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FOURTH
SECTION
CASE OF STRZAŁKOWSKI v. POLAND
(Application
no. 31509/02)
JUDGMENT
STRASBOURG
9 June 2009
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Strzałkowski
v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
Päivi Hirvelä,
Ledi
Bianku,
Nebojša Vučinić, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 19 May 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 31509/02) against the
Republic of Poland lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) on 22 August 2002 by a Polish
citizen, Mr Janusz Strzałkowski.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs. The applicant was represented by Ms J. Agacka-Indecka, a
lawyer practising in Łódź.
- The
applicant alleged that his right to a fair trial had been violated in
that the appeal hearing in his criminal case had been held in his
absence.
- On
19 October 2007 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1964. He is currently serving a prison
sentence.
- On
26 January 1998 he was arrested on suspicion of murder. The trial
took place before the Warsaw Regional Court. The applicant,
represented by a legal-aid lawyer, was present during the trial. The
legal aid lawyer attended all hearings held before the court. On
22 February 2001 the Warsaw Regional Court convicted the applicant of
murder and sentenced him to twenty five years' imprisonment.
- The
applicant's lawyer filed an appeal against this judgment with the
Warsaw Court of Appeal (the “Court of Appeal”). He
argued, in particular, that the first instance court had
committed errors in the assessment of the evidence. It had wrongly
held that the applicant had committed, together with another
defendant A.K., a crime of murder, instead of finding the applicant
guilty only of handling and selling goods stolen from the victim. The
court had also erred in considering that the testimony given by A.K.
was credible. The court had wrongly assessed certain other pieces of
evidence on the basis of which it had accepted that the applicant had
taken part in the crime. It was further argued that the court had
failed to take into consideration circumstances pointing to the
applicant's innocence and that it had breached the principle of the
presumption of innocence.
- On
17 July 2001 the applicant lodged his own appeal with the court,
arguing essentially that he was not guilty, that the evidence had
been wrongly assessed and that he should be acquitted. On 26
September 2001 the Warsaw Court of Appeal fixed the date of the
hearing in the appeal proceedings for 28 November 2001. On the same
date the court decided, referring to Article 451 of the Code of
Criminal Procedure, that on 3 October 2001 it would hold a
session to decide whether to bring the applicant from prison to
attend the hearing.
- On
3 October 2001 the applicant was served with the decision concerning
the date fixed for the hearing. On the same date the court gave a
decision ex officio concerning the applicant's presence at the
hearing. By a letter from the court's registry, served on the
applicant on 12 October 2001, he was informed of that decision.
The letter read:
“The Warsaw Court of Appeal states that by a
decision of 3 October 2001 it has decided not to bring the accused
Janusz Strzałkowski to a hearing before that court, as his
interests will be duly represented by his defence lawyer.”
No
appeal was available against that decision.
- On
28 November 2001 the Court of Appeal held a hearing. The applicant's
lawyer and the prosecutor were present. The court considered that the
applicant had been properly summoned. The judge rapporteur of the
Court of Appeal read out the appeal submitted by the applicant
himself. The applicant's lawyer, in his oral pleadings, supported the
arguments of the defence submitted in his appeal. The prosecutor
requested the court to dismiss the appeal.
The
Court of Appeal dismissed the appeals against the first-instance
judgment. The court examined the grounds for the appeals adduced by
the applicant's lawyer. In particular, the court stressed that no
arguments had been advanced to persuade it that the findings of fact
were incorrect. The first-instance court had found the applicant
guilty essentially on the basis of the testimony of other defendants.
This evidence had been examined in a thorough manner against the
background of other evidence available in the case. The
first-instance court had exhaustively explained in the grounds for
its judgment why it believed that the testimony given by the
applicant himself had been unreliable. The appeals had failed to
provide grounds on which to accept that the findings as to the
applicant's participation in the crime and his guilt were erroneous.
The statements made in this respect in the appeals had been
flagrantly inconsistent with the evidence examined by the
first-instance court. The first-instance court had carefully
explained in the written grounds for its judgment why it had
considered certain evidence as credible and other evidence
implausible.
- This
judgment, together with its written grounds, was served on the
applicant on 7 December 2001. Subsequently, he requested legal aid
for the purposes of cassation proceedings and his request was
granted.
- The
legal-aid lawyer, the same lawyer who had represented the applicant
during the proceedings, was served with the written grounds for the
judgment on 5 February 2002. By an undated letter which was
served on the applicant on 26 February 2002, he was informed by
his lawyer that he had not found grounds on which to prepare a
cassation appeal and that he would inform the court accordingly. On
the same day the lawyer informed the court of his position.
- On
26 March 2002 the Warsaw Court of Appeal refused to assign a new
legal-aid lawyer for the purposes of cassation proceedings, finding
that there were no grounds on which to call into question the
assessment of the prospects of success of such proceedings made by
the first legal aid lawyer. No appeal was available against this
decision.
II. RELEVANT DOMESTIC LAW AND PRACTICE
1. Presence of an accused at a hearing before the appellate courts
- In
1997 a new Code of Criminal Procedure was enacted. Article 451
of the Code provided that an appellate court could order that a
defendant be detained (under the Polish law detention during judicial
proceedings is terminated only by a second instance judgment)
and that he be brought to the courtroom to attend a hearing before
that court.
Article
452 of the Code of Criminal Procedure reads:
Ҥ 1. A court of appeal shall not be allowed
to conduct evidentiary proceedings pertaining to the merits of the
case.
§ 2. In exceptional cases the appellate court, if
it finds the completion of a judicial examination necessary, may
nevertheless accept new evidence directly at the hearing, if this
will expedite the judicial proceedings and there is no necessity to
reconduct the whole of the proceedings, or a major part thereof,
anew. Before the hearing the court may issue an order on the
admission of evidence.”
- In
1999 the Supreme Court decided that during a hearing before an
appellate court a defendant should have, at the very least, an
opportunity to defend him- or herself, or to be represented by a
defence lawyer (5 October 1999, IV KKN 334/99).
- In
a judgment of 29 March 2000 the Supreme Court stated that it was
mandatory to bring the defendant to a hearing before the appellate
court, regardless of whether he or she had made a relevant request (V
KKN 111/98).
- In
a judgment of 4 October 2000 the Supreme Court stated that in cases
in which the arguments made in the statement of appeal were limited
to challenging exclusively legal aspects of a case or where only the
sentence was challenged, a decision not to bring a defendant
represented by a lawyer before the appellate court was correct (III
KKN 164/2000).
- In
July 2000 Article 451 of the Code was amended, in response to the
Court's judgment in the case of Belziuk v. Poland
(25 March 1998, Reports of Judgments and Decisions
1998 II). The amended provision read:
“The appellate court shall order an accused, who
is detained, to be brought to the appellate hearing, unless it finds
that the presence of his lawyer is sufficient. If the court decides
not to bring an accused who has no defence counsel to the hearing it
shall appoint for him ex officio a legal-aid lawyer.”
- In
2001 the Supreme Court examined the Ombudsman's request for
clarification of issues relating to the presence of the accused at
the appeal hearing. In its resolution of 18 October 2001 it
expressed the view that the right to a fair hearing demanded that the
person convicted by the first-instance court should be informed of
his right to request to be brought before the appellate court and
should be brought to such a hearing. It stated:
“...Finally, it should be underlined, that even if
the accused requests to be brought to the appeal hearing, the court
may establish that the presence of the lawyer at the appeal hearing
would be sufficient. If the accused does not have counsel, it is
necessary to appoint a legal-aid lawyer for him whose presence at the
hearing would be obligatory. It should however be noted that if an
accused deprived of liberty requests to be brought to the appeal
hearing, granting such a request should be a rule... Finding that the
presence of the lawyer would be sufficient could occur in particular
if the appeal hearing concerned only questions of law.”
- In
2003 Article 451 was further amended in that it became obligatory for
an appellate court to inform the accused of his or her right to
request leave to attend the hearing before that court.
2. Cassation appeal
- The
Supreme Court has examined, in numerous judgments, cassation appeals
based on the allegation that the absence of an accused at the appeal
hearing was a flagrant breach of law that could significantly affect
the substance of the ruling in question, within the meaning of
Article 523 of the Code of Criminal Procedure.
- The
Supreme Court on many occasions found that the refusal to bring the
accused to the appeal hearing was a flagrant breach of law that could
significantly affect the substance of the second-instance judgment.
In such cases, the Supreme Court has quashed the appeal judgment and
remitted the case (judgment of 10 August 2000, III KKN 192/00,
judgment of 5 June 2001, III KKN 28/01).
- Under
Article 83 of the Code, an accused may appoint a lawyer to represent
him or her in criminal proceedings. If he or she cannot afford
lawyers' fees, a request for legal-aid may be made under Article 78
of the Code. Legal representation for the purposes of cassation
proceedings is mandatory. In its decisions of 13 March and 17
September 2002 the Supreme Court expressed the view that when a
legal-aid lawyer refused to represent a convicted person before the
Supreme Court, the appellate court was not obliged to assign a new
lawyer to the case (II KZ 11/02, II KZ 36/02).
THE LAW
I. THE ALLEGED VIOLATION OF ARTICLE 6 § 1 IN
CONJUNCTION WITH 6 § 3 ( c ) OF THE CONVENTION
- The
applicant complained that the proceedings in his case had been unfair
and his defence rights were seriously limited because he could not
attend the only hearing held before the appellate court. He relied on
Article 6 §§ 1 and 3 (c) of the Convention.
- Given
that the requirements of paragraph 3 (c) represent specific aspects
of the right to a fair hearing guaranteed by Article 6 § 1, the
Court will examine the applicant's complaints in the light of the two
texts taken in combination (see, among many other authorities, Van
Geyseghem v. Belgium [GC], no. 26103/95, § 27,
ECHR 1999-I, and Kamasinski v. Austria, judgment of
19 December 1989, Series A no. 168, pp. 31-32, § 62).
These provisions, 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
an ... impartial tribunal established by law. ...
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 does not have the
means to pay for legal assistance, to be given it free when the
interests of justice so require;”
A. Admissibility
- The Government argued that the applicant had failed to
comply with the six-month time-limit provided for by Article 35 §
1 of the Convention. They submitted that he should have lodged his
application with the Court within six months of 28 November 2001 when
the hearing was held before the Court of Appeal.
- The applicant disagreed. He submitted that the six
months' period had started to run on 26 February 2002 when the
applicant had been informed of the legal-aid lawyer's refusal to
prepare a cassation appeal on his behalf.
- The
Government further argued that the applicant had failed to exhaust
relevant domestic remedies as he had failed to lodge a cassation
appeal with the Supreme Court. Furthermore, after he had been served
with the court's decision not to bring him to the hearing, he should
have asked the court to reconsider it.
- The
applicant argued that no appeal was available in law against the
decision not to bring him to the hearing. He clearly could not afford
a lawyer, as confirmed by the decision to grant him legal aid. As his
legal aid lawyer had refused to prepare a cassation appeal
against the judgment of the appellate court and the court had
subsequently refused to assign another legal-aid lawyer to the case,
he had been left without any legal remedies by which he could
effectively challenge the decision not to bring him to the hearing.
