Přehled
Rozhodnutí
FOURTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 36711/04
by Wojciech HOŁOWIŃSKI
against Poland
The European Court of Human Rights (Fourth Section), sitting on 28 November 2006 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr M. Pellonpää,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović,
Mr J. Šikuta, judges,
and Mr T.L. Early, Section Registrar,
Having regard to the above application lodged on 17 August 2004,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Wojciech Hołowiński, is a Polish national who was born in 1968 and lives in Wrocław. He had been convicted in five criminal cases preceding the case subject of the instant application.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Criminal proceedings against the applicant
On an unspecified date the applicant was charged with physical and mental cruelty towards his wife. He was not remanded in connection with this case and remained at large throughout the entire proceedings. The applicant did not apply for legal aid and acted without legal representation. Four hearings were held by the first-instance court on the following dates: 6 October 2003, 5 November 2003, 8 December 2003, and on 5 January 2004. The applicant was present at the first three hearings. He testified at the first hearing on 6 October 2003 and at the third hearing held on 8 December 2003 he asked the court to summon a new witness for the defence. During the latter hearing, the applicant was informed by the court that the case was being adjourned, that the court had agreed to call the new witness and that the next hearing would take place on 5 January 2004 at 1.20 p.m. Despite the notice, the applicant did not appear in court on the date scheduled.
The court decided to hold the hearing regardless of the applicant’s absence because he had been correctly notified about the date of the trial and had failed to inform the court about, or explain the reasons for, his absence. Moreover, the court was aware of the fact that the applicant was being sought by the police for the purpose of serving a prison sentence imposed in another criminal case and that he had gone into hiding. In this respect, the applicant maintains that he telephoned the court’s registry and informed it that he would not be present at the hearing of 5 January 2004.
During the hearing in question, the court heard two witnesses, including the witness summoned at the applicant’s request. On 5 January 2004 the Trzebnica District Court convicted the applicant as charged and sentenced him to one year’s imprisonment.
On an unspecified date, presumably on 8 January 2004, the applicant handed himself over to the authorities in order to serve the other prison sentence. Initially, he was held in the Zaręba Górna Prison.
By a letter of 31 March 2004, sent to the prison, the Trzebnica District Court served the applicant with a copy of its judgment of 5 January 2004 and instructed him on the procedure for lodging an appeal.
On 11 April 2004 the applicant applied for leave to lodge an appeal out of time against the Trzebnica District Court’s judgment of 5 January 2004. At the same time he applied for legal aid. On 4 June 2004 the Trzebnica District Court decided to reject the applicant’s appeal and his request for legal aid. The court held that the applicant had failed to produce any legitimate arguments to support his request. Furthermore, the court found that the applicant had been properly notified of the date of the final hearing and that following the hearing of 8 December 2003, he went into hiding so as to avoid the term of imprisonment imposed in the other criminal proceedings.
The applicant continued to allege that the impugned proceedings had been marked by procedural shortcomings. In response, by a letter of 20 August 2004 the President of the Trzebnica District Court informed the applicant that he had found his allegations to be unsubstantiated. In a letter of 22 August 2005 the Ombudsman refused to lodge an extraordinary cassation appeal against the Trzebnica District Court’s judgment of 5 January 2004, as he did not find any procedural shortcomings on the part of the domestic court.
2. Censorship of the applicant’s correspondence
On an unspecified date in 2004 the applicant was transferred to the Wroclaw Remand Centre, where he was held until, it would appear, January 2006.
On 14 September 2005 the Court received the applicant’s letter of 29 August 2005. The letter bears the stamp “Censored (Cenzurowano) – Day (Dnia) – Signature (Podpis)”. The empty spaces in the stamp are filled with an illegible signature and a hand-written date: “30.08.05”.
The applicant is currently held in Prison No. 1 in Wrocław.
B. Relevant domestic law and practice
The legal provisions concerning monitoring of detainees’ correspondence applicable at the material time and questions of practice are set out in paragraphs 65-66 of the judgment delivered by the Court 2 December 2003 in Matwiejczuk v. Poland case, no. 37641/97.
COMPLAINTS
The applicant does not invoke any provisions of the Convention.
1. He alleges that the criminal proceedings, terminated by the Trzebnica District Court’s decision of 4 June 2004, had been marked by procedural shortcomings. In particular, he complains that the court held its final hearing on 5 January 2004 despite his absence and failed to inform him in time of his conviction.
