CEDH · CASELAW;REPORTS;ENG — 26 février 1997

.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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                            SECOND CHAMBER                      Application No. 23103/93                               A. B.                               against                               Poland                      REPORT OF THE COMMISSION                    (adopted on 26 February 1997)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-10) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 11-15). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 16-27) . . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (paras. 16-24). . . . . . . . . . . . . . . . . . .3        B.    Relevant domestic law           (para. 25-27) . . . . . . . . . . . . . . . . . . .4   III. OPINION OF THE COMMISSION      (paras. 28-48) . . . . . . . . . . . . . . . . . . . . .5        A.    Complaint declared admissible           (para. 28). . . . . . . . . . . . . . . . . . . . .5        B.    Point at issue           (para. 29). . . . . . . . . . . . . . . . . . . . .5        C.    As regards Article 6 para. 1 in conjunction           with para. 3 (c) of the Convention           (paras. 30-47). . . . . . . . . . . . . . . . . . .5             CONCLUSION           (para. 48). . . . . . . . . . . . . . . . . . . . .8   APPENDIX: DECISION OF THE COMMISSION AS TO THE           ADMISSIBILITY OF THE APPLICATION. . . . . . . . . .9   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicant is a Polish citizen, born in 1949, resident in Gorlice.   He was represented before the Commission by Mr. J. Galkowski, a lawyer residing in Zywiec.   3.    The application is directed against Poland.   The respondent Government were represented by Mr. Krzysztof Drzewicki of the Ministry of Foreign Affairs.   4.    The case concerns the lack of equality of arms in that in the criminal proceedings against him, the applicant - who was not represented by a lawyer - was not allowed to be present at a hearing before the Tarnów Regional Court, whereas the Public Prosecutor was present.   The case raises issues under Article 6 paras. 1 and 3 (c) of the Convention.   B.    The proceedings   5.    The application was introduced on 31 May 1993 and registered on 15 December 1993.   6.    On 31 August 1994 the Commission (Second Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaints under Article 6 paras. 1 and 3 (d) of the Convention.   7.    The Government's observations were submitted on 28 November 1994. The applicant replied on 16 January 1995 and submitted additional observations on 23 June 1995 and 19 October 1995.   On 4 July 1995 the Commission granted the applicant legal aid for the representation of his case.   8.    On 29 November 1995 the Commission declared admissible the applicant's complaint under Article 6 para. 1 read together with para. 3 (c) of the Convention.   It declared inadmissible the remainder of the application.   9.    The text of the Commission's decision on admissibility was sent to the parties on 14 December 1995 and they were invited to submit such further information or observations on the merits as they wished.   10.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   11.   The present Report has been drawn up by the Commission (Second Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             Mrs. G.H. THUNE, President           MM.   J.-C. GEUS                G. JÖRUNDSSON                J.-C. SOYER                H. DANELIUS                F. MARTINEZ                M.A. NOWICKI                I. CABRAL BARRETO                D. SVÁBY                P. LORENZEN                E. BIELIUNAS                E.A. ALKEMA   12.   The text of this Report was adopted on 26 February 1997 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   14.   The Commission's decision on the admissibility of the application is annexed hereto.   15.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.    The particular circumstances of the case   16.   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.   17.   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.   18.   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.   19.   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 given 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.   20.   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.   21.   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.   22.   The date of the hearing was fixed for 10 May 1993.   23.   On 29 April 1993 the applicant applied to the Regional Court for legal aid, but he received no reply to this application.   24.   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 heard the prosecutor's submissions to the effect that the judgment of the lower court should be upheld.   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.   B.    Relevant domestic law   25.   The relevant provisions of the Polish Code of Criminal Procedure read as follows:        < Translation >:        Art. 35 para. 1        "The function of prosecution before all courts is carried out by      the public prosecutor."        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."        Art. 402        "1.   The appellate court cannot take evidence.        2.    However, the court can exceptionally take evidency at a      hearing (...) if it will expedite the proceedings (...)"   26.   The Act on Prosecution Authorities provides that they are composed of the General Prosecutor and subordinate prosecutors of civil and military Prosecutor's Offices.   The General Prosecutor is the highest prosecution authority. It is the Minister of Justice which carries out this function.   27.   The public prosecutors are independent in carrying out their functions.   However, they are under an obligation to follow the directives and orders of a prosecutor of higher rank.   III. OPINION OF THE COMMISSION   A.    Complaint declared admissible   28.   The Commission has declared admissible the applicant's complaint relating to the refusal to allow him to attend the hearing before the Regional Court, whereas the public prosecutor was present.   B.    Point at issue   29.   Accordingly, the Commission is called upon to consider whether there has been a violation of Article 6 para. 1 in conjunction with para. 3 (c) (Art. 6-1+6-3-c) of the Convention.   C.    As regards Article 6 para. 1 in conjunction with para. 3 (c)      (Art. 6-1+6-3-c) of the Convention   30.   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 ..."   31.   The applicant submits that he was deprived of his right to defend himself in person before the Tarnów Regional Court, acting as an appellate court.   The right to defend oneself in person is a crucial element of defence rights.   Therefore any limitations in this respect 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.   32.   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 is not necessary.   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.   33.   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.   34.   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.   35.   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.   36.   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.   37.   The Commission recalls that the right of an accused person to participate in person in the trial is a fundamental element of a fair trial (Eur. Court HR, Colozza v. Italy judgment of 12 February 1985, Series A no.89, p. 14, para. 27). The criminal proceedings form an entirety and the protection afforded by Article 6 (Art. 6) does not cease with the decision at first instance; indeed, a State which institutes courts of appeal is required to ensure that persons amenable to the law shall enjoy before these courts the fundamental guarantees contained in this Article (Eur. Court HR, Ekbatani v. Sweden judgment of 26 May 1988, Series A, no. 134, p. 12, para. 24).   38.   The Commission also recalls that even when an appeal court has full jurisdiction to review the case on questions both of fact and law, Article 6 (Art. 6) does not always require a right to a public hearing and a fortiori a right to be present in person (Eur. Court HR, Kremzow v. Austria judgment of 21 September 1993, Series A, no. 268, p. 43, para. 58).   However, in assessing this issue regard must be had to the fairness of the entire proceedings.   Regard must also be had to the scope of the appellate court's powers, the manner in which the applicant's interests were actually presented before this court, particularly in the light of the nature of the issues to be decided by it and the seriousness of the offence and what was at stake for the applicant (Eur. Court HR, Helmers v. Sweden judgment of 23 November 1990, Series A, no. 212, p. 15. para. 32).   39.   The Commission further recalls that the principle of equality of arms, which is one of the features of the wider concept of a fair trial, also includes the fundamental right that criminal proceedings should be adversarial. The right to an adversarial trial 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 by the other party. In particular, it should be ensured that the other party will be aware that observations have been filed and will get a real opportunity to comment thereon (Eur. Court HR, Brandstetter v. Austria judgment of 28 August 1991, Series A, no. 211, p. 27, paras. 66-67; Borgers v. Belgium judgment of 23 January 1991, Series A, no. 214, p. 32, para. 27).   40.   The Commission observes that in the present case the Regional Court had full jurisdiction and could make a full assessment of the applicant's guilt or innocence.   Indeed, in his appeal the applicant challenged the District Court's findings in this respect.   He maintained in particular that the Court had disregarded his explanations and only considered the evidence for the prosecution as being credible.   He submitted that he was not guilty and further requested that certain evidence be taken which he considered as crucial for the assessment of his guilt.   41.   It is true that under Article 402 of the Polish Code of Criminal Procedure concerning the taking of evidence before the appellate court, the latter cannot in principle take evidence.   However, it is not excluded that the hearing before the appellate court may involve a rehearing of the evidence if this can expedite the proceedings.   42.   The offence with which the applicant was charged normally carried a risk of a one-year prison sentence.   For the applicant this risk was increased to three years' imprisonment as he was a recidivist.   Thus, what was at stake for him must be regarded as significant.   43.   The Commission observes that the applicant expressly requested to be present at the hearing and this request was refused by the Regional Court.   The Court did so despite the fact that under Article 401 of the Code of Criminal Procedure it was open to it to order that the applicant be brought before the court.   The Regional Court was aware that throughout the proceedings the applicant was not represented by a lawyer, either officially appointed or appointed by him, and that therefore his interests would not be represented and protected before the Court.   44.   The Commission further observes that the public prosecutor was present during the hearing before the Court whereas the applicant was not.   45.   As regards the functions of the public prosecutor before the Regional Court, the Commission notes that the Court heard the prosecutor's submissions to the effect that the applicant's appeal should not be allowed.   The Commission thus considers that the role of the public prosecutor was to support the prosecution.   Therefore his opinion cannot in any event be considered as neutral as he recommended that the applicant's appeal be   dismissed.    The applicant could not reply to the prosecutor's submissions; before the hearing he was not aware of their contents because they had not been communicated to him in advance.   Neither could he reply to them after the hearing, as the judgment of the Regional Court was pronounced on the same day.   The argument in the present case was not confined to questions of law as the court had full jurisdiction to assess the applicant's guilt or innocence.   Therefore the applicant had a clear interest in being able to submit his observations before the case was closed.   46.   Thus, the proceedings before the Regional Court did not afford the applicant an opportunity of challenging appropriately the views expressed by the public prosecutor.   Accordingly, he did not benefit from a procedure that was really adversarial.   As the principle of equality of arms was not complied with, the proceedings at issue were not fair.   47.   In these circumstances, the Commission considers that the requirements of a fair trial within the meaning of Article 6 para. 1 read together with para. 3 (c) (Art. 6-1+6-3-c) of the Convention were not met.   CONCLUSION   48.   The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 in conjunction with para. 3 (c) (Art. 6-1+6-3-c) of the Convention.      M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber