CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 29 novembre 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 23103/93                       by A. B.                       against Poland         The European Commission of Human Rights (Second Chamber) sitting in private on 29 November 1995, the following members being present:              Mr.    H. DANELIUS, President            Mrs.   G.H. THUNE            MM.    G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN              Ms.    M.-T. SCHOEPFER, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 31 May 1993 by A. B. against Poland and registered on 15 December 1993 under file No. 23103/93;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to :   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on       28 November 1994 and the observations in reply submitted by the       applicant on 16 January 1995; and his additional observations       submitted on 23 June 1995 and on 19 October 1995;         Having deliberated;         Decides as follows:   THE FACTS         The facts of the case, as submitted by the applicant, may be summarised as follows:         The applicant, a Polish citizen born in 1949, is a miner, currently serving a prison sentence in Nowy S*cz prison in Poland.   He is represented before the Commission by Mr. Janusz Galkowski, a lawyer practising in Zywiec.   Particular circumstances of the case         On 31 May 1992 the applicant, who had been released on probation, was arrested on suspicion of having attempted to steal a car, and on 2 June 1992 he was remanded in custody.         On 19 August 1992 the Public Prosecutor informed the applicant of charges against him and obliged him to confirm the receipt of the document containing these charges as of 2 June 1992.         The trial took place on 24 September, 15 October and 25 November 1992 before the Tarnów District Court (S*d Rejonowy).   The Court heard as witnesses the car's owner, his neighbour and the police expert, who confirmed that the door lock had been tampered with in order to be opened.   In the proceedings the applicant was present, but not represented by a lawyer.         On 25 November 1992 the District Court convicted the applicant of attempted theft and sentenced him to three years' imprisonment.   The Court found that the testimony put forward by the witnesses was exhaustive and logical and that their statements were consistent.   The Court also considered as evidence a bag with instruments which might have served to open the car lock. This bag had been found in close vicinity of the applicant at the moment of his arrest.   The Court acquitted the applicant of the offence of having used a stolen identity card.         The applicant filed an appeal against this judgment with the Tarnów Regional Court (S*d Wojewódzki).   He maintained in particular that the first instance court had disregarded his explanations and had considered only the evidence for the prosecution as being credible. The applicant also requested that his accomplice and two policemen who had arrested him be heard as witnesses and that he be brought from prison to the hearing before the Tarnów Regional Court.         On 21 April 1993 the Tarnów Regional Court refused the applicant's request to be brought before the Court finding that his presence was unnecessary.   It found in particular that the applicant had given a detailed account of the events before the District Court. Moreover, in his appeal he had exhaustively presented his complaints in respect of the contested conviction.   The Court considered that the applicant had sufficient time to submit further observations in writing, should he wish to do so.         The date of the hearing was fixed for 10 May 1993.         On 29 April 1993 the applicant applied to the Regional Court for legal aid, but he received no reply to this application.         On 10 May 1993, after a hearing at which the applicant was not present but where the public prosecutor was present, the Regional Court dismissed the applicant's appeal.   The Court considered that the District Court had thoroughly assessed the evidence and had carefully considered the applicant's guilt.   This appeared from the fact that the applicant had been acquitted of one of two charges.   The Court found that the evidence given by the applicant was inconsistent and motivated by his wish to avoid conviction.   Moreover, the applicant had failed to request further evidence to be taken before the Tarnów District Court.   Only in his appeal had he submitted a request to have the policemen heard who had arrested him.   However, the Court considered it unnecessary to hear the witnesses as the other evidence presented to the District Court had sufficiently demonstrated the applicant's guilt.   Relevant domestic law         The relevant provisions of the Polish Code of Criminal Procedure read as follows:         < Translation >:         Art. 399.         "A court of appeal shall conduct a hearing when examining a case.       (...)"         Art. 400 para. 1.         "A hearing shall be held irrespective of whether the parties are       present.   A hearing shall not be held if the Public Prosecutor       is absent. (...)"         Art. 401.         "If a case is to be examined at a hearing, the court may order       an accused who is detained to be brought to the hearing."         < Original >:         Art. 399.         "S*d rewizyjny rozpoznaje spraw* na rozprawie (...)"         Art. 400 para. 1.         "Niestawiennictwo stron, poza prokuratorem, nie tamuje       rozpoznania sprawy na rozprawie. (...)"         Art. 401.         "Jezeli zarz*dzono rozpraw*, s*d moze zarz*dzic sprowadzenie na       ni* oskarzonego pozbawionego wolnosci."   COMPLAINTS         The applicant complains that the Public Prosecutor did not hear his accomplice and alleges that certain letters which he had written to the Public Prosecutor and the District Court were destroyed by the Public Prosecutor.   He submits that the Public Prosecutor served him with information of charges against him on 19 August 1992, this information bearing the date of 2 June 1992, and that he was obliged to sign it against his will.         The applicant further complains about the proceedings before the District Court.   Thus, the Court lacked impartiality.   He also complains of the assessment of evidence and of discrimination, in particular that a more severe penalty was imposed on him as he was a recidivist.         The applicant also complains about the proceedings before the Regional Court.   He submits that he was refused leave to be present and heard by that Court, while the Public Prosecutor was present at the hearing. He submits that this Court failed to reply to his request for legal aid and that he was not granted the assistance of an officially appointed lawyer in the proceedings before this Court.         The applicant relies on Article 5, Article 6 paras. 1, 2 and 3 subparas. (c) and (d), Article 7 para. 1 and Article 14 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 31 May 1993 and registered on 15 December 1993.         On 31 August 1994 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.         The Government's written observations were submitted on 28 November 1994.   The applicant replied on 16 January 1995 and submitted additional observations on 23 June 1995 and on 19 October 1995.         On 4 July 1995 the Commission granted the applicant legal aid.   THE LAW   1.     The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention about the unfairness of the investigations and of the proceedings before the Tarnów District and Regional Courts.         Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, reads:         "     In the determination of ... any criminal charge against       him, everyone is entitled to a fair and public hearing ... by (a)       ... tribunal ..."         Article 6 para. 3 (c) (Art. 6-3-c) of the Convention provides:         "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 has not sufficient means       to pay for legal assistance, to be given it free when the       interests of justice so require..."   a)     The Commission first recalls that Poland recognised the competence of the Commission to receive individual applications "from any person, non-governmental organisation or group of individuals claiming to be a victim of a violation of the rights recognised in the Convention through any act, decision or event occurring after 30 April 1993".         The Commission notes that the complaints partly concern the events which occurred during the investigations by the Public Prosecutor.   These investigations ended in 1992.   Some complaints relate to the proceedings before the Tarnów District Court which pronounced its judgment on 25 November 1992.   These complaints concern events which predate 1 May 1993, i.e. the date on which the Commission's competence to examine individual applications against Poland became effective.         It follows that this part of the application is outside the competence ratione temporis of the Commission and is therefore incompatible with the provisions of the Convention within the meaning of its Article 27 para. 2 (Art. 27-2).   b)     As regards the proceedings before the Tarnów Regional Court, the Government submit that the applicant's complaints relating to the proceedings before this Court are incompatible ratione temporis with the provisions of the Convention.   They also submit that the refusal to allow the applicant to be present at a hearing before the Tarnów Regional Court was made before 30 April 1993 and thus the Commission lacks competence ratione temporis to examine it.         The applicant submits that the Tarnów Regional Court held the hearing and convicted him on 10 May 1993, i.e. after the date on which the Commission's competence to examine applications against Poland became effective.   The Tarnów Regional Court could have rectified the shortcomings of the proceedings before the lower Court, but it failed to do so.   The Commission is thus competent ratione temporis to deal with his application.         The applicant further submits that he was deprived of his right to defend himself in person or through legal assistance during the appeal proceedings before the Tarnów Regional Court which took place after 30 April 1993, i.e. on 10 May 1993.   Therefore the Commission is competent ratione temporis to examine his complaints in this respect, notwithstanding the fact that the refusal to bring him to a hearing on 10 May 1993 was taken before 30 April 1993.         The Commission notes that in the present case the judgment of the Tarnów District Court was pronounced on 25 November 1992.   On 21 April 1993 the Tarnów Regional Court refused the applicant's request to be brought to the hearing before the Court.   