EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 31488/96

Stefan Ciepłuch

against

Poland

REPORT OF THE COMMISSION

(adopted on 20 May 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. 16-43)              3

A. The particular circumstances of the case

(paras. 16-37)              3

B. Relevant domestic law

(paras. 38-43)              5

III. OPINION OF THE COMMISSION

(paras. 44-85)              8

A. Complaints declared admissible

(para. 44) 8

B. Points at issue

(para. 45) 8

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

(paras. 46-64)              8

CONCLUSION

(para. 65) 11

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

(paras. 66-82)              11

CONCLUSION

(para. 83) 14

E. Recapitulation

(paras. 84-85)              14

DISSENTING OPINION OF Mr M.A. NOWICKI JOINED BY

Mrs G.H THUNE, MM P. LORENZEN AND E.A. ALKEMA 15

APPENDIX: DECISION OF THE COMMISSION AS TO THE

       ADMISSIBILITY OF THE APPLICATION              16

I. INTRODUCTION

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

A. The application

2. The applicant is a Polish citizen, born in 1959 and resident in Złotowo in Poland.  He was represented before the Commission by Mr Marian Urbański , a lawyer practising in Chodzie ż, Poland.

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

4. The case concerns the length of the applicant's detention on remand and the length of the criminal proceedings against him.  The applicant invokes Articles 5 para. 3 and 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 6 May 1996 and registered on 15 May 1996.

6. On 17 January 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 20 May 1997, after the second extension of the time-limit fixed for this purpose.  The applicant replied on 24 July 1997.  On 28 May 1997 the Commission granted the applicant legal aid for the representation of his case.

8. On 3 December 1997 the Commission declared the application admissible.

9. The text of the Commission's decision on admissibility was sent to the parties on 12 December 1997 and they were invited to submit such further information or observations on the merits as they wished.  The parties did not avail themselves of this opportunity.

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

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

J. MUCHA

D. ŠVÁBY

P. LORENZEN

E. BIELIŪNAS

E.A. ALKEMA

A. ARABADJIEV

12. The text of this Report was adopted on 20 May 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 6 August 1994 the applicant shot and killed a woman.  The next day, i.e. on 7 August 1994, the Złotowo District Prosecutor ( Prokurator Rejonowy ) charged the applicant with homicide and detained him on remand in view of the reasonable suspicion that he had committed the offence with which he was charged and its serious nature.

17. On 24 October 1994, upon the request of the Złotowo District Prosecutor, the Poznań Regional Court (Sad Wojewódzki ) prolonged the applicant's detention until 31 December 1994 on the grounds that the investigation had not yet been concluded as it was necessary to obtain a report from psychiatric experts and that there was a reasonable suspicion that he had committed a serious crime.

18. On an unspecified date the investigating prosecutor ordered that evidence be obtained from psychiatric experts in order to establish whether tempore criminis the applicant had acted in a state of diminished responsibility.  As a consequence, from 10 November 1994 to 17 January 1995, the applicant was placed under psychiatric observation.

19. On 19 December 1994, on the request of the Złotowo District Prosecutor, the Poznań Regional Court prolonged the applicant's detention on remand until 13 February 1995.

20. On 13 February 1995, upon a further request by the Złotowo District Prosecutor, the Poznań Regional Court prolonged the applicant's detention until 31 March 1995 in view of the continuing suspicion that he had committed homicide, the seriousness of the offence in question, and the fact that the investigations had not been terminated as the psychiatric report was not ready.

21. On 17 March 1995 the applicant's lawyer applied to the Złotowo District Prosecutor for the applicant to be released.  He submitted, inter alia , that as the investigations had come to an end and as the applicant's detention entailed excessively burdensome effects for his client and his family, the detention should not be maintained further.

22. On 20 March 1995 the prosecutor dismissed this request on the ground that the fact that the investigations had come to an end was not a sufficient reason to release the applicant in the light of the seriousness of the crime committed, and that no particular circumstances argued for his release.

23. On 29 March 1995 the Złotowo District Prosecutor lodged a bill of indictment with the Poznań Regional Court.  The applicant was indicted of homicide committed in a state of diminished responsibility.

24. On 7 September 1995 the trial commenced.  During the first hearing the court heard evidence from the applicant and ten witnesses, out of eighteen called by the prosecution. D.A. , the only eye-witness to the shooting, appeared late before the court, i.e. when the hearing had already been proceeding for two or three hours.  The applicant requested the court to hear evidence from the eye-witness; however, it declined to do so, assuming that examining her might take several hours. The next hearings were held on 15 November and 27 December 1995 and the court heard evidence from the other witnesses, a forensic medicine expert and a ballistics expert. D.A. failed to appear before the court on both occasions.

25. On 4 January 1996 the applicant's lawyer applied to the court to quash or alter the preventive measure imposed on the applicant.  He argued that there were strong indications that the applicant had acted unintentionally and proposed release on bail or police supervision as adequate and sufficient measures.

26. On 22 January 1996 the Poznań Regional Court dismissed this request on the ground of the continuing suspicion that the applicant had committed homicide and found that the lawyer's submissions on the assessment of the evidence were premature and ill-founded.  Upon the lawyer's appeal, this decision was upheld by the Poznań Court of Appeal (Sąd Apelacyjny ) on 7 March 1996 in view of the continuing suspicion that the applicant had committed a serious crime, the need to ensure the due course of the proceedings and the likelihood of a severe penalty.

27. On 21 March 1996 the subsequent hearing was held.  On this date, the witnesses' testimony was completed, though the court decided to order a fresh psychiatric report and adjourned any further hearings for the time being.  In the course of the hearing the applicant requested the court to release him.  This application was dismissed on the same day in view of the seriousness of the offence in question and as no particular circumstances militated in favour of the applicant's release.  Upon his lawyer's appeal, which also referred to the length of the proceedings, the original decision was upheld by the Poznań Court of Appeal on 25 April 1996 on the grounds that there was a continuing suspicion that the applicant had committed a serious crime, that a fresh psychiatric report had been ordered and that a severe penalty was likely to be imposed.  The court also found that as the court of first instance had a total discretion to call additional evidence, the fact that it had done so could not be used to ground an application for release based on unreasonable delay in the proceedings.

28. From 24 June to 23 August 1996 the applicant was placed under psychiatric observation.  The experts submitted their report to the court on 23 August 1996.  On 3 September 1996 the court scheduled a hearing for 28 October 1996.

29. On 11 October 1996 the applicant's lawyer lodged a motion with the Poznań Regional Court submitting that the applicant, after having been acquainted with the content of the psychiatric experts' report, had no wish to put further questions to the experts and that he neither challenged the experts' conclusions nor wished oral evidence to be taken from them.

30. On 28 October 1996 the court adjourned a hearing since the experts had failed to appear.  Before the adjournment the applicant requested the court to release him and to proceed with his trial in the experts' absence since the parties had not challenged their report and, therefore, there was no need to take oral evidence from the experts.  The court dismissed both requests and scheduled the next hearing for 18 December 1996.

31. On 15 November 1996 the Poznań Court of Appeal dismissed the applicant's appeal against the decision of 28 October 1996 and found that his continuing detention was justified by the reasonable suspicion that he had committed the offence in question, the likelihood of a severe penalty and the need to ensure the due course of the proceedings.

32. On 18 December 1996 the court adjourned a hearing as the experts had again failed to appear.  Before the adjournment the applicant's lawyer unsuccessfully requested the court to release the applicant.  The applicant asked the court to proceed with his trial, submitting that there was no need to take oral evidence from the experts as the psychiatric reports submitted in the course of the trial were consonant.  The prosecutor stated that he did not wish to put any questions to the experts.

33. On 31 December 1996 the Poznań Regional Court ex officio altered the preventive measure imposed on the applicant since, under Section 10a of the Interim Law of 29 June 1995, the applicant's detention could be maintained only until 1 January 1997.  Accordingly, the court released him under police supervision, finding that there were no grounds justifying his further detention under Section 222 para. 4 of the Code of Criminal Procedure.

