(Application no. 3818/04)
21 July 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 Seliwiak v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 30 June 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
1. First set of criminal proceedings
2. Second set of criminal proceedings
II. RELEVANT DOMESTIC LAW AND PRACTICE
1. Presence of an accused at a hearing before the appellate courts
Article 452 of the Code of Criminal Procedure reads:
“§ 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 may, if it finds the completion of a judicial examination necessary, 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.”
“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.”
“...Finally, it should be underlined that even if the accused requests to be brought to an 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 a legal aid lawyer for him, 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 an 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.”
2. Cassation appeal
3. Legal assistance for the purposes of lodging a cassation appeal
“A defence counsel appointed under the legal aid scheme in the cassation proceedings ... shall prepare and sign a cassation appeal ... or shall inform the court, in writing, that he or she has not found any grounds for lodging a cassation appeal ... If a cassation appeal ... is lodged, the defence counsel is entitled to represent the defendant in the subsequent proceedings.”
4. Service of court correspondence
Article 131 § 1
“Summonses, notices and other court correspondence whose date of service activates the running of procedural time-limits shall be served on the addressee by mail or by personal delivery by an official of the agency effecting the service, or if necessary by the police. (...)”
“§ 1. Documents shall be served personally on the addressee.”
§ 2. If the addressee is temporarily absent from his or her address, a document shall be served upon an adult member of the household of the addressee (...)”
Article 133 § 1
“If service cannot be effected as prescribed in Article 132, the document dispatched by mail shall be left with the nearest post office (...)
§ 2. The person serving the court document shall notify the addressee that it has been left [at the post office] by affixing a relevant notice to the door of the addressee's apartment, specifying where and when the document has been left and stating that it should be collected within seven days.”
Article 134 § 2
“Addressees deprived of their liberty shall have the document served through the administration of the penal institution.”
Article 136 § 1
“If an addressee declines to accept the document, or refuses or is unable to sign the receipt, the person effecting the service shall make an appropriate note on the receipt and service shall then be considered to have been effected.”
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 IN CONJUNCTION WITH 6 § 3 (c) OF THE CONVENTION CONCERNING THE HEARING HELD BEFORE THE APPELLATE COURT
“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;”
The Court further notes that legal representation was mandatory for the purposes of preparing a cassation appeal. However, in the applicant's case the legal aid lawyer refused to prepare a cassation appeal against the judgment of the appellate court, finding no legal grounds on which to do so. The Court notes that the applicant does not complain about the lawyer's refusal to file a cassation appeal and the impact which this had on his right of access to the Supreme Court (compare Staroszczyk v. Poland, no. 59519/00 and Siałkowska v. Poland, no. 8932/05, 22 March 2007). The Court further notes that the courts, by granting the applicant legal aid, acknowledged his lack of financial resources. In such circumstances, the Court considers that the applicant should not therefore have been 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. The Government's preliminary objection must therefore be rejected.
1. The parties' submissions
2. The Court's assessment
(a) General principles
(b) Application of the above principles to the facts of the case
The applicant asserts that his right to defend himself was, as a result, violated by the combination of the following facts: he had not been aware of the replacement of the legal aid lawyer, he could not get in touch with him and he had not received a copy of the appeal prepared by that lawyer. Nor was he aware of the date of the hearing before the appellate court. As a result, he could not attend the hearing before the Łódź Regional Court, as he learned about it through unofficial channels only a few days before the hearing was to be held. The Court observes that in consequence the applicant was unable to address the court of appeal either through his lawyer, personally or in writing, to submit any comments he wished to make on the observations made by the prosecution or to put forward any submissions on the matters which he regarded as relevant to the outcome of his case (compare and contrast P.O. v. Poland, (dec.), no. 42618/98, 14 January 2003).
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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 Polish zlotys 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;
Done in English, and notified in writing on 21 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza