CEDH · CASELAW;COMMUNICATEDCASES;ENG — 12 mai 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 12 May 2017   FIRST SECTION Application no. 60136/13 Robert FĄFARA against Poland lodged on 6 September 2013 STATEMENT OF FACTS The applicant, Mr Robert Fąfara, is a Polish national who was born in 1968 and lives in Oleśnica. He is represented before the Court by Ms   B.   Słupska-Uczkiewicz, a lawyer practising in Wrocław. A.     Criminal proceedings against the applicant On 6 February 2010 at 6.30 p.m the applicant was arrested on suspicion of murder. At 3.01 p.m. a breathalyser test had shown his blood-alcohol level as 2.24 grams per litre. He also submits that in the evening of 5   February   2010 he took nitrazepam (a hypnotic drug prescribed for short ‑ term relief from severe, disabling anxiety and insomnia). On 7 February 2010 the applicant was questioned by the police. He confessed that he had murdered K.K., who had been his flatmate and a certain J.G.’s partner and with whom he had also been in a relationship. He submitted that he had strangled her as he had been jealous because she had been sleeping with other men. He signed a document advising him of his rights, including the right the assistance of defence counsel as provided by Article 300 of the Code of Criminal Procedure. On 8 February 2010 the applicant upheld his statements before the court during the proceedings concerning the imposition of detention on remand. While being questioned in custody and subsequently by the prosecutor, the applicant was not assisted by a lawyer. On 29 March 2010 the applicant lodged an application to be assigned a legal-aid lawyer but this application was not addressed by the court. On 12 April 2010 the prosecutor ordered an expert report on the applicant’s mental health at the time when the crime had been committed. The report was submitted on 21 April 2010. The applicant was not considered to have had diminished responsibility. On 19 April 2010 the applicant appointed a lawyer of his own choice. On 17 June 2010 the applicant did not confess to murder when heard by the court. He submitted that his previous statements had been suggested to him by a police officer. He maintained that he did not remember what had happened as he had drunk alcohol and taken twenty pills of nitrazepam. He added that he had been taking around two to six pills of nitrazepam every day. On 2 December 2011 the Wrocław Regional Court convicted the applicant of murder and sentenced him to fifteen years’ imprisonment. The court stated that the applicant had been addicted to alcohol and had undergone treatment in an alcohol-addiction treatment facility. During the proceedings the court heard evidence from A.K. and J.G., who had been drinking alcohol with the applicant and the victim on 6 February 2010. The court established that the applicant had lived with the victim and J.G. for almost two weeks before the commission of the murder. Other witnesses (the victim’s mother, the victim’s sister and her husband, the victim’s neighbours and police officers) were also examined. The court held that on 7   February 2010, when questioned, the applicant had been sober but that he had been suffering from alcohol intoxication for several days (confirmed by an expert report). A private expert report and a State expert report on the applicant’s signature were examined by the court as evidence: the private report stated that the applicant had been under the influence of alcohol when signing the document advising him of his rights; the State expert’s report stated that he had been suffering from alcohol intoxication which had caused his hands to tremble. The external inspection of the victim’s corpse was commissioned and the expert gave evidence before the court. The DNA analysis of the string used to strangle the victim had not revealed the applicant’s DNA. The applicant appealed, submitting in essence that his conviction had been based on statements made without the assistance of a lawyer. He also stated that on 7 February 2010 he had still been under the influence of the alcohol. On 19 April 2012 the Wrocław Court of Appeal upheld the judgment of the court of first instance. The court held that the presence of a lawyer during questioning had not been obligatory under the Code of Criminal Procedure. The applicant had been informed in writing of his rights, including the right to be questioned in the presence of a lawyer, and he had signed the document advising him of those rights. The question of whether the applicant had still been under the influence of alcohol when signing the document had been examined by the court of first instance. On 6 February 2013 the Supreme Court dismissed the applicant’s cassation appeal as manifestly ill-founded. This decision was served on the applicant on 23 March 2013. B.     Relevant domestic law and practice The relevant domestic law concerning legal assistance in criminal proceedings is set out in the Court’s judgment in the case Płonka v. Poland (no. 20310/02, §§ 19-20, 31 March 2009). COMPLAINT The applicant complains under Article   6 §   1 read in conjunction with Article   6 §   3   (c) of a violation of his right to defend himself. QUESTIONS TO THE PARTIES 1.     Having regard to the Court’s case-law (see Salduz v. Turkey [GC], no.   36391/02, §§ 50-55, ECHR 2008) has there been a breach of Article   6 §§   1 and 3 (c) of the Convention as a result of the lack of legal assistance available to the applicant during his questioning by the police? 2.     Assuming that the applicant waived his right to lawyer, was it established in an unequivocal manner and was it shown that the applicant could reasonably have foreseen what the consequences of his conduct would be (see Pavlenko v. Russia , no. 42371/02, § 102, 1 April 2010)?