FIRST SECTION

DECISION

Application no. 60136/13 Robert FÄ„FARA against Poland

The European Court of Human Rights (First Section), sitting on 9 November 2021 as a Committee composed of:

Erik Wennerström, President, Krzysztof Wojtyczek, Lorraine Schembri Orland, judges, and Attila Teplán, Acting Deputy Section Registrar,

Having regard to the above application lodged on 6 September 2013,

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

1. The applicant, Mr Robert Fąfara, is a Polish national, who was born in 1968 and lives in Oleśnica. He was represented before the Court by Ms B. Słupska-Uczkiewicz , a lawyer practising in Wrocław.

2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.

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

4. On 6 February 2010 at about 2.15 p.m. the applicant was apprehended by the police in connection with a woman’s death. At 3.01 p.m. a breathalyser test showed his blood alcohol level as 2.24 grams per litre. He also submitted that in the evening of 5 February 2010 he had taken nitrazepam (a drug prescribed for short-term relief from severe anxiety and insomnia). Subsequently, at 6 p.m. he was arrested on suspicion of murder.

5. According to the record of the arrest drawn up on the same day at 6.35 p.m., the applicant was informed of his rights; he confirmed that he would not lodge an interlocutory appeal against his arrest and he did not request access to a lawyer. The applicant signed a document advising him of those rights.

6. On 7 February 2010 at 3.15 p.m. the applicant was questioned by the police. Beforehand, his blood alcohol level was tested, and the breathalyser test showed his blood-alcohol level as 0.00 grams per litre. He signed a statement that before the questioning he had been advised of his rights and that he had been provided with a document containing information on his rights.

7. During the questioning he gave a detailed and coherent description of the events of the previous day. He confessed that he had murdered K.K., with whom he had been in a relationship. He stated that he had strangled her as he had been jealous thinking that she had been sleeping with other men. The applicant explained that he had shared a flat with K.K. and her partner, a certain J.G. The applicant signed the record of the police questioning and added a handwritten note that this reflected his statements. He was not assisted by a lawyer during the questioning.

8. On 8 February 2010 at 10 a.m. the applicant was questioned by the prosecutor. He signed a statement that before the questioning he had been advised of his rights and that he had been provided with a document advising him of his rights. The applicant maintained the statements he had made to the police and confessed to having murdered K.K. He again described the circumstances of the event. The applicant also stated that he had left an alcohol rehabilitation centre on 23 January 2010 but two days later he had relapsed and since then he had been drinking every day. The applicant signed a record of the questioning. He was not assisted by a lawyer during the questioning.

9. At 1 p.m. on the same day the applicant maintained his previous statements, during a court hearing relating to his pre-trial detention.

10. The applicant submitted that on 29 March 2010 he had lodged an application to be assigned a legal aid lawyer, but the application had not been addressed by the court. The Government replied that there was no record in the case file that such an application had ever been lodged.

11. On 12 April 2010 the prosecutor ordered an expert report on the applicant’s mental health at the time when the crime had been committed. The report was prepared by two psychiatrists and submitted on 21 April 2010. According to the report, the applicant was not considered to have diminished responsibility. At the same time the experts confirmed that the applicant was addicted to alcohol but was aware of his reactions while he was intoxicated.

12. On 19 April 2010 the applicant appointed a lawyer of his choice.

13. On 17 June 2010 the applicant did not confess to murder when heard by the Oleśnica District Court during a session relating to the extension of his detention. He submitted that his previous statements had been suggested to him by police officers. He maintained that he did not remember what had happened, because he had drunk alcohol and taken twenty pills of nitrazepam. He added that he had been taking two to six pills of nitrazepam every day.

14. On 7 September 2010, when questioned by the prosecutor, the applicant refused to answer any questions. The prosecutor subsequently decided to obtain supplementary evidence. In particular, DNA experts were asked to conduct an additional assessment of the evidence (namely the cord which had been used to strangle K.K.).

