EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 27914/95

Piotr Mikulski

against

Poland

REPORT OF THE COMMISSION

(adopted on 10 September 1999)

I. INTRODUCTION

(paras. 1-15) ........................................................ 1

A. The application

(paras. 2-4) ..................................................... 1

B. The proceedings

(paras. 5-10) .................................................... 1

C. The present Report

(paras. 11-15) .................................................. 2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-51) ....................................................... 4

A. The particular circumstances of the case

(paras. 16-43) .................................................. 4

B. Relevant domestic law

(paras. 44-51) .................................................. 7

III. OPINION OF THE COMMISSION

(paras. 52-105) ...................................................... 9

A. Complaints declared admissible

(para. 52) ...................................................... 9

B. Points at issue

(para. 53) ...................................................... 9

C. As regards Article 5 para. 3 of the Convention

(paras. 54-73) .................................................. 9

CONCLUSION

(para. 74) ..................................................... 12

D. As regards Article 6 para. 1 of the Convention

(paras. 75-88) ................................................. 13

CONCLUSION

(para. 89) ..................................................... 15

Page

E. As regards Article 13 of the Convention

(paras. 90-101) ................................................ 15

CONCLUSION

(para.102) ..................................................... 17

F. Recapitulation

(paras. 103-105) ................................................ 17

DISSENTING OPINION OF MR M.A. NOWICKI JOINED BY MM E. BUSUTTIL,

G. JŐRUNDSSON, J.-C. GEUS AND E. BIELIŪNAS.......................................................... 18

DISSENTING OPINION OF MR B. MARXER AND MS M. HION ................................. 19

PARTLY DISSENTING OPINION OF MR S. TRECHSEL................................................ 20

CONCURRING OPINION OF MR M. A. NOWICKI JOINED BY MM J.-C. SOYER, MS G.H. THUNE, MM C. ROZAKIS, E. ALKEMA AND M. VILA AMIGÓ ................ 21

APPENDIX I: PARTIAL DECISION OF THE COMMISSION

AS TO THE ADMISSIBILITY OF THE APPLICATION ......... 22

APPENDIX II: FINAL DECISION OF THE COMMISSION

AS TO THE ADMISSIBILITY OF THE APPLICATION ....... 26

I. INTRODUCTION

1 . The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2 . The applicant is a Polish citizen, born in 1954.

3 . The application is directed against Poland. The respondent Government were represented by their Agent, Mr Krzysztof Drzewicki of the Ministry of Foreign Affairs.

4 . The case concerns the length of the applicant’s detention on remand, the length of the criminal proceedings against him and the complaint concerning lack of an effective domestic remedy to complain about the length of criminal proceedings. The applicant invokes Articles 5 para. 3, 6 para. 1 and Article 13 read in conjunction with Article 6 para. 1 of the Convention.

B. The proceedings

5 . The application was introduced on 14 November 1994 and registered on 20 July 1995.

6 . On 26 February 1997 the Commission (Second Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaints under Articles 5 para. 3, 6 para. 1 and Article 13 read together with Article 6 para. 1 of the Convention. It declared the remainder of the application inadmissible.

7 . The Government's observations were submitted on 5 June 1997, after an extension of the time-limit fixed for this purpose. The applicant replied on 12 August 1997.

8 . On 13 January 1998 the case was transferred from the Second Chamber to the Plenary Commission, by decision of the latter. On 19 January 1998 the Commission declared the application admissible.

9. The text of the Commission's decision on admissibility was sent to the parties on 30 January 1998 and they were invited to submit such further information or observations on the merits as they wished.  The parties did not avail themselves of this possibility.

10. After declaring the case admissible, the Commission, acting in accordance with former [1] Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties’ reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MM S. TRECHSEL, President

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

J.-C. GEUS

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENI Č

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

12. The text of this Report was adopted on 10 September 1999 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to former Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

14. The Commission's decisions on the admissibility of the application is annexed hereto as Appendices I and II.

15. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. On 7 September 1993 the Warsaw- Praga Pó ł noc Public Prosecutor instituted criminal proceedings against the applicant on charges of aggravated assault and robbery, committed in August 1993. On 8 November 1993 the Praga-Północ Public Prosecutor remanded the applicant in custody, considering that there was a reasonable suspicion that the applicant had committed the offence concerned and that the seriousness of the offence was such as to justify his detention

17. As in the course of the investigations doubts arose as to the applicant's mental condition, the Public Prosecutor ordered that he should undergo a psychiatric observation.  On 21 February 1994 the applicant was placed in a psychiatric hospital for six weeks' observation, which was subsequently prolonged, upon the psychiatrists' recommendation, until 10 May 1994.

18. In a letter of 1 June 1994, in reply to the Ombudsman's enquiry about the conduct of the proceedings, apparently following the applicant's complaint about its length, the Praga-Pó ł noc District Prosecutor stated that the psychiatric observation had been completed but the relevant expert report had not yet been prepared.  The investigations would be terminated immediately after the submission of the report and the bill of indictment would be lodged with the court.  The applicant's allegations about the unfairness of the investigations were, in the Prosecutor's opinion, unfounded and motivated by his wish to avoid criminal responsibility.

19. In a letter of 9 June 1994 the Warsaw District Bar replied to the applicant's complaint concerning the alleged lack of diligence on the part of an officially appointed lawyer and stated that there were no reasons for a finding that he lacked diligence.

20. On 10 June 1994 the Public Prosecutor submitted the bill of indictment to the Warsaw Regional Court ( Sąd Wojew ó dzki ).  The applicant was charged with aggravated assault and robbery in the circumstances of relapse into crime within the meaning of Article 60 of the Criminal Code as it stood at that time.

21. In a letter of 29 July 1994, in reply to the applicant's complaint about the length of the proceedings, the Ombudsman stated that the indictment would soon be lodged with the court.  He further stated that the applicant had undergone six weeks' psychiatric observation, which had been prolonged for a further six weeks as he had refused to co-operate with the psychiatrists.

22. On 11 August 1994 the Warsaw Regional Court dismissed the applicant's request for release of 9 August 1994, considering that there were sufficient grounds for a reasonable suspicion that he had committed a serious offence, supported in particular by the evidence given by the victim.  The court further considered that the detention should be maintained in view of the considerable seriousness of the offence concerned, and the fact that the offence concerned had been committed in the conditions of relapse into crime.

23. On 22 August 1994 the applicant complained to the Warsaw Regional Court about the delay in the proceedings.  In reply the court informed him on 29 August 1994 that the dates of hearings  were fixed following the chronological order in which the indictments had been filed with the court.

24. On 26 August 1994 the applicant lodged an appeal against the decision of 11 August 1994.

25. On 22 September 1994 the Warsaw Court of Appeal ( S ą d Apelacyjny ) dismissed the applicant's appeal against the decision of 11 August 1994, considering that there were no sufficient grounds for a finding that the applicant's continued detention would entail undue distress for him or his family within the meaning of Article 218 of the Code of Criminal Procedure, and that the other reasons for the applicant's continued detention remained valid.  The court further considered that the lower court had been right in finding that there were grounds for a reasonable suspicion against the applicant, including the evidence given by the victim and the witnesses.  The serious character of the offence also justified the continuation of the applicant's detention.

26. On 27 December 1994 the applicant complained to the Warsaw Regional Court about the length of the criminal proceedings.

27. On 5 January 1995 the court informed the applicant that the first hearing could be held in June 1995.

28. On 22 February 1995 the applicant again requested his release. On 9 March 1995 the Warsaw Regional Court dismissed his request.

29. On 20 April 1995 the applicant again requested to be released. He relied in his request on his parents' need of his assistance in view of their bad health and their difficult financial situation.

30. On 4 May 1995 a judge of the Warsaw Regional Court ordered that the examination of the applicant's request be adjourned and that an enquiry be made as to the applicant's parents' actual situation.

31. On 22 May 1995 the Social Services prepared a report concerning the applicant's parents' situation. It transpired therefrom that they were indeed in bad health and unable to take care of their needs without assistance.  However, they had refused any assistance from the Social Services and the applicant's father had declared that their income was sufficient for their subsistence.

32. On the same date the applicant again requested to be released.

33. On 26 June 1995 the applicant asked the court when his request for release of 22 May would be dealt with.

34. On 13 July 1995 the Warsaw Regional Court dismissed the applicant's requests for release of 20 April and 22 May 1995.  The court considered that, in view of the applicant's parents' refusal of social assistance the applicant's continued detention would not entail for them an exceptional hardship within the meaning of Article 218 of the Code of Criminal Procedure.

35. On 28 July 1995 a first hearing in the applicant's case was held before the Warsaw Regional Court.  The court questioned the applicant and heard evidence from two expert psychiatrists and one witness.  The hearing was adjourned until 29 August 1995 in order for other witnesses and the victim, who had failed to comply with the summons, to be questioned.

36. On 1 August 1995 the applicant lodged an appeal against the court's decision of 13 July 1995.  On 24 August 1995 the Warsaw Court of Appeal upheld the decision considering the reasons for the applicant's continued detention had not ceased to exist and that the grounds for release laid down by Article 218 of the Code of Criminal Procedure were not satisfied.

37. On 29 August 1995 the hearing was adjourned as the witnesses failed to attend. On an unspecified later date the court again adjourned a hearing, for the same reason.

38. On 5 October 1995 the applicant requested his release.  On 9 October 1995 the Warsaw Regional Court refused to release him from detention on remand.  The court reiterated that there were sufficient grounds for a reasonable suspicion that the applicant had committed the offence concerned.  The court remarked that efforts had been made to ensure that the witnesses, who had apparently failed to comply with the summonses, would be present at the next hearing.

39. On 9 October 1995 the applicant again requested to be released. On 19 October 1995 the Warsaw Regional Court refused to grant his request.

40. On 6 November 1995 the Warsaw Penitentiary Court (SÄ…d Penitencjarny ) decided that a prison sentence imposed on the applicant in separate proceedings should be executed.

41. On 5 December 1995 the Warsaw Regional Court pronounced judgment in the applicant's case. It convicted him of robbery and assault and sentenced him to five years' imprisonment and a fine.

42. On 23 April 1996 the Warsaw Court of Appeal partly amended the judgment of the first-instance court, and upheld the judgment insofar as it concerned the sentence.

43. On 6 February 1997 the Supreme Court (Sąd Najwyższy ) dismissed the applicant's cassation appeal.

B. Relevant domestic law

44. The Polish Code of Criminal Procedure, in force at the relevant time, listed as "preventive measures", inter alia , detention on remand, bail and police supervision. Pursuant to Article 208 of the Code, preventive measures could be imposed in order to secure the due course of proceedings if the evidence against the accused sufficiently justified the opinion that he had committed a criminal offence.

45. Article 213 of the Code of Criminal Procedure provided:

“1. A preventive measure (including detention on remand) shall be immediately quashed or altered, if the basis therefor has ceased to exist or new circumstances have arisen which justify quashing or replacing a given measure with a more or less severe one.”

46. Section 225 of the Code of Criminal Procedure provided:

“Detention on remand shall be imposed only when it is mandatory; this measure shall not be imposed if bail or police supervision, or both of these measures, are considered adequate."

47. In accordance with Article 217 of the Code of Criminal Procedure, detention on remand could be imposed if:

“1. there [was] a reasonable risk that an accused [would] abscond or go into hiding, in particular when his identity [could not] be established or he [had] no permanent domicile [in Poland] or:

2. there [was] a reasonable risk that he [would] attempt to induce witnesses to give false testimony or to obstruct the due course of proceedings by any other unlawful means. (...)”

48. Pursuant to Article 218 of the Code of Criminal Procedure applicable at the material time, if there were no special considerations to the contrary, detention on remand should not be imposed if it involved danger to life or limb or entailed particular hardship for a suspect or his family.

49. Under Article 214 of the Code of Criminal Procedure a request for release should be examined by a court within three days.

50. “Relapse into crime” within the meaning of applicable provisions of  the Criminal Code, as applicable at the material time, constituted an aggravating circumstance which the courts were obliged to take into consideration when assessing the seriousness of the offence concerned and which was relevant to the determination of the sentence to be imposed.

51. Article 60 para. 1 of the Criminal Code read as follows:

“If an offender, who has already been convicted of an intentional offence and, as a result, has served a sentence of at least six months' imprisonment, commits another similar offence within a period of five years [following the date on which the service of his previous sentence of imprisonment comes to an end], the court shall impose on him a sentence of imprisonment of between twice the minimum and one-and-a-half times the maximum sentence applicable.”

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

52. The Commission declared admissible the following complaints:

- that his detention of remand lasted too long,

- that the criminal proceedings against him exceeded a reasonable time,

- that he did not have at his disposal an effective remedy to complain about the length of criminal proceedings.

B. Points at issue

53. Accordingly, the points at issue are:

- whether there has been a violation of Article 5 para. 3 of the Convention;

- whether there has been a violation of Article 6 para. 1 of the Convention;

- whether there has been a violation of Article 13 of the Convention.

C. As regards Article 5 para. 3 of the Convention

54. The applicant complains under Article 5 para. 3 of the Convention about the excessive length of his detention on remand.

55. Article 5 para. 3 of the Convention reads:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial.  Release may be conditioned by guarantees to appear for trial.”

56. The applicant submits that his detention was too long.

57. The Government submit that at the investigative stage of the proceedings the applicant remained in detention for seven months and two days, whereas his detention when the case was pending before the court lasted from 10 June 1994 to 6 November 1995, i. e. sixteen months and twenty-six days. The applicant’s detention, both as to its grounds and its length, was in conformity with the applicable provisions of Polish law as it stood at the material time. The grounds for the applicant's detention relied on in the initial detention order of 8 November 1993, i.e. the seriousness of the offence with which the applicant had been charged and the fact that he was a recidivist, did not cease to exist throughout the period concerned.

58. They further submit that the applicant's detention was necessary in view of the doubts, which arose in the course of the investigations as to his mental condition. Consequently, his psychiatric examination  was ordered by the Public Prosecutor.  As the applicant refused to co-operate with  the psychiatrists, he underwent observation in a hospital for six weeks. This was subsequently prolonged, on the psychiatrists' request, for another six weeks.

59. The Government state that the indictment was submitted to the court with no delay after the psychiatric observation had been completed, the expert report submitted to the prosecuting authorities and the applicant allowed access to the case-file for the purposes of his defence. They emphasise that no delays occurred at the investigations stage and that there is nothing in the case-file which would indicate any failure or negligence on the part of the prosecutor in pursuing the case.

60. The Government further state that after the bill of indictment had been transmitted to the court, the applicant and his counsel submitted several requests for release, or requested that his detention be lifted and replaced by less restrictive preventive measures.  The Regional Court dismissed all these requests, considering that the detention should be maintained in view of the seriousness of the offence and the fact that it had been committed in circumstances of relapse into crime as defined by Article 60 of the Criminal Code. The Government further emphasise that the offence concerned carried a risk of imprisonment of at least five years or of capital punishment.

61. The Government further contend that, contrary to the applicant’s arguments, there were no sufficient reasons for ordering his release on the grounds set out by Article 218 of the Code of Criminal Procedure.  The Warsaw Regional Court showed due diligence in that respect as in its decision of 4 May 1995 it ordered that the applicant's parents' situation be examined by the Social Services. However, even though the enquiry of the Social Services showed that they needed assistance, they refused to accept it.

62. Having regard to the foregoing arguments, the Government conclude that the applicant's detention on remand satisfied the requirements of Article 5 par. 3 of the Convention since the conditions of detention laid down by Articles 209 and 217 of the Code of Criminal Procedure as applicable at the material time obtained throughout the entire period of the applicant’s detention.

63. The Commission observes that the applicant was arrested on 8 November 1993. On 6 November 1995 the Warsaw Penitentiary Court decided that a prison sentence imposed on the applicant in certain separate criminal proceedings should be executed. Therefore the period to be examined by the Commission lasted from 8 November 1993 to 6 November 1995, i.e. one year, eleven months and twenty-eight days.

64. The Commission recalls that it falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions on the applications for release.  It is essentially on the basis of the reasons given in these decisions and of the true facts mentioned by the applicant in his appeals, that the Convention organs are called upon to decide whether or not there has been a violation of Article 5 para. 3 of the Convention.

65. The Commission further recalls that the persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the validity of the continued detention, but, after a certain lapse of time, it no longer suffices; the Convention organs must then establish whether the other grounds cited by the judicial authorities continue to justify the deprivation of liberty.  Where such grounds are "relevant" and "sufficient", the Convention organs must also ascertain whether the competent national authorities displayed "special diligence" in the conduct of the proceedings; the applicant's conduct is also relevant in this respect (see Eur. Court HR,  Van der Tang v. Spain judgment of 13 July 1995, Series A no. 326, para. 55; Muller v. France judgment of 17 March 1997, Reports of Judgments and Decisions 1997-II no. 32, p. 388, para. 35).

66. The Commission observes, in respect of the reasons on which the Polish authorities relied to justify the applicant's detention, that the courts consistently held that there were sufficient grounds for a reasonable suspicion that the applicant had committed the offence concerned.  The courts further attached importance to the seriousness of the offence and to the fact that the applicant was a recidivist. The courts also have examined whether the applicant's continued detention would entail particular hardship to him or to his family, in accordance with Article 218 of the Code of Criminal Procedure as applicable at the material time.  Finally, the Warsaw Court of Appeal, in its decision of 24 August 1995, by which it dismissed the applicant's appeal against the refusal of release, stated that the reasons for the applicant's continued detention had not ceased to exist.

67. The Commission's attention has first been drawn to the fact that, in their decisions on the applicant's maintained detention, the courts failed to invoke any specific circumstances of the case.  The courts repeatedly relied on the serious character of the offence concerned. Also, the fact that the offence had been committed in circumstances of relapse into crime was invoked.  However, the Commission considers that the serious character of the offence concerned cannot in itself serve as a sufficient basis for continued detention. The same reasoning applies in respect of the fact that the applicant had a long criminal record, as this as such cannot justify a prolonged period of detention on remand.

68. The Commission also observes that in none of their decisions did the authorities give any reasoning to show whether and if so, how, the applicant’s release would jeopardise the proper course of justice. The Commission stresses in this respect that the investigations were completed on 10 June 1994 at the latest, i.e on the date when the indictment was submitted to the Warsaw Regional Court. Thus, it was at that date that the prosecuting authorities had at their disposal the evidence sufficient to bring charges against the applicant before the court. Subsequently the case remained at a standstill until 28 July 1995, the date of the first hearing. The Commission has noted that the domestic courts, when examining the applicant’s requests for release submitted by him during this period, on no occasion referred to the existence of such danger.

69. The Commission further observes that between 10 June 1994, the date on which the indictment was lodged with the Warsaw Regional Court, and 28 July 1995, the date of the first hearing on the merits held in the applicant’s case, the applicant remained in detention, but there was no progress in the proceedings. It is true that the Government invoke in this respect an exceptionally heavy case-load of the Warsaw Regional Court.

70. However, the Commission recalls in this respect that it is for the Contracting States to organise their legal systems in such a way that their courts can meet the requirements of Article 6 para. 1 of the Convention (Eur. Court HR, the Vocaturo v. Italy judgment of 24 may 1991, Series A-206-C, para. 17, p. 32). Having regard to what was at stake for the applicant, the Commission considers that such a long period of inactivity, throughout which the applicant remained in detention, cannot be regarded as compatible with the obligations of “special diligence” in the conduct of the criminal proceedings against persons detained on remand.

71. The Commission has noted that during this period the courts took steps in order to find whether the continued detention would not entail undue distress to the applicant’s family, within the meaning of Article 218 of the Code of Criminal Procedure. Accordingly, an enquiry was held in order to establish the financial situation and health of the applicant’s parents, and in the light of its findings, the courts refused to release the applicant.  However, these factors had a bearing rather on a question whether there were special grounds on which to release him or not, whereas the grounds of detention relied on by the courts during this period do not show with sufficient clarity that there were sufficient reasons to further maintain his detention.

72. The Commission finally observes that the judicial decisions relating to the applicant’s detention on remand, given during this period of inactivity, entirely overlooked the fact that no steps had been taken throughout this period to bring the case to a decision determining the charges against the applicant.

73. In conclusion, in the light of the criteria established by the case-law and having regard to the particular circumstances of the present case, the Commission considers that on the whole the length of the applicant’s detention did not comply with the requirements laid down by Article 5 para. 3 of the Convention.

CONCLUSION

74. The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 3 of the Convention.

D. As regards Article 6 para. 1 of the Convention

75. The applicant complains under Article 6 para. 1 of the Convention about the length of the criminal proceedings against him.

76. Article 6 para. 1 of the Convention, in its relevant part, reads:

"1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by (a) ...tribunal established by law.

77. The applicant maintains that the criminal proceedings lasted too long.

78. The Government submit that the case was complex, regard being had to the seriousness of the offence concerned and to the severity of the sentence which could have been imposed on the applicant.  Moreover, the applicant acted in circumstances of relapse into crime as defined at the material time by Polish law.  In view of the doubts as to his mental condition, during the investigations he had to undergo a psychiatric examination, with a view to establishing whether he could be criminally responsible. As he refused to co-operate with the psychiatrists, he had subsequently to undergo a psychiatric observation in a hospital for twelve weeks altogether.  His lack of co-operation with the authorities thus prolonged the proceedings considerably.

79. The Government further state that the hearing in the case was adjourned three times due to the fact that the victim and three other witnesses failed to comply with the summonses. In the light of the circumstances of the case, it was necessary for the court to hear evidence from the victim.  They contend that the period, which elapsed before the first hearing was held in the case, was due exclusively to an enormous case-load of the Warsaw Regional Court at the relevant time and to the difficulties in composing a panel of judges resulting therefrom.

80. The Government conclude that the length of the proceedings complied with the "reasonable time" requirement of Article 6 para. 1 of the Convention.

81. The Commission observes that the proceedings commenced on 7 September 1993, the date on which the Praga-Pó ł noc District Prosecutor instituted criminal proceedings against the applicant.  The final decision in the case was given on 6 February 1997 by the Supreme Court which dismissed the applicant's appeal on a point of law. The period to be examined by the Commission lasted three years and almost five months.

82. The Commission recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and on the basis of the following criteria: the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case (see, among many other authorities, Eur. Court HR, the P é lissier and Sassi v. France judgment of 25 March 1999, to be published in Reports 1999, para. 67).

83. As regards the complexity of the case, the Commission observes that the charges against the applicant related to one occurrence, and that he was charged and ultimately convicted of one count of robbery and assault. The Government contend that the case was complex, referring to the seriousness of the offence and to the fact that the applicant had already been convicted of various offences and, consequently, had to be regarded as a "recidivist" within the meaning of the relevant provisions of Polish criminal law, applicable at the material time.  However, the Commission considers that the serious character of the offence cannot as such entail an automatic conclusion that relevant criminal proceedings are complex.  The notion of complexity of criminal proceedings refers, first, to possible difficulties arising in establishing the facts of the case and, secondly, to problems involved in the legal qualification of impugned acts.  The Government have not put forward any arguments capable of showing that such difficulties arose in the present case, either as regards the establishing of the facts, or in respect of the legal assessment of the issues involved. Therefore, the fact that the offence with which the applicant was charged could reasonably be deemed dangerous, does not, in the Commission's view, suffice for a finding that the proceedings as such were complex.

84. As regards the fact that the applicant acted in conditions of relapse into crime within the meaning of the provisions of the Polish Criminal Code as applicable at the material time, the Commission observes that this circumstance was relevant for the determination of the sentence to be imposed, but had no bearing in itself on the complexity of the case. In any event, it has not been shown in the present case how this circumstance affected the complexity of the case.

85. The Commission's attention has finally been drawn to the fact that the judgment in the case was rendered after three hearings. In sum, the Commission considers that there are no grounds on which to conclude that the case against the applicant could be regarded as complex.

86. As regards the applicant's conduct, the Commission considers that there is no indication that he contributed to the prolongation of the proceedings.

87. With regard to the conduct of the authorities, the Commission accepts the Government's argument that the investigations were conducted with diligence, having regard to the fact that they lasted from September 1993 to June 1994, including twelve weeks of the applicant's psychiatric observations.  The Commission further observes that, once the hearings before the first-instance court started in the case, the case was dealt with speedily.  The first hearing was held on 28 July 1995, and subsequently two hearings were adjourned as the witnesses failed to comply with the summonses. However, the court gave its judgment on 5 December 1995, i.e. after it had held the third hearing. The Commission finally notes that the applicant’s case was examined by three levels of jurisdiction within a relatively short period of time.

88. Having regard to all the circumstances, the Commission concludes that the proceedings as a whole cannot be said to have exceeded the "reasonable time" requirement.

CONCLUSION

89. The Commission concludes, by 17 votes to 10, that in the present case there has been no violation of Article 6 para. 1 of the Convention.

E. As regards Article 13 of the Convention

90. Article 13 of the Convention reads:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

91. The Government submit that there is no specific remedy in Polish criminal procedure concerning particularly the length of criminal proceedings.  However, this complaint may be raised by parties to criminal proceedings by way of ordinary procedural remedies, i.e. appeals against judicial interlocutory decisions.  In particular, such a complaint may be raised in requests for release from detention on remand, in appeals against a decision to impose or maintain detention on remand, and at hearings held to examine the merits of the case.

92. As regards the present case, the Government stress that the applicant raised this complaint several times in his requests for release.  The Government emphasise that these remedies should be regarded as effective and sufficient under Article 13 of the Convention as their use may result in a considerable change in the appellant's situation in that detention on remand can be lifted and the proceedings can be shortened. They conclude that the applicant had at his disposal remedies to complain about the length of proceedings, satisfying the requirements of Article 13 of the Convention.

93. The applicant submits that he did not have any effective domestic remedy to complain about the excessive length of the proceedings.

94. The Commission first recalls that, according to its case-law, there is no effective remedy under Polish law relating to the complaints about the excessive length of criminal proceedings (No. 28346/95, Dec. 14.01.1998, unpublished).

95. As regards remedy referred to by the Government in the present case, i.e. a request for release from detention on remand, the Commission notes that the Government have failed to explain how this remedy could bring about a shortening or acceleration of criminal proceedings. Likewise, they have not relied on any case-law of the Polish courts in this respect.

96. Therefore the Commission finds no reasons to depart from its case-law, referred to above (para. 94).

97. Article 13 of the Convention guarantees the right to an effective domestic remedy in cases where a person's rights under the Convention have been violated. According to a constant case-law, there is a right to a remedy even in cases where in the end no violation of the Convention is found to have occurred but where a person had nevertheless at least an arguable claim that his or her Convention rights had been violated. In the present case, the applicant's complaint that he had not enjoyed his right to a court determination within a reasonable time was not considered by the Commission to be manifestly ill-founded but was declared admissible. It follows that in this respect the applicant must be considered to have had an arguable claim that his right under Article 6 para. 1 had been violated.

98. The further question arises whether the fact that a court was responsible for the possible violation of the applicant's right under Article 6 made Article 13 inapplicable. The Commission observes that Article 13 makes no exception for cases where a violation of the Convention is the result of acts by a domestic court. It is true that in some respects Article 6 must be seen as lex specialis in relation to Article 13, whose guarantees are then absorbed by those of Article 6. This is the case, in particular, when the issue under Article 6 is one of access to court, since the right to such access in cases falling under Article 6 must be seen as a special way of ensuring the right to an effective legal remedy (see, for example, Eur. Court HR, the Sporrong and Lönnroth v. Sweden judgment of 23 September 1983, Series A no. 52). In other cases falling under Article 6 there is no such relation between the two articles. In particular, it cannot be said that the right to a court determination within a reasonable time is lex specialis in relation to Article 13. The Commission therefore considers that Article 13 applies in principle also to violations of Article 6 for which courts are responsible, provided that the lex specialis argument is not applicable.

99. It is true that in the case of Pizzetti v. Italy (Eur. Court HR, judgment of 26 February 1993, Series A no. 257-C) the Court, having found a violation of the right under Article 6 to a court determination within a reasonable time, did not find it necessary also to examine the case under Article 13. In the present case, however, the situation is different, since the Commission has found that no violation of Article 6 had occurred, and the Court's approach in the Pizzetti case is therefore not applicable.

100. It should also be observed that the slowness of court proceedings is a general problem in a number of Convention States, which is demonstrated by the very large number of complaints about such matters which have continuously been brought before the Convention organs and by the numerous judgments of the Court and reports of the Commission in which violations of Article 6 have been found in those cases. It is therefore highly desirable that States should feel responsible for creating effective domestic remedies so as to ensure that the obligation to provide justice within a reasonable time is respected without the necessity of having recourse to the complaints procedure under the Convention. The applicability of Article 13 in this respect may therefore be of considerable practical importance in giving effect, already at the domestic level, to one of the fundamental procedural guarantees included in Article 6.

101. Consequently, in view of the absence under Polish law of any remedy, which would enable the applicant to have the substance of his complaint about the length of proceedings examined by a competent national authority, the Commission concludes that Article 13 of the Convention has been breached.

CONCLUSION

102. The Commission concludes,  by 17 votes to 10, that in the present case there has been a violation of Article 13 of the Convention.

F. Recapitulation

103. The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 3 of the Convention (para. 74).

104. The Commission concludes, by 17 votes to 10, that in the present case there has been no violation of Article 6 para. 1 of the Convention (para. 89)

105. The Commission concludes, by 17 votes to 10, that in the present case there has been a violation of Article 13 of the Convention (para. 102).

M.-T. SCHOEPFER S. TRECHSEL

Secretary President

to the Commission of the Commission

(Or. English)

DISSENTING OPINION OF MR M.A. NOWICKI JOINED BY

MM E. BUSUTTIL, G. JŐRUNDSSON, J.-C. GEUS AND E. BIELIŪNAS

I find myself unable to agree with the opinion of the majority of the Commission that there has been no violation of Article 6 para.1 of the Convention.

Firstly, I would like to stress that the established case - law of the Convention organs indicates clearly that in cases where the accused person is in detention on remand the competent domestic authorities must display special diligence in the conduct of the proceedings (see: the Matznetter v. Austria judgment of 10 November 1969, Series A no. 10, para. 12).

It is true that the investigations in this case were conducted speedily enough.   However, after the bill of indictment had been lodged with the Warsaw Regional Court on 10 June 1994 there was a very long period of inactivity in the proceedings until 28 July 1995, the date on which the first hearing was held before that court. No explanation of this period of inactivity was submitted by the Government other than that the Warsaw Regional Court had an exceptionally heavy case-load at that time.

Secondly, the applicant did not contribute in any way to the prolongation of the proceedings.  It is true that he requested release three times but no any reproach can be leveled against him for having made full use of the remedies available under the domestic law ( see: the Eckle v. Germany judgment of 15 July 1982, Series A no. 51, para. 82 and the Corigiliano v. Italy judgment of 10 December 1982, Series A no. 57 para. 42). Furthermore it should be emphasized that the courts  took more than four months to examine the applicant’s requests although under Polish law ( Article 214 of the Code of Criminal Procedure) every request for release should be examined within three days . 

This being so, I consider that in this case the proceedings exceeded a reasonable time within the meaning of Article 6 para. 1 of the Convention.

DISSENTING OPINION OF MR B. MARXER AND MS M. HION

We cannot agree with the majority of the Commission that there has been no violation of Article 6 para. 1 of the Convention in the present case.

