SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 74454/01 
by Wojciech WOŹNIAK 
against Poland

The European Court of Human Rights (Second Section), sitting on 14 February 2006 as a Chamber composed of:

Mr J.-P. Costa, President
 Mr A.B. Baka
 Mr R. Türmen
 Mr K. Jungwiert
 Mr M. Ugrekhelidze
 Mrs A. Mularoni, 
 Mr L. Garlicki, judges 
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 8 April 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Wojciech Woźniak, is a Polish national who was born in 1970 and lives in Warsaw.

A.  The circumstances of the case

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

On 16 April 1996 the applicant was arrested on a charge of armed robbery and detained on remand. The applicant’s detention was prolonged by numerous subsequent court decisions, including decisions of the Supreme Court of 8 April 1998, 3 September 1998, 27 November 1998, 14 July 1999, 25 May 1999, 7 April 1999 and 27 October 1999. When maintaining the applicant’s detention, the courts had regard to the reasonable suspicion that he had committed the offence concerned, the complexity of the case and the significant number of co-accused (10 persons). The Supreme Court also had regard to the conduct of the applicant, who several times requested that his legal aid lawyers be changed and refused to accept their line of defence.

On 30 December 1996 the bill of indictment was brought before the Warsaw Regional Court.

On 22 October 1998 the applicant asked the Warsaw District Prosecutor to institute criminal proceedings against certain agents of the Office of State Protection, who had participated in his arrest, and against the Prosecutor supervising the investigation in his case. The applicant accused them of fabricating evidence against him. On 20 November 1998 the Warsaw District Prosecutor refused to institute such proceedings, finding no indication that any criminal offence had been committed.

On 28 July 1999 the applicant asked the Płock District Prosecutor to institute criminal proceedings against the same Prosecutor and agents of the Office of State Protection. He alleged that the Prosecutor had fabricated evidence against him and that the agents had tortured him with electric current before turning him over to the Prosecutor.

On 5 October 1999 the Plock District Prosecutor, after a preliminary investigation, refused to institute criminal proceedings, finding that the evidence gathered in the investigation did not support the applicant’s accusations.

On 29 December 1999 the Warsaw Regional Court found the applicant guilty of several acts of armed robbery, imposed concurrent sentences totalling 10 years’ imprisonment and ordered the forfeiture of his civic rights for seven years.

The applicant appealed, alleging a breach of the presumption of innocence and a wrong assessment of evidence by the court.

On 29 May 2001 the Warsaw Court of Appeal upheld the judgment.

The applicant was represented by a legal aid lawyer in the proceedings before the first and second instance courts.

On 13 August 2001 written grounds for the judgment were forwarded to the applicant, and the Court of Appeal informed him that he had been granted a legal aid lawyer to draft a cassation appeal in his case.

On 6 September 2001 the lawyer informed the court and the applicant that, having analysed the case, he had not found any legal basis to lodge a cassation appeal. The lawyer also informed the court that the applicant disagreed with this opinion.

On 8 March 2002 the Warsaw Court of Appeal refused the applicant’s request to appoint another legal aid lawyer. The court relied on the fact that the previously appointed lawyer had thoroughly examined the case file and that no negligence was revealed in that examination or his refusal to lodge a cassation appeal on the applicant’s behalf.

B.  Relevant domestic law and practice

1.  Preventive measures, including detention on remand

The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as a preventive measure (środki zapobiegawcze). Other measures of this kind are bail (poręczenie majątkowe), police supervision (dozór policji), a guarantee provided by a responsible person (poręczenie osoby godnej zaufania) or by an institution or organisation (poręczenie społeczne), a temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and the prohibition on leaving the country (zakaz opuszczania kraju).

Article 249 § 1 sets out the general grounds for the imposition of the preventive measures, as follows:

“Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused from committing another, serious offence; they may be imposed only if the evidence gathered shows a significant probability that an accused has committed an offence.”

Article 258 lists grounds for detention on remand. It provides, in so far as relevant:

“1.  Detention on remand may be imposed if:

(1)  there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland];

(2)  there is a reasonable risk that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means;

2.  If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years’ imprisonment, or if a court of first instance has sentenced him to at least 3 years’ imprisonment – the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.”

The Code affords a margin of discretion regarding the continuation of a specific preventive measure. Article 257 reads, in so far as relevant:

“1.  Detention on remand shall not be imposed if another preventive measure is sufficient.”

Article 259, in its relevant part, reads:

“1.  If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would:

(1)  seriously jeopardise his life or health; or

(2)  entail excessively harsh consequences for the accused or his family.”

The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each decision specify the exact period of detention.

Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided:

“1.  In imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months.

2.  If, due to the particular circumstances of the case, an investigation cannot be terminated within the term referred to in paragraph 1, the court of first instance competent to deal with the case may – if need be and on the application of the [competent] prosecutor – prolong detention for a period [or periods] which as a whole may not exceed 12 months.

3.  The whole period of detention on remand, until the date on which the first conviction at first instance is imposed, may not exceed 2 years.

4.  Only the Supreme Court may, on an application made by the court before which the case is pending or, at the investigation stage, on an application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, the prolonged psychiatric observation of the accused, the prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad, and when the accused has deliberately prolonged the proceedings, as well as other significant obstacles which could not be overcome.”

On 20 July 2000 paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs 2 and 3 has been vested in the court of appeal within whose jurisdiction the offence in question has been committed. In addition, a new paragraph 5 was added which provides:

“A decision of the Court of Appeal taken pursuant to paragraph 4 may be appealed to the Court of Appeal sitting in a panel of three judges.”

2.  Assistance of an officially appointed lawyer

On 1 September 1998 the new Code of Criminal Procedure entered into force. Pursuant to its Article 84, an officially appointed counsel is entitled to act on behalf of the accused throughout the entire proceedings. 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 or she has not found grounds for lodging such an appeal.

According to Article 78 § 1 of the Code, accused persons who do not have privately hired lawyers to represent them in the proceedings, may require that counsel be assigned to the case under the legal aid scheme, if they prove that they cannot afford to pay the costs of defence without entailing a substantial reduction in their or their families’ standard of living. Under Article 79, the accused person must have an officially appointed counsel if he or she is a minor, or deaf, mute or blind, or if there are justified doubts whether the accused could be held criminally responsible or does not speak Polish.

Further, pursuant to the same provision, a lawyer shall be assigned to represent the accused if the court finds that the defence may be particularly difficult.

The accused must have an officially appointed lawyer in cases where a regional court acts as the first instance court, if a crime is involved within the meaning of the Criminal Code, or the individual is detained on remand.  

3.  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 the grounds specified in Article 439 of the Code, which includes serious procedural errors or a flagrant breach of law, provided that the contested decision was actually affected by the breach. A cassation appeal cannot be lodged only against the sentence.

Under Article 526 § 2 the cassation appeal must be drafted and signed by counsel.

COMPLAINTS

1.      The applicant complains under Article 5 § 3 of the Convention about the length of his detention on remand.

2.      Furthermore, the applicant submits that his detention caused the deterioration of his family relationships as well as the general welfare of his family members.

3.      He further complains under Article 3 of the Convention that, after he had been arrested, he was tortured by agents of the Office of State Protection.

4.      The applicant also alleges infringement of Article 5 of the Convention in that he was unlawfully detained and was not informed promptly of the reasons for his arrest.

5.      The applicant next complains about the outcome of the criminal proceedings, alleging the wrong assessment of the evidence by the domestic courts.

6.      He asserts that he did not have legal representation during the proceedings before the Regional Court, which rendered the proceedings unfair.

7.      In a letter of 17 June 2002, the applicant complained, without invoking any Articles of the Convention, that the lawyers assigned to represent him under the legal aid scheme refused to lodge the cassation appeal with the Supreme Court and that the Court of Appeal refused to appoint another legal aid lawyer to the case.

THE LAW

1.      The applicant complains under Article 5 § 3 of the Convention about the length of his pre-trial detention.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2.      The applicant further complains under Article 8 of the Convention that, due to the allegedly unlawfully detention, his family relationships and his family’s welfare deteriorated.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

3.      The applicant complains under Article 3 of the Convention that, after he had been arrested by agents of the Office of State Protection and before they turned him over to the Prosecutor, they tortured him with the electric current.

The Court notes that the applicant has not shown that he appealed to the competent court against the decision of the Płock District Prosecutor of 5 October 1999 refusing to institute criminal proceedings with reference to his allegations.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

4.      The applicant complains under Article 5 of the Convention about being unlawfully detained. He also submits that he was not informed of the reasons for his arrest.

The Court observes that the applicant was arrested on 16 April 1996 while his application to the Court was lodged on 8 April 1999.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for having been introduced out of time.

5.      The applicant next complains about the unfavourable outcome of the criminal proceedings, and in particular the allegedly wrong assessment of evidence.

The Court reiterates that, according to Article 19 of the Convention, its 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 insofar as they may have infringed rights and freedoms protected by the Convention (see Garcia Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999- I).

In the light of all the material in its possession and insofar as the applicant’s complaint about the outcome has been substantiated, the Court finds that it does not disclose any appearance of a violation of the Convention. In particular, it finds no elements which would indicate that the national courts went beyond their proper discretion in the assessment of fact or reached arbitrary conclusions.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

6.      The applicant complains invoking Article 6 of the Convention that he did not have legal representation during the proceedings before the Regional Court.

Article 6 § 3 (c) of the Convention reads insofar as relevant:

“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; ...”

However, the Court observes from certain documents in the file that the applicant was represented by a legal aid lawyer in the proceedings before both the Regional Court and the Court of Appeal.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

7.      In a letter of 17 June 2002, the applicant submits that his legal aid lawyer refused to lodge a cassation appeal. The applicant further complains that the court refused to appoint another legal aid lawyer to lodge such an appeal.

The Court has examined this complaint under Article 6 § 3 (c) of the Convention, cited above.

The Court first observes that the responsibility of the Contracting Parties is incurred by the actions of their organs. However, a lawyer, even if officially appointed to represent an accused in criminal proceedings, cannot be considered to be an organ of the State. Given the independence of the legal profession from the State, the conduct of the defence is essentially a matter between the defendant and his or her 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 Daud v. Portugal judgment of 21 April 1998, Reports of Judgments and Decisions 1998-II, p. 749, § 38; Tuziński v. Poland (dec), no. 40140/98, 30.03.1999; Rutkowski v. Poland (dec.), no. 45995/99, ECHR 2000-XI).

Nevertheless, there may be occasions when the State should act and not remain passive when problems of 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 may be regarded as “practical and effective” as required by Article 6 § 3(c) (see Artico v. Italy, judgment of 13 May 1980, Series A no. 37, p. 16, § 33; Goddi v. Italy judgment of 9 April 1984, Series A no. 76, p. 11, § 27; Rutkowski v. Poland (dec), no. 45995/99, ECHR 2000-XI).

In the present case, there is no indication of any negligence on the part of the legal aid lawyer assigned to represent the applicant in the cassation proceedings. He carefully examined and assessed the prospects of success for such an appeal and explained his negative opinion to the applicant and the court. 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 a futile remedy contrary to his or her opinion, all the more so when, like the present case, the lawyer’s conclusion was clearly preceded by a full analysis of the case file.

The Court further notes that, subsequently, the lawyer’s conduct was examined by the domestic court, which found no negligence in the lawyer’s conduct or any grounds for the appointment of a replacement for the purpose of this remedy.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning the length of his pre-trial detention and the alleged violation of his right to respect for his family life;

Declares the remainder of the application inadmissible.

S. Dollé J.-P. Costa 
 Registrar President

WOŹNIAK v. POLAND DECISION


WOŹNIAK v. POLAND DECISION