15. A bill of indictment was lodged on 23 September 2010.

16. When testifying before the court on 3 November 2010 the applicant stated that he did not remember the events relating to K.K.’s death and that he did not maintain the explanations that he had given on 7 and 8 February 2010. The applicant also stated that another person was responsible for K.K.’s death – her partner J.G. The court heard evidence from six witnesses and from the expert psychiatrists who had prepared the report of 21 April 2010.

17. During the subsequent hearings the court obtained evidence from numerous witnesses, in particular A.K. and J.G., who had been drinking alcohol with the applicant and the victim on 6 February 2010. Other witnesses (the victim’s mother, the victim’s sister and her husband, the victim’s neighbours, and police officers) were also examined. In addition, the court obtained evidence from expert psychiatrists and psychologists, as well as experts in investigative medicine.

18. On 2 December 2011 the Wrocław Regional Court gave judgment. The court noted that the applicant had been addicted to alcohol and had undergone treatment in a rehabilitation centre. He had lived with the victim and J.G. for about two weeks before the commission of the murder. The court established that the applicant had strangled K.K. on 6 February 2010. It convicted the applicant of murder and sentenced him to fifteen years’ imprisonment. The court based its decision on the applicant’s testimony, the testimony of numerous witnesses, expert reports and the post-mortem report on the victim. An external inspection of the victim’s corpse was commissioned, and that expert gave evidence before the court. The DNA analysis of the cord used to strangle the victim did not show the applicant’s DNA. The expert stated before the court that in the case of strangulation with a cord, the perpetrator’s DNA would not always remain on the cord.

19. The court also obtained an expert report on the applicant’s signature on the documents advising him of his rights. The expert stated that the applicant’s signature had not disclosed specific features of a person in a state of alcohol intoxication, and the poor quality of his handwriting had been caused by alcohol poisoning, the results of which had become clear several days after the applicant had sobered up. The applicant also submitted to the court a private expert report prepared by the Silesian Medical Academy Institute of Forensic Medicine, which stated that he had been under the influence of alcohol when signing the document advising him of his rights.

20. The court examined both reports and heard evidence from all the experts. However, it considered the private expert report to be unreliable, noting that the experts who had drawn it up had not had access to the court’s case file, and their statements had contradicted all the other expert reports.

21. The court held in conclusion that on 7 February 2010, when questioned, the applicant had been sober and had testified with full understanding of his actions. Furthermore, he had been able to answer all questions and had not been susceptible to external suggestion.

22. The applicant appealed against that judgment, submitting in essence that his conviction had been based on statements made without the assistance of a lawyer. He also stated that on 7 February 2010 he had still been under the influence of alcohol.

23. On 19 April 2012 the WrocÅ‚aw Court of Appeal upheld the first ‑ instance judgment. The court held that the presence of a lawyer during questioning was not obligatory under the CCP. The applicant had been informed in writing of his rights, including the right to be questioned in the presence of a lawyer, and he had signed the documents advising him of those rights. He had further not asked to be assisted by a lawyer during the initial questioning on 7 February 2010, or on the following day when questioned by the prosecutor, or during the hearing in the District Court. Moreover, it was true that on 6 February 2010, at the time of his arrest, the applicant had been intoxicated. However, the initial questioning had taken place twenty-four hours later, and the prosecutor had questioned him two days later, on 8 February 2010.

24. The Court of Appeal further stressed that the question of whether the applicant had still been under the influence of alcohol when signing the document advising him of his rights had been thoroughly examined by the court of first instance and there was no reason to doubt that court’s conclusions.

25. The court concluded that the applicant’s testimony was corroborated by the testimony of other witnesses, expert opinions and other evidence collected in the case.

26. The applicant lodged a cassation appeal against that judgment. He argued in particular that the trial court had wrongly found that he had not been under the influence of alcohol at the time of the initial questioning.

27. On 6 February 2013 the Supreme Court dismissed the applicant’s cassation appeal as manifestly ill-founded. The court concurred with the conclusions reached by the courts of first and second instance that the poor quality of the applicant’s handwriting had been caused by alcohol poisoning, the results of which had become clear several days later. It further held that the lower courts had obtained extensive evidence which had confirmed the version of events initially presented by the applicant. The Supreme Court’s decision was served on the applicant on 23 March 2013.

