(Application no. 19847/07)
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 Sobolewski v. Poland (no. 2),
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
“On the basis of Article 451 of the Code of Criminal Procedure, I hereby request to be brought to a hearing to be held on 22 November 2006 before the court of appeal during the appeal proceedings against the judgment of the Grodzisk Wielkopolski District Court.”
“Under Article 451 of the Code of Criminal Procedure an appellate court shall order that a detained accused be brought to the hearing, unless it decides that the presence of a lawyer is sufficient.
The Regional Court is of the view that the [applicant's] request is very brief and vague and that its author has limited himself to saying that he would like to attend the hearing, failing to specify reasons why his presence was necessary or required.
The [applicant] is represented by a legal-aid lawyer, whose presence at the appeal hearing is obligatory. In those circumstances his right to an effective defence will be fully secured.”
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 and by the applicant himself. It was of the view that the lower court had thoroughly assessed the evidence and had carefully considered the applicant's guilt. Its conclusions were logical, thorough and meticulously explained in the light of the voluminous evidence obtained in the case.
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 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 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 for him a legal-aid lawyer 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;”
In the applicant's case two successive legal aid lawyers had refused to prepare a cassation appeal against the judgment of the appellate court, finding no legal grounds on which to do so. Hence, the applicant, whose lack of financial resources was acknowledged by the court which granted him legal aid, could not be required to embark on further attempts to obtain legal assistance with a view to lodging a cassation appeal.
30. The Court notes that the application is not manifestly ill founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. The parties' submissions
In the present case the applicant, charged with multiple counts of fraud and unlawful possession of a firearm, had faced much less serious charges than the applicant in P.O. v. Poland who had been charged with murder. The applicant had been present at all the hearings before the first instance court and had been represented by a legal aid lawyer. Subsequently, the lawyer had lodged an appeal against the first instance judgment and also supported the appeal formulated by the applicant himself. The lawyer had attended nearly all the hearings before the first-instance court and when he could not be present, had requested another lawyer to replace him. He had also been present before the appellate court and could comment on all submissions made by the prosecuting authorities. The Government referred to the Court's judgments in the cases Monnell and Morris v. the United Kingdom (2 March 1987, Series A no. 115) and Belziuk v. Poland (referred to above). They concluded that the criminal proceedings had been fair.
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 refusing to bring the applicant to the courtroom no reference was made to the specific grounds of appeal submitted either by the applicant himself or by his lawyer. Nor did the court make any distinction, for the purposes of its examination of the applicant's request, 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. 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 the national currency 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