CASE OF BELZIUK v. POLAND
Preliminary objection rejected (incompetence ratione temporis, non-exhaustion);Violation of Art. 6;Non-pecuniary damage - claim dismissed;Costs and expenses - claim dismissed
C. Russo
6. The applicant was born in 1949 and lives in Gorlice, Poland. 7. On 31 May 1992 he was arrested on suspicion of having attempted to steal a car and on 2 June 1992 was remanded in custody. 8. The trial took place on 24 September, 15 October and 25 November 1992 before the Tarnów District Court (Sąd Rejonowy). The District Court heard as witnesses the owner of the car and his neighbour as well as the police expert, who confirmed that the door lock had been tampered with in an attempt to open it. The court also considered as evidence a bag containing instruments, which could have been used to open the car lock. The bag had been found in the close vicinity of the applicant at the time of his arrest. The applicant was present during the trial. According to the Government the applicant had chosen not to be represented by a lawyer. 9. On 25 November 1992 the District Court convicted the applicant of attempted theft and sentenced him to three years’ imprisonment. It found the evidence of the witnesses to be exhaustive and logical and their statements consistent. 10. The applicant filed an appeal against this judgment with the Tarnów Regional Court (Sąd Wojewódzki). He maintained in particular that the first-instance court had disregarded his explanations and had only attached weight to the prosecution evidence. He also requested that his accomplice and the two policemen who had arrested him be heard as witnesses and that he be brought from prison to the hearing before the Regional Court. 11. On 21 April 1993 the Regional Court refused the applicant’s request to be brought before it, considering that his presence was unnecessary, since he had already given a detailed account of the events at his trial before the District Court. Moreover, in his written statement of appeal he had set out at length his complaints in respect of the contested conviction. Furthermore, in its view he had sufficient time to submit further observations in writing, if he wished to do so. 12. On 10 May 1993, after a hearing at which the public prosecutor, but not the applicant, was present (see paragraph 14 below), the Regional Court dismissed the applicant’s appeal. 13. The Regional Court had heard the prosecutor’s submissions to the effect that the judgment of the lower court should be upheld, and it considered that the District Court had thoroughly assessed the evidence and had carefully considered the applicant’s guilt, as shown by the fact that the applicant had been acquitted on one of two charges. The Regional Court found that the evidence given by the applicant was inconsistent and motivated by his wish to avoid conviction. Moreover, the applicant had failed to request the District Court to hear further evidence. It noted that the applicant had only submitted a request to have the policemen who had arrested him heard when lodging his appeal. However, the Regional Court considered it unnecessary to hear the witnesses as the other evidence presented to the District Court was sufficient to prove the applicant’s guilt. 14. The relevant provisions of the Polish Code of Criminal Procedure in force at the material time read as follows: “An accused, who does not have a lawyer of his own choice, may request the assistance of an officially appointed lawyer if he proves that he is not able to incur the costs of defence without detriment to himself and his family.” “A court of appeal shall conduct a hearing when examining a case…” “A hearing shall be held irrespective of whether the parties are present. However, a hearing shall not be held if the public prosecutor is absent…” “If a case is to be examined at a hearing, the court may order an accused, who is detained, to be brought to the hearing.” “1. An appellate court cannot take evidence. 2. However, the court can exceptionally take evidence at a hearing … if it would expedite proceedings…” 15. The Code of Criminal Procedure provided at the material time for two-instance proceedings. Regional courts considered, inter alia, appeals against judgments of district courts. Only remedies of an extraordinary character were available against a judgment given by a regional court in appeal. Since then the Code of Criminal Procedure has been amended and now provides for cassation proceedings in respect of judgments of appellate courts. 16. Article 383 of the Code of Criminal Procedure prohibits an appellate court from increasing a sentence imposed by a trial court if the appeal was lodged by a defendant. 17. The Prosecution Authorities Act 1985 provides that the prosecution service is composed of the Principal Public Prosecutor and subordinate public prosecutors. Public prosecutors are independent in carrying out their duties. However, they are under an obligation to follow the instructions of higher ranking prosecutors. 18. In a declaration of 1 March 1993, deposited with the Secretary General of the Council of Europe by the Polish Minister for Foreign Affairs, Poland recognised the jurisdiction of the Court in the following terms: “The Government of the Republic of Poland, pursuant to Article 46 of the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature in Rome on 4 November 1950, declares that it recognises, for a period of three years with effect from 1 May 1993, as compulsory ipso facto and without special agreement, on condition of reciprocity on the part of the other Contracting Parties, the jurisdiction of the Court of Human Rights in all matters concerning the interpretation and application of the aforementioned Convention. The validity of this Declaration may be renewed by tacit agreement for periods of three years, if the Government of the Republic of Poland, by notification to the Secretary General of the Council of Europe, does not denounce this Declaration by giving at least six months’ notice before the expiry of the first period or of the subsequent periods.”