34. On 15 January 1997 the Poznań Regional Court, after having heard evidence from experts, convicted the applicant of unintentional killing and sentenced him to five years' imprisonment. On the same day, the applicant's lawyer requested the court to amend the trial records.  The Poznań Regional Court examined the applicant's lawyer's request on 20 June 1997 and amended the records of the trial.

35. Subsequently, on an unspecified date, both parties filed a notice of appeal.  On 21 April 1997 the applicant lodged his appeal with the Poznań Regional Court.  An appellate hearing was scheduled for 18 September 1997.

36. On 18 September 1997 the Poznań Court of Appeal upheld the judgment of the court of first instance.

37. On 25 September 1997 the applicant filed notice of a cassation appeal.  On 12 November 1997 the applicant's lawyer lodged a cassation appeal with the Supreme Court (Sąd Najwyższy ).  The proceedings are pending.

B. Relevant domestic law

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

Section 210 para. 1 of the Code of Criminal Procedure stated (in the version applicable at the material time):

"Preventive measures shall be imposed by the court; before a bill of indictment has been lodged with the competent court, the measures shall be imposed by the prosecutor (...)"

Section 209 of the Code of Criminal Procedure stated:

"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."

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

Section 213 para. 1 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 a given measure or replacing it with a more or less severe one."

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."

40. At present there is no "mandatory detention" under Polish law since the relevant provisions of the Code which provided for such detention were repealed by virtue of a new Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes.

41. The above-mentioned Law of 29 June 1995 entered into force on 4 August 1996.  Until this date the national law did not set out any time-limits concerning detention on remand.  Since then, according to Section 222 of the Code of Criminal Procedure (as amended), the whole period of detention on remand up to the date on which the court of first instance gives judgment may not exceed one year and six months (in cases concerning offences) or two years (in cases concerning serious offences).

42. However, under Section 1 of the Interim Law of 1 December 1995, if detention on remand exceeded the above-mentioned time-limits before 4 August 1996, it could be maintained until 1 January 1997.  After this date, under Section 10a of the Interim Law, the relevant court had to quash the detention order.  In exceptional cases (in particular when an accused had obstructed the due course of the trial) the court could, under Section 222 para. 4 of the Code of Criminal Procedure, request the Supreme Court to prolong the detention for such further period as was required.

43. The Code of Criminal Procedure addresses the issue of how criminal proceedings should progress at the investigative stage and before the court of first instance.  Section 263 of the Code of Criminal Procedure provides that the investigations should be terminated within three months.  Where justified, the period of the investigations may be prolonged by a higher prosecutor for a further fixed term.

Section 313 para. 2 of the Code of Criminal Procedure provides:

"2.  The presiding judge should endeavour , as far as possible, to resolve a case at the first hearing of a trial."

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

44. The Commission has declared admissible the applicant's complaints that his detention on remand exceeded a reasonable time and that the length of the criminal proceedings against him was excessive.

B. Points at issue

45. The Commission must accordingly examine:

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

46. This provision, insofar as relevant, provides as follows:

"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."

47. The applicant maintains that his detention, in particular after 29 March 1995, i.e. the date on which the bill of indictment was lodged with the PoznaÅ„ Regional Court, was neither justified nor necessary.  In any event, during the hearings held on 7 September, 15 November and 27 December 1995 the trial court heard almost all the evidence from the witnesses, including himself.  Thus, after this date, what remained to be examined was the question whether he had committed the offence in a state of diminished responsibility.  In this context, the applicant stresses that during the first hearing he confessed and pleaded guilty to unintentional killing.  Therefore, it cannot be said that he failed to cooperate with the authorities.  As a consequence, "the need to ensure the due course of the proceedings" ceased to exist as a ground justifying his continued detention.

