Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 26757/95

Robert Wójcik

against

Poland

REPORT OF THE COMMISSION

(adopted on 8 September 1998)

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. 16-45) ......................................... 3

A. The particular circumstances of the case

(paras. 16-40) .................................... 3

B. Relevant domestic law

(paras. 41-45) .................................... 5

III. OPINION OF THE COMMISSION

(paras. 46-95) ......................................... 7

A. Complaints declared admissible

(para. 46) ....................................... 7

B. Point at issue

(para. 47) ....................................... 7

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

(paras. 48-60) .................................... 7

CONCLUSION

(para. 61) ...................................... 10

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

(paras. 62-73) ................................... 10

CONCLUSION

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

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

(paras. 75-90) ................................... 12

CONCLUSION

(para. 91) ...................................... 14

F. Recapitulation

(paras. 92-94) ................................... 15

TABLE OF CONTENTS

Page

PARTIALLY DISSENTING OPINION OF MR H. DANELIUS

JOINED BY MM J.-C. GEUS, G. JÖRUNDSSON, A.S. GÖZÜBÜYÜK,

A. WEITZEL, J.-C. SOYER, L. LOUCAIDES, M.A. NOWICKI,

D. ŠVÁBY, E. BIELIŪNAS, M. VILA AMIGÓ ........................ 16

APPENDIX: DECISION OF THE COMMISSION

AS TO THE ADMISSIBILITY OF THE APPLICATION ...... 17

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 1968 and resident in Kraków .

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 character of the proceedings in which the lawfulness of his detention was examined and the length of the criminal proceedings against the applicant. The applicant relies on Article 5 paras. 3 and 4 and Article 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 28 November 1994 and registered on 20 March 1995.

6. On 29 November 1995 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 26 February 1996. The applicant replied on 10 April 1996.

8. On 1 July 1997 the case was transferred from the Second Chamber to the Plenary Commission, by decision of the latter. On 7 July 1997 the Commission declared admissible the applicant's complaint under Article 5 paras. 3 and 4 and Article 6 para. 1 of the Convention. It declared inadmissible the complaints as regards events before 1 May 1993, the date on which the Commission's competence to examine individual applications against Poland took effect.

9. The text of the Commission's decision on admissibility was sent to the parties on 15 July 1997 and they were invited to submit such further observations on the merits as they wished. The Government submitted observations on 16 September 1997.

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 in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MM S. TRECHSEL, President

J.-C. GEUS

M.P. PELLONPÄÄ

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

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIÄŒ

C. BÃŽRSAN

P. LORENZEN

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 8 September 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 4 February 1993 the applicant was arrested and on 5 February 1993 the Kraków District Prosecutor remanded him in custody for three months on suspicion of assault, gang rape and aggravated theft. In the decision to impose the detention on remand the Prosecutor had regard to the dangerousness of the offences concerned and to the particular brutality of the perpetrators.

17. On 16 April 1993 the Public Prosecutor further charged the applicant with uttering threats.

18. On 23 April 1993 and 6 July 1993 the Kraków Regional Court (Sąd Wojewódzki ), following the Prosecutor's request, prolonged the applicant's detention for three months, considering that there was sufficient evidence on the case-file to support the charges against him and that further evidence should be taken, including a forensic expert opinion from a police laboratory, that reports of an expert psychologist and psychiatrist should be prepared and that certain witnesses should also be questioned.

19. On 12 August 1993 the applicant had access to the case-file. He requested that further witnesses be questioned.

20. On 25 August 1993 the Kraków Regional Court prolonged the applicant's detention until 20 September 1993 so that the evidence requested by the applicant could be taken.

21. On 8 September 1993 the accused had access to the case-file.

22. On 29 September 1993 the Kraków District Public Prosecutor transmitted the bill of indictment against the applicant and two other accused to the Kraków Regional Court. The applicant was charged with assault, rape, aggravated theft and uttering threats. The case was assigned to a judge who subsequently left the judiciary. As a consequence, the case was assigned to another judge.

23. On 14 March 1994 the applicant requested to be released. He submitted that the detention had lasted fourteen months and that he wished to have his case decided and to obtain an acquittal as soon as possible. He complained of the assessment of the evidence by the Public Prosecutor. On 16 March 1994 the Kraków Regional Court dismissed this request, considering that the seriousness of the offence and the particular brutality with which the offence had been committed indicated that the applicant should remain in detention. The applicant's argument as to the assessment of the evidence made during the investigations was premature as it was for the Court deciding the case to assess the evidence. However, the evidence taken so far, including the testimony of one of the applicant's co-accused, had made it possible to establish a strong suspicion against the applicant.

24. The date of the first hearing in the case was set for 25 May 1994 and later adjourned to 30 June 1994 as the judge had other duties.

25. The hearing set for 30 June 1994 was adjourned as one of the accused requested to have further access to the case-file.

26. At the next hearing on 29 August 1994 the accused were heard. The next hearing was fixed for 29 September 1994. That hearing was adjourned at the request of one of the accused.

27. At the hearing on 19 October 1994 witnesses gave evidence. The applicant requested that a forensic expert opinion be prepared. The court agreed to request such an opinion. The opinion was submitted to the court on 28 November 1994. Apparently the expert informed the court that in view of the long period which had elapsed from the material events, it was impossible to prepare the forensic report.

28. On 29 November 1994 the applicant requested to be released. On 1 December 1994 the Kraków Regional Court dismissed the applicant's application for release. The ground for the decision was the seriousness of the offences and the brutal manner in which they had been committed. Moreover, the court had regard to the applicant's long criminal record. There was sufficient evidence in the case-file to support the allegation that the applicant had committed the offences in question. The proceedings were well advanced and their length to date could not in itself justify the applicant's release.

29. On 14 December 1994 the applicant lodged an appeal against this decision.

30. On 20 December 1994 the Kraków Court of Appeal (Sąd Apelacyjny ) dismissed the applicant's appeal. The court considered that the grounds for further detention relied on by the court in its decision of 16 March 1994 were still relevant. The length of detention, invoked by the applicant, did not suffice to justify his release. The proceedings were well advanced, and the length of the proceedings, although considerable, could not be attributed to the Court.

31. The next hearing on 27 December 1994 was adjourned as one of the accused and his lawyer had failed to comply with the summons.

32. On 2 January 1995 the applicant complained to the President of the Court of Appeal about the length of the proceedings. He submitted that ten months had elapsed between the date on which the indictment had been transmitted to the Kraków Regional Court and the date of the first hearing, which was in breach of Article 6 para. 1 of the Convention. He further submitted that there were long intervals between the hearings.

33. In a letter of 25 January 1995 the President of the Court of Appeal informed the applicant that the regrettable length of the proceedings was due to the difficulties experienced by the court on account of staff shortages and a heavy case-load (" spowodowana została etatowymi i organizacyjnymi trudnościami Sądu, w sytuacji przeciążenia ilością spraw do załatwienia "). The President further stated that the judgment at first instance would probably be pronounced at a hearing scheduled for 7 February 1995.

34. On 7 February 1995 the hearing was adjourned at the request of the lawyers of certain of the accused so that they could prepare their final submissions to the court.

35. On 20 February 1995 the hearing was adjourned due to a serious illness of one of the lay judges.

36. On 8 March 1995 the Kraków Regional Court dismissed the applicant's application for release of 7 March 1995. The court considered that the circumstances in which the detention pending trial was upheld on 1 December 1994 remained unchanged. In particular, the seriousness of the applicant's alleged offences had to be taken into account, as well as the fact that the applicant had a long criminal record. The delay in the proceedings, which were in their final stage, could not be attributed to the court. The applicant appealed against this decision to the Kraków Court of Appeal.

37. On 16 March 1995 the applicant complained to the President of the Kraków Court of Appeal about the delay in the proceedings. In a letter of 23 March 1995 the President stated that the hearing of 7 February 1995 had been adjourned as one of the lay judges had fallen ill and had been taken away by an ambulance. He said that the hearings would be resumed in the first fortnight of April.

38. On 23 March 1995 the Kraków Court of Appeal dismissed the applicant's appeal against the decision of 8 March 1995. The court considered that whereas it was true that the applicant had been detained for a long time, there were no new circumstances which would justify his release. The lay judge who had fallen ill in February 1995 would be able to participate in hearings in early April and then the hearings would be resumed.

39. On 28 April 1995 the Kraków Regional Court convicted the applicant of assault, rape, aggravated theft and uttering threats and sentenced him to five years and six months' imprisonment. The applicant's request for release was refused.

40. On 29 November 1995 the Kraków Court of Appeal upheld the judgment of the lower court.

B. Relevant domestic law

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

42. Articles 210 and 212 of the Code of Criminal Procedure, as applicable at the relevant time, provided that before the bill of indictment was transmitted to the court, it was the public prosecutor who imposed detention on remand. The decision to impose detention on remand could be appealed against, within a seven-day time-limit, to the court competent to deal with the merits of the case. Pursuant to Article 222 of the Code of Criminal Procedure, the Prosecutor could order detention on remand for a period not exceeding three months. When, in view of the particular circumstances of the case, the investigation could not be terminated within this period, detention on remand could, if necessary, be prolonged by the court competent to deal with the merits of the case, upon the Prosecutor's request, for a period not exceeding one year. This decision could be appealed against to a higher court.

43. After the bill of indictment was transmitted to the court, the relevant orders were to be made by the court. A decision concerning preventive measures could be appealed to a higher court.

44. At the material time there were three different proceedings enabling a detainee to challenge the lawfulness of his detention and thus possibly obtain release. Under Article 221 para. 2 of the Code of Criminal Procedure a detainee could appeal to a court against a detention order made by a prosecutor. Under Article 222 paras. 2(1) and 3 he or she could appeal against a further decision by that court prolonging his detention on a prosecutor's request. Finally, Article 214 of the Code stated that an accused could at any time apply to the competent authority to have a preventive measure quashed or altered. Such an application had to be decided by the prosecutor or, after the bill of indictment had been lodged, by the court competent to deal with the case.

45. Preventive measures (including the imposition and prolongation of detention on remand) were examined by the courts in proceedings held in camera. Article 88 of the Code of Criminal Procedure provided that the Public Prosecutor might attend such proceedings and that other parties might also attend if the law provided for it. No rule provided for the attendance of the accused or his lawyer in the proceedings concerning detention on remand.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

46. The Commission has declared admissible the applicant's complaints:

- that his detention on remand exceeded a reasonable time;

- that he was never brought before a court in the proceedings concerning his detention on remand nor was his lawyer entitled to be present at the court sessions concerning the review of his detention;

- that the criminal proceedings in his case lasted too long.

B. Points at issue

47. Accordingly, the issues to be determined by the Commission are:

- 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;

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

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

48. Article 5 para. 3 of the Convention provides as follows:

"3. 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."

49. The applicant submits that his detention on remand was unreasonably long.

50. The Government submit that the applicant's detention was undeniably lawful under the domestic law and complied with the relevant requirements. The detention was imposed in order to secure a proper conduct of the criminal proceedings. They contend that the evidence against the applicant sufficiently supported the charges against him. The Kraków Regional Court, when deciding on the prolongation of the applicant's detention, regularly examined in detail whether the continued detention was justified under the criteria provided for in domestic law, such as the seriousness of the offence concerned and the danger that the release would jeopardise the proper conduct of the proceedings. In particular, the court had regard to the possibility of collusion. The court further had regard, in its decisions of 23 April 1993 and 6 July 1993, to the necessity of the applicant's psychiatric examination. The court was, in the Government's view, diligent in its handling of the matter. The applicant contributed to the length of his detention, as on 12 August 1993, he requested that the prosecuting authorities take further evidence. The Government conclude that the overall period of detention, which lasted from the applicant's arrest until the judgment of the second-instance court, was reasonable, and that there were no serious deficiencies in the proceedings.

51. The Commission observes that the applicant was arrested on 4 February 1993. The judgment of the first-instance court was pronounced on 28 April 1995. The Commission recalls that the period to be considered began on 1 May 1993, the date on which the recognition by Poland of the right of individual petition took effect. The Commission further recalls that in examining the length of detention undergone subsequent to the date of recognition of the right of individual petition, account may be taken of the stage which the proceedings had reached. To that extent, therefore, it can have regard to the previous detention (No. 7438/76, Dec. 9.3.79, D.R. 12, p. 38). The period to be examined under Article 5 para. 3 of the Convention ends on the day on which the charges brought against the applicant were determined by a first-instance court (Eur. Court HR, Wemhoff v. Austria judgment of 27 June 1968, p. 23, para. 9; B. v. Austria judgment of 28 March 1990, Series A no. 175, p. 14 et seq.). Consequently, the entire period of detention amounts to two years, two months and twenty-four days, of which one year, eleven months and twenty-eight days falling after 30 April 1993.

52. 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.

53. 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, Neumeister v. Austria judgment of 27 June 1968, Series A no. 8, p. 37, paras. 4-5; W. v. Switzerland judgment of 26 January 1993, Series A no. 254-A, p. 15, para. 30; Van der Tang v. Spain judgment of 13 July 1995, Series A no. 326, p. 17, para. 55).

54. In the Commission's view, the case could not be regarded as being particularly complex. It is true that it involved several charges, but they concerned the same incident. Thus, in the Commission's opinion, it has not been demonstrated that establishing the facts of the case could give rise to special difficulties.

55. The Commission observes that at the investigative stage of the proceedings the authorities, in their decisions concerning the applicant's detention, relied on the dangerousness of the offences with which the applicant had been charged and on the particular brutality with which the alleged offences had been committed. The authorities also considered that there was sufficient evidence to support the charges against him. They further had regard to the need to complete the investigation, including the preparation of expert opinions of a psychiatrist and a specialist in forensic medicine. The Commission considers that these grounds were relevant and sufficient.

56. However, the Commission notes that, after the investigations were completed, eleven months elapsed between the date on which the indictment was lodged with the court and the date of the first hearing. The Government rely principally on the court's heavy case-load which, in the Commission's opinion, is not a sufficient argument to justify eleven months of inactivity in the case during which the applicant remained in detention.

57. The Commission's attention has further been drawn to the reasons invoked by the courts in the decisions concerning the applicant's detention, taken at the judicial stage of the proceedings. The Commission thus notes that, in its refusal to release the applicant of 16 March 1994, the Kraków Regional Court considered that the seriousness of the offences and the particular brutality of the perpetrators advocated in favour of the applicant's continued detention, and that the evidence gathered by that time had made it possible to establish a strong suspicion against him. Similar reasons were put forward in the further refusal of 8 March 1995 to release the applicant. The court also observed in this decision that the proceedings were in their final stage. The Commission considers in this respect that the court in its decisions did not have due regard to the fact that the criminal proceedings had progressed and did not examine whether the applicant's detention remained justified in view of this progress. The Commission also considers that it does not appear from these decisions that the applicant's continued detention was justified by the need to ensure the proper conduct of the proceedings. In particular, in its decisions the court did not put forward any reasons indicating how the applicant's release could have hampered the progress of the proceedings.

58. The Commission finally notes that, although in its decision of 1 December 1994 the court observed that the criminal proceedings against the applicant were well advanced, the proceedings before the first-instance court in fact lasted for another five months, i.e. until 28 April 1995.

59. As regards the applicant's conduct, the Commission observes that he twice requested certain evidence to be taken, first, by the prosecuting authorities, and secondly, by the court. This prolonged the proceedings for approximately six weeks on one occasion and for another six weeks on another. In the Commission's view, there are no sufficient grounds for a finding that the applicant's conduct substantially contributed to the prolongation of the proceedings.

60. In conclusion, in the light of the criteria established by the case-law and having regard to the 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 set out in Article 5 para. 3 of the Convention.

CONCLUSION

61. 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

62. Article 5 para. 4 of the Convention provides:

"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."

63. The applicant complains that he was never brought before a court in the proceedings concerning his detention nor was his lawyer entitled to be summoned and present at the court sessions in review of his detention. He submits that the arguments of the prosecutor in support of his detention were never communicated to him.

64. The Government first submit that under Polish law, as applicable at the material time, decisions on detention on remand and on its extension could be appealed against to a court. The courts thereby exercised their control over matters which were unrelated to the criminal judicial proceedings in the proper sense. These appeals were examined at court sessions held in camera. The purpose of such sessions was to examine the lawfulness of the decisions concerning detention on remand. Therefore not all the guarantees of a fair hearing were applicable in such proceedings. However, the scope of jurisdiction of the courts in those proceedings was not limited to an examination of the lawfulness of the detention. The courts were competent to assess the reasonableness of the imposition or continuation of the detention against the factual background of the case. The Government further stress that this examination of detention on remand was carried out on a regular basis. The Government conclude that even in the absence of the accused or his representative, the courts had an opportunity of making a thorough appraisal of whether the decisions concerned were lawful and justified in the light of the circumstances of the case.

65. The Government further submit that the law did not provide for mandatory presence of the accused or his lawyer before the court when it was taking decisions on extension of the detention on remand. However, this did not necessarily entail a breach of the principle of equality of arms in such proceedings, as the participation of the Prosecutor was only optional. Further, the court examined the written submissions of the detained person and thus had detailed knowledge of his arguments. Moreover, the role of the Prosecutor in such proceedings should be regarded as that of a representative of the public interest.

66. As regards the present case the Government submit in particular that the Public Prosecutor was not present at the sessions of the Kraków Regional Court at which the court examined the applicant's requests for release of 14 March and 29 November 1994 and of 7 March 1995. However, they acknowledge that the Public Prosecutor was present at the sessions of the Kraków Court of Appeal concerning the applicant's appeals against the decisions of the Regional Court of 1 December 1994 and 8 March 1995. The Government emphasise that these sessions were held after the indictment had been submitted to the court. Thus, given that the investigations had already been completed, the Public Prosecutor was not representing the prosecution, but acting as a representative of the public interest. The Government refer in this respect in particular to the fact that before the Court of Appeal the Prosecutor limited his submissions to the request that the court uphold the decisions of the Regional Court under appeal in order to safeguard the public interest which those decisions had sought to protect. The Government further stress that, before the Court of Appeal, the Public Prosecutor did not submit any new arguments in support of the applicant's continued detention.

67. The Government conclude that the presence of the Public Prosecutor, in the absence of the applicant or his representative, did not automatically render the proceedings non-adversarial. The adversarial nature of the proceedings was guaranteed by the fact that both parties could present their arguments in writing to be examined by the Court of Appeal.

68. The Commission recalls that by virtue of Article 5 para. 4 of the Convention, arrested or detained persons are entitled to a judicial review bearing upon the procedural and substantive conditions which are essential for the "lawfulness", in the sense of the Convention, of their deprivation of liberty. This means that the competent court has to examine not only compliance with the procedural requirements set out in domestic law, but also the reasonableness of the suspicion grounding the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention (Eur. Court HR, Brogan v. the United Kingdom judgment of 29 November 1988, Series A no. 145-B).

69. The Commission also recalls that the purpose of Article 5 para. 4 is to assure to persons who are arrested and detained the right to a judicial supervision of the lawfulness of the measure to which they are thereby subjected (cf. Eur. Court HR, De Wilde , Ooms and Versyp v. Belgium judgment of 18 July 1971, Series A no. 12, p. 41, para. 76).

70. The procedure followed must have a judicial character and give to the individual concerned guarantees appropriate to the kind of deprivation of liberty in question. The judicial proceedings referred to in Article 5 para. 4 need not always be attended by the same guarantees as those required under Article 6 para. 1 for civil or criminal litigation. In order to determine whether proceedings provide the "fundamental guarantees of procedure applied in matters of deprivation of liberty", regard must be had to the particular nature of the circumstances in which such proceedings take place (cf. Eur. Court HR, De Wilde , Ooms and Versyp judgment, op. cit., pp. 41 and 42, paras. 76 in fine and 78; Winterwerp v. the Netherlands judgment of 24 October 1979, pp. 23 and 24, paras. 57 and 60; Megyeri v. Germany judgment of 12 May 1992, Series A no. 237-B, pp. 11-12, para. 22; Brannigan and McBride v. the United Kingdom judgment of 26 May 1993, no. 258-B, p. 54, para. 58).

71. One of the main safeguards inherent in judicial proceedings conducted in conformity with the Convention is the respect for "equality of arms", an indispensable feature of a truly adversarial procedure (cf. Eur. Court HR, Sanchez- Reisse v. Switzerland judgment of 21 October 1986, Series A no. 107, p. 19, para. 51; Lamy v. Belgium judgment of 30 March 1989, Series A no. 151, pp. 16-17, para. 29; Toth v. Austria judgment of 12 December 1991, Series A no. 224, p. 23, para. 84; Kampanis v. Greece judgment of 13 July 1995, Series A no. 318-A, p. 45, para. 47).

72. The Commission observes that in the present case the proceedings concerning the extension of the applicant's detention at the request of the Prosecutor were held before the Kraków Regional Court on 23 April, 6 July and 25 August 1993. Further, the applicant's requests for release were dismissed by the Kraków Regional Court on 16 March 1994, 1 December 1994 and 8 March 1995, and, upon appeal, by the Kraków Court of Appeal, on 20 December 1994 and 23 March 1995.

73. The Commission takes note of the Government's argument that before the Court of Appeal the Prosecutor limited his submissions to the request that the court uphold the preceding decisions of the Regional Court. The Government further stress that the Public Prosecutor did not submit to the court any new arguments which would advocate for keeping the applicant in detention. However, the Commission observes that, even if that was the case, no legal provision prevented the Public Prosecutor from making any submissions as regards the applicant's detention in these proceedings. Moreover, this argument is relevant only to the proceedings before the Court of Appeal, whereas in the applicant's case six other sets of proceedings concerning the applicant's detention were held before the Krakow Regional Court.

74. The Commission further observes that on no occasion was the applicant heard in person or through any form of representation in any of the proceedings in review of his detention. It should be emphasised that not only was the applicant not present before the court, but the law clearly did not entitle him or his lawyer to attend the court session. The Commission stresses that the applicant had no knowledge of the submissions of the Public Prosecutor as these submissions were never communicated to him. Neither was he entitled to be informed of any of the arguments that the Prosecutor could put forward to the court. Consequently, he did not have any opportunity to contest properly the reasons invoked to justify the decision to continue his detention or to dismiss his requests for release.

CONCLUSION

75. 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

76. Article 6 para. 1 of the Convention, insofar as relevant, provides:

"1. In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time ..."

77. The applicant complains that the length of the proceedings exceeds the reasonable time set out in Article 6 para. 1 of the Convention. He emphasises that eleven months elapsed between the bill of indictment being transmitted to the court and the date of the first hearing. His request for the expert opinion to be submitted to the court was refused by the competent medical authority on the ground that it was not feasible to prepare such an opinion so long after the material events. In view of the character of this reply, it should have been submitted to the court sooner than after one month.

78. The Government contend that the applicant's case was complex as he was charged with five serious offences. There were two other accused. Therefore the case necessitated the scrupulous gathering of the evidence. Moreover, several witnesses had to be questioned in the case.

79. The Government acknowledge that the length of the proceedings was, to a certain extent, attributable to the courts. The indictment against the applicant was lodged with the Kraków Regional Court on 29 September 1993, whereas the first hearing, due to the court's heavy case-load, was set for May 1994. This hearing was later adjourned to 30 June 1994. The Government explain this adjournment by the fact that the judge had other duties. The hearing fixed for 20 February 1995 was adjourned as one of the lay judges had fallen ill and was subsequently hospitalised until the end of March 1995. The Government emphasise in this respect that, even though it is true that the proceedings remained at a standstill as a result of the judge's illness, a change in the composition of the court would have led to even more considerable delay as the hearings in the case would have had to be recommenced. Thus, the fact that the composition of the court remained unchanged was ultimately to the applicant's benefit. The Government finally state that the hearings were held regularly, every month, the only exception being the period in which the lay judge was in a hospital.

80. The Government contend that the applicant himself contributed to the prolongation of the proceedings, as, at the hearing on 19 October 1994, he requested that an expert opinion in forensic medicine be submitted to the court. The applicant should have taken into account that this would cause a further prolongation of the proceedings. The Government finally argue that the conduct of the co-accused considerably protracted the proceedings.

81. The Government conclude that the proceedings were conducted within a reasonable time.

82. The Commission observes that the proceedings commenced on 4 February 1993 and ended with the judgment of the Kraków Court of Appeal of 29 November 1995. Accordingly, they lasted for two years, ten months and twenty-five days.

83. The Commission recalls that the period to be considered begins only on 1 May 1993, when Poland's recognition of the right of individual petition took effect (cf. Eur. Court HR, Foti and others v. Italy judgment of 10 December 1982, Series A no. 56, p. 18, para. 53). Accordingly, the period to be considered is two years, six months and twenty-nine days. In assessing the reasonableness of the time that elapsed after this date, account must be taken of the then state of proceedings.

84. The Commission recalls that the reasonableness of the length of proceedings is to be determined in the light of the circumstances of the case and with reference to the criteria laid down in the Convention organs case-law, i.e. the complexity of the case, the conduct of the applicant and of the competent authorities (see, among other authorities, Eur. Court HR, Venditelli v. Italy judgment of 18 July 1994, Series A no. 293-A, p. 10, para. 22).

85. As regards the complexity of the case, the Commission refers to its above findings in this respect (para. 54). The Commission further notes in this respect that seven hearings were scheduled in the case, out of which only three were held. The judgment was pronounced at the third hearing. This, in the Commission's view, reinforces the conclusion that the case could not reasonably be regarded as complex, despite the undeniable gravity of the charges brought against the applicant.

86. As regards the applicant's conduct, the Commission further refers to its above findings (para. 59). The Commission also notes that on numerous occasions the applicant submitted requests for release which also prolonged the proceedings.

87. In respect of the conduct of the authorities, the Commission first observes that the investigations which were instituted at the latest on 4 February 1994 were completed by 29 September 1994, i.e. by the date on which the indictment was lodged with the Krakow Regional Court. The Commission considers that this part of the proceedings was conducted speedily. The Commission further observes that eleven months elapsed between the date on which the indictment was lodged with the Court and the date on which the first hearing was held. This was caused, as the Government state, by the court's heavy case-load and by the fact that the judge to whom the case had originally been assigned had left the judiciary. The Commission considers that the latter circumstance can be regarded as a special factor in part explaining this delay in the proceedings.

88. The Commission further notes that the hearing scheduled for 30 June 1994 was adjourned as one of the accused requested to have further access to the case-file. Likewise, the hearing fixed for 29 September 1994 was adjourned at the request of one of the accused. Similarly, on 27 December 1994 the hearing was adjourned at the request of one of the accused. Finally, on 7 February 1994 the court adjourned the hearing for the same reason. The Commission recalls in this respect that only delays attributable to the State may justify a finding that a "reasonable time" has been exceeded (Eur. Court HR, Monnet v. France judgment of 27 October 1993, Series A no. 273-A, p. 12, para. 30). The Commission observes that these adjournments and the prolongation of the proceedings resulting therefrom cannot be attributed to the court. The Commission further observes that otherwise the hearings were scheduled at regular intervals.

89. The Commission further recalls that a finding of a violation of Article 5 para. 3 of the Convention as regards the length of detention on remand does not necessarily presuppose that a violation of Article 6 para. 1 of the Convention must be found in respect of the length of proceedings (see Eur. Court HR, Ringeisen v. Austria judgment of 16 July 1971, Series A no. 13, p. 45, para. 110).

90. The Commission concludes that on the whole the proceedings did not exceed a reasonable time within the meaning of Article 6 para. 1 of the Convention.

CONCLUSION

91. The Commission concludes, by 19 votes to 13, that in the present case there has been no violation of Article 6 para. 1 of the Convention.

F. Recapitulation

92. The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 3 of the Convention (para. 61).

93. The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 4 of the Convention (para. 74).

94. The Commission concludes, by 19 votes to 13, that in the present case there has been no violation of Article 6 para. 1 of the Convention (para. 91).

M. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission

(Or. English)

PARTIALLY DISSENTING OPINION OF Mr H. DANELIUS

JOINED BY MM J.-C. GEUS, G. JÖRUNDSSON, A.S. GÖZÜBÜYÜK,

A. WEITZEL, J.-C. SOYER, L. LOUCAIDES, M.A. NOWICKI,

D. ŠVÁBY, E. BIELIŪNAS, M. VILA AMIGÓ

Unlike the majority of the Commission, I consider that Article 6 para. 1 of the Convention has also been violated in the present case.

In para. 56 of the Report, the Commission points out, in connection with Article 5 para. 3 of the Convention, that eleven months had elapsed between the date on which the indictment was lodged with the Kraków Regional Court and the date of the first hearing and that the heavy case-load, on which the Government primarily relied as an explanation, was not a sufficient argument to justify eleven months of inactivity in a case where the applicant had remained in detention. I consider that the same delay is also relevant for the consideration of whether the requirement as to "reasonable time" in Article 6 para. 1 has been observed.

I further note that the Kraków Court of Appeal, in its decision of 20 December 1994, admitted that the length of the proceedings was considerable but stated that it could not be attributed to the Regional Court. Moreover, the President of the Court of Appeal, in his letter of 25 January 1995, referred to the regrettable length of the proceedings which, in his view, was due to the difficulties experienced by the Regional Court on account of staff shortages and a heavy case-load.

Having regard to these various elements, I find that the applicant's case was not heard within a reasonable time.

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WOJCIK v. POLAND

WOJCIK v. POLAND

LEXI