Resolution CM/ResDH(2013)111

Sobolewski (No. 2), Strza Å‚ kowski, Seliwiak against Poland

Execution of the judgments of the European Court of Human Rights

(Application No. 19847/07, judgment of 09/06/2009, final on 09/09/2009

Application No. 31509/02, judgment of 09/06/2009, final on 09/09/2009

Application No. 3818/04, judgment of 21/07/2009, final on 21/10/2009)

(Adopted by the Committee of Ministers on 6 June 2013 at the 1172nd meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgments transmitted by the Court to the Committee in the above cases and to the violations established;

Recalling the respondent State ’ s obligation under Article 46, paragraph 1, of the Convention to abide by all final judgments in cases to which it is a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with its above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgments including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2013)435 );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted;

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination thereof.

Action Report [1]

Information about the measures to comply with the judgments in the Sobolewski against Poland (No. 2) group of cases

Case description

Sobolewski (No. 2), application No. 19847/07, judgment of 09/06/2009, final on 09/09/2009

Strzałkowski, application No. 31509/02, judgment of 09/06/2009, final on 09/09/2009

Seliwiak, application No. 3818/04, judgment of 21/07/2009, final on 21/10/2009

These cases concern a violation of the applicants ’ right to a fair trial (Article 6 §1 of the Convention) as the appeal hearing in criminal proceedings had been held in their absence owing to the appeal courts ’ rejection of the applicant ’ s requests to hold a hearing in their presence under Article 451 of the Code of Criminal Procedure (Sobolewski and Strzalkowski). This was despite the fact that the applicants sought to challenge the soundness of convictions on the facts, their appeals against the first-instance judgments were not limited to legal aspects of the case and that under domestic law the appellate court was empowered to hear evidence de novo in certain circumstances. In these cases, given the nature of the grounds of appeal, in the opinion of the Court, the issues to be determined by the appellate courts could not, as matter of fair trial, properly have been examined without a direct assessment of the evidence given by the applicants in person and underlined that where an appeal concerns questions of both fact and law, Article 6 requires, in the absence of compelling reasons to the contrary that the accused be allowed to be present at the hearing of his appeal and be notified in advance in clear terms of this right. In the Strazalkowski case, the applicant was not informed of the steps he had to take to attend the hearing. In the Seliwiak case, the applicant did not attend his appeal hearing before the Court of Appeal as he was not notified of the hearing. The court service sent all correspondence to his home address, despite the fact he was detained. Further, due to other organisational problems, he did not have any communication with the lawyer who represented him at the hearing.

The European Court awarded the applicants with just satisfaction in respect of non-pecuniary damage.

Sobolewski (No. 2), application No. 19847/07, judgment of 09/06/2009, final on 09/09/2009

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

1500 EUR

-

1500 EUR

Paid on 19/11/2009

Strzałkowski, application No. 31509/02, judgment of 09/06/2009, final on 09/09/2009

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

1500 EUR

-

1500 EUR

Paid on 20/11/2009

Seliwiak, application no. 3818/04, judgment of 21/07/2009, final on 21/10/2009

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

1500 EUR

-

1500 EUR

Paid on 11/01/2010

Article 540 § 3 of the Code of Criminal Procedure provides the possibility for reopening the proceedings after the judgment given in particular case by the European Court of Human Rights.

In these circumstances, no other individual measure appears necessary.

II. General measures

According to Article 451 of the Code of Criminal Procedure, the appellate court shall order an accused who is detained, on his request, to be brought to the appeal hearing, unless it finds that the presence of his lawyer is sufficient. An accused should be informed on the right to file the request. If the court decides not to bring to a hearing an accused that has no defence counsel, it shall appoint for him ex officio a legal-aid lawyer.

The Supreme ’ s Court interpretation of Article 451 of the Code of Criminal Procedure goes in line with the reasoning of the Court given in the Sobolewski (No. 2) group of cases.

In the judgment of 17 June 2009 (case No. II KK 30/09) the Supreme Court states that the exception provided in Article 451 of the Code of Criminal Procedure (not allowing a request to bring an accused to an appeal hearing) applies if the appeal concerns only points of law and not – points of facts. This interpretation is present also in another judgment, of 2 March 2009 (case No. IV KK 334/08), in which the Supreme Court underlines that the court of second instance should in each case evaluate the accused`s request to be brought to the appeal hearing taking into account what kind of matters should be clarified by the court during the hearing. The court should consider whether the accused lodged an appeal himself and whether he would like to present his position in person. It is particularly important if the accused refused to give evidence during the pre-trial proceedings and before the court of first instance. The presence of the defence lawyer at the appeal hearing does not automatically exclude personal activity of the accused at this stage of the proceedings. Therefore, the presence of the accused during the hearing if he requests so should be considered as a rule.

The jurisprudence of the Supreme Court, subsequent to the judgments in the Sobolewski (No. 2) group of cases, further implements position of the European Court.

For example:

- in its decision of 28/09/2012 (case No. III KK 164/12) the Supreme Court confirms that the exception to the rule of ensuring the presence of the accused for the appeal hearing could be justified in these cases in which the appeal concerns only points of law (the same opinion – judgment of the Supreme Court of 02/03/2011 in the case No. IV KK 368/10, also: decision of the Supreme Court of 14/07/2010 in the case No. WZ 30/10 and decision of the Supreme Court of 08/06/2010 in the case no WA 12/10);

- in its judgment of 15/02/2012 (case No. III KK 220/12) the Supreme Court states that it ’ s obvious that for the equality of arms, if the prosecutor`s appeal concerns severity of punishment and the accused requests so, he should be brought for the appeal hearing in order to have the opportunity to defend himself in person;

- in its judgment of 14/02/2012 (case No. V KK 166/11) the Supreme Court underlines that the situation when the content of the defence lawyer`s appeal concerns facts of the case and guilt, the court of appeal should give a positive decision as to the request of the accused to be brought for hearing. Refusal to bring an accused for the appeal hearing and heaving heard the appeals without his presence should be regarded, according to the wording of Article 451 of the Code of Criminal Procedure, jurisprudence of the Supreme Court and opinions of scholars, as grave breach of the fair trial rules and a right to defence;

- in its judgment of 15/09/2011 (case No. IV KK 60/11) the Supreme Court confirms that lack of informing the accused of the content of Article 451 of the Code of Criminal Procedure, that provides basic standard of procedural guarantees for the accused in the appellate proceedings, leads to the conclusion on the violation of his right to defence and to the opinion on not observance of the fair trial rules in the meaning of Article 6 of the European Convention on Human Rights;

- in its judgment of 05/01/2011 (case No. IV KK 299/10) the Supreme Court stresses that the presence of the defence lawyer alone at an appeal hearing is sufficient only when the appeal concerns points of law. In the case when the appeal concerns points of facts or, when the court of appeal allows for additional evidence to be produced or, when a direct contact with the accused may influence decision-making process, bringing the accused for appeal hearing is necessary for the sake of the obligation to preserve a right to fair trial, in particular – a right to defence;

- in its judgment of 07/05/2010 (case No. IV KK 369/09) the Supreme Court adds that especially when the appeal concerns points of law, the accused deprived of liberty should be brought for the appeal hearing, no matter the organizational difficulties and no matter the opinion of the court of appeal on the influence of the accused presence at the hearing on the outcome of the case.

The source of the problem in the Seliwiak case seems to be the incorrect practice of the courts in this particular case. Accordingly, in order to prevent further violations of this kind in the future translation and dissemination of the judgment seems sufficient.

In this respect it should be noted that all three judgments were translated and published on the website of the Ministry of Justice. Sobolewski (No. 2) group of judgments was also included in the curriculum of trainings for judges and prosecutors by the National School of Judiciary and Public Prosecution Service.

In these circumstances, no other general measure appears necessary .

III. Conclusions of the responding state

The Government considers that further individual measures are not necessary in the present case and that the general measures adopted, i.e. publication and dissemination of the judgment of the European Court of Human Rights will be sufficient to conclude that Poland has complied with its obligations under Article 46, paragraph 1 of the Convention in respect to the breach of Article 6 § 1 of the Convention.

[1] Information submitted by the Polish authorities on 16 April 2013.