DOBROWOLSKI v. POLAND
Inadmissible
Nicolas Bratza
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. 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 sixteenmonth 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. 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). 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. 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.”