CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 septembre 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 }                          AS TO THE ADMISSIBILITY OF                           Application No. 29261/95                       by Oleg KORNIENKO                       against Poland           The European Commission of Human Rights (Second Chamber) sitting in private on 10 September 1997, the following members being present:              Mrs.   G.H. THUNE, President            MM.    J.-C. GEUS                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              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 10 July 1994 by Oleg KORNIENKO against Poland and registered on 15 November 1995 under file No. 29261/95;         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       30 October 1996 and the observations in reply submitted by the       applicant on 3 January and 1 April 1997;         Having deliberated;         Decides as follows:   THE FACTS         The applicant, who describes himself as a person without citizenship, was born in 1964 in Novaya Kakhovka, Kherson province, in the former Soviet Union, currently Ukraine.   The applicant is in prison in Poland.   Before the Commission he was initially represented by his sister Valeria Shoutova, and later by Ms. Romana Orlikowska-Wronska, a lawyer practising in Sopot, Poland.         The facts of the case as submitted by the parties may be summarised as follows.   A.     Particular circumstances of the case         On an unspecified date in 1993 the applicant went to Poland where he engaged in trade.         On 5 June 1993 the applicant and another person with whom he was living were arrested and charged with a murder, which had been committed the previous night.   The police found under the applicant's bed a gun and fired cartridges which corresponded to the weapon of the crime.   It was undisputed that the victim was approached by the applicant, the other arrested person and a third suspect, who had fled. It was disputed, however, whether the applicant or the third suspect fired the gun.         On 5 June 1993, following his arrest, the applicant was interrogated by the police.   The minutes state that before making any statement the applicant was "informed of the rights of the accused person".   It appears that he received a written statement of these rights, in the Polish language, which he subsequently signed.   The parties have not submitted a copy of this written statement.         The interrogation commenced in the presence of an interpreter, a Ms. F.   The applicant denied the charges against him stating that it had been the third suspect who had shot the victim.         When the interrogation was at its end the applicant signed the minutes and Ms. F. left.   Immediately thereafter, as recorded in the minutes, the applicant stated that he changed his mind and wanted to say the truth.   Thereupon Mr. W., a policeman who knew Russian, stepped in as an interpreter.   The applicant maintains that he was told that Polish law was very favourable to those who confessed.   The applicant confessed that he had fired the gun which killed the victim.         Two days later, on 7 June 1993, the applicant was interrogated again, with Ms. F. serving as an interpreter.   The applicant maintained that he had made the fatal shot and gave more details.   The minutes state that at the beginning of this interrogation the applicant was told, inter alia, that he had a right "to appoint legal counsel".         Several days later the applicant revoked his confession and stated that he had been induced to confess through false promises.         On an unspecified date the competent prosecutor ordered a psychiatric examination of the applicant as there existed serious reasons to doubt the applicant's sanity.   The parties have not substantiated the results thereof.         For the first five months or more following his arrest, the applicant did not have any contact with a lawyer.         On 14 October 1993 the competent prosecutor requested the Regional Court (S*d Wojewódzki)in Ostrol*ka to appoint an ex officio lawyer to represent the applicant.   The prosecutor stated that there existed doubts as regards the applicant's criminal responsibility, apparently in respect of his sanity, and referred to Section 70 para. 1(2) of the Code of Criminal Procedure.         On an unspecified date the Regional Court appointed an ex officio lawyer.   The lawyer was notified of his nomination on 20 October 1993. He visited the applicant for the first time in December 1993.         On 2 December 1993 the preliminary investigations were concluded. On 4 December 1993 the prosecution authorities prepared the indictment and sent the case to the Regional Court.         The Court held hearings on 9 February, 12 April and 19 October 1994.   The applicant in his submissions stated that his confession immediately after his arrest had been forced by the police.   He asserted that the third suspect, the person who had fled, had shot the victim and then had thrown the gun under his bed in order to frame him. On 12 April 1994 he requested that the prosecutor be ordered to inform the Court about the efforts undertaken to find the whereabouts of the third suspect.   On 19 October 1994 the applicant's lawyer unsuccessfully requested a stay in the   proceedings until the   arrest of the third suspect, whose examination was considered to be crucial for establishing the facts.         At the hearing on 12 April 1994 the Court heard Mr. W., the policeman who had served as an interpreter during the applicant's examination by the police.   Asked whether the applicant had been told to confess, Mr. W. answered: "I do not exclude that the interrogator pronounced words to the effect that Polish law was very lenient and that therefore he should confess."         