- As
regards the first objection made by the Government, the Court
reiterates that normally the six-month period runs from the final
decision in the process of exhaustion of domestic remedies. Where it
is clear from the outset that no effective remedy is available to the
applicant, the period runs from the date of the acts or measures
complained of. However, Article 35 § 1 cannot be
interpreted in a manner which would require an applicant to keep the
Court informed of his complaint before his position in connection
with the impugned matter has been finally settled at the domestic
level. Where, therefore, an applicant avails himself of an apparently
existing remedy and only subsequently becomes aware of circumstances
which render the remedy ineffective, the Court considers that it may
be appropriate for the purposes of Article 35 § 1 to take
the start of the six-month period from the date when the applicant
first became or ought to have become aware of those circumstances
(see Keenan v. the United Kingdom (dec.), no. 27229/95,
22 May 1998).
- In
this connection and in so far as the Government have argued that to
exhaust domestic remedies the applicant should have lodged a
cassation appeal with the Supreme Court, the Court observes that
under Polish law a cassation appeal can be brought by a party
alleging a flagrant breach of any substantive or procedural provision
of law capable of affecting the substance of the judgment. That
includes a breach of the right to defend himself in person and of the
principle of equality of arms (see Dobrowolski v. Poland
(dec.), no. 17842/02, 7 March 2006). The cassation appeal was
therefore a remedy whereby the applicant could have effectively
submitted the substance of his complaint to the Supreme Court and
sought relief. The Court further notes that legal representation was
mandatory for the purposes of preparing a cassation appeal.
However,
in the applicant's case the legal-aid lawyer refused to prepare a
cassation appeal against the judgment of the appellate court, finding
no legal grounds on which to do so. Subsequently the court refused to
assign another legal-aid lawyer to the case. The Court notes that the
courts, by granting the applicant legal aid, acknowledged his lack of
financial resources. The Court is of the view that the applicant
should not therefore have been required to embark on further attempts
to obtain legal assistance with a view to lodging a cassation appeal.
Hence,
the Court considers that it was the court's refusal, on 26 February
2002, to assign a second legal-aid lawyer to the case which
ultimately determined the applicant's ability to bring his procedural
complaint to the attention of the Supreme Court. This refusal
therefore amounted to a final decision in the process of the
exhaustion of domestic remedies. The applicant brought his
application to the Court on 22 August 2002, having thereby complied
with the six-month requirement.
- It
follows that the plea of inadmissibility must be dismissed.
- The
Government further submitted that the applicant had never requested
leave to be brought to the hearing, despite the fact that he had been
informed about the court's decision on 3 October 2001, that is,
almost two months before the date of the hearing.
- The
Court considers that the Government's preliminary objection under
this head is closely linked to the merits of the applicant's
complaint. Accordingly, it decides to join its examination to the
merits of the case.
- The Court notes that the application is not manifestly
ill founded within the meaning of Article 35 § 3
of the Convention. It further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties' submissions
-
The Government emphasised that the applicant had failed to request
that the court of appeal bring him to the hearing. That court had
given the decision regarding his presence before it ex officio.
Hence, the present case differed significantly from Belziuk
v. Poland, referred to above, where such a request had been
made. The circumstances of the case were therefore similar to the
situation examined by the Court in Golubev v. Russia
(no. 26260/02, 9 November 2006) where the Court had found
that since the applicant had been represented by a lawyer, it had not
been necessary to bring him before the appellate court.
They
further submitted that in the present case the appellate court had
relied on Article 451 of the Code of Criminal Procedure. At the
material time the court was not obliged to inform the accused ex
officio that he had been entitled to request leave to be present.
The decision of 3 October 2001 had therefore been in compliance
with the applicable domestic law.
- The
Government further submitted that the applicant had been present and
represented at all hearings before the first-instance court. He had
been informed on 3 October 2001 of the court's refusal to bring him
to the hearing scheduled for 28 November 2001, so he had had ample
time to ask the court to reconsider its decision. He could also have
asked his lawyer for advice. It had not been shown that he had done
that. His lawyer had been present at the hearing before the appellate
court and could have submitted the applicant's arguments. As the
prosecution had not appealed against the judgment, the principle of
equality of arms had not been breached. The court had not obtained
any supplementary evidence. Hence, the applicant's presence had not
been necessary and his absence had not limited his defence rights.
- The
applicant argued that he had not been aware of his right to request
to be brought before the Court of Appeal. His absence before that
court had rendered the proceedings unfair as he had not been able to
ask questions which were, in his view, necessary for the assessment
of his guilt or innocence. No appeal had been available in law
against the decision not to bring him before the appellate court. He
could only raise this complaint in a cassation appeal. It had
ultimately been impossible for him to do so as the legal aid
lawyer refused to prepare such an appeal on his behalf.
2. The Court's assessment
(a) General principles
- The
Court reiterates that the object and purpose of the Article 6
taken as a whole show that a person “charged with a criminal
offence” is entitled to take part in the hearing. Moreover,
sub-paragraph (c) guarantees to “everyone charged with a
criminal offence” the right “to defend himself in person”
and it is difficult to see how he could exercise these rights without
being present (see Colozza v. Italy, judgment of
12 February 1985, Series A no. 89, p. 14, § 27,
and Sejdovic v. Italy [GC], no. 56581/00, § 81,
ECHR 2006 ...).
- Nonetheless,
the personal attendance of the defendant does not take on the same
crucial significance for an appeal hearing as it does for the trial
hearing (see Kamasinski v. Austria, 19 December 1989,
§ 106, Series A no. 168). The manner in which
Article 6 is applied to proceedings before courts of appeal depends
on the special features of the proceedings involved; account must be
taken of the entirety of the proceedings in the domestic legal order
and of the role of the appellate court therein (see Ekbatani
v. Sweden, judgment of 26 May 1988, Series A no. 134,
§ 27, and Monnell and Morris v. the United Kingdom,
cited above, § 56). Proceedings involving only questions of
law, as opposed to questions of fact, may comply with the
requirements of Article 6, despite the fact that the appellant is not
given the opportunity to be heard in person by the appeal or
cassation court, provided that a public hearing is held at first
instance (see, among other authorities, Monnell and Morris,
cited above, p. 22, § 58, as regards the issue of
leave to appeal, and Sutter v. Switzerland, judgment of
22 February 1984, Series A no. 74, p. 13, § 30,
as regards the court of cassation).
- However, even where the court of appeal has
jurisdiction to review the case both as to the facts and to the law,
Article 6 does not always require a right to a public hearing, still
less a right to appear in person (see Fejde v. Sweden,
judgment of 29 October 1991, Series A no. 212 C,
p. 68, § 31). In order to decide this question, regard
must be had, among other considerations, to the specific features of
the proceedings in question and to the manner in which the
applicant's interests were actually presented and protected before
the appellate court, particularly in the light of the nature of the
issues to be decided by it (see Belziuk
v. Poland, referred to above, § 37, Hermi v. Italy
[GC], no. 18114/02, § 60, ECHR 2006 ...). Where
an appellate court has to examine a case as to the facts and the law
and make a full assessment of the issue of guilt or innocence, it
cannot determine the issue without a direct assessment of the
evidence given in person by the accused for the purpose of proving
that he did not commit the act allegedly constituting a criminal
offence (see Dondarini v. San Marino, no. 50545/99,
§ 27, 6 July 2004). The wider concept of a fair trial
also includes the fundamental right that criminal proceedings should
be adversarial. The latter means, in a criminal case, that both
prosecution and defence must be given the opportunity to have
knowledge of and comment on the observations filed and the evidence
adduced by the other party (see, among other authorities,
Brandstetter v. Austria, 28 August 1991, §§ 66
and 67, Series A no. 211).
- Lastly,
the Court reiterates that neither the letter nor the spirit of
Article 6 of the Convention prevents a person from waiving of his own
free will, either expressly or tacitly, the entitlement to the
guarantee of a fair trial (see Kwiatkowska v. Italy
(dec.), no. 52868/99, 30 November 200l, and Hermi v
Italy, cited above, § 73). However, such a waiver must,
if it is to be effective for Convention purposes, be established in
an unequivocal manner and be attended by minimum safeguards
commensurate with its importance (see Poitrimol v. France,
23 November 1993, § 31, Series A no. 277 A).
Furthermore, in view of the prominent place
held in a democratic society by the right to a fair trial, Article 6
of the Convention imposes on every national court an obligation to
check whether the defendant has been informed of the date of the
hearing and of the steps to be taken in order to take part (see,
mutatis mutandis,
Somogyi v. Italy,
no. 67972/01, § 72, ECHR 2004-IV, and Hermi
v. Italy [GC], cited above,
§ 76).
(b) Application of the above principles to the facts
of the case
- The
Court first notes that in the proceedings before the first-instance
court the applicant, who was legally represented, was present and
gave evidence in person.
- The
Court further notes that the applicant asserts that his right to
defend himself was violated by the fact that he was not present at
the only hearing held before the court of appeal. The appellate court
decided that his presence was not necessary, having regard to the
fact that the applicant was legally represented.
- The
Court observes that in his appeal the applicant argued, inter
alia, that the trial court had committed errors in the assessment
of the evidence and that the establishment of the facts had been
erroneous. Hence, the applicant essentially sought to challenge the
soundness of his conviction on the facts. The appeal against the
first-instance judgment was therefore not limited to the legal
aspects of the case. It is further noted that under domestic law the
court of appeal was empowered to hear evidence de novo in
certain circumstances (see paragraph 23 above).
- In
this context, the Court notes that the appellate court decided not to
bring the applicant to the courtroom, having regard to the fact that
he was legally represented at the appeal hearing. It accepts that the
fact that an accused is properly represented before a court of appeal
is, for obvious reasons, of direct relevance for ensuring that the
hearing was fair.
However,
it notes that in its decision no reference was made by the Court of
Appeal to the specific grounds of appeal submitted by the applicant.
Nor did the court make any distinction between the factual issues
raised by the applicant which were ultimately relevant for the
assessment of his guilt or innocence, and merely legal issues. There
is no indication that the court considered that this distinction was
pertinent to the decision it had to take regarding the applicant's
presence during the hearing (compare and contrast Hermi v. Italy,
cited above, § 84-85).
- The
Court further notes that the Court of Appeal, in the grounds for its
judgment, focused on issues pertaining to the assessment of the
evidence and on the manner in which the first-instance court had made
findings relevant to the applicant's guilt. The Court observes that
under the relevant provisions of the Polish law of criminal procedure
the jurisdiction of an appeal court to questions of both fact and
law. It considers that in such circumstances where the scope of a
particular appeal filed with such a court is not confined to pure
questions of 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 that he be notified in advance in clear
terms of his right to do so.
- In
the circumstances described above and given also the nature of the
grounds of appeal advanced by the applicant and his lawyer, the
Court considers that the issues to be determined by the court of
appeal could not, as a matter of fair trial, properly have been
examined without a direct assessment of the evidence given by the
applicant in person (see, mutatis mutandis, Belziuk
v. Poland, cited above, § 38).
- The
Court further observes that the public prosecutor attended the
hearing and requested the court not to allow the appeals lodged by
the defence. In the circumstances described above and given that the
nature of the grounds of appeal advanced by the applicant warranted
his presence before the court, the Court is of the view that the mere
presence of the lawyer could not redress the unfavourable lack of
balance between the prosecution and defence.
- Having
regard to its findings, the Court considers that the proceedings
before the Regional Court did not comply with the requirements of
fairness.
- It
remains to be determined whether, as argued by the Government the
applicant lost the opportunity to be present at the appeal hearing by
failing to submit a relevant request, in other words whether he had
waived his right to take part in the appeal hearing.
- The
Court observes that no explicit waiver was made in the present case.
Hence, an issue arises whether the applicant's conduct could
reasonably be regarded as unequivocal waiver of his procedural rights
(see Hermi v. Italy, cited above, § 72; see
also paragraph 42 above). On 12 October 2001 the applicant
was informed that the Court of Appeal had decided that his presence
at the hearing was not necessary. However, it has not been shown or
argued that the applicant was properly informed that he had to make a
special request if he wished to attend the hearing. Regard must be
had in this respect to the provisions of domestic law to establish
whether the procedure concerning the presence of an accused before
the court of appeal are laid down there in a sufficiently clear
manner.
- The
Court notes that the circumstances examined in the present case
resemble, to a certain extent, the case of Hermi
v. Italy.
In that case the applicant, who was represented by two lawyers, had
been informed of the appeal hearing more than two months in advance
but did not apply to attend it until after the deadline of five days
before the hearing. The procedure for applying to the court had been
clearly set out in the domestic law. The Court found that the
domestic court had been entitled to take the applicant's conduct as a
tacit but unequivocal waiver, in particular as making the requisite
application would not have involved the applicant in any excessive
procedural formalities (see Hermi,
cited above, §§ 89-103).
- In
the present case, the Court observes that Article 451 of the Code of
Criminal Procedure, as it stood at the material time, did not
expressly state that in order to participate in a hearing a defendant
had to make a special request. Nor did it provide for an obligation
on the court's part to inform a defendant of his right to submit such
a request. It was only in 2003 that this provision was
amended. It was then that it became obligatory for an appellate court
to inform the accused of his or her right to request leave to attend
the hearing before that court. No arguments have been advanced by the
Government to show that in the present case the applicant had been
properly informed of the steps he had to take in order to be allowed
to attend the hearing. In such circumstances it cannot be said that
the applicant waived his right in a clear and unequivocal manner.
- Having
regard to its findings in paragraphs 41 and 55 above, the Court
considers that the proceedings before the Court of Appeal did not
comply with the requirements of fairness. There has accordingly been
a violation of Article 6 § 1 taken in conjunction with
Article 6 § 3 (c) of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that the courts had wrongly assessed the
evidence, disregarded certain of his requests for evidence to be
included and, as a result, had failed to establish the facts of the
case correctly and had made wrong decisions. He should not have been
found guilty. He further submitted that he had not had access to a
part of the case file and that he had been prevented from putting
questions to the witnesses.
- As to the assessment
of evidence, the
Court reiterates that, while Article 6 of the Convention guarantees
the right to a fair hearing, it does not lay down any rules on the
admissibility of evidence or the way it should be assessed, which are
therefore primarily matters for regulation by national law and the
national courts (see Schenk v. Switzerland,
12 July 1988, §§ 45 46, Series A
no. 140, and García Ruiz v. Spain [GC],
no. 30544/96, ECHR 1999-I, § 28).
- In
so far as the applicant complains that he was denied access to the
case file and was not given the opportunity to put questions to the
witnesses, the Court notes that he has failed to substantiate these
complaints.
- It
follows that this part of the application is manifestly ill founded
and must be rejected in accordance with Article 35 §§ 3
and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 30,000 Polish zlotys (PLN) in respect of pecuniary
damage connection with his criminal conviction. He further claimed
75,000 Polish zlotys (PLN) in respect of non pecuniary damage.
- The
Government contested the applicant's claim.
- The Court finds no link between the violation
complained of and the pecuniary damage alleged. It cannot
speculate about the
outcome of the proceedings had the applicant participated in the
hearing before the court of appeal. The Court therefore rejects the
claim in its entirety.
- On
the other hand, the Court considers that the applicant must have
suffered distress and frustration from the violation of his right to
a fair hearing. However, the amount claimed appears to be excessive.
Making its assessment on an equitable basis, the Court awards the
applicant 1,500 euros (EUR) in that respect, plus any tax that
may be chargeable on that amount.
B. Costs and expenses
- The
applicant did not claim reimbursement of the costs and expenses
incurred before the Court over and above the amount which had been
granted to him by the Court by way of legal aid.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the
applicant's presence before the Court of Appeal admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 taken in conjunction with Article 6 § 3 (c) of the
Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,500 (one
thousand five hundred euros), plus any tax that may be chargeable, in
respect of non pecuniary damage, to be converted into Polish
zlotys at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 9 June 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
