EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 33492/96

Henryk Jabłoński

against

Poland

REPORT OF THE COMMISSION

(adopted on 21 October 1998)

33492/96 - i -

TABLE OF CONTENTS

Page

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. 16-60)              3

A. The particular circumstances of the case

(paras. 16-59)              3

B. Relevant domestic law

(para. 60) 9

III. OPINION OF THE COMMISSION

(paras. 61-104) 11

A. Complaints declared admissible

(para. 61) 11

B. Points at issue

(para. 62) 11

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

(paras. 63-81)              11

CONCLUSION

(para. 82) 14

D. As regards Article 5 para. 4 of the Convention

(paras. 83-88)              15

CONCLUSION

(para. 89) 16

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

(paras. 90-100) 16

CONCLUSION

(para. 101) 18

F. Recapitulation

(paras. 102-104) 18

APPENDIX: DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION 19

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 1957 and resident in Białystok in Poland.  He was represented before the Commission by Ms Zofia Daniszewska-Dek , a barrister practising in Białystok .

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 proceedings relating to the prolongation of his detention and the length of the criminal proceedings against him.  The applicant invokes Article 5 paras. 3 and 4 as well as Article 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 2 January 1995 and registered on 19 October 1996.

6. On 27 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 its admissibility and merits.

7. The Government's observations were submitted on 18 June 1997 after two extensions of the time-limit fixed for this purpose.  The applicant replied on 25 July 1997.  On 28 October 1997, the Commission granted the applicant legal aid for the representation of his case.  On 12 March 1998 the applicant submitted his additional observations.  They were forwarded to the Government on 2 April 1998.

8. On 16 April 1998 the Commission declared admissible the applicant's complaints under Article 5 paras. 3 and 4 and Article 6 para. 1 of the Convention.  It declared the remainder of the application inadmissible.

9. The text of the Commission's decision on admissibility was sent to the parties on 27 April 1998 and they were invited to submit such further information or observations on the merits as they wished.  The Government submitted observations on 12 June 1998, to which the applicant has not replied.

10. After declaring the case admissible, the Commission, acting in accordance with 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 (Second Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

D. ŠVÁBY

P. LORENZEN

E. BIELIŪNAS

E.A. ALKEMA

A. ARABADJIEV

12. The text of this Report was adopted on 21 October 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to 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 decision on the admissibility of the application is annexed hereto.

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 21 May 1992 the Białystok Regional Prosecutor ( Prokurator Wojewódzki ) charged the applicant with aggravated theft, armed robbery and attempted homicide, and detained him on remand.  The investigation was completed on an unspecified date in August 1992.

17. Some time after this date, the applicant requested an order referring the case for further investigation.  In particular, he asked for evidence to be taken from certain witnesses.  His request for witnesses to be called was dismissed; however, a psychiatric expert report was ordered by an investigating prosecutor on an unspecified date.

18. On 12 October 1992 the Białystok Regional Prosecutor lodged a bill of indictment with the Białystok Regional Court (Sąd Wojewódzki ).  On 22 October 1992 the court scheduled the first hearing for 27 November 1992.

19. From an unspecified date in October 1992 until the end of 1993 the applicant, who was at the material time detained in the Białystok Detention Centre , was on hunger strike.

20. On 9 December 1993 the applicant was admitted to the hospital of the Faculty of Gastrology of the Białystok Academy of Medicine.  He received treatment until 17 December 1993.  An extract from the medical records which was issued on 17 December 1993, stated, inter alia :

"he was admitted to the hospital in a state of extreme exhaustion ..., complaining about general weakness, pains in his chest and heart palpitations. Subsequent analyses showed that there was an extremely low level of haemoglobin in his blood ... [4.1% and 6.7% according to the relevant tests] ... resulting from a chronic deficiency of iron and vitamins.  During the treatment he was given two transfusions and iron compounds were administered ... and therefore his condition improved ... Recommendations: good food and further treatment.  From the medical point of view, he should not be kept in prison."

21. On 17 December 1993 the applicant was redetained in Białystok Detention Centre .  He was placed in a medical ward, where he remained until 24 December 1993.  As he refused to consent to any further medical tests or to take medication, he was again placed in a prison ward when he was diagnosed as having anaemia and gastritis.

22. In the meantime, the hearings scheduled for 27 November 1992, 20 January, 2 June, 24 September and 1 December 1993 were adjourned on the ground that the applicant was continuing his hunger strike.