We have come to the conclusion that there has been a violation of Article 6 para. 1 on account of the length of proceedings for the reasons given in the dissenting opinion of Mr M. A. Nowicki .

As to Article 13 of the Convention, we did not vote with the majority, which found that there had been a violation. We are of the opinion that as we have found the violation of Article para. 1 in that the proceedings exceeded a reasonable time, it is not necessary also to examine the case under Article 13 (Eur. Court HR, the Pizzetti v. Itlay judgment of 26 February 1993, Series A no. 257 - C, p. 37, para. 21). Therefore we voted in favour of finding no violation.

(Or. English)

PARTLY DISSENTING OPINION OF MR S. TRECHSEL

While I am in agreement with the conclusions of the Commission on Articles 6 and 14 of the Convention, I have come to a different conclusion as regards Article 13. Contrary to my friend Mr. Nowicki , however, I accept that the applicant had an “arguable claim”. However, I still adhere to the earlier case-law, established many years ago, according to which there is no room for any consideration under that guarantee when Article 6 is at issue.

I accept that a simple reading of the text of the Convention does not support this view. However, if one carries literal interpretation ad absurdum , one must also come to the conclusion that there ought to be an “effective remedy before a national authority” for persons who complain of a violation of Article 13.

Article 6 guarantees access to a court and all that this implies, including the right to speedy trial, to have a judgment within a reasonable time. In fact, excessive length of proceedings does amount to a denial of justice. Access to a court, in substance, cannot be limited to the right to seize a court but must include the right to have that court function properly within a reasonable time.

The Court has dealt a number of times with the relationship between Articles 6 and 13. In some cases, after finding a violation of Article 6, it limited itself to stating that it “does not consider it necessary also to examine the case under Article 13” (Eur. Court HR, Pizzetti v. Italy judgment of 26 February 1993, Series A no. 257-C, p. 37, para.21). In other judgments , the Court was more precise; it gave the following grounds: “The requirements of that Article are less strict than those of Article 6 and are in this instance absorbed by them” (Eur. Court HR, De Geouffre de la Pradelle v. France judgment of 16 December 1992, Series A no. 253-B, p. 43, para.37).

This argument is, in my view, quite convincing. In fact, Article 13 requires a “national authority” to decide whether a Convention right has been violated and to provide a remedy. However, a “tribunal” within the meaning of Article 6 para.1 could only be “supervised” by another court. In effect, Article 13 would then mean nothing less than a right to appeal, even in civil cases and after a second or even third instance - and delays are frequent in appeal proceedings.

For these reasons I remain convinced that, whenever Article 6 is at issue, there is no room for the application  of Article 13, whatever the particular aspect of the right of access to a court and to fair proceedings.

(Or. English)

CONCURRING OPINION OF MR M.A. NOWICKI JOINED BY

MM J.-C. SOYER, MS G.H. THUNE, MM C. ROZAKIS, E. ALKEMA

AND M. VILA AMIGÓ

I concur with the majority of the Commission considering that Article 13 also applies in principle to violations of the Convention committed by courts. I fully share the reasoning leading to this conclusion expressed in paragraph 98 of the Commission’s report.

The majority of the Commission found in this case that there had been no violation of Article 6 para. 1 of the Convention; the applicant had, though, an “arguable claim under that Article that permitted examination of the case from the angle of Article 13. The Commission stated that the latter Article had been violated through the absence in the Polish legal system of any effective remedies to challenge the excessive duration of the proceedings.

As I see it, a violation of Article 13 should also be found in the case of violation of Article 6. Admittedly, in its Pizzetti judgment, the Court, having found a violation of Article 6 did not consider it necessary also to examine the case under Article 13; in my opinion, however, this view requires reconsideration.

Such conclusion is only permissible in the case of claims under Article 6 in connection with which that Article offers stronger guarantees compared to Article 13, and should therefore be applied first and foremost.  In that situation, it is absolutely sufficient to state a violation of Article 6, and the examination of claims under Article 13 is not necessary. The situation is different, though, if a claim under Article 13 concerns the absence of a remedy against an alleged violation of precisely Article 6, as is the case here, due to the length of proceedings. It would be outright illogical and inconsistent with the purpose of that Article to decide that there is no need to consider Article 13 in such circumstances. This situation is by no means different from all the remaining cases of application of Article 13, which – as we know – does not operate independently and has always to be related to a claim of violation of another substantive provision of the Convention or its Protocols, including Article 6 para. 1. In such circumstances, in my view, the Convention organs are also required to pronounce themselves explicitly on a possible violation of Article 13.

[1] The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.