Communicated on 23 January 2018

FIRST SECTION

Application no. 36275/15 Mariusz SŁOMKA against Poland lodged on 16 July 2015

STATEMENT OF FACTS

The applicant, Mr Mariusz Słomka , is a Polish national who was born in 1979 and lives in Witaniów . He is represented before the Court by Mr Paweł Rzeszutko , a lawyer practising in Lublin.

A. The circumstances of the case

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

On 4 August 2010 the applicant was involved in a car accident in Łuszczów . He and two other people were seriously injured and one person died.

The applicant was taken to a hospital in Lublin. He was diagnosed with multiple organ failure, contusions on the thorax, pneumothorax of the left lung, fractures of the radius and radial styloid process of the left hand, a fracture of the left transverse process of the seventh cervical vertebrae and an injury in the are a of the left armpit.

On 5 August 2010 a police officer contacted a doctor on duty at the hospital by telephone and asked him when the applicant would be able to participate in the proceedings. The doctor said that the applicant ’ s condition was stable, but that he remained under the influence of narcotic painkillers.

On 6 August 2010 another police officer called a doctor at the hospital and asked him about the state of the applicant ’ s health. The doctor said that he did not agree to the applicant being taken by ambulance to the Warsaw ‑ Mokotów Remand Centre because it would pose a threat to his health or even endanger his life. He also said that it would be possible to reconsider the issue on 9 August 2010.

On 6 August 2010 the Lublin District Prosecutor ( Prokurator Rejonowy ) charged the applicant with causing a fatal car accident and driving under the influence of alcohol.

The applicant was questioned by a prosecutor in hospital on the same day. He confessed that he had committed the offences he had been charged with and that he had drunk a beer ten minutes before getting into the car. He did not remember where or how the accident had happened and cried during the interview.

The Lublin District Court ( S Ä…d Rejonowy ) held a session in the hospital on the same day and the applicant confessed again. The court decided to detain him on remand for three months. It appears that his detention was subsequently extended.

The applicant was released from detention on 25 February 2011.

On 17 June 2011 the applicant was again questioned by the prosecutor, this time with a lawyer present. He said that on the day of the accident he had bought four beers at a petrol station in Łęczna , where he had met two girls. Afterwards he had “blacked out” (“ urwał mi się film” ) and had woken up in hospital. He said that he would never have caused such an accident and it must have been K.H. who had been driving. He said that his niece ’ s friend had told her that she had heard K.H. telling somebody from his family that he had been behind the wheel. The applicant stated that he did not remember the questioning at the hospital, just that a female prosecutor had come to see him. He did not remember signing anything.

On 18 January 2013 the Lublin- Wschód District Court convicted the applicant of causing a fatal car accident and of driving under the influence of alcohol. It sentenced him to five years ’ imprisonment, imposed an eight-year driving ban and ordered him to pay the costs of the proceedings incurred by the auxiliary prosecutor, I.H. (one of the injured parties). He was also ordered to pay 10,000 Polish zlotys (PLN) (approximately 2,500 euros (EUR)) in punitive damages to I.G., member of the family of the person who had died in the accident.

The court established that the applicant had driven under the influence of alcohol and had drunk twice on the day of the accident. He had also been driving at approximately twice the speed limit of 70 kilometres per hour. The court recapitulated all the statements made by the applicant and concluded that his denial of being the driver was merely a line of defence.

The applicant ’ s lawyer appealed, complaining, inter alia , that the applicant had had limited awareness of what was happening during the first interview because of the drugs he had been given and that he had not had a lawyer.

The prosecutor also appealed, arguing that the court should have ordered the applicant to pay compensation rather than punitive damages. The sentence was also not proportionate as the term of imprisonment should have amounted to six years.

On 10 May 2013 the Lublin Regional Court ( Sąd Okręgowy ) quashed the parts of the judgment concerning the penalties, punitive measures and costs and upheld the rest of it.

The court did not agree with the applicant ’ s lawyer ’ s arguments and ruled that the District Court had properly established the chain of events that had led to the accident. The court pointed out that before the first questioning the applicant had been informed of his rights, including the right to have a lawyer present and the right to remain silent, and that he had not made use of those rights. In the court ’ s opinion, the applicant had had very good verbal contact with the doctors on 6 August 2010 and his state of health had been described as good. There had thus been no circumstances that might have prevented him from understanding his rights.

