Communicated on 27 August 2018

FIRST SECTION

Application no. 47846/16 Sławomir DŁUGOSZ against Poland lodged on 2 August 2016

STATEMENT OF FACTS

The applicant, Mr SÅ‚awomir DÅ‚ugosz , is a Polish national who was born in 1974 and lives in Espergaerde (Denmark).

A. The circumstances of the case

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

1. The applicant ’ s accident

On 25 June 2015 the applicant had a motorcycle accident on a motorway. In his opinion, a car had overtaken him at high speed, brushing against his elbow. As a result, the applicant had lost his balance and fallen off the motorcycle.

The applicant was taken to hospital. He had suffered many serious injuries including fractures of several vertebrae and of a rib. The applicant was administered two doses of morphine to relieve the pain.

2. The fine and the attempt to annul it

On 25 June 2015, when the applicant was in hospital, two police officers arrived and approached him while he was still in the emergency room ( Izba Przyjęć ). The applicant asked the police officers to leave the room and to come back later. They ignored his request, as well as his statement that another vehicle had been involved in the accident, and fined him 100 Polish zlotys (PLN) (approximately 25 euros (EUR)) for speeding, based on Article 97 of the Code of Misdemeanours ( Kodeks wykroczeń ). The applicant accepted and signed the fine form.

On 2 July 2015 the applicant (represented by a lawyer) lodged with the Nowy Tomyśl District Court ( Sąd Rejonowy ) a request to annul the fine. He stated that he had not been correctly informed of his rights – most importantly, that he had had the right to refuse to pay the fine – and that he had not been in a fit state to make his own decisions correctly and in an unconstrained manner.

The applicant submitted that he had requested that the identity of the doctor who treated him at the hospital be established in order to summon him as a witness and that he had requested that his girlfriend D.W., whom he had called immediately after the accident and to whom he had described the events, and Z.S., who had given him first aid, also be called as witnesses. His requests had been dismissed and only the two police officers who had fined him had testified before the court.

On 9 February 2016 the Nowy Tomyśl District Court refused the request. The court stated that, according to the police officers, the applicant had been totally aware of the situation, because he had been changing his version of the events, and that his statements had been logical. The court established that the applicant had not been in a state which ruled out conscious and unconstrained decision.

3. The criminal proceedings instituted by the applicant

In a letter of 10 July 2015 the applicant notified the Nowy Tomyśl District Prosecutor ( Prokurator Rejonowy ) that on 25 June 2015 an unidentified car had blocked his way and pushed him onto the hard shoulder. An unidentified person, who had probably witnessed the events, had given him first aid. The applicant stated that he had been trying to establish this man ’ s identity.

On 5 September 2015 Nowy Tomyśl District Police refused to open the investigation owing to lack of sufficient proof that an offence had been committed. The fact that the applicant had accepted the fine was provided as grounds for such conclusion.

On 6 November 2015 the Nowy Tomyśl District Prosecutor, upon the applicant ’ s appeal, quashed the decision of 5 September 2015.

On 28 December 2015 the Prosecutor discontinued the proceedings owing to the lack of sufficient proof that an offence had been committed. The applicant appealed.

On 6 April 2016 the Nowy Tomyśl District Court upheld the challenged decision. The court established that the applicant had provided two versions of the events: one to the police officers, whom he had told that he had lost his balance because of the blast of air caused by the car which overtook him, and the other to two other witnesses, D.W. and Z.S., who were not eyewitnesses and knew about the events only from the applicant. The court also noted that the police officers did not find any evidence on site or on the motorcycle to prove that another vehicle had been involved and that the tyre marks left on the road by the motorcycle had a narrow angle, which ruled out a violent event. In conclusion, the court decided that the version put forward by the police officers was more plausible.

4. Consequences of the accident

On 22 February 2016 the District Disability Evaluation Board for Eastern Łódź District ( Powiat owy Zespół do Spraw Orzekania o Niepełnosprawności ) declared the level of the applicant ’ s disability as significant ( znaczny ) and confirmed that he required the constant care of another person owing to his limited capacity to deal with his handicap. He was also declared unfit to work. This certificate was valid until 28 February 2017.

The applicant submitted that, because he had accepted the fine, he had been virtually barred from receiving compensation from the Motor Insurers ’ Bureau ( Ubezpieczeniowy Fundusz Gwarancyjny ), because he had become the sole person responsible for the accident.

B. Relevant domestic law and practice

1. The Code of Misdemeanours

Article 97 of the Code of Misdemeanours provides that a driver who breaches provisions of the Road Traffic Act, or other regulations, shall be liable to a fine of up to 3,000 Polish zlotys or a reprimand.

2. The Code of Conduct in the Misdemeanour Cases (Kodeks postępowania w sprawach o wykroczenia)

Article 97 provides, as far as relevant:

“ ... § 2 . A person who commits a misdemeanour may refuse to accept the fine ( mandat karny ).

§ 3 . The officer who imposes a fine is obliged to determine its amount, the misdemeanour committed, and to inform the offender about the right to refuse to accept the fine and about the legal consequences of such refusal.”

Article 99 provides, as far as relevant:

“In the event of refusal to accept the fine ... the authority whose officer has imposed it lodges with a court a request for punishment. In this request it should be noted that the accused ( obwiniony ) refused to accept the fine ... and, if possible, reasons should also be given for refusal.”

Article 101 provides, as far as relevant:

“ ... § 2 . The court competent to examine the request for annulment of the fine is the one in whose area the fine was imposed. The court shall examine the case at a hearing. The punished person and the authority which imposed a fine ... have the right to participate in the hearing. Before issuing its decision the court may order appropriate actions to examine the grounds for annulment of the fine.”

COMPLAINTS

The applicant complains under Article 6 of the Convention that the proceedings in which he received the fine were not fair, because he was not in a fit state to receive any instructions, as he was in severe pain and under the influence of morphine; he was not afforded adequate time and facilities to prepare his defence or able to defend himself in person or through legal assistance.

Under Article 13 he complains that the proceedings instituted in order to annul the fine were not fair, because the domestic court refused to call his witnesses and to establish the identity of the doctor who had treated him in hospital in order to summon him as a witness.

QUESTIONS

1. Did the applicant, when receiving the fine, have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention?

2. Was the applicant afforded adequate time and facilities to prepare his defence, as required by Article 6 § 3 (b) of the Convention?

3. Was the applicant able to defend himself through legal assistance of his own choosing, as required by Article 6 § 3 (c) of the Convention?

Reference is made to the allegation that, on 25 June 2015, the applicant was fined in the absence of a lawyer and while being under the influence of morphine administered in hospital (see, mutatis mutandis , Płonka v. Poland , no. 20310/02, §§ 37-38, 31 March 2009 and Salduz v. Turkey [GC], no. 36391/02, §§ 54-55, ECHR 2008 ) .

4. As far as the proceedings instituted in order to annul the fine are concerned, did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention?

5. Was the applicant able to obtain the attendance of witnesses on his behalf under the same conditions as witnesses against him, as required by Article 6 § 3 (d) of the Convention?

Reference is made to the allegation that the domestic court dismissed the applicant ’ s request to establish the identity of the doctor who treated the applicant in hospital and to call him as a witness, as well as to call other witnesses as requested by the applicant (see Frumkin v. Russia , no. 74568/12 , § 159, ECHR 2016.