EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 33863/96

Janusz Kazimierczak

against

Poland

REPORT OF THE COMMISSION

(adopted on 31 May 1999)

I. INTRODUCTION

(paras. 1-16) ................................................. 1

A. The application

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

B. The proceedings

(paras. 5-11) ............................................. 1

C. The present Report

(paras. 12-16) ............................................ 2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-35) ................................................ 3

A. The particular circumstances of the case

(paras. 17-31) ............................................ 3

B. Relevant domestic law

(paras. 32-35) ............................................ 5

III. OPINION OF THE COMMISSION

(paras. 36-57) ................................................ 7

A. Complaint declared admissible

(para. 36) ................................................ 7

B. Point at issue

(para. 37) ................................................ 7

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

(paras. 38-56) ............................................ 7

CONCLUSION

(para. 57) ............................................... 10

APPENDIX I: PARTIAL DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION ................... 11

APPENDIX II: FINAL DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION ...................... 16

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 1950 and resident in MÅ‚awa, Poland.

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 applicant invokes Article 5 para. 3 of the Convention.

B. The proceedings

5 . The application was introduced on 30 April 1996 and registered on 18 November 1996.

6 . On 2 July 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 complaint under Article 5 para. 3 of the Convention.  It declared the remainder of the application inadmissible.

7 . The Government submitted their observations on 8 September and 3 November 1997.  The applicant replied on 6 and 7 October and 8 December 1997.  On 9 December 1997 the Commission granted the applicant legal aid for the representation of his case.

8 . On 27 October 1998 the Commission declared the application admissible.

9 . The text of the Commission's decision on admissibility was sent to the parties on 30 October 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 Article 28 para. 1 (b) of the Convention [1] , 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.

11. Pursuant to the entry into force of Protocol No. 11 to the Convention the application was transferred to the Commission sitting in plenary.

C. The present Report

12 . 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

M F. MARTINEZ

Mrs J. LIDDY

MM J.-C. GEUS

B. MARXER

M.A. NOWICKI

I. BÉKÉS

D. ŠVÁBY

A. PERENIĆ

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

13 . The text of this Report was adopted on 31 May 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.

14 . 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.

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

16 . 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

17. On 24 July 1995 the applicant, who at the same time was being searched for by a wanted notice issued in other criminal proceedings against him, was arrested by the police on suspicion of having battered J.U. with a piece of concrete, plucked out one of his eyeballs and thrust two pieces of wood into his throat, which resulted in the latter's death.  Subsequently, he was brought before the Otwock District Prosecutor ( Prokurator Rejonowy ), charged with homicide committed with an accomplice and detained on remand since, in the light of the confession of his co-suspect and post-mortem examination of the victim's body, there was a very strong suspicion that he had committed the offence with which he had been charged.  Moreover, both the grave nature of the offence in question and the fact that the applicant had no permanent residence in Poland (and might, therefore, abscond) were, in the prosecutor's opinion, other factors justifying the applicant's detention.

18. In the course of a further investigation evidence was taken from various experts, including a pathologist, a forensic medical expert and a fingerprint expert.

19. On an unspecified date in October 1995 the Otwock District Prosecutor requested the Warsaw Regional Court ( Sąd Wojewódzki ) to prolong the applicant's detention on remand until 24 January 1996 in view of the need to obtain further evidence.  On 19 October 1995 the court granted the request.  On 24 October 1995 the applicant complained about the decision of 19 October 1995 to the Prosecutor General ( Prokurator Generalny ), arguing that his detention was unjustified.  This was deemed to be an appeal against the decision prolonging his detention and referred to the Warsaw Regional Court and, subsequently, to the Warsaw Court of Appeal ( Sąd Apelacyjny ).  On 14 December 1995 the Warsaw Court of Appeal dismissed the appeal in view of the reasonable suspicion that the applicant had committed the offence with which he had been charged, the serious nature of the offence and the need to supplement the expert evidence by, inter alia , obtaining evidence from biological experts.

20. On an unspecified date in January 1996 the Otwock District Prosecutor requested the Warsaw Regional Court to prolong the applicant's detention on remand until 30 May 1996 as, in order to establish whether or not the applicant and his co-suspect had acted in a state of diminished responsibility, it was necessary to obtain evidence from psychiatric experts and, therefore, place both of them under psychiatric observation for at least six weeks.  On 18 January 1996 the court granted the request in view of the need to obtain such evidence in the course of the investigation.

21. On 29 May 1996 the Otwock District Prosecutor lodged a bill of indictment with the Warsaw Regional Court.  The court scheduled first hearings for 4 and 5 February 1997.

22. On an unspecified date the applicant requested the Warsaw Regional Court to release him.  The request was dismissed on 1 July 1996.  The applicant did not appeal against this decision.

23. On unspecified dates, in August and then in October or November 1996, the applicant requested the Warsaw Regional Court to alter the preventive measure imposed on him, submitting that his health was very bad.  On 5 August and 7 November 1996, respectively, the court dismissed those requests in view of the reasonable suspicion that the applicant had committed the serious offence with which he had been charged and the need to secure the due course of the proceedings, in particular in view of the likelihood of a severe penalty being imposed.  The court also found that the grounds which had previously been given to justify his detention had not ceased to exist.  The applicant did not appeal against either of these decisions.

24. On 9 January 1997 the Warsaw Regional Court dismissed a further request for release filed by the applicant on an unspecified date.  The applicant did not appeal against this decision.

25. On 4 February 1997 the hearing was cancelled since the court had failed to serve properly a summons on A.U., an injured party.  The trial was adjourned to 14 and 16 April and 16 May 1997.  During the hearings on these dates the court heard evidence from the applicant and his co-defendant and some part of the expert evidence.  In order to call witnesses and other experts, i.e. a psychologist and psychiatrists, the court adjourned the trial and scheduled the next hearings for 21, 22 and 26 August 1997 when it heard further evidence from lay and expert witnesses.

26. In the meantime, on 26 June 1997, the Warsaw Regional Court lodged a request under Section 222 para. 4 of the Code of Criminal Procedure with the Supreme Court ( SÄ…d Najwyższy ), submitting that, in view of the volume of evidence which was to be heard or obtained during the trial, it was not possible to terminate the proceedings at first instance within the two-year time-limit set out in this provision.  However, it was necessary to ensure the applicant's presence during the hearings, so that the need to secure the due course of the proceedings justified prolonging his detention beyond the statutory time-limit of two years.  Therefore, the court of first instance requested the Supreme Court to prolong the applicant's detention on remand until 31 December 1997, stressing that, by then, crucial evidence would have been obtained and the proceedings at first instance would be terminated.

27. On 2 October 1997 the Supreme Court granted the request, finding that even though the Warsaw Regional Court was proceeding with the applicant's case in a prompt and efficient manner, it had met serious difficulties in ensuring the appearance before it of some lay and expert witnesses.  Furthermore, the proper course of the proceedings had still to be secured by the applicant's continued detention until at least 31 December 1997.

28. The next hearing took place on 30 October 1997.  The court heard evidence from experts but adjourned the trial as several lay witnesses, including [...]. G., a witness proposed by the applicant, had failed to appear.

29. During a further hearing of 3 December 1997 the court heard evidence from lay witnesses and a forensic medical expert; however, the trial was adjourned until 29 January 1998 since [...]. G., had again failed to appear.

30. On 29 December 1997 the Warsaw Regional Court made a further request under Section 222 para. 4 of the Code of Criminal Procedure to the Supreme Court, submitting that the applicant's detention should be prolonged until 31 March 1998 since the proceedings had not come to an end because several witnesses had failed to appear before the court.  On the other hand, the need to secure the due course of the proceedings still militated against the applicant's release.  There is no information as to whether this request was in fact lodged with the Supreme Court.

31. On 28 January 1998 the applicant was released.

B. Relevant domestic law

32. At the material time the rules governing detention on remand were contained in Chapter 24 of the Code of Criminal Procedure of 1969, entitled “Preventive measures” (this law is no longer in force as it was repealed and replaced by a so-called “New Code of Criminal Procedure of 6 June 1997, which entered into force on 1 September 1998).

33. The Code listed as preventive measures, inter alia , detention on remand, bail and police supervision.

Section 209 of the Code of Criminal Procedure set out general grounds justifying imposition of preventive measures.  This provision provided:

"Preventive measures may be imposed in order to secure the proper course of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence."

34. The Code of Criminal Procedure set out the margin of discretion as to maintaining a specific preventive measure.  Detention on remand was (and still is) regarded as the most extreme measure among the preventive measures and the domestic law laid down that in principle it should not be imposed if more lenient measures were adequate and sufficient.

Section 213 of the Code of Criminal Procedure provided:

"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."

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."

The relevant provisions of the Code which provided for "mandatory detention" (for instance, pending an appeal against conviction at first instance) were repealed by virtue of a new Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes.

Within the above margin of discretion the Code of Criminal Procedure set out a list of particular instances in which detention on remand might be imposed.

Section 217 of the Code of Criminal Procedure, insofar as relevant, provided:

"Detention on remand may be imposed if:

1. there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent domicile [in Poland] or:

2. there is a reasonable risk that he will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means. ..."

35. Until 4 August 1996, i.e. the date on which the relevant provisions of the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes entered into force, Polish law did not set out any statutory time-limits concerning detention on remand in court proceedings; it did so only in respect of the investigative stage.

Section 222 of the Code of Criminal Procedure in the version applicable after 4 August 1996 provided, insofar as relevant:

"3. The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed one year and six months in cases concerning ordinary offences.  In cases concerning serious offences this period may not exceed two years.

4. In particularly justified cases the Supreme Court may, upon the request of the court competent to deal with the case, ... prolong detention on remand for a further fixed period exceeding the periods referred to in paras. 2 and 3, when it is necessary in connection with a suspension of the proceedings, a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in para. 3."

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

36. The Commission declared admissible the applicant’s complaint that his detention on remand exceeded a “reasonable time”.

B. Point at issue

37. The Commission must accordingly examine whether there has been a violation of Article 5 para. 3 of the Convention.

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

38. This provision provides, insofar as relevant:

“3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article ... shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

39. The applicant submits that his detention was excessive and that it lacked sufficient grounds.  In particular, he claims that there was (and still is) no evidence that he had committed the offence with which he had been charged.  Moreover, the evidence obtained from both the biological expert and the fingerprint expert clearly confirmed that the charge laid against him was never justified.  Also, evidence from witnesses heard by the court of first instance clearly demonstrated that this charge had no basis.  Despite this, he spent a significant period of more than two years in detention.

40. The Government maintain that there were valid reasons justifying the applicant's detention.  First of all, there was a well-founded suspicion that he had committed a very serious and dangerous offence, i.e. murder, which meant that he could have been liable to a sentence ranging from eight years' imprisonment to the death penalty.  In view of the likelihood of such a severe penalty and the fact that, before being detained, the applicant was searched for by a wanted notice in connection with other criminal proceedings against him and, moreover, had no permanent domicile in Poland, there was a reasonable risk that he might abscond or obstruct the due course of the proceedings against him.  Also, there was a risk that he might induce other persons to give false testimony.  Those risks persisted both during the investigative stage and in the course of the proceedings before the court of first instance.

41. They also stress that the applicant's case was a very complex one.  It concerned a very serious charge laid against two co-suspects.  The nature of the offence made it essential to obtain expert evidence.  For this reason the investigation lasted for more than ten months; however, during this time the authorities collected voluminous evidence, including several expert reports.  The trial court proceeded with the applicant's case in an expeditious manner and no procedural inactivity can be found on its part.

42. The Government conclude that, having regard to the criteria of the reasonableness of the length of detention deriving from the Convention organs' case-law and, more particularly, to the fact that the applicant's detention was necessary to secure the proper course of the proceedings, the length of his detention did not exceed a "reasonable time" within the meaning of Article 5 para. 3 of the Convention.

43. The Commission recalls that it falls in the first place to the national judicial authorities to ensure that the pre-trial detention of an accused person does not exceed a reasonable time.  To this end, they must examine all the circumstances militating in favour of 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 these 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 detainee in his applications for release and 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 (see Eur. Court HR, Muller v. France judgment of 17 March 1997, Reports of Judgments and Decisions 1997-II no. 32, p. 388, para. 35; Assenov and Others v. Bulgaria judgment of 28 October 1998, to be published in Reports 1998 ...  para. 154).

44. The Commission further reiterates that the persistence of a 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.  It is, therefore, necessary to establish whether the other grounds cited by the judicial authorities continued to justify the deprivation of liberty.  Where such grounds were “relevant” and “sufficient”, it is also necessary to ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see the Assenov and Others v. Bulgaria judgment loc. cit.).

45. In the present case the Commission notes that the applicant’s detention on remand started on 24 July 1995, when he was arrested by the police, and ended on 28 January 1998, when he was released pending trial.  It thus follows that the period to be examined under Article 5 para. 3 of the Convention is a little more than two years and six months (see paras. 17 and 31 above).

46. The Commission further observes that, during the above-mentioned period, the Polish authorities considered whether the applicant’s detention should continue on several occasions.  They firstly referred to the reasonable suspicion that he had committed the offence with which he had been charged and the serious nature of this offence.  They also attached some importance to the fact that the applicant apparently had no permanent residence in Poland and might, therefore, abscond (see para. 17 above).  As the investigation continued, the courts, while still relying on the reasonable suspicion that the applicant had committed the serious offence of homicide, found that the need to obtain expert evidence in the course of the investigation justified a further prolongation of his detention (see paras. 19 - 20 above).

