CASE OF WERSEL v. POLAND
Violation of Art. 6-1+6-3-c
Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Zdravka Kalaydjieva
5. The applicant, Mr Krzysztof Wersel, is a Polish national who was born in 1970 and is currently serving a prison sentence in Brzeg Prison. 6. The applicant has been in continuous detention from an unspecified date in September 2000 until the present day. 7. He was initially committed to Mysłowice Remand Centre. 8. In November 2000 he was transferred to Zabrze Remand Centre, where, as he submitted, he had been detained together with two or three other detainees in cells measuring 6 or 10 square metres. 9. In July 2001 the applicant was transferred back to Mysłowice Remand Centre, where he had been detained in overcrowded cells. In addition, the applicant, who was a non-smoker, had been exposed to cigarette smoke because smoking inside the cell was allowed. 10. From 31 December 2003 until an unspecified date in July 2005 the applicant was detained in Gliwice Remand Centre. He was assigned to a cell measuring 6 square metres which he had shared with two other detainees. 11. On an unspecified date in July 2005 the applicant was committed to Zabrze Remand Centre. He submitted that, initially, the conditions of his detention had been satisfactory. In his letter of 19 June 2006, however, he claimed that the establishment had become overcrowded just like all the other detention facilities. 12. The Government submitted that as of 26 November 2009 the applicant had been detained in Brzeg Prison, in a cell in which the statutory minimum space of 3 square metres per person had been respected. 13. On 7 October 2004 the applicant complained to the remand centre’s administration about overcrowding and bad living conditions. He did not complain to the penitentiary authorities in connection with the living conditions as regards the more recent period of his detention. Moreover, the applicant did not bring a civil action in tort to seek compensation for the infringement of his personal rights. 14. On 27 October 2003 the Katowice District Court (Sąd Rejonowy) convicted the applicant of three counts of armed robbery and sentenced him to a prison term of three and a half years. During the first-instance proceedings the applicant was represented by a legal aid lawyer. 15. On 23 April 2004 the Katowice Regional Court (Sąd Rejonowy) upheld the above-mentioned judgment on appeal. During the secondinstance proceedings the applicant was also represented by a legal aid lawyer. To that effect the appellate court held that the applicant be exempted from all costs of the appellate proceedings, including legal assistance. 16. On 25 May 2004 the reasoned judgment was served on the applicant. On that date the time-limit of thirty days for lodging a cassation appeal began to run. 17. On 26 May 2004 the lawyer instructed the applicant that her mandate had expired when the appellate proceedings had come to an end. If the applicant wished to have a cassation appeal lodged with the Supreme Court, he should make a new request for legal aid. 18. On 30 May 2004 the applicant prepared an application for legal aid and deposited it as out-going mail with the authorities of the Gliwice Remand Centre. His legal aid application was received by the Katowice Regional Court on 3 June 2004. 19. By an official letter of 22 June 2004 the registry of the Katowice Regional Court notified the applicant that his appeal for legal aid had been rejected. The court’s decision was not accompanied by any reasoned opinion. 20. On 24 June 2004 the applicant drafted his own cassation appeal and filed it with the Katowice Regional Court. 21. On 1 July 2004 the Katowice Regional Court requested the applicant to complete the procedural requirements by having his cassation appeal prepared and signed by a lawyer within 7 days. That request was served on the applicant on 5 July 2004. 22. On 6 July 2004 the applicant informed the Regional Court that he was unable to comply with the above-mentioned instruction because he had not been granted legal-aid. The applicant, once more, asked the court to grant him legal aid for the purpose of his cassation appeal proceedings. 23. On 16 July 2004 the registry of the Katowice Regional Court informed the applicant that his application for legal aid had been rejected. No formal decision was served on the applicant to that effect. 24. On 6 August 2004 the President of the Criminal Law Section of the Katowice Regional Court decided that the applicant’s cassation appeal was not to be entertained (odmówił przyjęcia kasacji) for non-compliance with procedural requirements. 25. A detailed description of the relevant domestic law and practice concerning general rules governing conditions of detention in Poland and domestic remedies available to detainees alleging that the conditions of their detention were inadequate is set out in the Court’s pilot judgments given in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v. Poland (no. 17599/05) on 22 October 2009 (see §§ 75-85 and §§ 4588 respectively). More recent developments are described in the Court’s decision in the cases of Łatak v. Poland (no. 52070/08) adopted on 12 October 2010 (see §§ 25-54) and Łomiński v. Poland (no. 33502/09) adopted on 12 October 2010 (see §§ 17-49). 26. Under the Law of 6 June 1997 - Code of Criminal Procedure (“the Code”), which entered into force on 1 September 1998, a party to criminal proceedings can lodge a cassation appeal with the Supreme Court against any final decision of an appellate court which had terminated criminal proceedings. The cassation appeal has to be lodged and signed by an advocate, on pain of being declared inadmissible. The relevant part of Article 523 § 1 of the Code provides: “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 the rules governing jurisdiction in criminal matters; trying a person in absentia in cases where his presence was obligatory and thus depriving him of an opportunity to defend himself, etc.] or on the ground of another flagrant breach of law provided that the judicial decision in question was affected as a result of that breach. A cassation appeal shall not lie against the severity of the penalty imposed (niewspółmierności kary).” 27. Pursuant to Article 524 § 1 of the Code, a cassation appeal has to be lodged with the appellate court competent to carry out an initial examination of its admissibility within thirty days from the date of service of the judgment of the appellate court with its written grounds on the party or, if the party has been represented, on his or her lawyer. Under Article 83 of the Code, an accused may appoint a lawyer to represent him or her in criminal proceedings. If he or she cannot afford lawyers’ fees, a request for legal aid may be made under Article 78 of the Code. 28. A grant of legal aid expires upon a judgment of an appellate court. A new decision on legal aid has to be made if the convicted person wishes to institute further proceedings in order to lodge a cassation appeal with the Supreme Court. The relevant part of Article 84 § 3 of the Code provides: “A defence counsel appointed under the legal aid scheme in the cassation proceedings ... shall prepare and sign a cassation appeal ... or shall inform the court, in writing, that he or she has not found any grounds for lodging a cassation appeal ... If a cassation appeal ... is lodged, the defence counsel is entitled to represent the defendant in the subsequent proceedings.” 29. Under Article 528 of the Code an interlocutory appeal (zażalenie) is not available against a refusal of legal aid for cassation appeal proceedings. Article 530 § 2 of the Code provides that the president of the court which had given the decision appealed against is competent to decide whether the formal requirements for a cassation appeal had been complied with. If an accused’s appeal is not filed and signed by an advocate, it must be rejected on formal grounds. If such an appeal complies with the formal requirements, the case is referred to the Supreme Court.