AS TO THE ADMISSIBILITY OF
by Kazimierz RUTKOWSKI
The European Court of Human Rights (Fourth Section), sitting on 19 October 2000 as a Chamber composed of
Mr G. Ress,
Mr A. Pastor Ridruejo,
Mr L. Caflisch,
Mr J. Makarczyk,
Mr I. Cabral Barreto,
Mrs N. Vajić,
Mr M. Pellonpää, judges,Note
and Mr V. Berger, Section Registrar,
Having regard to the above application introduced on 2 October 1998 and registered on 5 February 1999,
Having deliberated, decides as follows:
The applicant is a Polish national, born in 1966. He currently serves a prison sentence in Płock prison.
A. The circumstances of the caseNote
The facts of the case, as submitted by the applicant, may be summarised as follows.
a) On 13 March 1997 the Toruń District Court convicted the applicant of assault against his brother-in-law and sentenced him to eight months’ imprisonment. When taking the evidence, the court interviewed the applicant and heard at least three other witnesses: his wife, the victim, and the victim’s wife. The court had further regard to a forensic medical opinion.
The applicant filed an appeal with the Toruń Regional Court, submitting that the evidence on the case-file did not allow for a conclusion that he was guilty of any criminal offence, and requesting to be acquitted. He submitted in particular that he had been acting in self-defence. On 19 December 1997 the Toruń Regional Court upheld the first-instance judgment, considering that the lower court had correctly and logically established the facts of the case and that the legal assessment of the facts was not open to criticism, in particular in the part in which it considered that in the circumstances of the case it would not be justified to hold that the applicant had acted in self-defence.
By a letter of 25 March 1998 the applicant’s officially appointed counsel informed him that his competence to act on the applicant’s behalf had expired on the date on which the appellate court gave its judgment. If the applicant wished to lodge a cassation appeal, it was open to him to hire a lawyer who should draft the appeal and submit it to the Supreme Court within thirty days from the service of the second-instance judgment with its written grounds on the applicant. He also informed the applicant that he was not intending to lodge a cassation appeal with the Supreme Court as his case-load made it impossible for him.
On 26 March 1998 the applicant requested the Toruń Regional Court to appoint a counsel under the legal aid scheme, who would prepare a cassation appeal on his behalf.
On 28 March 1998 the same counsel refused to accept the applicant’s power of attorney for the purposes of lodging the cassation appeal. He informed the applicant that it was open to him to submit to the court a request to have another lawyer assigned to the case.
On 2 April 1998 the court granted the applicant’s request. Subsequently, on 7 April 1998 the Toruń Regional Bar Council, acting at the request of the Toruń District Court, assigned E.Z. as an officially appointed counsel to represent the applicant in the cassation proceedings.
By a letter of 26 April 1998 E.Z. informed the applicant that she did not intend to draft a cassation appeal in his case, as she was of the view that no statutory grounds for so doing were available. She considered that the second-instance judgment was not flawed with shortcomings such as to justify lodging a cassation appeal under the applicable provisions of the Code of Criminal Procedure. The analysis of the case-file had not shown that any flagrant breach of law had been committed in the case.
The applicant received this letter on 4 May 1998. On 28 July 1998 he renewed his request to have a lawyer assigned in order to represent him further in the proceedings. He also requested to be granted a retrospective leave to appeal out of time.
On 20 October 1998 the Toruń Regional Court refused to appoint legal counsel under the legal aid scheme and to grant the applicant a retrospective leave to appeal out of time. The court considered that the objective of appointing a legal counsel was to guarantee to the accused person a right to have effective legal representation in the criminal proceedings. If a lawyer, having analysed the case-file, stated that there were no grounds on which a cassation appeal should be lodged, there was no legal basis on which the court could oblige the lawyer to act further. Moreover, there was no legal basis on which to appoint a new legal counsel to the case. E.Z. had filed her letter of 26 April 1998 with the applicant’s case file. It transpired therefrom that she had analysed the case-file with a view to lodging a cassation appeal, but that she had not found any grounds which would justify it. The court concluded that, in view thereof, there was no legal basis on which another lawyer could be appointed to the case.