23. On 4 January 1994 the applicant wrote a letter to the Minister of Justice, requesting him to release him in view of the very serious state of his health.  Apparently, his letter was deemed to be a request for release under Section 214 of the Code of Criminal Procedure, was therfore referred to the Białystok Regional Court and was dismissed by that court on 31 January 1994.  The court accepted, from the medical point of view, the applicant should not be kept in prison but found that his poor health resulted from his own behaviour and therefore refused his request.

24. On 14 February 1994, upon the applicant's appeal, the BiaÅ‚ystok Court of Appeal (SÄ…d Apelacyjny ) upheld the above decision, repeating the grounds given by the lower court in its reasoning.  

25. On 13 and 22 March 1994 the applicant inserted several pieces of metal into his eyes.  On 23 March 1994 he was examined by a psychiatrist who stated that these self-inflicted injuries were a form of protest against the prolongation of the criminal proceedings against him.  He was placed in an ophthalmic ward of the Bytom Prison Hospital where he remained from 25 April to 23 June 1994.  Following his treatment in that hospital, there are still three pieces of metal in the applicant's eyes.

26. On an unspecified date in June 1994 the applicant again requested the Białystok Regional Court to release him in view of his state of health.  The request was dismissed on 29 June 1994.  On 15 July 1994 the applicant lodged a further request for release, submitting that, in the meantime, he had received a letter from a civil hospital in Katowice confirming that he could be admitted to that hospital in order to undergo ophthalmic treatment there.  The request was dismissed at first instance on 15 July 1994 and, on appeal, by the Białystok Court of Appeal, on 11 August 1994.  Both courts held that there was no valid reason to release the applicant as his condition, even though serious, had been aggravated by the injuries which had inflicted on himself.

27. On 31 August 1994 the applicant requested the Białystok Regional Court to call ophthalmology experts, submitting that he was suffering from a severe pain in his eyes.  His request was transferred to the authorities of the Białystok Detention Centre and refused on 28 September 1994 by the Deputy Governor on the ground that, in the opinion of the experts who had previously examined the applicant, there had been no need to treat him outside the prison.

28. On 5 October 1994 the next hearing before the Białystok Regional Court was to take place but was cancelled since, in the meantime, the applicant had inflicted unspecified injuries on himself.

29. Subsequently, on an unspecified date, the applicant again inflicted injuries on himself, in particular by hitting his head against a wall.  Therefore, on 22 November 1994, the Białystok Regional Court adjourned the next hearing.

30. On 5 December 1994 the Białystok Regional Court again adjourned a hearing, finding that the applicant had inflicted injuries on himself by injecting saliva into his leg.  On 17 January 1995 the Białystok Regional Court again adjourned a hearing on the same ground.

31. Meanwhile, from the beginning of December 1994, the applicant complained to the prison authorities about an abscess and boil on his leg.  From 17 to 22 February 1995 the applicant was treated in the Barczewo Prison Hospital.

32. On 21 February 1995 the Białystok Regional Court adjourned a hearing in view of the fact that at the time the applicant was receiving treatment in the prison hospital.

33. Subsequently, on an unspecified date, the applicant swallowed two metal rods and three pieces of wire.  He did not consent to surgery in the prison hospital.

34. On 27 April 1995 the Białystok Regional Court adjourned a hearing because, as a consequence of self-inflicted injury, the applicant was not fit and could not be brought to court.

35. On an unspecified date the applicant requested the Białystok Regional Court to release him on account of his state of health.  On 24 November 1995 his request was dismissed in view of the reasonable suspicion that he had committed the offences with which he had been charged and their serious nature.  The court, finding that there were no special circumstances concerning the applicant's health which might justify his release, referred to a medical statement of 18 November 1993 confirming that the applicant could be treated in prison.

36. In the beginning of November 1995 the applicant complained to the authorities about various other ailments, in particular a cyst in his kidney and urinary problems.  Several ultrasound examinations (of, inter alia , 17 November 1995 and November 1996) showed that the applicant had a cyst of a diameter of twenty millimetres in his kidney.  He refused to undergo a kidney operation in a urological ward of the Łódź Detention Centre Prison Hospital and requested to be released so as to enable him to receive medical treatment outside the prison.