On 9 December 2013 the District Court sentenced the applicant to five years and six months ’ imprisonment, imposed a driving ban of eight years and ordered him to cover the costs of the proceedings for the auxiliary prosecutors I.H. and P.H. (member of K.H. ’ s family).

The applicant ’ s lawyer appealed. On 26 May 2014 the Lublin Regional Court upheld the judgment.

On 19 February 2015 the Supreme Court refused to admit a cassation appeal by the applicant ’ s lawyer.

B. Relevant domestic law and practice

1. Constitutional provisions

Article 42 reads, in so far as relevant:

“2. Anyone against whom criminal proceedings have been brought shall have the right to a defence at all stages of such proceedings. He may, in particular, choose counsel or avail himself – in accordance with principles specified by statute – of counsel appointed by the court.”

Article 45 reads, in so far as relevant:

“1. Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.”

2. The provisions of the Code of Criminal Procedure ( Kodeks postępowani a karnego ) at the time of the applicant ’ s first questioning (some of the provisions were subsequently amended)

Article 6 reads:

“Every accused person has the right to defend himself (herself), including a right to avail himself (herself) of the presence of a lawyer, of which he (she) should be informed.”

Article 16 § 1 reads, in so far as relevant:

“If the authority in charge of the proceedings has a duty to inform participants of their duties and rights, the lack of such information or erroneous information shall not cause negative legal consequences for a participant or other person concerned.”

Article 71 § 3 reads, in so far as relevant:

“When the word ‘ the accused ’ is used in this Code in its general meaning, the relevant provisions are also applicable to a suspect.”

Article 79 read, in so far as relevant:

“1. The accused must have a lawyer in criminal proceedings if:

1) he (she) is under 18 years of age,

2) he (she) is deaf, mute or blind,

3) there is a reasonable doubt about the accused ’ s capacity.

2. The accused must also have a lawyer when the court deems it necessary because of other circumstances that could hinder the defence.”

Article 81 § 1 read, in so far as relevant:

“If the accused does not have a lawyer of his (her) own choosing in a situation described in Article 78 § 1, Article 79 §§ 1 and 2 and Article 80, the president of the court competent to examine the case shall appoint a legal aid lawyer for him (her).”

Article 175 § 1 reads, in so far as relevant:

“The accused has the right to make a statement, but he (she) can, without giving any reason, refuse to answer questions or make a statement. The accused must be informed of that right.”

Article 300 read:

“Before the first questioning the accused shall be informed of his (her) rights: to make statements, to refuse to make statements or answer questions, to lodge requests for conducting certain investigative acts, to avail himself (herself) of a lawyer ’ s help, to read the case file at the end of the proceedings, and also of the rights provided for in Article 301 and the duties described in Articles 74, 75, 138 and 139 and their consequences. This information shall be given to the accused in writing and the accused is to confirm that he (she) has received it by means of a signature.”

Article 301 reads:

“If the accused so requests, he (she) shall be questioned in the presence of a designated lawyer. The absence of a lawyer shall not impede the questioning.”

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that the questioning on 6 August 2010 and the authorities ’ subsequent endorsement of his confession as one of the key items of evidence against him deprived him of the right to a fair hearing.

Under Article 6 § 3 (b) of the Convention he complains that he did not have the time or facilities to prepare his defence before the questioning on 6 August 2010 because he was in poor health and under the influence of narcotic medication.

Lastly, he complains under Article 6 § 3 (c) that the above-mentioned circumstances meant that he was not able effectively to defend himself in person or with legal assistance.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of the criminal charges 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 or through legal assistance of his own c hoosing, as required by Article 6 § 3 (c) of the Convention?

Reference is made to the allegation that on 6 August 2010 the applicant was questioned by the authorities in the absence of a lawyer and under the influence of narcotic painkillers (see Salduz v. Turkey [GC], no. 36391/02, §§ 54-55, ECHR 2008, and Pishchalnikov v. Russia , no. 7025/04 , §§ 77-79, 24 September 2009) .