On 10 May 1993 the Regional Court held the hearing and dismissed the applicant's appeal.   It follows that the Commission lacks competence ratione temporis to review the proceedings before the Tarnów District Court.   These proceedings may however be taken into account as background to the issue whether the applicant's defence rights before the Tarnów Regional Court were observed (cf. Eur. Court H.R., Kerojärvi judgment of 19 July 1995, Series A no. 328, para. 41; mutatis mutandis, Hokkanen judgment of 23 September 1994, Series A no. 299-A, p. 19, para. 53).         The Commission further observes that the refusal to allow the applicant to be present before the Regional Court, even though it was made before 30 April 1993, subsequently affected the applicant's position as regards his defence rights in the proceedings before this Court, which took place after that date.   It follows that the complaints relating to the Regional Court's proceedings cannot be rejected as being outside the Commission's competence ratione temporis.   2.     The applicant complains that he was refused leave to be present before and heard by the Tarnów Regional Court, while the Public Prosecutor was present at the hearing.   He submits that this Court failed to reply to his request for legal aid and that he was not granted an officially appointed lawyer in the proceedings before this Court.   a)     As regards the complaint about the applicant's legal representation in the proceedings before the Regional Court, the Government first submit that the applicant did not exhaust domestic remedies as regards his request for assistance of an officially appointed lawyer.   The letter of 29 April 1993 in which he allegedly requested such assistance is not to be found in the case-file.   They submit that the applicant has invented this letter and that the duplicate, which he has submitted to the Commission, appears to be counterfeit and was made only for the purposes of the proceedings before the Commission.         The applicant denies this. He contends that he sent his request for a lawyer to be appointed by registered letter to the Tarnów Regional Court on 29 April 1993.   He contends that he sent an authentic copy of the letter of 29 April 1993 to the Minister of Justice when applying for leave to file an extraordinary appeal.   The Ministry allegedly failed to reply and failed to send the copy back. The applicant further submits that he could not have exhausted applicable domestic remedies as the Regional Court did not take any decision as regards his request to have a lawyer appointed.   Therefore there was no decision to be appealed against.   The applicant submits that under Polish law an accused can request to have a lawyer appointed until the hearing before the appellate court is closed.   As the applicant was refused permission to attend this hearing, he could not ask at the hearing to have a lawyer appointed.         The Commission notes that there is disagreement as to the facts. The Commission first observes that the applicant submitted a duplicate of the copy of his request of 29 April 1993 following the Commission's request to complete his submissions by submitting information as to whether he was represented in the proceedings by an officially appointed lawyer.   The applicant has not submitted any relevant evidence that his request had actually been submitted to the Regional Court, eg. a copy of the posting slip or confirmation that this request was posted by the prison authorities.   It does not transpire from the confirmation of the mailing of the letter to the Minister of Justice, referred to by the applicant, that it indeed contained a copy of the request in question.   Consequently, the Commission concludes that it has not been established that the applicant had submitted a request to the Tarnów Regional Court to have a lawyer appointed for the purpose of the proceedings before that Court.         Therefore this complaint is manifestly ill-founded and must be rejected under Article 27 para. 2 (Art. 27-2) of the Convention.   b)     As regards the applicant's personal defence before the Tarnów Regional Court, the Government submit that the applicant neither appointed a defence counsel nor demanded to be assisted by an officially appointed lawyer.   Throughout the investigations and the proceedings before the Tarnów District Court he actively defended himself, requesting inter alia that evidence be taken and presenting to the court an extensive account of the material events.   The refusal to allow the applicant to be present before the appellate court was in conformity with the domestic law, in particular with Article 401 of the Code of Criminal Procedure.   This decision was taken after due examination of the complaints which the applicant had submitted in his appeal against the judgment of the Tarnów District Court.   The Regional Court considered in particular that these complaints did not justify any further taking of evidence as requested by the applicant, as the evidence in question was not relevant to the issue of the applicant's criminal liability.   Consequently, there was no need for the applicant to be present.   This decision does not appear to be arbitrary.   Under Polish law the evidence is not taken in criminal appeal courts.   Had the court found any deficiencies in the first instance judgment as regards the taking of evidence, it would have quashed that judgment and ordered reconsideration of the case.         The Government also submit that the applicant's defence rights were further safeguarded by the fact that he could have submitted written observations to the Regional Court.         The applicant submits that he was deprived of his right to defend himself in person.   The right to defend oneself in person is a crucial element of defence rights.   Therefore any limitations in this regard can be justified only if there is a clear and unequivocal waiver on the part of an accused.   There was no such waiver in the present case; on the contrary, the applicant expressly requested that he be allowed to be present at the hearing of the Tarnów Regional Court.         The applicant further submits that this right is of paramount importance, in particular in proceedings before the court of first instance.   However, the extent to which an accused may be refused to be personally present in proceedings before an appellate court depends upon the special features of the proceedings in question.   If in such proceedings the court decides only on points of law, the presence of the accused can be dispensed with.   If, however, the court is competent to decide both as to the facts and the law, a refusal to allow an accused to be present at a hearing amounts to a violation of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention.   Under Polish law,   the jurisdiction of appellate courts in criminal proceedings is much wider than that of a court of cassation and encompasses both questions of fact and law.   Regard should be had in particular to Article 402 para. 2 of the Code of Criminal Procedure, which provides that in principle appellate courts cannot take evidence.   However, they can exceptionally take evidence at a hearing if it will expedite the proceedings. Therefore, in order for the proceedings to comply with the requirements of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention, an accused in detention should be brought before the court.   It should be noted in this respect that in his appeal the applicant asked that certain evidence be taken.   When refusing the applicant's request to attend the hearing, the Court assumed that he had already submitted all his arguments.   Such an assumption cannot be regarded as justified.         The applicant further submits that the Government principally rely on Article 401 of the Code of Criminal Procedure.   It is true that this provision does not oblige an appellate court to bring an accused to a hearing, but leaves this decision to the discretion of the court. The Government's argument, however, is based exclusively on the domestic law and entirely disregards the standards established by the case-law of the Convention organs.         The applicant also submits that he could not respond in any way to the Prosecutor's submissions to the Regional Court and therefore the rule of equality of arms was not complied with.         The Government submit that under Polish law the Public Prosecutor before the appellate court does not exclusively carry out the functions of a prosecutor, but also acts as guardian of the public interest.   The latter function enables him to submit requests to take evidence for the defence.   In the present case, had the Public Prosecutor requested that any evidence be taken, the Regional Court would be prevented from its examination without the applicant being brought before the Court.         Having examined these complaints, the Commission finds that they raise serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. These complaints cannot, therefore, be regarded as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention and no other ground for declaring them inadmissible has been established.   3.     The applicant complains that he was discriminated against in that, as he was a recidivist, a more severe penalty was imposed on him in accordance with Article 60 of the Criminal Code.   He invokes Article 14 (Art. 14) of the Convention, which provides:         "The enjoyment of the rights and freedoms set forth in this       Convention shall be secured without discrimination on any ground       such as sex, race, colour, language, religion, political or other       opinion, national or social origin, association with a national       minority, property, birth or other status."         Article 14 (Art. 14) of the Convention prohibits discrimination in the "enjoyment of the rights and freedoms" guaranteed by the Convention.   However, not every difference in treatment violates Article 14 (Art. 14) of the Convention.   The Commission considers that it is not as such contrary to Article 14 (Art. 14) of the Convention to impose a more severe penalty on a recidivist, as there may well be justified reasons for a difference of treatment in that respect. In the present case, the Commission finds no appearance of a violation of Article 14 (Art. 14).         It follows that this complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, unanimously,         DECLARES ADMISSIBLE, without prejudging the merits of the case,       the complaints relating to the refusal to allow the applicant to       attend the hearing before the Regional Court,         DECLARES INADMISSIBLE the remainder of the application.   Secretary to the Second Chamber         President of the Second Chamber         (M.-T. SCHOEPFER)                        (H. DANELIUS)