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FOURTH
SECTION
CASE OF SOBOLEWSKI v. POLAND (No. 2)
(Application
no. 19847/07)
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 Sobolewski v.
Poland (no. 2),
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. 19847/07) 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”) by a Polish national, Mr
Daniel Sobolewski.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of
Foreign Affairs.
- 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 as the court had refused his request to be brought to the
hearing from prison.
- On
19 October 1997 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 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1963. He is currently serving a prison
sentence.
- The
applicant was charged with multiple counts of fraud and unlawful
possession of a firearm. The trial took place before the Grodzisk
Wielkopolski District Court. The applicant, represented by a
legal-aid lawyer, was present during the trial. On 19 May 2006 the
court convicted the applicant of multiple counts of fraud, acquitted
him of the charge of unlawful possession of a firearm and sentenced
him to two years' imprisonment.
- The
applicant's legal aid lawyer, who had represented him during the
proceedings, filed an appeal against this judgment with the Poznań
Court of Appeal. He maintained, in particular, that the
first instance court had committed errors when applying the
relevant provisions of substantive law; that the court had erred in
refusing to admit a further expert opinion in evidence; that the
presumption of innocence had thereby been breached as the court had
refused to admit this evidence because the applicant had in the past
been convicted in different criminal proceedings; and that the court
had wrongly established the relevant facts of the case which had led
it to make a wrong decision.
- By
a letter dated 2 July 2006 the applicant lodged his own appeal with
the court. He argued, inter alia, that the first instance
court had committed errors in the assessment of the evidence, that
the establishment of the facts had been erroneous and that the
court's reasoning, leading to the finding of guilt, was arbitrary. He
argued that the principle of the presumption of innocence had thereby
been breached. The prosecuting authorities also appealed against the
judgment.
- By
a letter of 10 October 2006 the applicant, who was in detention at
that time, requested leave to be brought from prison to the hearing
before the Poznań Court of Appeal. His request read:
“On the basis of Article 451 of the Code of
Criminal Procedure, I hereby request to be brought to a hearing to be
held on 22 November 2006 before the court of appeal during the appeal
proceedings against the judgment of the Grodzisk Wielkopolski
District Court.”
- By
a decision of 25 October 2006 the court refused leave. The
decision read as follows:
“Under Article 451 of the Code of Criminal
Procedure an appellate court shall order that a detained accused be
brought to the hearing, unless it decides that the presence of a
lawyer is sufficient.
The Regional Court is of the view that the [applicant's]
request is very brief and vague and that its author has limited
himself to saying that he would like to attend the hearing, failing
to specify reasons why his presence was necessary or required.
The [applicant] is represented by a legal-aid lawyer,
whose presence at the appeal hearing is obligatory. In those
circumstances his right to an effective defence will be fully
secured.”
- On
22 November 2006 the Court of Appeal held a hearing. The applicant's
lawyer was present. In his oral pleadings the lawyer reiterated the
arguments advanced in his 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 and by the applicant himself. It was of the
view that the lower court had thoroughly assessed the evidence and
had carefully considered the applicant's guilt. Its conclusions were
logical, thorough and meticulously explained in the light of the
voluminous evidence obtained in the case.
- By
a letter of the same date the applicant's legal-aid lawyer informed
him that he had attended the hearing and that the court had dismissed
the appeals lodged by the prosecution and by the applicant. He
further informed the applicant that he had requested the court to
prepare written grounds for the judgment, but that under no
circumstances would he prepare a cassation appeal against the
judgment.
- That
judgment, together with its written grounds, was served on the
applicant's lawyer on 2 January 2007. Subsequently, the applicant
requested to be granted legal aid for the purposes of cassation
proceedings and his request was granted. Advocate K.J. was assigned
to represent the applicant. She informed the court, by a letter of
24 January 2006, that she saw no grounds on which to prepare a
cassation appeal. She was, inter alia, of the view that the
applicant's legal-aid lawyer had attended the hearing before the
appellate court and had actively conducted the applicant's defence.
She further emphasised that the applicant's request to attend the
hearing had been very brief.
- By
a letter of 26 January 2007 the court notified the applicant of the
lawyer's refusal to act on his behalf. It also informed the applicant
that the thirty day time limit for the lodging of a
cassation appeal started to run from the date on which that letter
was served on the applicant.
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 on remand (under Polish law detention on remand
is terminated only by a second instance judgment) and 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
conduct 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 adopted a resolution stating that during a
hearing before an appellate court a defendant should have, at 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 the 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
(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 for him a legal-aid lawyer 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 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 had been seriously limited because he had been
refused leave to 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 acknowledged that the applicant had
complied with the requirement to exhaust relevant domestic remedies.
The applicant submitted that no appeal was available in law against
the refusal to bring him before the court of appeal. Nor could he
lodge a cassation appeal with the Supreme Court as two legal aid
lawyers had refused to prepare such an appeal.
- The
Court notes that the Government have not disputed that the
applicant's case does not raise a non-exhaustion issue. It would only
observe that under Polish law and the practice of the Supreme Court 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.
However, legal representation was mandatory for the purposes of
preparing a cassation appeal.
In
the applicant's case two successive legal aid lawyers had
refused to prepare a cassation appeal against the judgment of the
appellate court, finding no legal grounds on which to do so. Hence,
the applicant, whose lack of financial resources was acknowledged by
the court which granted him legal aid, could not be required to
embark on further attempts to obtain legal assistance with a view to
lodging a cassation appeal.
- Accordingly,
the Court confirms that, for the purposes of Article 35 § 1
of the Convention, the applicant has exhausted domestic remedies.
30. 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
applicant submitted that the presence of a lawyer before the
appellate court could not be regarded as equivalent to the
defendant's personal presence. He emphasised that under Polish law it
had been possible for the court of appeal to accept new evidence. He
referred to the Court's Belziuk v. Poland judgment,
referred to above (paragraph 19). He further argued that he had
expressly requested to be brought to the hearing before the court of
appeal and that the principle of equality of arms had been breached
because the prosecutor had attended that hearing in his absence.
- The
Government disagreed. They argued that the present case was
similar to P.O. v. Poland (dec.), no. 42618/98,
14 January 2003, which the Court had declared inadmissible. In
that case the applicant had also been refused leave to be brought
from prison to attend a hearing before the appellate court. The court
had refused leave because the applicant had been represented by a
lawyer and that fact was sufficient to ensure the fairness of the
proceedings.
In
the present case the applicant, charged with multiple counts of fraud
and unlawful possession of a firearm, had faced much less serious
charges than the applicant in P.O. v. Poland who
had been charged with murder. The applicant had been present at all
the hearings before the first instance court and had been
represented by a legal aid lawyer. Subsequently, the lawyer had
lodged an appeal against the first instance judgment and also
supported the appeal formulated by the applicant himself. The lawyer
had attended nearly all the hearings before the first-instance court
and when he could not be present, had requested another lawyer to
replace him. He had also been present before the appellate court and
could comment on all submissions made by the prosecuting authorities.
The Government referred to the Court's judgments in the cases Monnell
and Morris v. the United Kingdom (2 March 1987, Series A
no. 115) and Belziuk v. Poland (referred to above).
They concluded that the criminal proceedings had been fair.
2. The Court's assessment
(a) General principles
- The
Court reiterates that the object and purpose of 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, although the appellant was not given
an opportunity of being heard in person by the appeal or cassation
court, provided that a public hearing was 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 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).
- 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
guarantees of a fair trial (see Kwiatkowska v. Italy
(dec.), no. 52868/99, 30 November 2000l 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).
(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
applicant asserts that his right to defend himself was violated by
the fact that the appellate court refused to grant him leave to
attend the only hearing to be held before that court. The Court notes
that under Polish law the applicant had the right to attend the
appeal hearing, unless the court found that the lawyer's presence was
sufficient. In this connection, it observes that the applicant
requested to be brought to the hearing expressly and in writing.
Therefore, no issue arises as to whether he can be regarded as having
waived his right to attend that hearing.
- 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. Similar arguments were submitted in the appeal lodged with
the appellate court by his lawyer. Hence, the applicant essentially
sought to challenge the soundness of his conviction on the facts. The
appeals against the first-instance judgments were 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 refused to
grant the applicant's request, 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 refusing to bring the applicant to the courtroom no
reference was made to the specific grounds of appeal submitted either
by the applicant himself or by his lawyer. Nor did the court make any
distinction, for the purposes of its examination of the applicant's
request, 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 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 (see paragraph 11 above).
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 notes that the applicant's request to be brought to the
hearing was submitted on 10 October 2006 and the hearing was held six
weeks later, on 22 November 2006. Hence, unlike in Hermi v. Italy,
his request, made well in advance, did not entail the need to
postpone the hearing (Hermi v. Italy, cited above, § 20).
- Having
regard to its findings, the Court considers that the proceedings
before the Regional Court 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. 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 8,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government contested his claim.
- The
Court considers that the applicant must have suffered distress and
frustration on account of a breach 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 EUR in that respect plus any tax that may be
chargeable on that amount.
B. Costs and expenses
- The
applicant did not make any claim in respect of costs and expenses.
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 application admissible;
- 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 the
national currency 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