28. Under Article 78 § 1 of the 1998 Code of Criminal Procedure (“the CCP”), an accused person who had proved that he or she could not afford legal assistance (that is, that the costs of such assistance “would entail a substantial reduction in his and his family’s standard of living”) could ask the trial court to appoint defence counsel for him or her.

29. Article 80 of the CCP lays down the principle known as “compulsory assistance of an advocate” ( przymus adwokacki ). That Article provides, in so far as relevant:

“An accused must have an officially appointed lawyer when a Regional Court has jurisdiction to deal with his case as a court of first instance, a crime is involved within the meaning of the Criminal Code, or the individual is remanded in custody. The lawyer 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.”

This provision does not apply to the investigative stage of the proceedings but only after the case is sent for trial, as was expressly confirmed by the Supreme Court in its resolution of 20 January 2004 (IIIKK 226/03).

30. The CCP also contains the following provisions relating to the initial questioning of a suspect:

Article 300

“Prior to the initial questioning, a suspect shall be advised of his [or her] rights: to give or refuse to provide explanations, or to answer questions, to submit evidentiary applications, to benefit from the assistance of defence counsel, to acquaint himself [or herself] with the materials of the proceedings ... These instructions shall be given to the suspect in writing; the suspect should confirm receipt of the instructions with his [or her] signature.”

Article 301

“On an application by the suspect, he [or she] shall be examined in the presence of retained counsel. The absence of counsel shall not prevent the examination from being conducted.”

COMPLAINT

31. The applicant complained, relying on Article 6 § 1 of the Convention read in conjunction with Article 6 § 3 (c) of the Convention, of a violation of his right to defend himself, on account of the fact that he had not had legal assistance at the initial stage of the criminal proceedings against him.

THE LAW

32. The applicant complained that the proceedings which resulted in his conviction had been unfair on account of the fact that he had not had legal assistance at the initial stage of those proceedings. He referred to Article 6 §§ 1 and 3 (c) of the Convention, which in so far as relevant, read as follows:

“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;

...”

(a) The Government

33. The Government submitted that the applicant had been aware of his right to be assisted by a lawyer since the beginning of the investigation. He had been informed in writing about his rights and had signed the relevant documents on 6, 7 and 8 February 2010. However, despite being informed of his rights, he had not asked to be assisted by a lawyer. He had been represented by a lawyer from 19 April 2010, during the investigation and then throughout the trial.

34. The Government further stressed that the applicant’s statements made at the beginning of the investigation had been tested by numerous other pieces of evidence (witness testimonies, expert opinions and post ‑ mortem results). In addition, the circumstances of the initial questioning, in particular, the applicant’s ability to understand the consequences of the waiver of his right to be represented by a lawyer, had been thoroughly examined by the trial court.

35. The Government concluded that the applicant had waived his right to remain silent or to be assisted by a lawyer, in a clear and unequivocal manner. As confirmed by the domestic courts on the basis of expert opinions, during the initial questioning the applicant had been sober and had testified with full understanding of his actions. Lastly, the Government stressed that the initial confession made by the applicant in the absence of a lawyer had not been the sole basis for his conviction. The course of events as presented by the applicant during his initial questioning had been confirmed by the evidence gathered during the investigation.

(b) The applicant

36. The applicant submitted that during his initial questioning he had been in a particularly unfavourable situation given that he had drunk much alcohol the day before. It was under those circumstances, while having limited capacity to make reasoned decisions, that he had signed the documents informing him of his rights. However, he had been unable to foresee the consequences of his decision on the outcome of the proceedings.

37. The applicant further referred to the private expert opinion of 4 May 2011 and its conclusion that he had still been intoxicated on the day when he had first been questioned by the police. He maintained that the statements he had made during the initial questioning, in the absence of a lawyer, had had an impact on the direction of the investigation. He agreed that his confession had not been the sole basis for his conviction but in his view it had had a significant bearing on it.