On 19 October 1994 the Court convicted the applicant of premeditated murder and sentenced him to fifteen years' imprisonment. The Court relied on the applicant's confession, on forensic evidence and on evidence given by witnesses.   The other accused was sentenced to two and half years' imprisonment.         The applicant's lawyer appealed against this judgment to the Warsaw Appeals Court (S*d Apelacyjny).   In his submissions the lawyer stated inter alia that the applicant had been put under pressure to confess.   On 14 March 1995 the Appeals Court confirmed the applicant's conviction and sentence.   B.     Relevant domestic law         According to Sections 70 and 71 of the Code of Criminal Procedure legal representation of an accused person is mandatory where he is deaf, dumb or blind and where there exist justified doubts as to his sanity.         According to Section 268 of the Code of Criminal Procedure, read in conjunction with other relevant provisions, at the preliminary investigation stage of the criminal proceedings the accused person can appeal against an act of a prosecutor to the higher prosecutor.   COMPLAINTS   1.     The applicant complains under Article 6 para. 3 of the Convention that there have been breaches of his defence rights in the course of the criminal proceedings against him.   Thus, he did not have any contact with a lawyer for more than four months after his arrest.   Also he was interrogated without an interpreter and was forced to confess. These violations were part of a deliberate strategy of the police, which in fact took advantage of his vulnerable position of a person without any knowledge of the Polish language and of Polish law.   Later the courts relied exclusively on his confession and refused to take the necessary steps for the arrest and the examination of the third suspect, although his name was known.   2.     The applicant also complains, invoking Article 6 of the Convention, that he was convicted wrongly and that the courts wrongly assessed the evidence before them.   Thus, the courts found that the applicant had fired the gun and that he had planned the killing in advance, whereas in reality the murderer had been another person who had fled.   Moreover, there has been a violation of Article 14 of the Convention because the applicant was discriminated against on the basis of the fact that he came from the former Soviet Union.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 10 July 1994 and registered on 15 November 1995.         On 27 June 1996 the Commission decided to communicate the application to the respondent Government.         The Government's written observations were submitted on 30 October 1996, after an extension of the time-limit fixed for that purpose.   The applicant replied on 3 January and 1 April 1997, also after an extension of the time-limit.         On 3 December 1996 the Commission granted the applicant legal aid.     THE LAW         The applicant complains under Article 6 (Art. 6) of the Convention of alleged breaches of his defence rights during the preliminary investigation against him. He also complains, invoking Articles 6 and 14 (Art. 6, 14) of the Convention, that the Polish courts decided wrongly and that he was a victim of discrimination.         Article 6 (Art. 6) of the Convention, insofar as relevant, provides as follows.         "1.   In the determination of ... any criminal charge against       him, everyone is entitled to a fair ... hearing ...         ...         3.    Everyone charged with a criminal offence has the following       minimum rights:              a.     to be informed ... in a language which he understands       and in detail, of the nature and cause of the accusation against       him;              b.     to have adequate time and facilities for the       preparation of his defence;              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;              d.     to examine or have examined witnesses against him and       to obtain the attendance and examination of witnesses on his       behalf under the same conditions as witnesses against him;              e.     to have the free assistance of an interpreter if he       cannot understand or speak the language used in court."         The Government submit that the applicant has failed to exhaust all domestic remedies within the meaning of Article 26 (Art. 26) of the Convention.   Thus, he has not appealed against the decisions and the orders delivered during the preliminary investigation stage which allegedly infringed his rights.    According to Section 268 of the Code of Criminal Procedure he could challenge any act of the investigation authorities.   Furthermore, he did not lodge a request to be provided with an ex officio lawyer.         The Government further submit that the application is in any event manifestly ill-founded.   There were no breaches of Article 6 paras. 3(a) or 3(b) (Art. 6-3-a, 6-3-b) of the Convention because upon his arrest the applicant was informed of the charges against him and of their legal qualification under Polish law.   Nor was there a breach of para. 3(d) of Article 6 (Art. 6-3-d).   Thus, the third suspect whom the applicant wanted to examine as a witness had fled.   Furthermore, the courts did not consider indispensable to hear the third suspect as, in the light of other evidence, it emerged that it had been the applicant who had committed the murder.         As regards the complaints related to para. 3(e) of Article 6 (Art. 6-3-e) of the Convention, the Government submit that the applicant has been interrogated always in the presence of an interpreter with a good knowledge of Russian.   The fact that Mr. W., a policeman, served as an interpreter during the second part of the interrogation on 5 June 1993, did not affect in any way the applicant's rights.   Thus, Mr. W. was not acting at the same time as an interrogating officer and an interpreter, but performed only the latter function.   Furthermore, he was fluent in Russian because he had been forced to live in the former Soviet Union for several years after the Second World War.   Moreover, all relevant documents, as required by Section 62 of the Code of Criminal Procedure, were submitted to the applicant in translation.         As regards the alleged breach of Article 6 para. 3(c) (Art. 6-3-c) of the Convention the Government explain that Polish law does not provide for a mandatory participation of a legal counsel in criminal proceedings.   Such participation is obligatory only in cases under Sections 70 and 71 of the Code of Criminal Procedure, where, inter alia, there are doubts as regards the accused person's sanity. In all other cases it is up to the accused person to request an ex officio lawyer.         The Government state that the applicant could have had legal counsel appointed for him at any stage of the proceedings.   Moreover, from the minutes of his interrogation of 5 June 1993 it allegedly follows that he was aware of this possibility because he was informed of his rights.   As the applicant did not lodge a request for an ex officio lawyer, it can be assumed, in the Government's view, that he decided to defend himself without the assistance of legal counsel. It was only after the prosecutor found that there were doubts as regards the applicant's sanity, that on his own motion he asked the Regional Court to appoint legal counsel for him.         The applicant disputes the Government's assertions as regards the exhaustion of domestic remedies.   In his view he was in a situation where the investigation authorities which handled the proceedings should have taken all measures to prevent any prejudice which he might suffer as a result of his not being familiar with the Polish language and Polish law.   As this was not done the Government cannot claim that the applicant should have lodged requests, for example, to replace the interpreter or to appoint an ex officio lawyer.         The applicant submits further that the only thing about which he was informed, as it can be seen from the minutes of his interrogation on 7 June 1993, was that he could appoint a lawyer of his own choosing, but not that he had a right to an ex officio lawyer paid by the State. Furthermore, the applicant states that he appealed against his conviction and requested leave for an extraordinary appeal, thus exhausting all relevant domestic remedies.         The applicant alleges that the documents presented to him, including the written statement of his rights, were not translated into Russian, the language he understood.   There was only an oral interpretation which was not recorded.   As a result it was impossible for him to verify whether the interpretation had been correct and complete.   Nevertheless he was made to put his signature on the minutes and other documents, under the phrase: "I have read [the documents] and, as they are correct, I sign".   In the applicant's view this practice is unacceptable as he plainly could not have read documents written in Polish.         Also, it was inadmissible that Mr. W., a policeman, served as an interpreter.   It is essential, in the applicant's view, that the interpreter be impartial and independent.   In fact, this is required by Sections 159 para. 3 and Sections 176 et seq. of the Code of Criminal Procedure which stipulate, inter alia, that the legal requirements applicable to expert witnesses apply also in respect of interpreters.   As a result an interpreter can be excluded if, for example, he had been involved in the case.    Similarly, Mr. W. could not be impartial and objective as he was a subordinate of the body which carried out the investigation.         The applicant maintains that the situation in which he was put as a consequence of the alleged breaches of his rights was not accidental, but was used to exert pressure on him to confess.   In practice he was able to have a lawyer only at a later stage of the proceedings.   However, had he been informed properly of his right to an ex officio lawyer from the very beginning, he would have requested one.   This situation resulted to certain extent from the fact that the Code of Criminal Procedure does not provide for the mandatory participation of a lawyer in cases where the accused person does not have a command of the Polish language.         As regards para. 3(d) of Article 6 (Art. 6-3-d) the applicant submits that despite his firm position, throughout the proceedings, that the third suspect had shot the gun and was therefore the person who killed the victim, the prosecution authorities did not undertake any steps to find this person and did not even issue a warrant for his arrest.   As a result the State was responsible for the impossibility to have the third suspect examined as a witness.         The applicant finally states that it was not him who shot the victim.   Thus, no reasonable person would commit a murder and then bring the gun home and leave it under his bed.   Also, he was a victim of the prejudice which exists in Poland against people from the former Soviet Union.         The Commission need not decide whether the applicant has exhausted all domestic remedies as the application is in any event inadmissible for the following reasons.         The Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.   In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention.   The Commission refers, on this point, to its constant case-law (see eg. No. 25062/94, Dec. 18.10.95, D.R. 83, p. 77).         As regards the applicant's complaints about the fairness of the proceedings, the Commission recalls that the guarantees of Article 6 para. 3 (Art. 6-3) of the Convention are specific aspects of the right to a fair trial in Article 6 para. 1 (Art. 6-1) of the Convention (see, Eur. Court HR, Edwards v. the United Kingdom judgment of 16 December 1992, Series A no. 234-B, p. 34, para. 33, with further references). In the present case, the Commission will consider the proceedings as a whole, with particular reference to the specific aspects raised by the applicant.         All the applicant's complaints flow from the events surrounding the first four months of the preliminary investigation in the case.         The Commission recalls that Article 6 (Art. 6) applies at the stage of the preliminary investigation of a criminal case.   In particular, Article 6 para. 3 (Art. 6-3) may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions (see Eur. Court HR, John Murray v. the United Kingdom judgment of 8 February 1996, Reports 1996-I, p. 54, para. 62).         The Commission further recalls that Article 6 (Art. 6) will normally require an accused to benefit from the assistance of a lawyer at the initial stages of police interrogation if the consequences of the accused's attitude are decisive for the prospects of the defence in subsequent proceedings (see the above-mentioned John Murray judgment, p. 54, para. 63).   In the John Murray judgment, the question of the accused's attitude was particularly relevant because of the adverse inferences which could be drawn if he remained silent.   In the present case, the "attitude" was the confession which the applicant was alleged to have made.   What is required in the case of confessions alleged to have been obtained after alleged undue pressure is a mechanism by which the undue pressure - in the absence of a lawyer - can be challenged at court (see No. 9370/81, Dec. 13.10.83, D.R. 35, p. 75; No. 25605/94, Dec. 28.5.97, unpublished).         As regards the applicant's complaint concerning his legal defence, it appears undisputed that an ex officio lawyer would have been appointed, had the applicant lodged a request.   The reasons for the applicant's failure to lodge such a request are disputed, however: the Government state that the applicant chose to defend himself without a lawyer, whereas the applicant maintains that he was not informed of his right to ex officio legal counsel.         The Commission notes that at the beginning of the interrogation of 5 June 1993 the applicant was provided with a written statement of his rights, which was apparently translated to him orally by Ms. F., a professional interpreter.   Furthermore, at the beginning of the questioning on 7 June 1993 the applicant was expressly told, through the same interpreter, that he had a right to appoint a lawyer.         Therefore, insofar as Article 6 para. 3(c) (Art. 6-3-c) of the Convention may have required that the applicant be informed expressly of his right to free legal assistance, the Commission is satisfied that the applicant was provided with information which was sufficient, at the very least, to prompt him to enquire about the possibilities to appoint a lawyer.   The applicant does not claim that, had he done so, he would not have obtained more detailed information as regards the appointment of ex officio legal counsel or would not have been able to lodge a request for free legal assistance.         As regards the complaint that a police officer served as an interpreter, the Commission notes that this happened only during an hour or so on 5 June 1993, when Ms. F., the professional interpreter, had left.   Furthermore, it should be noted that the applicant maintained his confession on 7 June 1993 when he was questioned through the interpretation provided by Ms. F.         In any event, as regards the complaint that the applicant was misled to confess, the Commission notes that he was able to raise this issue at his trial where he could also question as a witness Mr. W., the police officer who served as an interpreter.   It appears therefore that the court did not accept the allegation of undue pressure after having examined the evidence in this respect freely submitted by the applicant and his lawyer.   Also, the issue was again raised before the Court of Appeal.         Finally, it is not disputed that there has been oral interpretation for the applicant at all times and that certain important documents were translated in writing.   Furthermore, the applicant had legal counsel at his trial and before the Court of Appeal.   It has not been claimed that the lawyer was unable to inspect the files, to verify with his client the accuracy of the minutes recording his submissions, or to examine other documents.         As regards the applicant's complaint that he was unable to question the third suspect as a witness the Commission considers that this cannot be imputed to the respondent State, the applicant's accomplice having fled.         Given that the Commission's principal task in assessing the fairness of proceedings is to consider the way in which the courts handled the case, and given the above considerations of the specific matters which flow from the initial interviews with the applicant, the Commission finds no indication that the provisions of Article 6 (Art. 6)   were violated in the present case.         Furthermore, the Commission finds that the applicant's allegations about discrimination contrary to Article 14 (Art. 14) of the Convention are unsubstantiated.         It follows that the application 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 THE APPLICATION INADMISSIBLE.      M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber