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FOURTH
SECTION
CASE OF PŁONKA v. POLAND
(Application
no. 20310/02)
JUDGMENT
STRASBOURG
31 March
2009
FINAL
30/06/2009
This
judgment may be subject to editorial revision.
In the case of Płonka v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Mihai Poalelungi, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 10 March 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 20310/02) against the Republic
of Poland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Polish national, Ms Urszula Płonka (“the
applicant”), on 6 June 2001.
- The
applicant was represented by Mr A. Ryszka, a lawyer practising in
Sosnowiec. The Polish Government (“the Government”) were
represented by their Agent, Mr J. Wołąsiewicz of the
Ministry of Foreign Affairs.
- The
applicant complained under Article 6 § 1 read in
conjunction with Article 6 § 3 (c) of a violation
of her right to defend herself.
- On
17 October 2006 the President of the Fourth section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1949 and lives in Sosnowiec, Poland.
- On
8 April 1999 the applicant was arrested on suspicion of homicide. She
was first interviewed by a police officer. On 9 April 1999 she
was charged with murdering E.L on 8 April 1999. On 9 and
10 April 1999 she was questioned by the Sosnowiec District
Prosecutor. During the questioning she stated that she had been
having alcohol problems for the last 20 years. She and E.L., a former
work colleague, used to drink together. On 7 April 1999 they had
drunk more than half a litre of vodka and some wine. She also stated
that she did not remember much of what had happened. She further
confessed to killing E.L. Nevertheless, she stressed that she had not
meant to kill the victim, but he had made her very angry and she had
stabbed him with scissors.
- During
the arrest and subsequent questioning by the police and the
prosecution authorities the applicant was not assisted by a lawyer.
On 9 April 1999 the applicant signed the relevant form
acknowledging that she had been informed of her rights, including the
right to be assisted by a lawyer and the right to refuse to testify.
- On
19 April 1999 the prosecutor ordered an expert report on the
applicant’s mental health at the time when the crime of which
she was suspected was committed. The report was submitted on 26 April
1999. The applicant was considered to be criminally responsible.
- On
21 April 1999 the applicant asked to be released from detention. The
District Prosecutor refused her motion on 11 May 1999. This decision
was upheld by the Regional Prosecutor on 7 June 1999.
- On
23 April 1999 the Regional Court appointed a legal-aid-lawyer for the
applicant. On 5 May 1999 the applicant appointed a lawyer of her
own choice.
- On
28 June 1999 the Sosnowiec District Prosecutor filed a bill of
indictment with the Katowice Regional Court (Sąd Okręgowy).
The applicant was indicted on charges of murder.
- Throughout
the trial the applicant maintained that she suffered from alcoholism.
She retracted her confession made during police custody, alleging
that she had been questioned under duress and forced by the police
officers to make self-incriminating statements.
- On
30 June 1999 the Katowice Regional Court, having regard to the fact
that the applicant was represented by a lawyer of her own choice,
decided to withdraw the services of the legal-aid lawyer.
- The trial ended on 24 February 2000. The applicant was
convicted as charged and sentenced to 11 years’ imprisonment.
The court considered that the applicant’s testimony during the
trial had not been credible and had merely been her line of defence.
The conviction was based on the applicant’s statements made
during the initial phase of the investigation and on evidence given
by several witnesses.
- On
11 April 2000 the applicant’s lawyer filed an appeal against
the judgment. He stressed, in particular, that there had been a
violation of the applicant’s right to defend herself in view of
the deficiencies in the preliminary investigation.
- On
25 May 2000 the Katowice Court of Appeal (Sąd Apelacyjny)
upheld the first instance judgment. The court held that the
applicant’s right to defend herself had not been infringed. It
pointed out that as of 23 April 1999 she had been assisted by a
lawyer – first an officially appointed lawyer, then a lawyer of
her own choice.
- On
19 July 2000 the applicant’s lawyer filed a cassation appeal
with the Supreme Court (Sąd Najwyższy). He
maintained that there had been a violation of Article 6 § 3 (c)
of the Convention in that the applicant had not been assisted by a
lawyer at the preliminary stage of the investigation. He relied on
the case law of the European Court of Human Rights.
- On
26 January 2001 the Supreme Court dismissed the applicant’s
cassation appeal. That decision did not contain any reasons.
II. RELEVANT DOMESTIC LAW
- Pursuant
to Article 78 § 1 of the 1998 Code of Criminal
Procedure, an accused who had proved that he or she could not afford
legal assistance (i.e. that the costs of such assistance “would
entail a substantial reduction in his and his family’s standard
of living”) could ask the trial court to appoint him a defence
counsel.
- Article
80 of the Code lays down the principle known as “compulsory
assistance of an advocate” (przymus adwokacki). That
Article provides, in so far as relevant:
“An accused must have an officially appointed
lawyer when a Regional Court is competent to deal with his case as a
court of first instance, a crime is involved within the meaning of
the Criminal Code, or the individual is remanded in custody. The
counsel must take part in the main hearing; he must also take part in
any appellate hearing if the president of the court or the court
itself has found this necessary.”
This
provision does not apply to the investigative stage of the
proceedings but only after the case is sent for trial, as was
expressly confirmed by the Supreme Court in its resolution of 20
January 2004 (III KK 226/03).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c)
OF THE CONVENTION
- The
applicant complained that her right to a fair trial had been breached
as she had not had legal aid at the initial stage of the criminal
proceedings against her. Article 6 in its relevant part reads as
follows:
“1. In the determination (...) of any
criminal charge against him, everyone is entitled to a fair and
public hearing...
3. 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
(...)”
- The
Government contested that argument.
A. Admissibility
- The Government raised a preliminary objection that the
applicant had failed to exhaust the required domestic remedies. She
had not availed herself of the possibility to request legal
assistance during her interview with the police. The applicant had
been informed of her rights and despite that she had neither refused
to testify nor asked for a lawyer to be appointed.
- The applicant disagreed. She claimed that she had not
been properly informed about the possibility to obtain a lawyer’s
assistance during questioning.
- The Court considers that the Government’s plea
of non-exhaustion raises issues as to the conduct of the preliminary
investigation and the conditions in which the applicant was
questioned. They are thus closely linked to the merits of the
complaint under examination. Therefore the Court joins the
preliminary objection to the merits of the applicant’s
complaint.
- In view of the above, the Court notes that this
complaint is not manifestly ill-founded within the meaning of Article
35 § 3 of the Convention. It further notes that it is not
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. The parties’ submissions
- The
applicant stated that it was true that she had been informed of her
right to be assisted by a lawyer. However, she was not offered any
help in appointing one, nor was she asked whether she could afford
the cost of legal counsel.
- The
Government submitted that the applicant had been informed of her
rights and could have requested to be assisted by a lawyer. They
stressed that according to Polish law the trial court could decide a
case only on the basis of the facts and circumstances that were
established during the trial.
- The
Government maintained that the applicant had not been questioned by
the police but had merely had “a conversation” with a
police officer, and that the conversation had been recorded in a note
of 9 April 1999.
- In
the Government’s opinion, unlike in the case of Brennan
v. the United Kingdom (no. 39846/98, ECHR 2001-X), in the
present case the applicant had not been deprived of access to a
lawyer and she could have requested his presence. In addition, the
applicant had been represented throughout the trial by a lawyer of
her choice and her case had been heard at three levels of
jurisdiction. The trial court had been free to assess the evidence
before it. As it happened, in the present case the explanations given
by the accused at the initial stage of the proceedings had merely
prevailed over the evidence gathered during the course of the trial.
- The
Government concluded that there was no violation of Article 6 § 1
in conjunction with Article 6 § 3 (c) of the Convention.
2. The
Court’s assessment.
(a) The general principles
- The
Court reiterates that Article 6 § 3 (c) may be relevant at the
stage of the preliminary investigation in so far as the fairness of
the trial is likely to be seriously prejudiced by an initial failure
to comply with its provisions. The manner in which Article 6 § 3
(c) is to be applied during the preliminary investigation depends on
the special features of the proceedings involved and on the
circumstances of the case (see Imbrioscia v. Switzerland,
judgment of 24 November 1993, and John Murray v. the United
Kingdom, judgment of 8 February 1996, Reports of
Judgments and Decisions 1996-I, § 62).
33.
The Court further reiterates that although not absolute, the right of
everyone charged with a criminal offence to be effectively defended
by a lawyer, assigned officially if need be, is one of the
fundamental features of fair trial (Poitrimol v. France,
23 November 1993, § 34, Series A no. 277 A, and
Demebukov v. Bulgaria, no. 68020/01, § 50, 28 February
2008). Nevertheless, Article 6 § 3 (c) does not specify the
manner of exercising this right. It thus leaves to the Contracting
States the choice of the means of ensuring that it is secured in
their judicial systems, the Court’s task being only to
ascertain whether the method they have chosen is consistent with the
requirements of a fair trial. In this respect, it must be remembered
that the Convention is designed to “guarantee not rights that
are theoretical or illusory but rights that are practical and
effective” and that assigning counsel does not in itself ensure
the effectiveness of the assistance he may afford an accused
(Imbrioscia, cited above, § 38).
- National
laws may attach consequences to the attitude of an accused at the
initial stages of police interrogation which are decisive for the
prospects of the defence in any subsequent criminal proceedings. In
such circumstances, Article 6 will normally require that the accused
be allowed to benefit from the assistance of a lawyer already at the
initial stages of police interrogation.