47. Later, in the court proceedings, the authorities in addition found that the “need to secure the proper course of the proceedings” militated in favour of prolonging the applicant’s detention.  In invoking this ground, they relied on two circumstances: the likelihood of a severe penalty being imposed on the applicant and the need to ensure his presence at the trial.  The second of these circumstances was then repeated by the Supreme Court in the decision of 2 October 1997, prolonging the applicant’s detention beyond the statutory time-limit of two years laid down in Section 222 para. 4 of the Code of Criminal Procedure (see paras. 23 and 26-27 above).

48. The Commission accepts that the reasons cited by the authorities in the investigative phase of the proceedings were “sufficient” and “relevant”, in particular, in view of the fact that at a very early stage of the proceedings the suspicion that the applicant had committed the offence in question appeared to have a reasonable basis in the form of the evidence given by his co-suspect.  The Commission also agrees that the gravity of the charge laid against the applicant and such requirements of the investigation as the need to obtain evidence from several experts (see paras. 18 - 20 above) might, with due regard to the principle of the presumption of innocence, justify a certain prolongation of the applicant’s detention, the more so as some part of the evidence concerned was of vital importance for the issue of the applicant’s criminal responsibility.

49. Nonetheless, the Commission is not in the same way satisfied by the grounds for the applicant’s detention invoked by the authorities in the court proceedings.  The Commission has already noted that at this stage the courts repeatedly relied on the “need to secure the proper course of the proceedings”, referring to both the severity of sentence which might be imposed and the necessity to ensure the applicant’s presence at the trial (see para. 47 above).  However, it is not apparent from their decisions that at the time there was a real risk of the applicant obstructing the proper course of the trial by, for instance, absconding or otherwise evading any sentence which might be imposed.  On this point the Commission recalls that, even though the danger of evading justice may be seen as justified in certain cases - especially where the sentence faced is a long term of imprisonment - the risk of absconding cannot be gauged solely on the basis of the severity of the sentence applicable (see the Muller v. France judgment loc. cit.).

50. Moreover, the Commission further observes that the courts, apart from repeating that the applicant’s detention was necessary in order to ensure his presence at the trial, failed to consider other guarantees that he would appear for trial, such as, for example, the payment of bail or the monitoring of his whereabouts by means of police supervision, both measures being designed to secure the proper course of the proceedings by Polish law (see paras. 33-34 above).

51. In the light of the above findings, the Commission concludes that the grounds invoked for the continuation of the applicant’s detention in the court proceedings do not stand the test of relevance.

52. The Commission must next ascertain whether the authorities displayed “special diligence” in the conduct of the proceedings.  In this respect the Commission observes that the investigative phase of the proceedings lasted from 24 July 1995 to 29 May 1996, i.e. some eleven months (see paras. 17 and 21 above).  Yet in view of the volume of evidence obtained during this time, especially extensive expert evidence, the Commission considers that it cannot be said that the prosecuting authorities failed to act with all due expedition in handling the applicant’s case.

53. In respect of the court proceedings the Commission observes that it took the Warsaw Regional Court more than eight months to prepare the applicant’s case for the main hearing, which was to be held 4 and 5 February 1997.  The start of the trial was, however, significantly postponed since the court had failed to serve properly a summons on the injured party.  This in turn resulted in the first main hearing on the merits being held as late as 14 April 1997, nearly a year after the applicant had been indicted.  What is more, by this time, he had already spent almost twenty months in detention but his trial was merely opening.  Later on, after the three first hearings (the last of them being held on 16 May 1997), the trial was repeatedly adjourned to, respectively, the end of August, the end of October and the beginning of December 1997 (see paras. 21, 25, 28-29 above).

54. It is true that the Warsaw Regional Court apparently had certain difficulties in ensuring the appearance before it of some witnesses (see paras. 27 and 30 above).  This, however, can hardly be seen as a circumstance justifying the prolongation of the applicant’s detention pending trial since the court itself was primarily responsible for securing that the trial and, more particularly, the process of obtaining evidence, followed their proper course.

55. These findings lead the Commission to the opinion that the Warsaw Regional Court failed to display “special diligence” in the conduct of the proceedings, as required by Article 5 para. 3 of the Convention.

56. Accordingly, the Commission, having regard to the substantial delays in the court proceedings for which the authorities were responsible and to the fact that at this stage of the proceedings the applicant’s detention ceased to be based on relevant and sufficient grounds, considers that his right to a “trial within a reasonable time or release pending trial” was not respected.

CONCLUSION

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

M.-T. SCHOEPFER S. TRECHSEL

Secretary President

to the Commission of the Commission

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