48. The applicant also stresses that the fact that, on 21 March 1996, the court ordered that evidence be obtained from the fresh psychiatric report did not itself justify the prolongation of his detention.  Thus, he repeatedly requested the Poznań Regional Court to alter the preventive measure imposed on him. The court could have released him on bail or under police supervision and these measures were capable of providing a sufficient guarantee that he would appear for trial.

49. He further asserts the authorities failed to pursue his case with due diligence, in particular after 27 December 1995.  For instance, from 21 March to 31 December 1996 they were not able to take evidence from the experts, which resulted in a delay of approximately nine months.  During this time he was still in detention, but the proceedings did not progress since the psychiatrists repeatedly failed to appear before the trial court.

50. The Government submit that it cannot be said that the applicant's detention on remand exceeded a "reasonable time" within the meaning of Article 5 para. 3 of the Convention as it lasted only from 7 August 1994 to 31 December 1996, i.e. for two years, four months and twenty-four days.  The charge laid against him was of a serious nature as it concerned homicide. In the course of the investigation the applicant was placed under psychiatric observation from 10 November 1994 to 17 January 1995 since doubts had arisen as to his criminal responsibility.  It is true that the authorities concerned repeatedly refused to release the applicant.  However, these refusals were justified by the need to ensure the due course of the proceedings and the likelihood of a severe penalty being imposed on him as a consequence of the serious nature of the offence in question.

51. The Government also maintain that the applicant's detention during his trial proved to be reasonable since he had to undergo further psychiatric observation.  On 21 March 1996, during the hearing, the psychiatrists altered their opinion as to whether the applicant had acted in a state of diminished responsibility.  This resulted in his again being placed under psychiatric observation from 24 June to 23 August 1996.  The courts were obliged to establish the facts relevant to the applicant's criminal responsibility.  As a result, it cannot be said that they failed to act with due diligence.

52. 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 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 (see Eur. Court HR, Muller v. France judgment of 17 March 1997, to be published in Reports of Judgments and Decisions 1997, para. 35).

53. 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.).

54. In the present case the Commission notes that the applicant's detention on remand lasted from 7 August 1994, the date on which he was charged with homicide and detained on remand by the Złotowo District Prosecutor, to 31 December 1996, when the Poznań Regional Court released him on police supervision.  Accordingly, its overall length was two years, four months and twenty-four days (see paras. 16 and 33).

55. As regards the reasons given by the Polish authorities to justify the applicant's detention, the Commission observes that they initially relied on the reasonable suspicion that the applicant had committed the offence with which he had been charged and its serious nature.  As the investigation continued, they found it necessary to prolong his detention in view of the fact that evidence needed to be obtained from psychiatric experts.  Finally, when the trial commenced and continued, the courts put forward two other reasons, namely the need to ensure the due course of the proceedings and the likelihood of a severe penalty (see paras. 16-17, 20-22, 26-27 and 31).

56. In the Commission's view, the grounds given by the authorities at an early stage of the proceedings were sufficient and relevant.  Thus, at the investigative stage, which by its nature is aimed at obtaining the evidence relevant to the charges laid against a suspect, a well-founded suspicion that he has committed a serious offence may justify his detention.  Nevertheless, as from 29 March 1995, when the investigation was terminated and the Złotowo District Prosecutor indicted the applicant for homicide, such suspicion alone could not suffice any longer as a basis for his detention.

57. As regards the "need to ensure the due course of the proceedings" which was subsequently invoked by the courts, the Commission considers that the PoznaÅ„ Regional Court could reasonably have assumed that such a need militated against the applicant's release until the evidence of all the witnesses was heard, even though he had pleaded guilty to unintentional killing at the first hearing on 7 September 1995.               

58. However, on 21 March 1996 the witnesses' testimony was completed but the court found it necessary to order fresh evidence from psychiatrists (see para. 27).  Having regard to the fact that at this point the applicant's detention had exceeded nineteen months, the Commission considers that at this stage of the proceedings the imposition of this measure was not necessary for ensuring their due course.  This conclusion is reinforced by the fact that the authorities concerned, in their decisions given after the above-mentioned date, entirely failed to state any reasons indicating why and in what way the applicant's release could have obstructed the progress of the trial or the preparation of a new expert report.

59. Moreover, since Polish law lays down (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 (see paras. 38-39), the Poznań Regional Court could have secured the proper course of the trial by imposing either or both of those two measures on the applicant, or - at least - considered in its decisions why such measures would not have provided a guarantee ensuring the presence of the applicant at the hearing.

60. Finally, as it does not appear from the courts' decisions that there was any indication that the applicant might evade serving any sentence which might be imposed, the Commission finds that the ultimate reason given by them to justify his detention, i.e. the likelihood of a severe penalty, cannot be regarded as sufficient either.  In sum, it considers that by 21 March 1996 at the latest, the applicant's detention ceased to be based on relevant and sufficient reasons.

61. The Commission must further examine the conduct of the proceedings.  In this respect it notes that there was one substantial period of inactivity on the part of the Poznań Regional Court which is relevant to the assessment of whether or not that court displayed "special diligence" in the conduct of the proceedings, as required under Article 5 para. 3 of the Convention.  This period lasted from 21 March to 31 December 1996, that is to say for approximately nine months.  During this time no hearing was held as, following the court's decision to call fresh evidence from psychiatrists, the applicant was placed under psychiatric observation and, subsequently, the experts concerned repeatedly failed to appear before the court (see paras. 27-33).

62. It is true that, in the meantime, on 28 October 1996, the applicant requested the court to release him. Yet it cannot be said that this might have slowed the proceedings as his request was determined in a short period of time, i.e. as early as 15 November 1996 (see paras. 30-31).  Furthermore, on three occasions between 11 October and 18 December 1996, the applicant requested the court to proceed with his trial regardless of the experts' absence, submitting that as the parties had not challenged their reports, there was no need to take oral evidence from them (see paras. 29-30).

63. Therefore, even though the expediency of obtaining evidence is primarily a matter for the national authorities (see Eur. Court HR, Eriksen v. Norway judgment of 27 May 1997, Reports of Judgments and Decisions 1997-III, no. 37, p. 866, para. 92), the Poznań Regional Court's decisions on when and how to call and hear evidence from the psychiatric experts inevitably contributed to the prolongation of the proceedings.

64. As a consequence, it cannot be said that from 21 March 1996 to 31 December 1996 the authorities acted with all due expedition.  Accordingly, the Commission, having regard to its above finding that after 21 March 1996 the applicant's detention was no longer justified, considers that this period spent by the applicant in detention pending trial exceeded a "reasonable time" within the meaning of Article 5 para. 3 of the Convention.

CONCLUSION

65. The Commission concludes, by 13 votes to 1, that in the present case there has been a violation of Article 5 para. 3 of the Convention.

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

66. This provision, insofar as relevant, states:

"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. ..."

67. The applicant submits, first, that it cannot be said that his case is a complex one.  He stresses that the question of his criminal responsibility did not involve such complicated issues as could in themselves explain the prolongation of the proceedings.  After all, they have currently lasted more than three years.  On the other hand, the manner in which the Poznań Regional Court conducted his trial was a principal factor contributing to the overall length of the proceedings.

68. He asserts that, on 7 September 1995, the court declined to hear crucial evidence from D.A. , an eye-witness, even though under Section 313 para. 2 of the Code of Criminal Procedure it should have endeavoured to resolve the case at the first hearing.  As a consequence, the evidence from that witness was not heard until 21 March 1996.  

69. The applicant further recalls the other periods in which, in his view, the Poznań Regional Court contributed very significantly to the length of the proceedings in his case.  In particular, he refers to the period of almost ten months, i.e. from 21 March 1996 to 15 January 1997, during which the court held no hearing and took no steps to ensure the appearance of the psychiatric experts before it.  Also, it took the court a further five months (i.e. from 15 January to 20 June 1997) to rule on the applicant's lawyer's request for the records of the trial to be amended.  The last of these delays resulted in the appellate hearing being scheduled for as late as 18 September 1997, although the applicant's appeal was ready for examination on 21 April 1997.

70. The Government submit that the length of the criminal proceedings against the applicant was reasonable.  In the first place, they stress that the case was complex, in particular as in the course of the proceedings it was necessary to establish whether the applicant had committed the offence in question in a state of diminished responsibility.  For this reason, evidence from psychiatric experts needed to be obtained on two occasions.  As a consequence, the applicant was twice placed under psychiatric observation.  This gave rise to a certain prolongation of the proceedings.  Such delay, nevertheless, was justified by the importance of the question of the applicant's criminal responsibility for the outcome of his case.

71. Finally, the Government reiterate their submissions concerning the conduct of the relevant authorities in respect of the applicant's detention on remand and conclude that under Article 6 para. 1 of the Convention they did not fail to pursue his case with due diligence.

72. The Commission recalls that the reasonableness of the length of the proceedings must be assessed in the light of particular circumstances of the case and having regard to the criteria laid down in the Convention organs' case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities.  It is also necessary, among other things, to take account of the importance of what is at stake for the applicant in the proceedings (see Eur. Court HR, Philis (No.2) v. Greece judgment of 27 June 1997, Reports of Judgments and Decisions 1997-IV no. 40, p. 1083, para. 35).

73. In the present case the Commission notes that the criminal proceedings against the applicant commenced on 7 August 1994, when he was charged with homicide, and that they are still pending.  Their length has, therefore, exceeded three years and nine months.

74. It further notes that the case concerned a charge of homicide laid against the applicant and that the prosecution called eighteen witnesses to give evidence during the trial.  Also, the doubts which arose as to the applicant's criminal responsibility resulted in evidence from psychiatrists being called on two separate occasions in the course of the proceedings (see paras. 16, 18, 24 and 27).

75.  However, even though the number of witnesses heard during the trial was considerable, only one gave evidence of having seen the applicant shoot.  Furthermore, doubts as to the criminal responsibility of an accused, which frequently arise in criminal cases, cannot in themselves justify the opinion that a given case is complex.  In this respect the Commission notes that the Government, when maintaining that the case was particularly complex because of the question of the applicant's criminal responsibility, failed to adduce any circumstances showing that the degree of this complexity was in fact higher than in other similar cases.  The Commission therefore considers that the applicant's case was of only average complexity.

76. As regards the applicant's conduct, the Commission observes that between 17 March 1995 and 18 December 1996 he lodged five requests for release and three appeals against the decisions refusing to release him.  He also appealed against the judgments on the merits and, on 15 January 1997, requested the Poznań Regional Court to amend the trial records.  However, he did not submit any other procedural requests that would have unduly prolonged the proceedings.

77.  The examination of the applicant's requests for release and the respective appeals did not slow down the proceedings as, except for his appeal against the decision of the Poznań Regional Court of 21 March 1996, which - without any apparent delay on his part - was examined on appeal after more than one month, the relevant decisions were given normally within two to three weeks (see paras. 21-22, 25-27 and 30-31).  Moreover, the fact that it took the trial court more than five months to rule on the applicant's request for the trial records to be amended, cannot be considered as a delay caused by his conduct.  Finally, with respect to the way in which the applicant exercised his procedural rights, it is clear that from 11 October 1996 onwards he requested the court to proceed with his trial notwithstanding the experts' absence, thus waiving his right to hear their evidence.  It cannot, therefore, be said that the applicant's conduct contributed to the length of the proceedings in question.

78. In respect of the conduct of the authorities, the Commission observes that the investigative stage of the proceedings lasted from 7 August 1994 to 29 March 1995, i.e. for nearly seven months and three weeks.  This period, in view of the volume of evidence collected (including the expert reports) cannot be considered as unreasonably long.  However, the proceedings before the court of first instance took almost twenty-two months (from 29 March 1995 to 15 January 1997) and during this time the court was able to hold only five hearings, as the two others were cancelled due to the experts' absence (see paras. 16, 23-34).

79. In the course of the first three hearings of 7 September, 15 November and 27 December 1995, the court heard a substantial part of the evidence, namely seventeen witnesses and two experts.  Yet, subsequently, it did not act with equal expedition even though it could have been expected to do so since the applicant remained in detention during almost the entirety of the proceedings at first instance.  For instance, no hearing was held from 21 March 1996 to 15 January 1997, i.e. for a period of nearly ten months.  Furthermore, there is no explanation of why a simple question concerning the amendment of the trial records resulted in a delay of approximately five months (from 15 January to 20 June 1997) in the appellate proceedings.

80.  Thus, having regard to the fact that the delays in the proceedings resulting from the conduct of the Poznań Regional Court amounted in all to at least fifteen months, the Commission considers that the authorities substantially contributed to the length of the proceedings.

81. Finally, noting the applicant was sentenced to five years' imprisonment, the Commission considers that much was (and still is) at stake for him in the proceedings.

82. Accordingly, having regard to the delays in the proceedings for which the authorities were responsible and to the importance of what was, and is, at stake for the applicant, the Commission finds that the length of the proceedings in issue has exceeded a "reasonable time" within the meaning of Article 6 para. 1 of the Convention.                                   

CONCLUSION          

83. The Commission concludes, by 9 votes to 5, that in the present case there has been a violation of Article 6 para. 1 of the Convention.

E. Recapitulation

84. The Commission concludes, by 13 votes to 1, that in the present case there has been a violation of Article 5 para. 3 of the Convention (para. 65).             

85. The Commission concludes, by 9 votes to 5, that in the present case there has been a violation of Article 6 para. 1 of the Convention (para. 83).

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

      Secretary                                                                                           President

to the Second Chamber                                                               of the Second Chamber

(Or. English)

DISSENTING OPINION OF Mr M. M.A. NOWICKI

JOINED BY Mrs G.H THUNE, MM P. LORENZEN AND E.A. ALKEMA

We disagree with the majority's opinion that in the present case there has been a violation of Article 6 para. 1 of the Convention in view of delays in the proceedings.

Sharing the majority's view that it cannot be said that the applicant's conduct contributed to the length of the proceedings in question, we do not find that the authorities concerned failed to act with due diligence.  Our reasons are as follows.

We firstly note that the investigative stage of the proceedings lasted for about seven months and three weeks.  This period, in view of the volume of evidence collected cannot be regarded as excessive.

The proceedings before the court of first instance lasted for one year, nine months and sixteen days.  During this time the Poznań Regional Court scheduled seven hearings in all, of which two were cancelled.  At the same time the court heard evidence from eighteen witnesses and the applicant. It also considered reports submitted by several experts. Evidence from the psychiatrists was called on two occasions.

It is true that the PoznaÅ„ Regional Court's decision of 21 March 1996 to obtain evidence from the second psychiatric report resulted in the next hearing on the merits being held as late as 15 January 1997.  It is also true that, as the experts had failed to appear before the court, it decided to adjourn two hearings which were to be held on 28 October and 18 December 1996 respectively.   However, in the meantime, from 24 June to 23 August 1996, the applicant was placed under psychiatric observation which, apparently, was necessary in order to assess his criminal responsibility.  Also, when the psychiatric report was submitted to the court on 23 August 1996 and the case was ready to be finally examined, the court promptly scheduled the subsequent hearing for 28 October 1996.

As regards the appellate proceedings, these lasted for a reasonable period of about five months.  Similarly, the cassation proceedings, instituted by the applicant on 12 November 1997, have, to date, lasted for approximately six months. This period cannot be regarded as excessive either.

Finally, we stress that even though the proceedings as a whole have lasted for about three years and nine months, two judgments on the merits have been rendered by the courts during that time.

Therefore, having regard to the fact that there were no substantial delays in the proceedings attributable to the authorities, we consider that the length of the criminal proceedings against the applicant has not exceeded a "reasonable time" within the meaning of Article 6 para. 1 of the Convention.