- The Grand Chamber has recently stressed that in order
for the right to a fair trial to remain sufficiently “practical
and effective” Article 6 § 1 requires that, as a rule,
access to a lawyer should be provided as from the first interrogation
of a suspect by the police, unless it is demonstrated in the light of
the particular circumstances of each case that there are compelling
reasons to restrict this right. Even where compelling reasons may
exceptionally justify denial of access to a lawyer, such restriction
- whatever its justification - must not unduly prejudice the rights
of the accused under Article 6. The rights of the defence will in
principle be irretrievably prejudiced when incriminating statements
made during police interrogation without access to a lawyer are used
for a conviction (see Salduz v. Turkey [GC], no. 36291/02, §
55, 27 November 2008).
(b) Application of the principles to the
above case
- The Court firstly observes that according to the
record of the questioning and the relevant form that was signed by
the applicant, she was informed of her rights and in particular the
right to remain silent or to be assisted by a lawyer throughout the
proceedings and during her questioning by the police (see paragraph 7
above). It would further appear that the applicant, a suspect in the
present case, did not request to be assisted by a lawyer. However,
there is no indication that the applicant expressly waived her right
to be represented by a lawyer during her questioning on 8, 9 and
10 April 1999 (see paragraph 7 above).
- In this respect the Court reiterates that neither the
letter nor the spirit of Article 6 of the Convention prevents a
person from waiving of his or her own free will, either expressly or
tacitly, the entitlement to the guarantees of a fair trial (see
Kwiatkowska v. Italy (dec.), no. 52868/99, 30 November 2000).
However, if it is to be effective for Convention purposes, a waiver
of the right to take part in the trial must be established in an
unequivocal manner and be attended by minimum safeguards commensurate
to its importance (see Salduz cited above § 59). In the
circumstances of the present case, the assertion in the form stating
her rights that the applicant had been reminded of her right to
remain silent or to be assisted by a lawyer (see paragraph 7 above)
cannot be considered reliable. The Court does not find, accordingly,
that there was a clear and unequivocal
waiver
of the applicant’s right to the guarantees of a fair
trial.
- The
Court stresses in this connection that one of the specific features
of the instant case was the applicant’s alcoholism. During the
first police interview the applicant admitted that she had been
suffering from an alcohol problem for many years. She further
confessed to having drunk a substantial amount of alcohol the day
before her arrest (see paragraphs 6 and 12 above). These
circumstances clearly suggest that the applicant was in a vulnerable
position at the time of interview, and that the authorities should
have taken this into account during questioning and in particular
when apprising her of her right to be assisted by a lawyer.
- It
is true that the applicant was represented by a lawyer as from
23 April 1999 and throughout the proceedings before the
Katowice Regional Court and the Katowice Court of Appeal (see
paragraphs 10 and 16 above). During the criminal proceedings she was
also able to call witnesses on her behalf and had the possibility of
challenging the prosecution’s arguments. The applicant
subsequently denied the content of her statement to the police.
However, her initial confession made in the absence of a lawyer had a
bearing on her conviction. While the statements made by the applicant
during police custody and her confession were not the sole basis for
her conviction, the Katowice Regional Court nevertheless based its
final decision on them, observing that her testimony during the
hearings was not credible.
- In
view of the circumstances the guarantee of fairness enshrined in
Article 6 required that the applicant had the benefit of the
assistance of a lawyer from the very first stage of police
questioning. In this regard, it is not for the Court to speculate on
what the applicant’s reaction or her lawyer’s advice
would have been had she had access to a lawyer at the initial stage
of the proceedings (see Salduz, cited above, § 58).
- The
Court considers that in the present case the applicant was
undoubtedly directly affected by the lack of access to a lawyer
during her questioning by the police. Neither the assistance provided
subsequently by a lawyer or the adversarial nature of the ensuing
proceedings could cure the defects which had occurred during the
police custody.
- The foregoing considerations are sufficient to enable
the Court to conclude that there has been a breach of Article 6 §
1 of the Convention in conjunction with Article 6 § 3 (c).
Having regard to this finding, the Government’s preliminary
objection must be rejected.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The applicant claimed 200,000 euros (EUR) in respect
of non pecuniary damage.
- The Government contested this claim.
- The Court considers that the applicant must have
suffered frustration and a feeling of injustice. It awards the
applicant EUR 2,000 in this respect.
B. Costs and expenses
- The
applicant did not ask to be reimbursed for any costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Joins to the merits the Government’s
preliminary objection and declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in conjunction with Article 6 § 3 (c)
and dismisses the above mentioned preliminary objection;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,000 (two
thousand euros) in respect of non-pecuniary damage, to be converted
into Polish zlotys at the rate applicable at the date of the
settlement, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 31 March 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
