later, the Wrocław Court of Appeal appointed a new defence counsel to assist the applicant in the appellate proceedings.

On 10 October 1996 the Wrocław Court of Appeal held a hearing. The applicant and his officially-appointed lawyer appeared before the court. The applicant asked the court to read out all the records of evidence given by him during the trial at first instance. The court declined to do so, observing that the appellate hearing was limited to the questions of fact and law which had been put forward by the parties in their appeals and oral pleadings and that it was unnecessary to read the voluminous records of the evidence heard from the applicant. On the same day the court upheld the judgment of the court of first instance. It levied on the applicant a court fee of 65 Polish zlotys for examining his appeal and ordered him to pay 50.96 Polish zlotys as the costs of the appellate proceedings. The court ordered that the costs involved in the applicant’s defence in the appeal proceedings be borne by the State Treasury.

On 12 October 1996 the applicant lodged a notice of cassation appeal with the Wrocław Court of Appeal and requested the court to serve on him the written reasons for its judgment. In that application, he also asked the Court of Appeal to appoint a new lawyer to assist him in the preparation of his cassation appeal. The applicant further asked that enforcement of the final judgment be stayed until his cassation appeal had not been examined. The relevant part of the application read:

“The stay of enforcement of the judgment is justified by the fact that the appeal proceedings were of a fictitious nature ... [which is demonstrated] by the time foreseen by the Court of Appeal for dealing with [my] appeal.  [That] court foresaw only 15 minutes ... The appellate hearing was to start at 9.00 a.m. and the next case was to be heard at 9.15 a.m. ... In addition, as I learnt on 11 October this year, the Court of Appeal had replaced my previous defence by someone else ... who – probably – did not know the case. ...

Article 464 § 2 of the Code of Criminal Procedure stipulates that a cassation appeal should be filed and signed by an advocate.  Since the Court of Appeal deprived me of my [previous] officially-appointed lawyer, it should appoint another counsel for me.  I therefore ask the court to appoint me such a lawyer and order him to file a cassation appeal on my behalf, in particular on the grounds mentioned in my pleading of 14 June 1996 and on other grounds – such as breaches of the law committed by the Court of Appeal – which I will later specify in my own separate cassation appeal. ...”

On 9 December 1996 the written reasons for the judgment of the Wrocław Court of Appeal were served on the applicant. On that date the time-limit of thirty days for lodging a cassation appeal began to run.

On 23 December 1996 the Court of Appeal dismissed the applicant’s request for legal assistance in cassation proceedings. The court considered that the applicant had failed to prove that he could not afford such assistance. The relevant decision read:

“In his application, received at the Court of Appeal’s registry on 15 October 1996, the applicant asked this Court to appoint a lawyer to assist him in filing a cassation appeal against the judgment of the Wrocław Court of Appeal of 10 October 1996.

The circumstances on which the applicant relies cannot be considered as a basis for a finding that his family and financial situation, and his income, make it impossible for him to pay costs involved in appointing a lawyer of his own choice in order to have a cassation appeal filed.  That [view] is based on the post previously held by the applicant and income received from his employment.

Instruction: this decision – refusing an application for appointing a lawyer to assist in filing a cassation appeal – cannot be appealed against.”

The applicant submits that the above-cited decision was served on him on 31 December 1996.

The time-limit for lodging a cassation appeal expired on 9 January 1997.

In the meantime, on 3 January 1997, despite the court’s instruction to the contrary, the applicant had appealed to the Supreme Court against the refusal to grant him legal assistance in cassation proceedings. He lodged the appeal through the Wrocław Court of Appeal. By an order made on 15 January 1997, the President of that court refused to proceed with that appeal because it was inadmissible in law. The applicant appealed to the Supreme Court which, on 28 February 1997, upheld the contested order.

B. Relevant domestic law and practice

At the relevant time provisions of the Law of 19 April 1969 – Code of Criminal Procedure ( Kodeks postępowania karnego ) applied to proceedings before criminal courts. The Code is no longer in force. It was repealed and replaced by the Law of 6 June 1997 (commonly referred to as the “New Code of Criminal Procedure”), which entered into force on 1 September 1998.

1. Legal assistance

Under Article 69 of the Code, an accused who had proved that he could not afford legal assistance (i.e. that the costs of such assistance “would entail a substantial reduction in his and his family’s standard of living”) might apply to a court and ask to appoint him a defence counsel.

Article 71 of the Code of Criminal Procedure laid down the principle known as “compulsory assistance of an advocate” ( przymus adwokacki ). That Article provided, in so far as relevant:

“An accused must have a defence counsel [of his own choice or officially appointed] when a regional court is competent to deal with his case as a court of first instance.  The counsel must take part in the main hearing; he must also take part in any appellate hearing if the president of the court or the court itself has found this necessary.”

Under Article 75 § 1, the official appointment of a lawyer was valid as long as the proceedings lasted and, subject to explicit exceptions, an officially-appointed lawyer was also obliged to act on behalf of his client after the judgment became final. However, according to domestic practice which started after 1 January 1996 (the date on which a new cassation appeals procedure was introduced into the system of criminal justice), a lawyer had again to be officially appointed in cassation proceedings.

2. Exemption from paying court fees and costs in criminal proceedings

The conditions for exempting an accused from paying costs and fees involved in criminal proceedings, as well as from paying fees due for legal assistance, were laid down in Article 556 of the Code. That provision, in its relevant part, read:

“The court may – either in full or in part – exempt an accused or [private or auxiliary] prosecutor from [an obligation] to pay back to the State Treasury costs of proceedings or to pay ... fees due for legal representation by an officially-appointed lawyer if there are grounds to consider that, given the family and financial situation and the income of the person concerned, the payment thereof would entail a disproportionate burden on him.”

3. Cassation appeal

As from 1 January 1996, i.e. the date on which the relevant provisions of the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes entered into force, a party to criminal proceedings might lodge a cassation appeal with the Supreme Court against any final decision of an appellate court which had terminated criminal proceedings.

Article 463a § 1 of the Code of Criminal Procedure provided, in so far as relevant:

“A cassation appeal may be lodged only on the grounds referred to in Article 388 [these included a number of procedural irregularities, such as, for instance, incorrect composition of the trial court; lack of legal assistance in cases where such assistance was compulsory; breach of the rules governing jurisdiction in criminal matters; trying a person in absentia in cases where his presence was obligatory and thus depriving him of an opportunity to defend himself, etc.] or on the ground of another flagrant breach of law provided that the judicial decision in question was affected as a result of such a breach.  No cassation appeal may be directed against the disproportionality of the penalty imposed.”

Article 464 of the Code stipulated:

“1. Parties to criminal proceedings shall be entitled to lodge a cassation appeal.

2. A cassation appeal, which has been lodged by a party other than a prosecutor, shall be filed and signed by an advocate.

3. Notice of a cassation appeal must be lodged with the court which has given the [relevant] decision within seven days from the date on which such decision was pronounced.  The appeal itself must be lodged within thirty days from the date on which the decision, together with the reasons therefor, was served on the party concerned.”

Under Article 467 § 2, the court which gave the decision appealed against was competent to decide whether the formal requirements for a cassation appeal had been complied with. If an accused’s appeal was not filed and signed by an advocate, it had to be rejected on formal grounds. If such an appeal complied with the formal requirements, the case was referred to the Supreme Court ( Sąd Najwyższy ). Pursuant to paragraphs 3 and 4 of Article 467, a single judge or, if the President of the Supreme Court so ordered, a panel of three judges sitting as the Supreme Court, decided on the admissibility of a cassation appeal. If the Supreme Court found that the appeal was inadmissible, it made a decision on “not taking cognisance of the merits of the appeal” ( postanowienie o pozostawieniu kasacji bez rozpoznania ).

COMPLAINTS

The applicant complained that the Wrocław Court of Appeal’s refusal to grant him legal assistance in connection with the preparation of a cassation appeal – a refusal given regardless of the fact that such assistance was compulsory – had infringed his right to defend himself effectively and resulted in his irrevocably losing his right to institute cassation proceedings.  In his submission, this amounted to a breach of Article 6 § 1 and Article 6 § 3 (c) of the Convention.

THE LAW

The applicant alleged that, on account of the refusal to grant him free legal assistance in cassation proceedings, there had been a breach of Article 6 § 1 taken in conjunction with Article 6 § 3 (c) of the Convention. Paragraphs 1 and 3 of Article 6 read, in so far as relevant:

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

...

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 Government first of all stressed that the relevant courts had fulfilled their Convention obligation because they had granted the applicant free legal assistance in the first-instance and appeal proceedings, pursuant to Article 71 of the Code of Criminal Procedure of 1969.

It was true, the Government further maintained, that the applicant’s request for legal assistance, which he had made on 15 October 1996, had been rejected.  That was, however, the result of his failure to prove that he had met the conditions laid down in Article 69 of the Code of Criminal Procedure, namely, that – on account of his family and financial situation – he would not be able to afford costs of legal assistance of his own choice. He had not, therefore, satisfied the statutory criteria for the grant of free legal assistance in cassation proceedings.

In that context, the Government also pointed out that the question of whether or not an accused should be granted free assistance of a lawyer lay within the relevant court’s discretion. The Wrocław Court of Appeal had made its decision in accordance with the law. Assessing the evidence before it and finding it had not been necessary to appoint a lawyer for the applicant, that court had not gone beyond the margin of appreciation left to the domestic courts in such matters.

Furthermore, the Government considered that the refusal in question had not prevented the applicant from lodging a cassation appeal because he could have appointed a lawyer of his choice and have such an appeal “filed and signed by an advocate”, as required by Polish law. Yet the applicant had not seized upon that opportunity.

To conclude, the Government invited the Court to reject the application as being manifestly ill-founded.

The applicant disagreed. He admitted that he had not appointed a lawyer of his choice but explained that he had not had sufficient means to pay fees.

He submitted that at the beginning of the trial he had presented documentary evidence in support of his application for free legal assistance he had made to the court of first instance. On the basis of that evidence the Court of Appeal had later appointed a lawyer for him in the appellate proceedings. The applicant did not see why he should have presented fresh evidence to that court if his financial situation had not changed. At the material time his salary had amounted to 569.90 Polish zlotys per month, which had been less than the average salary in the public sector and less than the income he had received beforehand, when the court of first instance had fully exempted him from paying the costs of the proceedings and court fees.

In that context, the applicant also stressed that the courts of both instances had not ordered him to bear the costs of his legal assistance but had decided that those sums be borne by the State Treasury, pursuant to Article 556 of the Code of Criminal Procedure. That Article laid down strict conditions for obtaining such an exemption; it could be granted only if, given the financial and family situation and income of the person concerned, incurring those costs would entail a disproportionate burden on him.

The applicant considered that it was difficult to see why the he had been refused free legal assistance in cassation proceedings if – shortly before – the relevant courts had found that the he had not been able to afford the costs of legal assistance in the first-instance and appeal proceedings.

The next point to be made, the applicant added, was that the Court of Appeal had given vague and sketchy reasons for its decision. For instance, that court had not even examined his family situation and his income. It had not mentioned on which concrete circumstances it had based its opinion that he could bear costs of legal assistance but had confined itself to a general remark that he could do so.

In conclusion, the applicant asked the Court to find a violation of Article 6 §§ 1 and 3 (c), pointing out that the refusal to grant him further free legal assistance in cassation proceedings not only had affected his defence rights in a manner contrary to the requirements of a “fair trial” but also had made it impossible for him to exercise effectively his right to lodge a cassation appeal.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court by a majority

Declares the application admissible, without prejudging the merits of the case.

Vincent Berger Georg Ress Registrar President