FOURTH SECTION

CASE OF SOBOLEWSKI v. POLAND (No. 2)

(Application no. 19847/07)

JUDGMENT

STRASBOURG

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 ,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
	Nicolas Bratza, President,
	Lech Garlicki,
	Giovanni Bonello,
	Ljiljana Mijović,
	Päivi Hirvelä,
	Ledi Bianku,
	Nebojša Vučinić, judges,
and LawrenceEarlySection Registrar,
Having deliberated in private on 19 May 2009,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 19847/07) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Daniel Sobolewski.
2.  The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
3.  The applicant alleged that his right to a fair trial had been violated in that the appeal hearing in his criminal case had been held in his absence as the court had refused his request to be brought to the hearing from prison.
4.  On 19 October 1997 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3 of the Convention).
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1963. He is currently serving a prison sentence.
6.  The applicant was charged with multiple counts of fraud and unlawful possession of a firearm. The trial took place before the Grodzisk Wielkopolski District Court. The applicant, represented by a legal-aid lawyer, was present during the trial. On 19 May 2006 the court convicted the applicant of multiple counts of fraud, acquitted him of the charge of unlawful possession of a firearm and sentenced him to two years' imprisonment.
7.  The applicant's legal‑aid lawyer, who had represented him during the proceedings, filed an appeal against this judgment with the Poznań Court of Appeal. He maintained, in particular, that the first‑instance court had committed errors when applying the relevant provisions of substantive law; that the court had erred in refusing to admit a further expert opinion in evidence; that the presumption of innocence had thereby been breached as the court had refused to admit this evidence because the applicant had in the past been convicted in different criminal proceedings; and that the court had wrongly established the relevant facts of the case which had led it to make a wrong decision.
8.  By a letter dated 2 July 2006 the applicant lodged his own appeal with the court. He argued, inter alia, that the first‑instance court had committed errors in the assessment of the evidence, that the establishment of the facts had been erroneous and that the court's reasoning, leading to the finding of guilt, was arbitrary. He argued that the principle of the presumption of innocence had thereby been breached. The prosecuting authorities also appealed against the judgment.
9.  By a letter of 10 October 2006 the applicant, who was in detention at that time, requested leave to be brought from prison to the hearing before the Poznań Court of Appeal. His request read:
“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.”
10.  By a decision of 25 October 2006 the court refused leave. The decision read as follows:
“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.”
11.  On 22 November 2006 the Court of Appeal held a hearing. The applicant's lawyer was present. In his oral pleadings the lawyer reiterated the arguments advanced in his appeal.
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.
12.  By a letter of the same date the applicant's legal-aid lawyer informed him that he had attended the hearing and that the court had dismissed the appeals lodged by the prosecution and by the applicant. He further informed the applicant that he had requested the court to prepare written grounds for the judgment, but that under no circumstances would he prepare a cassation appeal against the judgment.
13.  That judgment, together with its written grounds, was served on the applicant's lawyer on 2 January 2007. Subsequently, the applicant requested to be granted legal aid for the purposes of cassation proceedings and his request was granted. Advocate K.J. was assigned to represent the applicant. She informed the court, by a letter of 24 January 2006, that she saw no grounds on which to prepare a cassation appeal. She was, inter alia, of the view that the applicant's legal-aid lawyer had attended the hearing before the appellate court and had actively conducted the applicant's defence. She further emphasised that the applicant's request to attend the hearing had been very brief.
14.  By a letter of 26 January 2007 the court notified the applicant of the lawyer's refusal to act on his behalf. It also informed the applicant that the thirty‑day time‑limit for the lodging of a cassation appeal started to run from the date on which that letter was served on the applicant.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
1.	Presence of an accused at a hearing before the appellate courts
15.  In 1997 a new Code of Criminal Procedure was enacted. Article 451 of the Code provided that an appellate court could order that a defendant be detained on remand (under Polish law detention on remand is terminated only by a second‑instance judgment) and be brought to the courtroom to attend a hearing before that court.
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.”
16.  In 1999 the Supreme Court adopted a resolution stating that during a hearing before an appellate court a defendant should have, at least, an opportunity to defend him- or herself, or to be represented by a defence lawyer (5 October 1999, IV KKN 334/99).
17.  In a judgment of 29 March 2000 the Supreme Court stated that it was mandatory to bring the defendant to a hearing before the appellate court, regardless of whether he or she had made a relevant request (V KKN 111/98).
18.  In a judgment of 4 October 2000 the Supreme Court stated that in cases in which the arguments made in the statement of appeal were limited to challenging exclusively the legal aspects of a case or where only the sentence was challenged, a decision not to bring a defendant represented by a lawyer before the appellate court was correct (III KKN 164/2000).
19.  In July 2000 Article 451 of the Code was amended, in response to the Court's judgment in the case of Belziuk v. Poland(Reports of Judgments and Decisions1998‑II). The amended provision read:
“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  a legal-aid lawyer.”
20.  In 2001 the Supreme Court examined the Ombudsman's request for clarification of issues relating to the presence of the accused at the appeal hearing. In its resolution of 18 October 2001 it expressed the view that the right to a fair hearing demanded that the person convicted by the first-instance court should be informed of his right to request to be brought before the appellate court and should be brought to such a hearing. It stated:
“...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.”
21.  In 2003 Article 451 was further amended in that it became obligatory for an appellate court to inform the accused of his or her right to request leave to attend the hearing before that court.
2.  Cassation appeal
22.  The Supreme Court has examined, in numerous judgments, cassation appeals based on the allegation that the absence of an accused at the appeal hearing was a flagrant breach of law that could significantly affect the substance of the ruling in question, within the meaning of Article 523 of the Code of Criminal Procedure.
23.  The Supreme Court on many occasions found that the refusal to bring the accused to the appeal hearing was a flagrant breach of law that could significantly affect the substance of the second-instance judgment. In such cases, the Supreme Court quashed the appeal judgment and remitted the case (judgment of 10 August 2000, III KKN 192/00, judgment of 5 June 2001, III KKN 28/01).
24.  Under Article 83 of the Code, an accused may appoint a lawyer to represent him or her in criminal proceedings. If he or she cannot afford lawyers' fees, a request for legal aid may be made under Article 78 of the Code. Legal representation for the purposes of cassation proceedings is mandatory. In its decisions of 13 March and 17 September 2002 the Supreme Court expressed the view that when a legal-aid lawyer refused to represent a convicted person before the Supreme Court, the appellate court was not obliged to assign a new lawyer to the case (II KZ 11/02, II KZ 36/02).
THE LAW
I.  THE ALLEGED VIOLATION OF ARTICLE 6 § 1 IN CONJUNCTION WITH 6 § 3 (c) OF THE CONVENTION
25.  The applicant complained that the proceedings in his case had been unfair and his defence rights had been seriously limited because he had been refused leave to attend the only hearing held before the appellate court. He relied on Article 6 §§ 1 and 3 (c) of the Convention.
26.  Given that the requirements of paragraph 3 (c) represent specific aspects of the right to a fair hearing guaranteed by Article 6 § 1, the Court will examine the applicant's complaints in the light of the two texts taken in combination (see, among many other authorities,  [GC], no. 26103/95, § 27, ECHR 1999-I, and , judgment of 19 December 1989, Series A no. 168, pp. 31-32, § 62). These provisions, in so far as relevant, read as follows:
“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;”
A.  Admissibility
27.  The Government acknowledged that the applicant had complied with the requirement to exhaust relevant domestic remedies. The applicant submitted that no appeal was available in law against the refusal to bring him before the court of appeal. Nor could he lodge a cassation appeal with the Supreme Court as two legal‑aid lawyers had refused to prepare such an appeal.
28.  The Court notes that the Government have not disputed that the applicant's case does not raise a non-exhaustion issue. It would only observe that under Polish law and the practice of the Supreme Court a cassation appeal can be brought by a party alleging a flagrant breach of any substantive or procedural provision of law capable of affecting the substance of the judgment. That includes a breach of the right to defend himself in person and of the principle of equality of arms (see, Dobrowolski v. Poland (dec.), no. 17842/02, 7 March 2006). The cassation appeal was therefore a remedy whereby the applicant could have effectively submitted the substance of his complaint to the Supreme Court and sought relief. However, legal representation was mandatory for the purposes of preparing a cassation appeal.
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.
29.  Accordingly, the Court confirms that, for the purposes of Article 35 § 1 of the Convention, the applicant has exhausted domestic remedies.
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.
B.  Merits
1.	The parties' submissions
31.  The applicant submitted that the presence of a lawyer before the appellate court could not be regarded as equivalent to the defendant's personal presence. He emphasised that under Polish law it had been possible for the court of appeal to accept new evidence. He referred to the Court's Belziuk v. Polandjudgment, referred to above (paragraph 19). He further argued that he had expressly requested to be brought to the hearing before the court of appeal and that the principle of equality of arms had been breached because the prosecutor had attended that hearing in his absence.
32.  The Government disagreed. They argued that the present case was similar to P.O. v. Poland (dec.), no. 42618/98, 14 January 2003, which the Court had declared inadmissible. In that case the applicant had also been refused leave to be brought from prison to attend a hearing before the appellate court. The court had refused leave because the applicant had been represented by a lawyer and that fact was sufficient to ensure the fairness of the proceedings.
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
33.  The Court reiterates that object and purpose of Article 6 taken as a whole show that a person “charged with a criminal offence” is entitled to take part in the hearing. Moreover, sub-paragraph (c) guarantees to “everyone charged with a criminal offence” the right “to defend himself in person” and it is difficult to see how he could exercise these rights without being present (see Colozza v. Italy, judgment of 12 February 1985, Series A no. 89, p. 14, § 27, and Sejdovic v. Italy [GC], no. 56581/00, § 81, ECHR 2006‑...).
34.  Nonetheless, the personal attendance of the defendant does not take on the same crucial significance for an appeal hearing as it does for the trial hearing (see Kamasinski v. Austria, 19 December 1989, § 106, Series A no. 168). The manner in which Article 6 is applied to proceedings before courts of appeal depends on the special features of the proceedings involved; account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the appellate court therein (see Ekbatani v. Sweden, judgment of 26 May 1988, Series A no. 134, § 27, and Monnell and Morris v. the United Kingdom, cited above, § 56).   Proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6, although the appellant was not given an opportunity of being heard in person by the appeal or cassation court, provided that a public hearing was held at first instance (see, among other authorities, Monnell and Morris, cited above, p. 22, § 58, as regards the issue of leave to appeal, and Sutter v. Switzerland, judgment of 22 February 1984, Series A no. 74, p. 13, § 30, as regards the court of cassation).
35.  However, even where the court of appeal has jurisdiction to review the case both as to the facts and law, Article 6 does not always require a right to a public hearing, still less a right to appear in person (see Fejde v. Sweden, judgment of 29 October 1991, Series A no. 212‑C, p. 68, § 31). In order to decide this question, must be had, among other considerations, to the specific features of the proceedings in question and to the manner in which the applicant's interests were actually presented and protected before the appellate court, particularly in the light of the nature of the issues to be decided by it (see , referred to above, § 37, Hermi v. Italy[GC], no. 18114/02, § 60, ECHR 2006‑...). an appellate court has to examine a case as to the facts and the law and make a full assessment of the issue of guilt or innocence, it cannot determine the issue without a direct assessment of the evidence given in person by the accused for the purpose of proving that he did not commit the act allegedly constituting a criminal offence (see Dondarini v. San Marino, no. 50545/99, § 27, 6 July 2004).
36.  Lastly, the Court reiterates that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial (see  (dec.), no. 52868/99, 30 November 2000l Hermi v. Italy, cited above, § 73). However, such a waiver must, if it is to be effective for Convention purposes, be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance (see Poitrimol v. France, 23 November 1993, § 31, Series A no. 277‑A). 
 (b) Application of the above principles to the facts of the case
37.  The Court first notes that in the proceedings before the first‑instance court the applicant, who was legally represented, was present and gave evidence in person.
38.  The applicant asserts that his right to defend himself was violated by the fact that the appellate court refused to grant him leave to attend the only hearing to be held before that court. The Court notes that under Polish law the applicant had the right to attend the appeal hearing, unless the court found that the lawyer's presence was sufficient. In this connection, it observes that the applicant requested to be brought to the hearing expressly and in writing. Therefore, no issue arises as to whether he can be regarded as having waived his right to attend that hearing.
39.  The Court observes that in his appeal the applicant argued, inter alia, that the trial court had committed errors in the assessment of the evidence and that the establishment of the facts had been erroneous. Similar arguments were submitted in the appeal lodged with the appellate court by his lawyer. Hence, the applicant essentially sought to challenge the soundness of his conviction on the facts. The appeals against the first-instance judgments were therefore not limited to the legal aspects of the case. It is further noted that under domestic law the court of appeal was empowered to hear evidence de novo in certain circumstances (see paragraph 23 above).
40.  In this context, the Court notes that the appellate court refused to grant the applicant's request, having regard to the fact that he was legally represented at the appeal hearing. It accepts that the fact that an accused is properly represented before a court of appeal is, for obvious reasons, of direct relevance for ensuring that the hearing was fair.
 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).
41. The Court notes that the Court of Appeal, in the grounds for its judgment, focused on issues pertaining to the assessment of the evidence and on the manner in which the first-instance court had made findings relevant to the applicant's guilt (see paragraph 11 above). The Court observes that under the relevant provisions of the Polish law of criminal procedure the jurisdiction of an appeal court to questions of both fact and law. It considers that in such circumstances where the scope of a particular appeal filed with such a court is not confined to pure questions of law, Article 6 requires, in the absence of compelling reasons to the contrary, that the accused be allowed to be present at the hearing of his appeal and that he be notified in advance in clear terms of his right to do so.
42.  In the circumstances described above and given also the nature of the grounds of appeal advanced by the applicant and his lawyer, the Court considers that the issues to be determined by the court of appeal could not, as a matter of fair trial, properly have been examined without a direct assessment of the evidence given by the applicant in person (see, , Belziuk v. Poland, cited above, § 38).
43.  The Court further notes that the applicant's request to be brought to the hearing was submitted on 10 October 2006 and the hearing was held six weeks later, on 22 November 2006. Hence, unlike in Hermi v. Italy, his request, made well in advance, did not entail the need to postpone the hearing (Hermi v. Italy, cited above, § 20).
44.  Having regard to its findings, the Court considers that the proceedings before the Regional Court did not comply with the requirements of fairness. There has accordingly been a violation of Article 6 § 1 taken in conjunction with Article 6 § 3 (c) of the Convention.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
45.  Article 41 of the Convention provides:
“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.”
A.  Damage
46.  The applicant claimed 8,000 euros (EUR) in respect of non‑pecuniary damage.
47.  The Government contested his claim.
48.  The Court considers that the applicant must have suffered distress and frustration on account of a breach of his right to a fair hearing. However, the amount claimed appears to be excessive. Making its assessment on an equitable basis, the Court awards the applicant 1,500 EURin that respect plus any tax that may be chargeable on that amount.
B.  Costs and expenses
49.  The applicant did not make any claim in respect of costs and expenses.
C.  Default interest
50.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 6 § 1 taken in conjunction with Article 6 § 3 (c) of the Convention;

3.  Holds
(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;

4.  Dismisses the remainder of the applicant's claim for just satisfaction.
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 
	Registrar	President