(Application no. 31509/02)
9 June 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 Strzałkowski v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 19 May 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
“The Warsaw Court of Appeal states that by a decision of 3 October 2001 it has decided not to bring the accused Janusz Strzałkowski to a hearing before that court, as his interests will be duly represented by his defence lawyer.”
No appeal was available against that decision.
The Court of Appeal dismissed the appeals against the first-instance judgment. The court examined the grounds for the appeals adduced by the applicant's lawyer. In particular, the court stressed that no arguments had been advanced to persuade it that the findings of fact were incorrect. The first-instance court had found the applicant guilty essentially on the basis of the testimony of other defendants. This evidence had been examined in a thorough manner against the background of other evidence available in the case. The first-instance court had exhaustively explained in the grounds for its judgment why it believed that the testimony given by the applicant himself had been unreliable. The appeals had failed to provide grounds on which to accept that the findings as to the applicant's participation in the crime and his guilt were erroneous. The statements made in this respect in the appeals had been flagrantly inconsistent with the evidence examined by the first-instance court. The first-instance court had carefully explained in the written grounds for its judgment why it had considered certain evidence as credible and other evidence implausible.
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, if it finds the completion of a judicial examination necessary, may nevertheless accept new evidence directly at the hearing, if this will expedite the judicial proceedings and there is no necessity to reconduct 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 the 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 the 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
I. THE ALLEGED VIOLATION OF ARTICLE 6 § 1 IN CONJUNCTION WITH 6 § 3 ( c ) OF THE CONVENTION
“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;”
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. Subsequently the court refused to assign another legal-aid lawyer to the case. The Court notes that the courts, by granting the applicant legal aid, acknowledged his lack of financial resources. The Court is of the view 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.
Hence, the Court considers that it was the court's refusal, on 26 February 2002, to assign a second legal-aid lawyer to the case which ultimately determined the applicant's ability to bring his procedural complaint to the attention of the Supreme Court. This refusal therefore amounted to a final decision in the process of the exhaustion of domestic remedies. The applicant brought his application to the Court on 22 August 2002, having thereby complied with the six-month requirement.
1. The parties' submissions
They further submitted that in the present case the appellate court had relied on Article 451 of the Code of Criminal Procedure. At the material time the court was not obliged to inform the accused ex officio that he had been entitled to request leave to be present. The decision of 3 October 2001 had therefore been in compliance with the applicable domestic law.
2. The Court's assessment
(a) General principles
(b) Application of the above principles to the facts of the case
However, it notes that in its decision no reference was made by the Court of Appeal to the specific grounds of appeal submitted by the applicant. Nor did the court make any distinction between the factual issues raised by the applicant which were ultimately relevant for the assessment of his guilt or innocence, and merely legal issues. There is no indication that the court considered that this distinction was pertinent to the decision it had to take regarding the applicant's presence during the hearing (compare and contrast Hermi v. Italy, cited above, § 84-85).
II. ALLEGED VIOLATION OF ARTICLE 6 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 9 June 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza