FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38663/97 by Janusz PANEK against Poland

The European Court of Human Rights (Fourth Section) , sitting on 30 November 2000 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 application introduced with the European Commission of Human Rights on 20 March 1997 and registered on 19 November 1997,

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 deliberated, decides as follows:

THE FACTS

The applicant is a Polish national, born in 1965. He is currently detained in a prison in Czarne , Poland.

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

On 6 February 1992 the applicant was arrested on suspicion of murder, grievous bodily harm, and insulting and assaulting policemen.

It appears that in 1992 prosecution authorities lodged with the Gdańsk Regional Court ( Sąd Wojewódzki ) a bill of indictment against him.

On 13 January 1995, having held 7 hearings, the Gdańsk Regional Court pronounced its judgment. It convicted the applicant as indicted, except for the count alleging the murder of which he was acquitted. The court sentenced him to five years’ imprisonment. The prosecutor lodged an appeal against that judgment, contesting its part relating to the acquittal.

On 12 October 1995 the Gdańsk Court of Appeal ( Sąd Apelacyjny ) quashed the contested part of the first-instance court’s judgment and remitted the case for re-examination.

On 13 December 1996 the Gdańsk Regional Court convicted the applicant of murder with an oblique intent ( w zamiarze ewentualnym ) and sentenced him to nine years’ imprisonment. The applicant lodged an appeal against that judgment.

On 18 June 1997 the Gdańsk Court of Appeal modified the judgment under appeal in that it convicted the applicant of grievous bodily harm with deadly effect and sentenced him to seven years’ imprisonment. In the letter of 1 July 1997 the applicant’s legal aid lawyer informed him that he refused to lodge a cassation appeal against that judgment, arguing that there was no indication of any breach of substantive or procedural law. He explained that lodging that appeal would only delay the proceedings concerning a cumulative penalty ( kara łączna ) and, afterwards, proceedings concerning the applicant’s conditional release.

On 13 July 1998 the Gdańsk Regional Court delivered a judgment in which it sentenced the applicant to ten years’ imprisonment as the cumulative penalty for the convictions included in the judgments of 13 January 1995, 13 December 1996 and 27 May 1992 (delivered in the course of other criminal proceedings).

COMPLAINTS

1. In his letter of 26 August 1998 the applicant complains about the unreasonable length of the proceedings.

2. He further complains that despite his innocence he was convicted and sentenced to imprisonment.

3. The applicant also submits that his legal aid lawyer did not defend him properly and refused to lodge a cassation appeal against the judgment of the second-instance court.

THE LAW

1. The applicant complains 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 complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of the Court, to give notice of this complaint to the respondent Government.

2. The applicant further complains that he was convicted despite his innocence.

The Court observes that it is not called upon to deal with errors of fact and law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see Garcia Ruiz v. Spain , no. 30544/96, 21.1.99, § 28, unreported). There is no indication that in the course of the proceedings the applicant could not put forward his submissions or that the proceedings were otherwise unfair.

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

3. The applicant also submits that his legal aid lawyer did not defend him properly and refused to lodge a cassation appeal on his behalf.

The Court firstly recalls that a State cannot be held responsible for every shortcoming on the part of a lawyer appointed for legal aid purposes (see the Artico v. Italy judgment of 13 May 1980, Series A no. 37, p. 18, § 36). It follows from the independence of the legal profession from the State that the conduct of the defence is essentially a matter between the defendant and his counsel, whether counsel be appointed under a legal aid scheme or be privately financed (see the Kamasinski v. Austria judgment of 19 December 1989, Series A no. 168, § 65). However, since the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see the Artico judgment cited above, p. 16, § 33), regard must be had to the circumstances of the case, whether the defence can be considered as “practical and effective”.

In this respect the Court observes that in his letter of 1 July 1997 the applicant’s counsel informed him that the cassation appeal, which the applicant wished to be lodged on his behalf, would have no prospects of success before the Supreme Court. The lawyer explained that there was no indication of any breach of substantive or procedural law. He further pointed out that lodging the appeal would be to the applicant’s disadvantage, because it would delay the proceedings concerning a cumulative penalty and, afterwards, proceedings concerning the applicant’s conditional release. The Court notes that subsequently the Gdańsk Regional Court indeed converted the applicant’s sentences to a cumulative penalty. Furthermore, having regard also to the remaining circumstances of the instant case, the Court sees no indication of negligence on the part of the counsel. It follows that this complaint is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant’s complaint about the unreasonable length of the criminal proceedings against him;

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger Georg Ress Registrar President