37. On 20 December 1995 the applicant filed a request for release to the Supreme Court (Sąd Najwyższy ).

38. On 29 December 1995 the Białystok Regional Court decided to make a request to the Supreme Court to prolong the applicant's detention on remand until 30 December 1996.  This request was made in view of the fact that an amendment to the Polish Code of Criminal Procedure (setting maximum statutory time-limits for detention on remand) was to take effect on 1 January 1996 (see below, "Relevant domestic law", para. 60 "b").  The court stated, inter alia :

"When the applicant finished his hunger strike, he deliberately inflicted injuries on himself in order to compel [the court] to make a favourable decision on altering the preventive measure imposed on him.  For these reasons it is not known when the accused will be brought to trial and therefore his detention should be prolonged until 30 December 1996."

39. In fact, the amendment concerning the maximum period of detention on remand did not come into force until 4 August 1996 and the above request was never lodged with the Supreme Court.

40. On 30 December 1995 the Supreme Court transferred the applicant's request of 20 December 1995 to the Białystok Regional Court.  On 15 January 1996 the Chief Justice of the Białystok Regional Court transferred the request to the Chief Judge of the Criminal Division of the Białystok Regional Court.  On 18 January 1996 the Supreme Court informed the applicant that all requests for release should be lodged with the court of first instance, i.e. the Białystok Regional Court.

41. On 19 January 1996 the Białystok Regional Court dismissed the applicant's request for release dated 20 December 1995.  The court held that there had been no circumstances concerning the applicant's health which might militate in favour of his release and that the state of the applicant's health had been caused entirely by his own conduct.  The court stated that the applicant had wished to compel the court to make a favourable decision on his detention and that the impossibility of bringing the applicant to trial had diminished the chances of resolving his complaints.

42. In the meantime, on an unspecified date, the applicant complained to the Supreme Court about the length of his detention, which had meanwhile exceeded three years. On 25 January 1996 his complaint was referred to the Białystok Court of Appeal.  On 8 February 1996 the Deputy Chief Justice of the Białystok Court of Appeal replied to this complaint.  He stated that hearings in the applicant's case had been cancelled five times in view of the fact that the applicant had gone on hunger strike and then on the ground that he had inflicted injuries on himself.  He also stressed that there had been no indication that the applicant should have been released on account of his state of health, as he had been under medical care in prison.

43. On an unspecified date the applicant requested the Białystok Regional Court to order further investigations in his case and remit his case to the investigating prosecutor.  This request was dismissed on 25 January 1996.

44. On an unspecified date the applicant applied to the Białystok Regional Court to release him in view of his state of health.  This application was dismissed on 29 March 1996.  On an unspecified date the applicant appealed against the above-mentioned decision, arguing that his detention on remand had meanwhile exceeded four years and that his state of health was desperately bad.

45. On 19 April 1996 the Białystok Court of Appeal dismissed his appeal, finding that the length of the applicant's detention had been attributable to his behaviour alone, that a change in the applicant's attitude would result in the immediate examination of his case and that such a change might have resulted in "a change of opinion as to whether the detention should be maintained further".

46. On an unspecified date in June 1996 the applicant again filed a request for release.  On 11 June 1996 the Białystok Regional Court dismissed the applicant's request in view of the high probability that he had committed the offences with which he had been charged and their serious nature.  The court also found that no circumstances concerning the applicant's health argued for his release as the current state of his health had resulted only from the hunger strike and self-inflicted injuries.

47. On 6 August 1996 the Białystok Regional Court requested the Supreme Court to prolong the applicant's detention on remand until 30 July 1997 in view of the fact that he had attempted to obstruct the due course of the proceedings.  The court also stated:

"... the detention should be prolonged until 30 July 1997 ... since the accused has inflicted injuries on himself and therefore, it is not known when he will be able to be brought to trial."

48. On 5 September 1996 the Supreme Court, sitting in camera, prolonged the applicant's detention until 1 March 1997 and found that the applicant had in an exceptional manner obstructed the due course of the proceedings and had intentionally contributed to their length.  The court also held that it was not necessary to prolong the applicant's detention until 30 July 1997 and that by 1 March 1997 the court of first instance should be able to order an additional medical examination of the applicant, to schedule the hearing and to give judgment.  On 26 September 1996 a copy of the decision of the Supreme Court was served on the applicant.

49. On 13 September 1996 the applicant complained to the Minister of Justice about the length of his detention on remand and the conduct of the proceedings in his case.  This complaint was transferred to the Białystok Regional Court and, on 3 October 1996, the Chief Justice of the Białystok Regional Court replied to it.  He found that there had been no irregularities in the conduct of the proceedings.  He stated that all the twelve hearings scheduled from 27 November 1992 until 27 April 1995 had been cancelled in view of the fact that the applicant had inflicted injuries on himself.