2. The applicant also complains about the outcome of the impugned criminal proceedings.
3. In respect of the monitoring of the applicant’s correspondence, the Court considers it appropriate to raise ex officio an issue of a possible breach of Article 8 of the Convention.
THE LAW
1. In respect of the monitoring of the applicant’s correspondence, the Court considers it appropriate to raise ex officio an issue of a possible breach of Article 8 of the Convention and, furthermore, considers that it cannot, on the basis of the file, determine the admissibility of this complaint. Consequently, it is necessary to give notice of this matter to the respondent Government.
2. The applicant, without invoking any provisions of the Convention, complains about the alleged procedural shortcomings in the criminal proceedings terminated by the Trzebnica District Court’s decision of 4 June 2004. In particular, the applicant submits that the court held its final hearing on 5 January 2004 despite his absence and failed to inform him in time of his conviction. This complaint falls to be examined under Article 6 of the Convention, which, in its relevant part, provides:
“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing by [a] tribunal ...
...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(c) to defend himself in person ...;
(d) to examine or have examined witnesses against him ...;
...”
Although this is not expressly mentioned in paragraph 1 of Article 6, the object and purpose of the Article taken as a whole show that a person “charged with a criminal offence” is entitled to take part in the hearing. Moreover, sub-paragraphs (c) and (d) of paragraph 3 guarantee to everyone “charged with a criminal offence” the right to “defend himself in person” and “to examine or have examined witnesses”, and it is difficult to see how he could exercise these rights without being present (see Sejdovic v. Italy [GC], no. 56581/00, § 81, ECHR-2006..., Hermi v. Italy [GC], no. 18114/02, § 59, ECHR-2006...).
On the other hand, neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. However, such a waiver must, if it is to be effective for Convention purposes, be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance. In addition, it must not run counter to any important public interest. The Court has held that before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6 of the Convention it must be shown that he could reasonably have foreseen what the consequences of his conduct would be (see Hermi, cited above, §§ 73-74, Sejdovic, cited above, §§ 86-87).
The Court notes that the applicant does not contest the fact that he knew about the court hearing scheduled for 5 January 2004. Nor is there any doubt as to the fact that he failed to inform the court about his absence in due time and in writing, and to justify it. While the applicant maintains that on an unspecified date he telephoned the court’s registry and informed the secretary that he would not be present at the hearing, this submission remains imprecise and is unsupported by the materials submitted by the applicant. On the other hand, the domestic court relied on the information that the applicant was being sought by the police for the purpose of serving a prison sentence imposed in another criminal case and that he had gone into hiding.
In these circumstances, the Court is of the view that the applicant, through his conduct, had waived his right to appear at the hearing in an unequivocal manner and that his waiver did not run counter to any important public interest. Moreover, the Court is convinced that the applicant, who had already acted as a defendant in numerous cases in the past, and who actively participated in three hearings during the impugned criminal proceedings, could reasonably have foreseen the consequences of his conduct. The applicant’s choice not to participate in the final hearing had negative implications for the effective exercise of his right to appeal as provided for by the domestic law. At the time when the impugned judgment was being rendered, the applicant was a fugitive and his whereabouts were unknown. Neither during that time nor soon after handing himself over to the authorities did he make any effort to enquire about the outcome of his case. As a result, he failed to meet the prescribed time-limit for lodging an appeal and his subsequent application for leave to lodge an appeal out-of -time was rejected.
This part of the application is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. Moreover, the applicant complains about the outcome of the impugned criminal proceedings. This complaint falls to be examined under Article 6 § 1 of the Convention, cited above in the relevant part.
However, pursuant to Article 35 § 1 of the Convention:
“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ...”
The Court observes that the applicant did not lodge an appeal against the Trzebnica District Court’s judgment of 5 January 2004 in compliance with procedural requirements. On 4 June 2004 his subsequent application for leave to appeal was rejected by the Trzebnica District Court on the grounds that the applicant had been duly informed of the date of the hearing and he could have expected that a judgment would be delivered on that day. Nevertheless, the applicant, who at the relevant time was at large, failed without justification to appear at the trial or to inform the court about his absence.
Consequently, the applicant did not exhaust domestic remedies and this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Decides to adjourn the examination of the complaint under Article 8 concerning the monitoring of the applicant’s correspondence;
Declares the remainder of the application inadmissible.
T.L. Early Nicolas Bratza
Registrar President