Information Note on the Court’s case-law No. 120

June 2009

Sobolewski v. Poland (no. 2) - 19847/07

Judgment 9.6.2009 [Section IV]

Article 6

Article 6-3-c

Defence in person

Refusal to grant accused leave to appear at appellate hearing concerning questions of fact relevant to the issue of guilt: violation

Facts : In May 2006 the applicant was convicted of multiple fraud and sentenced to two years’ imprisonment. He was represented by a legal-aid lawyer and was present at the first-instance proceedings. Both the applicant and his lawyer lodged appeals against the first-instance judgment. The applicant also requested leave to be brought from prison to attend the hearing before the appeal court, but his request was refused as the court held that the presence of his lawyer would be sufficient to secure his right to an effective defence. In November 2006 the second-instance court held a hearing in the presence of the applicant’s lawyer and dismissed the applicant’s appeal after finding that the lower court had thoroughly assessed the evidence and carefully considered the question of the applicant’s guilt.

Law : The personal attendance of the defendant at an appeal hearing did not have the same crucial significance as at trial. However, if an appellate court had to examine both the factual and legal aspects of the case in order to make a full assessment of the issue of guilt or innocence, a direct assessment of the evidence given in person by the accused was necessary. Under Polish law the applicant had the right to attend the appeal hearing, unless the court found that the lawyer’ presence was sufficient. Further, pursuant to the relevant rules of criminal procedure, the jurisdiction of an appeal court extended to questions of both fact and law. In his appeal, the applicant had essentially sought to challenge the soundness of his conviction on the facts and had requested leave to attend the hearing. When it refused that request, the domestic court made no reference to the specific grounds of his appeal, nor did it make a distinction between factual issues raised by the applicant – which were ultimately relevant for the assessment of his guilt – and purely legal issues. The Court considered that, in such circumstances, where the scope of a particular appeal filed with an appellate court was not confined to pure questions of law, Article 6 required, in the absence of any compelling reasons to the contrary, that the accused be allowed to be present at the hearing of his appeal and that he be notified in advance in clear terms of his right to attend the hearing.

Conclusion : violation (unanimously).

Article 41 – EUR 1,500 in respect of non-pecuniary damage.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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