38. The general principles with regard to access to a lawyer, the right to remain silent, the privilege against self-incrimination, the waiver of the right to legal assistance and the relationship of those rights to the overall fairness of the proceedings under the criminal limb of Article 6 of the Convention can be found in Beuze v. Belgium ([GC], no. 71409/10, §§ 119 ‑ 50, 9 November 2018).

39. When addressing the issue whether the applicant was able to exercise his right to be assisted by a lawyer, the Court examines in particular whether the applicant had unequivocally and intentionally waived his/her rights under Article 6 (see, mutatis mutandis , Płonka v. Poland , no. 20310/02, § 36-37, 31 March 2009, and Hakan Duman v. Turkey , no. 28439/03, § 50, 23 March 2010).

40. In the present case the Court observes that on 7 February 2010, that is one day after his arrest, the applicant signed a document stating that prior to the questioning he had been informed of his rights including the right to be assisted by a lawyer and that this information had also been provided in writing (see paragraph 6 above). On 8 February 2010 the applicant was again questioned and signed a similar statement (see paragraph 8 above). On the same day he repeated his confession during a hearing concerning his pre-trial detention. On all these occasions he did not express a wish to contact a lawyer. The applicant was also informed about his rights on the very day of his arrest, on 6 February 2012 (see paragraph 5 above).

41. The Court notes that the applicant’s mental health at the time of the first questioning was examined by experts who expressed an opinion that he had been able to understand the information provided to him (see paragraph 11 above). The issue of whether the applicant had still been under the influence of alcohol when signing the document containing the waiver of legal assistance was also thoroughly examined by the domestic courts with reference to expert opinions (see paragraph 19 above). The trial court subsequently concluded that at the time of the initial questioning, the applicant had made statements with full understanding of his actions (see paragraph 21 above). In the Court’s view, the domestic courts’ assessment cannot be regarded as arbitrary or manifestly unreasonable in the circumstances of the present case.

42. The Court further observes that the applicant retracted his confession only on 17 June 2010, during the final stage of the pre-trial investigation and more than four months after the first questioning (see paragraph 13 above).

43. The Court considers that in the present case there are no circumstances which would indicate that given his intoxication or the history of alcohol dependence the applicant was not able to understand the information provided to him or to exercise the right to request assistance of a lawyer.

44. In view of the foregoing, the Court is unable to find that the applicant was prevented from exercising his right to be assisted by a lawyer.

45. The Court will nonetheless examine whether the overall fairness of the criminal proceedings against the applicant was prejudiced by the absence of a valid waiver of legal assistance when he gave statements to the police, and by the subsequent admission by the trial court of those statements which secured his conviction.

46. The Court observes that the applicant was represented by a lawyer from 19 April 2010 and throughout the proceedings before the WrocÅ‚aw Regional Court and the WrocÅ‚aw Court of Appeal (see paragraph 12 above). During the criminal proceedings he was able to call witnesses on his behalf and had the opportunity to challenge the prosecution’s arguments. He was also able to present evidence as to the circumstances of his initial questioning, and had the opportunity to provide any details which cast doubt on the reliability and sincerity of his initial statement (see Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 283, 13 September 2016). This issue was further examined by court ‑ appointed experts. Moreover, the statements made by the applicant during police custody, and his confession were not the sole basis for his conviction. The trial court substantiated the applicant’s conviction by the testimony of several witnesses and the conclusions of several forensic examinations including a post-mortem report (see paragraphs 16, 18, 19, 25 above). In view of these considerations the Court sees no basis to conclude that the applicant was in any way restricted in his rights to state his case.

47. Against this background, the Court finds that the overall fairness of the applicant’s trial was not irretrievably prejudiced. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

48. The applicant also complained under Article 6 § 2 of the Convention that on 10 February 2010 the local press had published an article containing statements that he had murdered K.K.

49. The Court has examined those complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they either do not meet the admissibility criteria set out in Article 35 § 1 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

50. This part of application should thus be declared inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 2 December 2021.

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Attila Teplán Erik Wennerström Acting Deputy Registrar President