50. In the meantime, on an unspecified date apparently in September 1996, the applicant again filed a request for release.  On 24 September 1996 the Białystok Regional Court dismissed his request on the grounds that there was a reasonable suspicion that he had committed the offences in question and that the need to ensure the due course of the proceedings militated against his release.  The court held that, since the applicant's illness did not constitute a danger to his life or health and since it had resulted from his own deliberate acts, there was no reason to release him.

51. On 10 October 1996, on the applicant's appeal, the Białystok Court of Appeal upheld the decision of the Białystok Regional Court of 24 September 1996 and held:

"It is true that the accused is sick, though his illness results from self-inflicted injuries ... . As the accused is under medical care in the prison, there is no danger to his life ..."

52. On an unspecified date the Białystok Regional Court scheduled a hearing for 10 December 1996; however, this hearing was cancelled as the court was incorrectly composed.  The next hearing was held on 10 January 1997.  During the hearing the applicant requested the court to call witnesses proposed by him.  On 24 February 1997 the hearing was adjourned as the majority of prosecution and defence witnesses as well as the injured party failed to appear.

53. During the hearings of 27 and 28 February 1997 the court heard evidence from witnesses and dismissed the applicant's request for further evidence to be called.  On 28 February 1997 the Białystok Regional Court pronounced judgment.  It convicted the applicant of aggravated theft and attempted homicide and sentenced him to fifteen years' imprisonment, deprivation of his civil rights for eight years and a fine of PLN 400.

54. On an unspecified date the applicant's lawyer lodged an appeal against this judgment.  Subsequently, on an unspecified date, the applicant challenged J.D.-S. and J.Z.-L., two judges of the Białystok Court of Appeal assigned to sit on the appeal panel, submitting that both of them had previously dealt with his requests for release and that they did not, therefore, offer sufficient guarantees of impartiality.  His challenge was dismissed by the Białystok Court of Appeal on 9 September 1997 as being ill-founded.

55. On the same day the court held an appellate hearing and gave judgment dismissing the applicant's appeal.

56. On 18 September 1997 a copy of the judgment of the Białystok Court of Appeal was served on the applicant.  On 1 October 1997 the applicant filed a notice of cassation appeal, requesting the court to serve the written reasoning of the judgment on him.  He submitted it to the authorities of the Barczewo prison on 3 October 1997.

57. On 20 October 1997 the Białystok Court of Appeal rejected the applicant's notice of appeal and refused to serve the written reasoning on him since he had failed to lodge the notice within the seven-day time-limit provided for by Section 464 para. 3 of the Code of Criminal Procedure.

58. On 1 November 1997 the applicant requested the Minister of Justice to lodge an ex officio cassation appeal on his behalf.  The request was dismissed on 22 January 1998.

59. During the entire period of the applicant's detention the Polish prison authorities kept detailed medical records concerning his state of health.  His records contain, inter alia , entries relating to the injuries which he inflicted on himself.  The entries in those records made from the end of 1995 to 15 July 1996 do not contain any indication that he had inflicted any injuries on himself during this period, in particular that he had swallowed any objects.  The entry made on 16 May 1996 contains a doctor's note: "objects in [the] stomach?".  The entry of 20 November 1996 reads: "refusal to undergo an X-ray examination; no confirmation as to the objects in his stomach". The entry made on 28 December 1996 reads:

"Complaints by a detainee, previous ailments and operations: objects in eyes: no complaints at present; objects in his stomach: on 25 October and 20 November 1996 [the applicant] refused to undergo an X-ray examination; on 23 December 1996 [he] claimed that there were no further objects. ... I administer a further X-ray examination. [He] complains about a pain in his stomach. ... Psychiatric examination of 4 November 1996 disclosed an abnormal personality ... Diagnosis: objects in eyes; [as regards the] objects in the stomach, [to date] in the absence of results of the X-ray examination there is no confirmation that, as [the applicant] states, there are any such objects ... General condition: good; some peritoneal symptoms ... Conclusions: [the applicant] can be detained in prison.  Doctor [name and signature illegible]."

A subsequent X-ray examination made on an unspecified date in January 1997 did not disclose any objects in the applicant's stomach; it confirmed a diaphragm hernia.

B. Relevant domestic law and practice

60. a. Preventive measures, in particular detention on remand.

