STRECIWILK v. POLAND
Inadmissible
Georg Ress
The applicant is a Polish national, born in 1953 and living in Dzwola, in Poland. On 15 May 1993 the applicant had a car accident in which C.Ł., a passenger of his car, died as a result of injuries, and R.M., another passenger, suffered serious injuries. Apparently on 16 May 1993 criminal proceedings were instituted against the applicant on charges of causing a traffic accident occasioning death and serious bodily harm. On 4 November 1994 the first hearing was held before the Janów Lubelski District Court in these proceedings. Subsequently the court held four further hearings. At the last one, on 29 December 1994, the District Court convicted the applicant of causing a traffic accident occasioning death and serious bodily harm. The court heard eight witnesses, including R.M., persons who had immediately arrived at the scene of the accident and had taken the applicant and other victims out of the car. The court established that on the critical date the applicant, while driving his car, had met R.M. and J.F. They had intended to spend some time in a beer bar in C. As the bar had been closed, the applicant had proposed to see his friend S.K., but, as he had no alcoholic beverages at home, the applicant and R.M. had gone to a shop in G. They had drunk some vodka, and later an unspecified amount of beer, first at S.K.’s place and later in a shop in C. On their way back home the applicant had stopped to pick up C.Ł. Shortly afterwards the applicant had lost control of the car, driven off the road into a ditch alongside it, and there hit a concrete water pipe. As a result of the crash, C.Ł. suffered grave injuries and subsequently died. R.M. also suffered serious injuries, including a brain concussion. The court further observed that three hours after the accident, the applicant had a blood test taken, which showed that he had 0,8 pro thousand alcohol in his blood. The court further considered that the applicant’s arguments according to which it had not been him who had been driving, but C.Ł., amounted only to an inept attempt of burdening the victim with the responsibility for the accident, which did not find support in any other evidence. In particular, the testimony of persons who had taken the injured passengers out of the badly damaged car, clearly indicated that the applicant had been in the driver’s seat. Their testimony was logical and corresponded to each other. In establishing the facts the court further had regard to an expert opinion of R.N., a physician, and to a further expert report of D.K., a specialist in traffic problems. The court also took into consideration a medico-psychiatric report on the applicant as well as a report of a psychologist. The court sentenced the applicant to two years of imprisonment. The enforcement of the sentence was stayed for five years of probation. The court considered that the applicant’s personality and the fact that he did not have any criminal record militated for the staying of the enforcement of the sentence. He had also shown contrition proportionate to the tragic consequences of his offence. The court further observed that a significant factor which had bearing on its position as regards the staying of the sentence was the fact that the applicant had five dependants: four children and a wife who had serious mobility problems. Thus, the societal aims of the sentence would be best served if the enforcement of the prison sentence was stayed. The court also imposed on the applicant a fine of 20,000,000 (old) Polish zlotys, and forbade him to drive for eight years. Both the prosecutor and the applicant lodged appeals against this judgment. At the hearing held on 20 March 1995, the Tarnobrzeg Regional Court quashed the part of the judgment staying the enforcement of the sentence. This judgment subsequently became final. On 7 March 1996 the Rzeszów Court of Appeal reopened the proceedings against the applicant on the ground that the second-instance court had considered the appeals against the judgment of 29 December 1994 despite the fact that the applicant’s lawyer had not attended the hearing held before the Tarnobrzeg Regional Court on 20 March 1995, whereas his presence would have been necessary in order to ensure an effective defence of the applicant’s procedural rights. The court also ordered the case to be reconsidered by the Tarnobrzeg Regional Court. On 15 April 1996 the Tarnobrzeg Regional Court reconsidered the prosecutor’s and the applicant’ s appeal against the judgment of 29 December 1994. The court quashed the part of the judgment by which the prison sentence had been stayed and that relating to imposition of the fine. The remainder of the judgment was upheld. The applicant’s lawyer lodged with the Regional Court a cassation appeal to the Supreme Court against this judgment, arguing in particular that the first-instance court had failed to give convincing grounds for its judgment, in particular by failing to adduce circumstances which had led it to a de facto increase in the sentence by quashing the part staying its enforcement for a period of five years. On 31 July 1996 the Regional Court declared the cassation appeal admissible. On 12 August 1996 the Tarnobrzeg Regional Prosecutor lodged its pleadings in the cassation proceedings with the Supreme Court, submitting that the applicant’s argument according to which the Tarnobrzeg Regional Court had failed to sufficiently justify this part of the decision by which the staying of the sentence had been quashed, was well-founded. However, this could not in itself be regarded as a sufficient ground for the quashing of the contested judgment by way of a cassation judgment, as this shortcoming did not amount to a flagrant breach of procedural provisions of the Code of Criminal Procedure, justifying that the judgment be quashed by the Supreme Court. On 23 August 1996 the applicant lodged additional pleadings with the Supreme Court. On 19 February 1997 the Supreme Court quashed the judgment of the Tarnobrzeg Regional Court of 15 April 1996 and remitted the case for reconsideration. On 23 September 1997 the Tarnobrzeg Regional Court, having reconsidered the case, quashed the part of the first-instance judgment by which the court stayed the enforcement of the sentence. It upheld the remainder of the judgment. The applicant filed again a cassation appeal against this judgment with the Supreme Court. He submitted that the first-instance court had been in flagrant breach of law in that it had refused to call a specialised institute in order to give a comprehensive forensic expert opinion, such as to include both medical aspects of the case and considerations of specialists in traffic problems, in order to reconstruct the course of material events and establish the facts of the case. It was further stated that the court had relied on an opinion of an expert in traffic issues which was incomplete, as shown by the fact that its author had indicated that an expert report should be submitted to the court in order to assess the exact degree of the applicant’s drunkenness at the material time.  On 8 June 1998 the Supreme Court dismissed a cassation appeal considering it unfounded. The court stressed that the applicant’s request to have a further expert opinion prepared had been in fact aiming at having the facts of the case established, and at having them assessed by an expert, whereas this was a cardinal duty of the court in criminal proceedings. It was not for any expert to take the place of the court in this respect. As regards the complaint that the expert opinion relied on by the court had been incomplete, the Supreme Court considered that it had contained a detailed analysis of circumstances which had led the expert to the conclusion that the applicant had been driving the car at the time of the accident, and that the applicant had not advanced any arguments capable of effectively calling these conclusions into question. As to the assessment of the applicant’s inebriated state, it was true that the expert had stated that his conclusions had been rather an estimate. However, the applicant’s state had also been established on the basis of the blood test taken several hours after the accident, which permitted a conclusion that his alcohol intake had been higher than permitted by law. As regards this part of the cassation appeal which called into question the reasonableness of the assessment of evidence given by witnesses R.M. and W.B. , it was not for the cassation court to assess the ability of the witnesses to reconstruct the material events. This was a task of the first-instance court which had had direct contact with the witnesses and had been in the best position to appreciate their submissions. The first-instance court had done so, and the appellate court had accepted its conclusions. In the light thereof, the Supreme Court found no grounds, which would cast doubt on their correctness. On 15 April 1999 the Supreme Court dismissed the motion to reopen the proceedings, considering that the applicant’s allegations that witnesses W.B. and R.M. suffered from alleged psychiatric ailments sufficient to call into question their abilities of perception did not constitute a ground justifying the reopening of the proceedings, as defined by law.