Subsequently the applicant complained to the Regional Council of the Toruń Bar. In reply, in a letter of 5 November 1998, the Dean of the Council informed him that E.Z. had been requested to explain the grounds on which she had refused to draft the cassation appeal. She had stated that she had examined the applicant’s case-file and had not found any grounds for filing the cassation appeal. The applicant’s attention was drawn to the fact that as the cassation appeal was an extraordinary legal remedy, sound reasons had to be put forward in support of such remedy. In the circumstances of the case, there was no indication that E.Z. had acted negligently or in breach of professional ethics or law.
Subsequently, the applicant requested the Minister of Justice to lodge a cassation appeal on his behalf. On 30 June 1999 the Minister of Justice refused to do so, considering that the examination of the case-file had shown that there were no legal grounds for lodging a cassation appeal.
b) On 30 April 1998 the Toruń District Court convicted the applicant of attempted theft and sentenced him to one-year imprisonment and a fine. The applicant had committed the offence when being temporarily released from prison.
On 5 February 1999 the Toruń Regional Court partly amended the contested judgment in that it quashed the part of the sentence by which the applicant had been ordered to pay a fine, partly amended the legal basis of the conviction and dismissed the remainder of the applicant’s appeal.
B. Relevant domestic law
1. Assistance of an officially appointed lawyer
On 1 September 1998 the new Code of Criminal Procedure entered into force. Pursuant to Article 84 of the Code, an officially appointed counsel is entitled to act on behalf of the accused throughout the entire proceedings. A counsel appointed to represent an accused in cassation proceedings should draft and sign the cassation appeal, or inform the second-instance court in writing that he has not found grounds for lodging such an appeal against the second-instance judgment.
According to Article 78 § 1 of the Code, the accused who does not have a privately hired lawyer to represent him in the proceedings, may require that a counsel be assigned to the case under the legal aid scheme, if he proves that he cannot afford to pay the costs of his defence without entailing a substantial reduction in his and his family’s standard of living. Under Article 79, the accused person must have an officially appointed counsel if he is minor, or deaf, mute or blind, or if there are justified doubts whether he could be held criminally responsible, or if he does not speak Polish.
Further, pursuant to the same provision, a lawyer shall be assigned to represent the accused when the court finds it justified due to circumstances which may render the defence particularly difficult.
The accused must have an officially appointed lawyer in the case in which a regional court acts as the first - instance court, if he is accused of a crime within the meaning of the Criminal Code, or is detained on remand.
2. Cassation appeal
According to Article 519 of the Code of Criminal Procedure, a cassation appeal may be lodged with the Supreme Court against any final decision of an appellate court, which has terminated the criminal proceedings. Pursuant to Article 523, such an appeal can be lodged only on grounds specified in Article 439 of the Code, which include serious procedural errors, or on the ground of another flagrant breach of law, if the contested judicial decision was affected by such breach. A cassation appeal cannot be lodged only against the sentence.
Under Article 526 § 2 the cassation appeal must be drafted and signed by a counsel.
The applicant complains, without invoking any provisions of the Convention, that in his case there was a breach of his right to life in that the court convicted him of acts which he had committed acting in self-defence.
He further complains that his right to a fair hearing was breached in that the courts wrongly assessed evidence and gave wrong decisions, having disregarded his arguments. He also complains that the lawyers assigned to represent him under the legal aid scheme refused to lodge the cassation appeal with the Supreme Court.
1. The applicant complains that in his case there was a breach of his right to life in that the Toruń District Court convicted him of acts which he had committed acting in self-defence.
The Court examined this complaint under Article 2 of the Convention which reads, insofar as relevant:
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”
The Court notes that the facts of the case do not disclose any danger to life or limb. Accordingly, this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
2. The applicant complains that the lawyers assigned to represent him under the legal aid scheme refused to lodge the cassation appeal with the Supreme Court.
The Court has examined this complaint under Article 6 § 3 (c) of the Convention which reads:
“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;”
The Court first recalls that, according to Article 19 of the Convention, it is competent to receive petitions from any person claiming to be a victim of a violation by one of the Contracting Parties of the rights set out in the Convention. The responsibility of the Contracting Parties is incurred by the actions of their organs. A lawyer, even if he or she is officially appointed to represent an accused in criminal proceedings, cannot be considered as an organ of a State. It follows from the independence of the legal profession from the State that the conduct of the defence is essentially a matter between the defendant and his counsel, whether counsel be appointed under a legal aid scheme or be privately financed, and, as such, cannot, other than in special circumstances, incur the State’s liability under the Convention (see, mutatis mutandis, the Artico v. Italy judgment of 30 May 1980, Series A no. 37, p. 18, § 36; the Daud v. Portugal judgment of 21 April 1998, Reports of Judgments and Decisions 1998-II, p. 749, § 38; Eur. Com. H.R., no. 9022/80, Dec. 13.7.1983, D.R. 33, p. 21; no. 27266/95, Dec. 21.10.1996, D.R. 87-B, p. 100; Tuziński v. Poland (dec), no. 40140/98, 30.03.1999).
However, there may be occasions when the State should act and not remain passive when problems with legal representation are brought to the attention of the competent authorities. It will depend on the circumstances of the case whether the relevant authorities should take action (see the above-mentioned Daud judgment, p. 750, §§ 40-42) and, whether taking the proceedings as a whole, the defence can be regarded as “practical and effective” as required by Article 6 § 3(c) (see the above-mentioned Artico judgment p. 16, § 33, and the Goddi v. Italy judgment of 9 April 1984, Series A no. 76, p. 11, § 27).
In the present case the Court first observes that after the counsel who had represented the applicant in the criminal proceedings informed him that he would not represent him in the cassation proceedings, the applicant brought this to the attention of the appellate court. The court granted the applicant’s request and subsequently counsel E.Z. was appointed to represent him further and to take the procedural measures necessary for lodging a cassation appeal. She examined the case-file and informed the applicant that nothing therein had disclosed that statutory grounds for lodging such an appeal existed in the case. In these circumstances, the Court cannot find that the courts remained passive in response to the applicant’s efforts to have a cassation appeal lodged. There is no indication that E.S. was negligent or superficial in making her conclusion.
The Court further notes that the conclusion of the officially appointed lawyer was later supported by identical conclusion of the Ministry of Justice, which refused to lodge a cassation appeal on the applicant’s behalf, likewise having examined the case-file. The Court further observes that it is not for a domestic court to oblige a lawyer, whether appointed under the legal scheme or not, to lodge any remedy contrary to his or her opinion as to the prospects of success of such remedy, the more so as in the present case conclusion was clearly preceded by the lawyer’s analysis of the case-file.
On the whole, the Court considers that there is no indication that the applicant’s defence was ineffective in that he could not lodge a cassation appeal with the Supreme Court.
It follows that this complaint is therefore manifestly ill-founded within the meaning of Article 35 § 4 and must be dismissed pursuant to Article 35 § 3 of the Convention.
3. The applicant further complains that his right to have a fair hearing was breached in that in both sets of criminal proceedings the courts wrongly assessed evidence and gave wrong decisions.
Under Article 35 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”.
As regards the proceedings in which the final judgment was given by the Toruń Regional Court on 5 February 1999, the Court notes that the applicant failed to lodge a cassation appeal with the Supreme Court. He has not, therefore, exhausted relevant domestic remedies and this part of the application must be declared inadmissible pursuant to Article 35 § 4 of the Convention.
In respect of the proceedings concerning charges of assault, the Court observes that even assuming that the domestic remedies have been exhausted, this part of the application should in any event be declared inadmissible for the following reasons:
According to Article 19 of the Convention, the Court’s duty is to ensure the observance of the engagements undertaken by the Contracting Parties in the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see the Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45 and 46; the Garcia Ruiz v. Spain judgment of 21 January 1999, § 28).
The Court notes that the first-instance court heard at least three witnesses and interviewed the applicant. The court further had regard to the medical forensic report. The applicant was represented by the officially appointed lawyer before both the District Court and the Regional Court. It is not alleged that they were prevented in any way from advancing arguments which they considered relevant to the case. There is no indication that the courts arbitrarily interpreted evidence or reached unreasonable conclusions as to the facts. In the light of the foregoing considerations, the Court considers that the applicant had the benefit of proceedings in compliance with the requirements of Article 6 § 1 of the Convention.
This part of the application is therefore manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Vincent Berger Georg Ress
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