The Polish Code of Criminal Procedure lists as preventive measures, inter alia , detention on remand, bail and police supervision.

Section 209 of the Code of Criminal Procedure provides:

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

The Code of Criminal Procedure sets out the scope of discretion as to maintaining preventive measures.  Detention on remand is regarded as the most extreme measure among the preventive measures and the domestic law provides that in principle it should not be imposed if more lenient measures are adequate or sufficient.

Section 213 of the Code of Criminal Procedure provides:

"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."

Section 218 of the Code of Criminal Procedure provides:

"If there are no special reasons to the contrary, detention on remand should be quashed, in particular when:

(1) it may seriously jeopardise the life or health of the accused, or

(2) it would entail excessively burdensome effects for the accused or his family."

Section 225 of the Code of Criminal Procedure provides:

"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."

b. Statutory time-limits for detention on remand.

Until 4 August 1996, i.e. the date on which the relevant provisions of a new Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes entered into force, the national law did not set out any time-limits concerning detention on remand after the bill of indictment has been lodged with the court competent to deal with the case.  Initially, the relevant provisions of the new Law concerning the time-limits for detention were to enter into force on 1 January 1996; however, their entry into force was eventually prolonged until 4 August 1996.

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

"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 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 ... or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in para. 3."

Where the Supreme Court grants a request submitted under Section 222 para. 4 of the Code of Criminal Procedure, its decision constitutes a separate legal basis for continued detention.  Where it dismisses such a request, a detainee must be released.

In principle, a detainee is entitled to appeal against a decision prolonging his detention.  However, when the Supreme Court prolongs detention on remand under Article 222 para. 4 of the Code of Criminal Procedure, the law provides for no appeal.

c. Cassation appeal

As from 1 January 1996, a party to criminal proceedings may lodge a cassation appeal with the Supreme Court against any final decision of an appellate court which has terminated the criminal proceedings.

Under Section 467 para. 2 of the Code of Criminal Procedure, the court which gave the decision to be appealed against is competent to decide whether the formal requirements of a cassation appeal have been complied with.  If an accused's appeal has not been filed and signed by a lawyer, it must be rejected.  If an appeal has complied with the formal requirements, the case shall be referred to the Supreme Court.  According to para. 4 of the above-mentioned provision, the Supreme Court shall grant leave to appeal or declare the cassation appeal inadmissible.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

61. The Commission has declared admissible the applicant's complaints that the length of his detention exceeded a reasonable time, that the proceedings relating to the prolongation of his detention on remand were not conducted speedily and that the criminal proceedings against him were not terminated within a reasonable time.

B. Points at issue

62. The Commission must accordingly examine:

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

- whether there has been a violation of Article 5 para. 4 of the Convention; and

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

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

63. This provision, insofar as relevant, provides:

"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."

64. The applicant submits that the overall period of his detention, which lasted for nearly five years, is in itself contrary to Article 5 para. 3 and that a person presumed to be innocent should not be kept in detention on remand for such a long time.

65. The Government first maintain that the period to be considered  - which, account being taken of the Commission's competence ratione temporis , lasted from 1 May 1993 to 28 February 1997, the date of the applicant's conviction at first instance - did not exceed a "reasonable time" within the meaning of this provision.

66. They point out that the investigation lasted for a short period of four and a half months and that the first hearing in the applicant's case was scheduled as early as six weeks after he had been indicted.  All the subsequent hearings, which were scheduled for 2 June, 24 September and 1 December 1993, for 5 October, 22 November and 5 December 1994 and for 17 January, 21 February and 27 April 1995, were cancelled because the applicant had repeatedly inflicted injuries on himself.

67. In this respect, the Government further stress that the applicant's conduct contributed, to a large extent, to the prolongation of the proceedings and resulted in his prolonged detention on remand.  In their opinion, the applicant deliberately injured himself in order to compel the courts to release him and to prevent his being convicted; thus, he persistently failed to participate in hearings.  The period of fifty-two months between the beginning of his detention on remand and his first participation in the trial was so long for reasons connected with what the Government describes as "the instrumental nature of his self-inflicted injuries".

68. The Commission notes that the applicant's detention lasted from 21 May 1992 (when the Białystok Regional Prosecutor detained him on remand) to 28 February 1997 (when he was convicted at first instance by the Białystok Regional Court), i.e. for a period of four years and a little more than nine months (see paras. 16 and 53).  However, as the Commission has already found in its decision on admissibility, it can, by reason of its competence ratione temporis , examine the applicant's complaints only insofar as they relate to the period beginning on 1 May 1993, the date on which Poland's declaration acknowledging the right of individual petition took effect.  Consequently, the length of the applicant's detention to be examined under Article 5 para. 3 of the Convention is three years and nearly ten months.

69. The Commission recalls that, in order to assess whether continued detention is justified, it falls in the first place to the national judicial authorities to examine all the circumstances arguing for or against the existence of such a requirement and to set them out in their decisions on the applications for release.  Moreover, it is essentially on the basis of the reasons given in these decisions and of the undisputed facts stated by an 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 (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).

70. 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 lawfulness 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 given 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, Muller v. France judgment, loc. cit.).

71. In the present case the Commission observes that the Polish authorities, in their detention decisions, initially relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged and the serious nature of those offences.  Yet, as the proceedings continued, the courts began to base their decisions on the absence of circumstances militating in favour of his release, rather than on the presence of factors explicitly justifying his continued detention.  For instance, they held that, as the applicant could receive medical treatment in prison, there was no reason to release him on account of his state of health.  They also attached importance to the fact that the applicant had inflicted injuries on himself, which had severely aggravated his state of health and which, in their opinion, was tactical action aimed at obtaining release.  This, in particular, transpires from the decisions of both the Białystok Regional Court and the Białystok Court of Appeal on the applicant's requests for release filed from 4 January 1994 to June 1996 (see paras. 23-24, 26, 35, 37, 40-41, 44-46).

72. Subsequently, on 5 September 1996, the Supreme Court prolonged the applicant's detention for a further period of almost six months, finding that such a prolongation was necessary because he had obstructed the due course of the criminal proceedings against him and intentionally contributed to their length (see paras. 47-48).

73. Later still, the courts found that the applicant's continued detention was justified in the light of both the need to secure the due course of the proceedings and the absence of any danger to his life (see paras. 50-51).

74. In the Commission's view, the reasons given by the Polish courts to justify the applicant's detention were sufficient and relevant -  at least until 24 November 1995.  This was the date on which the Białystok Regional Court dismissed the applicant's request, filed on an unspecified date but shortly after he had again inflicted injuries on himself by swallowing metal rods and wire (see paras. 33-35).  There is no dispute as to the events preceding this decision, namely the applicant's hunger-strike and his repeated acts of self-harm in prison.  Having regard to these facts, the Commission finds that the authorities were, at that time, facing serious difficulties in bringing the applicant to trial "within a reasonable time".  As a matter of fact, all their efforts aimed at scheduling hearings were obstructed either by his conduct or by the unavoidable need to improve his condition so as to bring him to court (see paras. 19-22, 25, 28 and 30-33).

75. However, the same conclusion does not apply to the applicant's detention from 19 January 1996 (under the decision of the BiaÅ‚ystok Regional Court of that date) to 28 February 1997, i.e. the date of his first-instance conviction.  From the applicant's medical records, it appears that, from the end of 1995 onwards, he neither inflicted injuries on himself, nor underwent any medical treatment (see para. 59).  It also appears that, during the period from 27 April 1995 to 10 December 1996, the BiaÅ‚ystok Regional Court scheduled no hearing on the merits (see paras. 34 and 52).

76. In the Commission's view, the first of these two facts in itself indicates that, contrary to the findings of the Białystok Regional Court and the Białystok Court of Appeal in their decisions of 19 January and 19 April 1996 respectively (see paras. 41 and 45), it was no longer impossible to bring the applicant to trial and there was, in particular, no obstacle arising out of his conduct during this latter part of his detention on remand.

77. The same fact also shows that the reasons which the Supreme Court gave for its decision of 5 September 1996 prolonging the applicant's detention cannot be deemed "sufficient and "relevant", the more so as they related to the period during which the applicant had inflicted injuries on himself and which, as the Commission has already found, had terminated by the end of 1995.  Moreover, the Supreme Court put the emphasis entirely on the applicant's behaviour which had resulted in the proceedings being prolonged and completely overlooked the fact that, from at least 27 April 1995, the court of first instance had not taken any effective steps to bring the case to a final determination.

78. The Commission further observes that, since Polish law provides (in Sections 213 and 225 of the Code of Criminal Procedure) that, in principle, detention on remand should not be imposed if other more lenient preventive measures (i.e. bail or police supervision) are adequate, the courts might well have secured the proper course of the trial by imposing either or both of those two measures on the applicant, or could  - alternatively - have explained in their decisions why such measures would not have adequately ensured his presence at the trial.

79. As a consequence, the Commission finds that the need to ensure the proper course of the proceedings, one of the final grounds for continuing the applicant's detention, cited by the Białystok Regional Court in its decision of 24 September 1996 (see para. 50), cannot be regarded as sufficient either, especially as the court failed to explain why the applicant's detention was necessary to ensure that his trial proceeded without impediment.  Nor is the Commission satisfied by the further element adduced by the courts, namely the absence of any danger to the applicant's life, which could not be seen as an argument in favour of continued detention.  In sum, the Commission considers that, by 19 January 1996 at the latest, the applicant's detention had ceased to be based on relevant and sufficient grounds.

80. Finally, the Commission should also examine the conduct of the proceedings.  It has already found that there was one - but a substantial - period of inactivity on the part of the Białystok Regional Court, which lasted for about twenty-one months, from 27 April 1995 to 10 December 1996 (see para. 75) and  which is relevant to the assessment of whether or not the national courts displayed "special diligence" in dealing with the applicant's case.  No explanation has been given as to why there was no single hearing on the merits during that period, especially as, during the same period, there was apparently no attempt to obstruct the course of the trial on the part of the applicant.  As a result, this delay must be considered wholly attributable to the domestic authorities.

81. Accordingly, the Commission, having regard to the significant delay in the proceedings, for which the authorities were responsible, and to its above finding that by 19 January 1996 there were no longer any relevant and sufficient reasons for the applicant's detention, considers that the period from this date to 28 February 1997, which the applicant spent in detention pending trial, exceeded a "reasonable time" within the meaning of Article 5 para. 3 of the Convention. 

CONCLUSION

82. 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 5 para. 4 of the Convention

83. This provision provides:

"4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

84. The applicant submits that the length of the proceedings concerned was excessive.  They started on 6 August 1996 and came to an end as late as 26 September 1996, when the decision of the Supreme Court, prolonging his detention, was served on him.

85. The Government reply that these proceedings, which in their view lasted from 6 August 1996 (when the Białystok Regional Court requested the Supreme Court to prolong the applicant's detention beyond the statutory time-limit) to 5 September 1996 (when the Supreme Court made its decision), were conducted "speedily", as required under Article 5 para. 4 of the Convention.

86. The Commission recalls that the guarantees afforded by Article 5 para. 4 of the Convention to detained persons include their right, following the institution of proceedings relating to the lawfulness of their detention, to a speedy judicial decision terminating their deprivation of liberty if it proves unlawful (see Eur. Court HR, Van der Leer v. the Netherlands judgment of 21 February 1990, Series A no. 170-A, p. 14, para. 35).  Consequently, under this provision of the Convention a detainee is entitled to a speedy decision - whether in his favour or not - on the lawfulness of his detention.

87. The Commission further observes that both parties agree that the relevant period began on 6 August 1996; however, they do disagree on how long it lasted.  In this respect the Commission, noting that the Supreme Court sat in camera and that its decision was not delivered in public, recalls that in such a situation this period cannot be deemed as terminated until the decision prolonging the applicant's detention is communicated to him, which, in the present case, was 26 September 1996 (see Eur. Court HR, Koendjbiharie v. the Netherlands judgment of 25 October 1990, Series A no. 185-B, p. 40, para. 28).  Accordingly, the proceedings lasted fifty-one days.

88. In the Commission's opinion, this lapse of time is incompatible with the notion of speediness set forth in Article 5 para. 4 of the Convention.  This conclusion is reinforced by the fact that the only issue to be examined by the Supreme Court was the question of whether the applicant had in fact obstructed the criminal proceedings against him within the meaning of Section 222 para. 4 of the Polish Code of Criminal Procedure (see para. 60 (b)).  No lengthy period would seem to have been required for the determination of this issue. Moreover, as that court's decision concerned an exceptional situation and since, at the relevant time, the total length of the applicant's detention had already exceeded four years (which was twice as much as the highest statutory time-limit), the authorities should have been expected to deal with the matter with particular diligence.

CONCLUSION

89. The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 4 of the Convention.

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

90. This provision provides:

"1. In the determination ... of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] tribunal established by law. ..."

91. The applicant submits that the authorities did not determine the charges against him within a "reasonable time" within the meaning of Article 6 para. 1.  They clearly failed to act with due diligence.  In particular, no hearing on the merits was held in his case from 27 April 1995 to 10 January 1997, even though during this time he did not inflict any injuries on himself, nor was there any other reason justifying such a long delay in the proceedings.

92. The Government, relying on the same arguments as they submitted in respect of the applicant's complaint under Article 5 para. 3 of the Convention, conclude that there was no failure on the part of the domestic authorities in the conduct of the applicant's case and that the delays in the proceedings resulted from the applicant deliberately obstructing the progress of the trial.  They stress that even in 1996 the court of first instance was still unable to bring the applicant to trial as he constantly inflicted injuries on himself by swallowing various objects.

93. 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 having regard to criteria laid down in the Convention organs' case-law, in particular the complexity of the case and the conduct of the applicant and that of the competent authorities (see, e.g. Eur. Court HR, Reinhardt and Slimane-Kaïd v. France judgment of 31 March 1998, to be published in Reports of Judgments and Decisions 1998 ... para. 97).

94. The Commission observes that in the present case the proceedings started on 21 May 1992, when the applicant was charged with aggravated theft, armed robbery and attempted homicide.  However, account being taken of the temporal competence of the Commission, the starting point of the period to be considered under Article 6 para. 1 of the Convention is 1 May 1993.  This period continued until 9 September 1997, the date on which the Białystok Court of Appeal gave final judgment in the applicant's case; thereafter, the proceedings merely related to the question of whether the applicant had complied with the formal requirements for his cassation appeal and they did not, therefore, concern the "determination of any criminal charge against him".  Consequently, the length of the period to be assessed by the Commission is four years and a little more than four months.

95. As regards the complexity of the case, the parties have not adduced any specific arguments.  In the Commission's opinion, the case does not seem to have been particularly complex, even though charges comprising three offences were laid against the applicant.  Thus, during only three hearings on the merits, held from 10 January to 28 February 1997, the court of first instance was able to determine those charges (see, paras. 52-53).

96. In respect of the applicant's conduct, the Commission observes that, when the relevant period started, he was on hunger strike and that this lasted until the end of 1993.  Subsequently, from 13 March 1994 to an unspecified date between 21 February and 27 April 1995, he repeatedly inflicted various injuries on himself and, as a consequence, received or was offered medical treatment in prison hospitals.  All these events resulted in the Białystok Regional Court cancelling all the hearings which were to be held during this time (see paras. 19-22, 25 and 28-34).  Moreover, between January 1994 and September 1996 the applicant submitted numerous requests for release and appeals against the decisions refusing to release him (see paras. 23-24, 26, 35, 37, 40-41, 44-46 and 50-51).

97. The Commission considers that the examination of the applicant's requests for release and the respective appeals did not significantly delay the proceedings. On the other hand, the applicant's general conduct during the period from 1 May 1993 to 27 April 1995, i.e. for nearly two years, which included a hunger strike and violent action directed against himself on a number of occasions, was undoubtedly one important cause of the delay of the proceedings during that period.

98. However, as regards the subsequent phase of the proceedings, lasting from 27 April 1995 to 9 September 1997, the Commission has found no reason to believe that the applicant contributed to any significant delay. During this period the conduct of the authorities responsible for the case must be regarded as the main cause of the delay that occurred.  The Commission has already found that, during the twenty-one months from 27 April 1995, the Białystok Regional Court scheduled no single hearing on the merits (see para. 75).  Nor would it seem that the court made any other significant efforts to expedite the proceedings during that period. Its main procedural activity in the case consisted in the examination of the applicant's requests for release and the preparation of two requests to the Supreme Court for a prolongation of the applicant's detention (see paras. 35, 38, 41, 44, 47, 50 and 52).

99. Furthermore, the first hearing which was to be held after a significant period of inactivity, on 10 December 1996, was eventually cancelled since the court was incorrectly composed (see para. 52).

100. As a consequence, the Commission considers that while  the ensuing proceedings at first instance were completed within a short period (from 10 January to 28 February 1997), and the length of the appellate proceedings did not exceed seven months, the above-mentioned delay of twenty-one months, taken together with the fact that there was no apparent justification for the lack of progress in the proceedings, demonstrates that, in this regard, the Polish courts failed to respect the applicant's right to have his case tried within a reasonable time.

CONCLUSION

101. The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 of the Convention.

F. Recapitulation

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

103. The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 4 of the Convention.

104. The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 of the Convention.

   M.-T. SCHOEPFER                                                     J.-C. GEUS

      Secretary                                                                      President

to the Second Chamber                                          of the Second Chamber