FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 17482/02 
by Krzysztof DOBROWOLSKI 
against Poland

The European Court of Human Rights (Fourth Section), sitting on 7 March 2006 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr J. Casadevall
 Mr G. Bonello
 Mr R. Maruste
 Mr S. Pavlovschi
 Mr L. Garlicki, 
 Mr J. Borrego Borrego, judges
and Mrs F. Elens-Passos, Deputy Section Registrar,

Having regard to the above application lodged on 12 December 2001,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Krzysztof Dobrowolski, is a Polish national, who was born in 1974. He was represented before the Court by Mr Ł. Jura, a lawyer practising in Warsaw. The respondent Government were represented by Mr J. Wołąsiewicz, of the Ministry of the Foreign Affairs.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 18 April 2001 the Śrem District Court (Sąd Rejonowy) convicted the applicant of dealing in stolen goods and sentenced him to a sixteen-month prison term.

The applicant filed an appeal to the Poznań Regional Court (Sąd Okręgowy) in which he complained about the severity of the sentence.

On 20 November 2001 the Regional Court informed the applicant that a legal aid counsel had been appointed for him and that an appeal hearing would take place on 30 November 2001.

However, counsel never contacted the applicant. The applicant, who was serving a prison sentence in another case, asked that he be brought before the appellate court but his request was refused.

On 30 November 2001, after a hearing at which the prosecutor and the applicant’s counsel, but not the applicant, were present, the Regional Court dismissed the applicant’s appeal.

On 9 December 2001 the applicant asked the Court to serve him with a copy of the reasoned judgment with the purpose of lodging a cassation appeal with the Supreme Court. On 10 January 2002 the court served him the reasoned judgment.

The applicant failed to lodge a cassation appeal within the time-limit and on 20 February 2002 the President of the Fourth Chamber of the Poznań Regional Court declared that the judgment was final.

B.  Relevant domestic law and practice

1.  Cassation appeal

Under Article 519 of the 1997 Code of the Criminal Procedure, which entered into force on 1 September 1998, a party to criminal proceedings may lodge a cassation appeal with the Supreme Court against a final judgment of an appellate court which has terminated the criminal proceedings.

Article 523 §1 of the 1997 Code provides, in so far as relevant:

“A cassation appeal may be lodged only on the grounds referred to in Article 439 [these include a number of procedural irregularities, such as, for instance, incorrect composition of the trial court; lack of legal assistance in cases where such assistance was compulsory; breach of rules governing jurisdiction in criminal matters; trying a person in absentia where his presence was obligatory etc.] or on the ground of another flagrant breach of law provided that it could significantly affect the substance of the ruling in question. No cassation appeal may be directed against the severity of the penalty imposed.”

A cassation appeal must be lodged within 30 days from the date of notification of the reasoned judgment of the appellate court (Article 524 of the 1997 Code).

2.  Presence at the hearing

Pursuant to Article 451:

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 to the hearing an accused who has no defence counsel, it shall appoint for him ex officio a legal aid lawyer.

3.  Practice of the Supreme Court

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.

The Supreme Court on many occasions found that the refusal to bring the accused to the appeal hearing, although not in violation of the Code of Criminal Proceedings in force, constituted a breach of Article 6 §§ 1 and 3 (c) of the Convention read in conjunction with Article 91 § 2 of the Constitution of the Republic of Poland. 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).

The resolution of 7 judges of the Supreme Court of 18 October 2001 (IKZP 25 /01) dealt with the Ombudsman’s request for clarification of issues relating to the presence of the accused at the appeal hearing in the light of Article 6 of the Convention and the Polish Code of the Criminal Procedure. The Supreme Court, inter alia, 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 a 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 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.”

COMPLAINT

The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention that he was not brought before the appellate court. He could not defend himself in person while the prosecutor attended the appeal hearing. The applicant also complained that the lawyer, who represented him at the appeal hearing, was appointed against his will and never contacted him.

THE LAW

A.  Alleged violation of Article 6 §§ 1 and 3 (c) of the Convention

The applicant complained that the appeal hearing on 30 November 2001 at which the prosecutor and a lawyer who had been appointed shortly before – but who had never had contacted him - were present, constituted a violation of his right to a fair trial and in particular his right to a hearing in his presence and the principle of equality of arms.

He relied on Article 6 § 1 in conjunction with Article 6 § 3 (c) of the Convention, which provide as relevant:

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... 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 has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;”

1.  The arguments of the parties

(a)  The Government’s plea on non-exhaustion of domestic remedies

The Government maintained that the applicant had failed to exhaust domestic remedies as he had not lodged a cassation appeal against the judgment of 30 November 2001.

The Government considered that pursuant to Article 523 § 1 of the Code of Criminal Procedure, a cassation appeal could be based on procedural shortcomings enumerated in Article 439 of the Code as well as on an flagrant breach of the law which could influence the judgment to a considerable extent. The Government were of the opinion that since an alleged violation of Article 6 of the Convention should be considered a flagrant breach of the law, it could be a successful ground for a cassation appeal.

The Government underlined that the appellate court’s discretion whether or not to bring the accused to a hearing should be submitted for review to the Supreme Court in a cassation appeal. They referred to a resolution of 7 judges of the Supreme Court of 18 October 2001 according to which if an accused requests to be brought to an appeal hearing, refusal is only permissible in exceptional circumstances.

(b)  The applicant’s submissions

The applicant replied that he should not be required to lodge a cassation appeal in his case and that he had exhausted all remedies available to him. The applicant maintained that a cassation appeal could not have been brought against the severity of the penalty imposed and that this was the ground of his appeal.

2.  The Court’s assessment

The Court recalls that pursuant to Article 35 § 1 of the Convention:

“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law...”

The purpose of the exhaustion rule, contained in Article 35 § 1 of the Convention, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them, before those allegations are submitted to the Court. The respondent State must have a chance to put matters right through its own legal system before having to answer before an international body for its acts. In consequence, complaints intended to be brought subsequently before the Court in Strasbourg should first have been made – at least in substance – to the appropriate domestic body. In that way Article 35 § 1 obliges the applicant to try available remedies that relate to the breach alleged by him (see, among many other examples, Selmouni v. France [GC], §§ 74-76, ECHR 1999-VII; H.D. v. Poland (dec.), no. 33310/96, 7 June 2001; and Kwiek v. Poland (dec.) no. 51895/99, 17 June 2003, Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI).).

The only remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, among many authorities, Mifsud v. France (dec.) [GC], no. 57220/00, ECHR 2002-VIII).

In the present case the Court finds that the applicant did not file a cassation appeal with the Supreme Court against the final judgment given in his case by the Poznań Regional Court on 30 November 2001.

In that regard, the Court observes that under Polish law and 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 (see, Kucharski v. Poland (dec), no. 51521/99, 16 October 2003). That includes a breach of the right to defend himself in person and of the principle of equality of arms.

The cassation appeal was therefore a remedy whereby the applicant could have effectively submitted the substance of the present complaint to the domestic authorities and sought relief.

It follows that the application is inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Françoise Elens-Passos Nicolas Bratza 
 Deputy Registrar President

DOBROWOLSKI v. POLAND DECISION


DOBROWOLSKI v. POLAND DECISION