EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 25792/94

Andrzej Trzaska

against

Poland

REPORT OF THE COMMISSION

(adopted on 19 May 1998)

25792/94 - i -

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-18) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-13) 1

C. The present Report

(paras. 14-18)              2

II. ESTABLISHMENT OF THE FACTS

(paras. 19-55)              4

A. The particular circumstances of the case

(paras. 19-50)              4

B. Relevant domestic law

(paras. 51-55)              6

III. OPINION OF THE COMMISSION

(paras. 56-96)              8

A. Complaints declared admissible

(para. 56) 8

B. Points at issue

(para. 57) 8

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

(paras. 58-68)              8

CONCLUSION

(para. 69) 10

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

(paras. 70-80)              11

CONCLUSION

(para. 81) 13

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

(paras. 82-92)              13

CONCLUSION

(para. 93) 14

F. Recapitulation

(paras. 94-96)              14

PARTIALLY DISSENTING OPINION OF MRS J. LIDDY

JOINED BY MM A. WEITZEL, L. LOUCAIDES AND B. MARXER 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 1970.  He currently serves a prison sentence in Katowice prison.  He was represented before the Commission by Mr Zbigniew Cichoń , a lawyer residing in Cracow .

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

4. The case concerns the length of the applicant's detention on remand, the proceedings in which the lawfulness of his detention was examined and the length of the criminal proceedings against the applicant.  The applicant invokes Articles 5 paras. 3 and 4 and 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 11 April 1994 and registered on 28 November 1994.

6. On 17 January 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. At the Government's requests, dated 21 March, 13 April and 9 May 1995, the time-limit for the submission of the observations was subsequently extended three times, until 15 April, 10 May and 30 May 1995, respectively.

8. The Government did not request an extension of the last time-limit and did not submit any observations.  By letter of 17 July 1995 the Government were informed that the application was being considered for inclusion in the list of cases for examination by the Commission at its session beginning on 4 September 1995.

9. On 6 September 1995 the Commission declared the application admissible.

10. The Government's observations were submitted on 12 September 1995.  The text of the Commission's decision on admissibility was sent to the parties on 20 September 1995 and they were invited to submit such further information or observations on the merits as they wished.

11. On 2 July 1996 the Commission granted the applicant legal aid for the representation of his case.

12. On 27 October 1997 the case was referred to the Plenary Commission.

13. 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

14. 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

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

Mr C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. ŠVÁBY

G. RESS

A. PERENIČ

C. BÃŽRSAN

P. LORENZEN

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

15. The text of this Report was adopted on 19 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.

16. 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.

17. The Commission's decision on the admissibility of the application is annexed hereto.

18. 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

19. On 27 June 1991 the Jastrzębie Zdrój District Prosecutor issued a warrant of arrest against the applicant who was suspected of attempted manslaughter, robbery and rape.  He was arrested on the same day.

20. On 23 September 1991 the Katowice Regional Court (Sąd Wojewódzki ) prolonged the detention on remand until 30 November 1991 finding a reasonable suspicion that the applicant had committed the crimes in question.  The Court considered that certain witnesses had to be heard and that expert opinions should be taken.

21. On 29 November 1991 the Katowice Regional Prosecutor transmitted the bill of indictment to the Katowice Regional Court.  The applicant was charged with attempted manslaughter, assault, causing severe bodily harm, use of a dangerous weapon, aggravated theft, rape and theft.

22. On 14 January 1992 the applicant requested the Katowice Regional Court to release him.  On 20 January 1992 the Court refused to order the applicant's release in view of the seriousness of the offences concerned.

23. On 4 March 1992 the first hearing was held before the Katowice Regional Court.  The applicant requested that the case be transmitted to the Jelenia Góra Regional Court as most witnesses lived nearby.  He requested access to the case-file in order to read it in a detailed manner.  The Court refused the first request and complied with the second.

24. On 2 April 1992 the applicant failed to appear before the Court. It transpires from the minutes of the hearing that he had refused to leave the prison cell as he felt unwell.  A prison physician stated that there were no medical objections to the applicant's participation in the hearing.  The hearing set for 20 May 1992 was not held for the same reason.

25. On 30 June 1992 the Court heard the applicant, who denied his involvement in the crimes concerned, and another accused.  The hearing was adjourned for 24 September 1992.  At this date the court heard four witnesses and further questioned the applicant.  On 25 September 1992 five further witnesses were heard.  The hearing was adjourned until 18 November 1992.

26. Subsequently the judge rapporteur fell ill.  He remained on sick leave from 10 November 1992 to 31 August 1994.  The case was assigned to a new panel of judges.

27. On 16 April 1993 the applicant complained to the Minister of Justice about the length of the proceedings.

28. The hearing fixed on 18 June 1993 was adjourned as the applicant's officially appointed counsel requested that the case be assigned to another lawyer in view of his bad health.

29. On 2 August 1993 the hearing was recommenced in view of the change in the composition of the court.  The court questioned the applicant and another co-accused.

30. On 5 August 1993 the officially appointed lawyer informed the court that the applicant had withdrawn his power of attorney.  At the hearing set for 8 September 1993 this lawyer was not present.  The Court adjourned the hearing until 14 September 1993 and assigned two new lawyers for the applicant's defence.  As they failed to appear at the hearing on 14 September 1993, the Court adjourned the hearing until 4 October 1993.

31. On 4 October 1993 one of the officially appointed lawyers requested that the hearing be recommenced.  The Court complied with this request and again questioned the applicant and another co-accused.

32. On 3 November 1993 the applicant complained to the Ombudsman ( Rzecznik Praw Obywatelskich ) about the length of the proceedings in his case and on 18 November 1993 to the Minister of Justice.

33. At the hearing on 19 and 22 November 1993 the court heard sixteen witnesses.  At the hearing on 7 January 1994 only two out of fifteen witnesses who were to be heard on that day complied with the summonses.  The Court imposed fines on some of them.

34. On 15 December 1993 the President of the Katowice Regional Court requested the President of the Criminal Division of that Court to follow closely the progress in the case and to prepare each month a progress report, with a first date set for 7 January 1994.

35. On 10 February 1994 the applicant requested the Court to assign to the case the same counsel who had represented him at the beginning of the proceedings.  On 21 February 1994 the Katowice Regional Court refused to grant the applicant's request.  The Court observed that the first officially appointed counsel had fallen ill; subsequently the applicant had withdrawn the power of attorney of the second counsel; and the third counsel had retired.

36. On 23 February 1994 three witnesses were heard. On 28 February 1994 the hearing was adjourned as the president of the court fell ill.

37. On 14 March 1994 the President of the Katowice Regional Court reiterated his request to the President of the Criminal Division to supervise the proceedings and to present a first report on the progress by 10 May 1994.

38. On 30 March 1994 the Ombudsman requested the President of the Katowice Regional Court to inform him about the progress in the case.

39. At a hearing on 23 May 1994 five witnesses out of eighteen summoned for that date complied with the summonses.  The applicant requested to be released.  The Court refused to release him in view of the seriousness of the crimes he was charged with.  On 1 June 1994 the Katowice Court of Appeal upheld this decision.  The Court observed that the applicant was suspected of serious crimes and that there was a risk of collusion.  The Court noted that there was progress in the case as hearings were being held.  Thus, even regard being had to the fact that the applicant had been detained on remand for three years, there were no reasons which would justify his release.

40. On 5 June 1994 the applicant again requested that his counsel be changed.

41. On 7 June 1994 the Ombudsman again requested the President to inform him about the progress in the case and to indicate whether there were still grounds for detention on remand.

42. On 28 June 1994 the applicant requested his release, relying on his rights guaranteed by the European Convention on Human Rights.

43. On 4 July 1994 the Katowice Regional Court refused to release the applicant.  The Court noted that the applicant was suspected of dangerous crimes.  It also  considered that there was a risk of collusion and that, if released, the applicant would jeopardise the criminal proceedings.

44. On 16 July 1994 the applicant complained to the Minister of Justice about the length of the proceedings.

45. From June to September 1994 the Court was establishing addresses of witnesses who had failed to appear on 23 May 1994.

46. On 11 October 1994 three witnesses out of eighteen summoned for that date complied with the summonses.  The applicant requested a medical examination in view of his gastrological problems.  Another co-accused, who had been released on 23 June 1994 in view of his ill-health, failed to appear.

47. On 28 October 1994 the applicant refused to leave the prison cell.  A medical opinion of 14 November 1994 stated that he suffered from chronic gastritis, but could be treated in the prison.

48. In a letter of 10 November 1994 the applicant challenged the judges.  On 12 December 1994 the Katowice Regional Court refused to comply with this request.

49. At the hearing on 10 January 1995 two out of ten witnesses appeared before the court.  On 31 January 1995 three witnesses were heard.  On 7 February 1995 the applicant refused to leave the prison cell, declaring that he felt unwell and he had not received the summons.

50. Further hearings were held on 7 March and 22 March 1995.  On 22 March 1995 the Court convicted the applicant of attempted manslaughter, rape and aggravated theft and sentenced him to twenty-five years' imprisonment.

B. Relevant domestic law

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

52. Articles 210 and 212 of the Code of Criminal Procedure applicable at the relevant time provided that before the bill of indictment was transmitted to the court, detention on remand was imposed by the Public Prosecutor.  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.

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

54. 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 Section 21 para. 2 of the Code of Criminal Procedure he could appeal to a court against a detention order made by a prosecutor.  Under Section 222 paras. 2(1) and 3 he could appeal against a further decision by that court prolonging his detention on a prosecutor's request.  Finally, Section 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.

55. Preventive measures (including 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 provides that the Public Prosecutor may attend such proceedings and that other parties may also attend if the law provides for it.  No rule provides 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

56. 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 judge in the proceedings concerning his detention nor was his lawyer entitled to be              summoned and present at the court sessions relating thereto;

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

B. Points at issue

57. 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

58. 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."

59. The applicant submits that his detention was unreasonably long.

60. The Government submit that the applicant's detention on remand complied with the requirements under domestic law.  In the successive decisions of the Regional Court all applicable criteria were examined in detail, including those which had not been raised by the applicant. The Regional Court and the Court of Appeal relied in their decisions on the character and danger of the offences concerned and on the danger of collusion.  Moreover, the Court of Appeal in its decision of 1 June 1994 considered that evidence gathered in the course of the proceedings justified the suspicion that he had committed the offences in question.  Thus, the applicant's detention was subject to a frequent and regular review by the Regional Court and, upon appeal, by the Court of Appeal.  The Courts were, beyond any doubt, diligent in their examination of the applicant's continued detention.  Their decisions were also entirely well-founded in the light of the particular circumstances of the case and of the requirements of the investigations.

61. The Commission observes that the applicant was arrested on 27 June 1991.  The judgment of the first instance court was pronounced on 22 March 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, the Commission takes account 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. 15, para. 39).  Consequently, the entire period of detention amounts to three years, eight months and twenty-five days, out of which one year, ten months and twenty-two days falling after 1 May 1993.

62. 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.

63. The persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the validity of the continued detention, but, after a certain lapse of time, it no longer suffices; 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. 321, p. 17, para. 55).

64. The Commission considers that the case, which concerned six occurrences involving violent crimes, cannot be regarded as very complex.  It is true that a substantial number of witnesses were heard in the proceedings, but no complex issues were involved.  In particular, there is no indication that the establishment of the facts of the case gave rise to any particular problems.

65. The Commission further observes that the authorities relied throughout the proceedings mostly on the danger of the offences concerned, an argument which does not appear in itself to be a sufficient reason for maintaining detention on remand.  There are no specific indications in those decisions as to why the authorities considered that there was a danger of collusion throughout the proceedings, as no precise circumstances were referred to in this respect.  It cannot be overlooked that the composition of the court changed as one of the judges had fallen ill and remained on sick leave from 10 November 1992 to 31 August 1994. Consequently, the case was assigned to a new panel of judges and the hearings were recommenced in August 1993.  Regard must also be had to the fact that on three occasions the administrative superiors urged the court to accelerate the proceedings, thus acknowledging that they had not been conducted with adequate diligence.

66. As regards the applicant's conduct, the Commission notes that he filed two requests for release, which in itself cannot be regarded as excessive.  The Commission recalls that applications for release from detention on remand do not justify delay in bringing an accused to trial (No. 8118/77, Schertenleib v. Switzerland, Comm. Report 11.12.80, D.R. 23 p. 199).  These requests could not prolong the proceedings as they were decided within six days each.  The Commission further observes that in October 1993 the applicant requested that the hearings be recommenced and the court granted his request, regardless of the fact that the hearings had already been recommenced in August 1993. This prolonged the proceedings for a further two months.  On two occasions the applicant refused to leave the cell in order to participate in the hearings, and there is no evidence that there were sound medical grounds for his refusals.  On 10 November 1994 he challenged the judge.  The challenge was dismissed on 12 December 1994. Thus, the proceedings were further prolonged for a month and two days. On the whole the Commission concludes that even though the applicant has partly contributed to the prolongation of the proceedings and thereby to the prolongation of his detention on remand, this cannot in itself justify the entire length of his detention.

67. The Commission further notes that the applicant requested three times that his officially appointed lawyers be changed.  However, these requests were submitted after three years of proceedings.  This length was, in turn, due to the fact that the court's composition had changed, and, further, to the fact that one of the applicant's lawyers had fallen ill.  These circumstances cannot be held against the applicant.

68. In the light of the criteria established by the case-law and considering the circumstances of the present case, in particular the fact that the authorities did not display special diligence in conducting the case, the Commission considers that on the whole the length of the applicant's detention was not in compliance with the requirements of Article 5 para. 3 of the Convention.

CONCLUSION

69. The Commission concludes by 30 votes to 1, that there has been a violation of Article 5 para. 3 of the Convention.

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

70. 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."

71. The applicant submits that in the proceedings in review of the lawfulness of his detention he was not entitled to be present before  the court either in person or through representation in order to put forward his arguments as regards his detention on remand.

72. The Government submit that under Polish law the decisions on detention on remand and on its prolongation can be appealed against to a court.  These appeals are examined at court sessions in camera and not at public hearings.  The purpose of such review is to examine whether the detention or continued detention was justified and lawful.  It is true that not all the guarantees of a fair hearing are applicable in those proceedings.  However, the courts have an opportunity to examine whether the decisions concerned are lawful and justified as they thoroughly examine factual and legal circumstances of a particular case.

73. The Government submit that the law does not provide for the mandatory presence of the accused or his lawyer before the court when it is taking those decisions.  However, this does not necessarily entail a breach of the principle of equality of arms in such proceedings as the participation of the Public Prosecutor is optional and not obligatory.  Further, the court examines the written submissions of the detained person and thus has detailed knowledge of his arguments.

74. As regards the present case the Government submit in particular that at the hearings before the Court of Appeal the Public Prosecutor was present.  The role of the Public Prosecutor at those hearings should be regarded as that of guardian of public interest, not that of a representative of interests of investigation, regard being had to the fact that the investigations had been terminated and the indictment had already been submitted to the court.  This was reflected in the fact that the prosecutors only supported the decisions of the Regional Court to maintain the applicant in custody and did not present any other arguments to the Court.

75. The Government conclude that in the proceedings concerning the applicant's detention on remand the guarantees of Article 5 para. 4 were complied with.

76. The Commission recalls that in proceedings for review of the lawfulness of detention the possibility for a detainee "to be heard either in person or, where necessary, through some form of representation (...) features in certain instances among the fundamental guarantees of procedure applied in matters of deprivation of liberty".  The Convention organs' case-law has acknowledged the need for a hearing before a judicial authority in matters falling within the ambit of Article 5 para. 4 of the Convention (Eur. Court HR, Sanchez- Reisse v. Switzerland judgment of 21 October 1986, Series A no. 107, p. 19, para. 51).

77. The Commission further 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 and Others v. the United Kingdom judgment of 29 November 1988, Series A no. 145-B).

78. The Commission also recalls that according to the Convention organs' case-law, under Article 5 para. 4 of the Convention a court examining an appeal against detention must provide guarantees of judicial procedure.  Thus, the proceedings must be adversarial and must always ensure the "equality of arms" between the parties, the prosecutor and the detained person (Eur. Court HR, Lamy v. Belgium judgment of 30 March 1989, Series A no. 151; Toth v. Austria judgment of 12 December 1991, Series A no. 224; Kampanis v. Greece judgment of 13 July 1995, Series A no. 318-B).

79.   The Commission notes that in the present case on no occasion was the applicant heard in person or through any form of representation in any of the three types of proceedings in which the lawfulness of his detention was examined (see para. 55 above).  It should be emphasised that not only the applicant was not present, but the law clearly did not entitle him or his lawyer to be present.  He had no knowledge of the submissions of the Public Prosecutor as in no case were these submissions communicated to him.  Consequently, he did not have an opportunity to contest properly the reasons invoked by the Public Prosecutor to justify the decision to impose or continue his detention or to dismiss his requests for release.  Moreover, had the applicant had an opportunity to be heard either in person or through  representation, he would have had a possibility to make new submissions in support of his requests to release him.  The Commission also considers that the personal appearance of the detainee before the court, at least once in the course of proceedings in review of the lawfulness of his detention, would have given the court a better opportunity to assess, in the light of the applicant's personality and attitude, whether his detention was justified, than on the basis of his or his lawyers' written submissions.

80. Furthermore, the Commission considers that, had the applicant or his representative been entitled to be present before the court, any questions from the court or the Public Prosecutor could have prompted on the part of the applicant or his representative a reaction warranting consideration by the court before it reached its decision as to the applicant's detention.  In particular, as regards the decisions as to the prolongation of the detention, the court would have had an opportunity to examine whether the suspicion against the applicant remained reasonably supported by evidence accumulated in the course of the proceedings, and whether the continued detention remained necessary to secure the proper conduct of the proceedings in the light of their progress.  The Commission further considers that the attendance of either the applicant or his representative would have given the courts an opportunity to consider whether the progress in the proceedings had not rendered negligible the possibility that the applicant's release would jeopardise the proceedings by collusion or attempts to suppress evidence.  The Commission concludes therefore that the applicant did not benefit from proceedings that were really adversarial.

CONCLUSION

81. 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

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

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

83. The applicant submits that the proceedings exceeded a reasonable time.

84. The Government submit that the applicant's case was complex as it concerned six occurrences of various character, such as attempted murder, assault, aggravated theft and rape.  There were two accused in the case and the other accused often could not participate in the proceedings due to ill-health.

85. As regards the conduct of the authorities, the Government submit that the hearings in the case had to be recommenced in view of the illness of the judge rapporteur and of the period of inactivity resulting therefrom.  Moreover, on certain occasions the intervals between the hearings were longer than intended, but this was caused by the fact that there were no other dates available for hearings.

86.   In respect of the applicant's conduct, the Government submit that he contributed to the prolongation of the proceedings.  On several occasions he refused to leave his prison cell in order to participate in the hearings.  He submitted several requests to have his officially assigned lawyers changed.  One of the lawyers requested that the hearings be recommenced from the very beginning and the court complied with this request.  The applicant once challenged the judges and submitted numerous appeals in respect of his detention on remand and in other matters.

87. The Government conclude that the proceedings did not exceed a  reasonable time and were conducted in compliance with Article 6 para. 1  of the Convention.

88. 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 in particular to the complexity of the case and the conduct of the applicant and the relevant authorities (Eur. Court HR, Vernillo v. Italy judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).

89. The Commission first observes that the period to be considered began on 27 June 1991, i.e the date on which the Public Prosecutor decided to arrest the applicant, and ended on 22 March 1995, the date on which the Katowice Regional Court convicted the applicant.  Therefore the proceedings lasted three years, eight months and twenty-five days, out of which one year, ten months and twenty-two days falling after 1 May 1993, the date on which the Commission's competence to examine individual petitions against Poland became effective.

90. As regards the complexity of the case and the applicant's conduct, the Commission refers to its above findings in this respect (paras. 64 and 66).

91. As regards the conduct of the authorities, the Commission observes that the main period of inactivity was caused by  the illness of the judge rapporteur and fell between 10 November 1992 and August 1993, the case having been assigned to the new panel of judges.  It was only in June 1993 that the case was transferred to a new panel of judges.  As a result the hearings had to be recommenced.  There were several occasions on which only a very small number of witnesses complied with the summonses and the court tried to ensure their appearance by imposing a fine only on one occasion.  There was one five month interval between the hearings on 23 May and 11 October 1994, but otherwise the hearings were held regularly.

92. In these circumstances the Commission finds that the length of the criminal proceedings against the applicant can still be regarded as reasonable.

CONCLUSION

93. The Commission concludes by 26 votes to 5, that there has been no violation of Article 6 para. 1 of the Convention.

F. Recapitulation

94. The Commission concludes by 30 votes to 1, that there has been a violation of Article 5 para. 3 of the Convention (para 69).

95. The Commission concludes unanimously, that there has been a violation of Article 5 para. 4 of the Convention (para 81).

96. The Commission concludes by 26 votes to 5, that there has been no violation of Article 6 para. 1 of the Convention (para 93).

        M. de SALVIA                        S. TRECHSEL

          Secretary                           President

      to the Commission                   of the Commission

(Or. English)

PARTIALLY DISSENTING OPINION OF MRS J. LIDDY,

JOINED BY MM A. WEITZEL, L. LOUCAIDES AND B. MARXER

We agree that there were violations of Articles 5 para. 3 and Article 5 para. 4 of the Convention.  However we also consider that there was a violation of Article 6 para. 1 guaranteeing the right to trial within a reasonable time.  It is true that a finding of a violation of the right to liberty under Article 5 on the basis that the authorities failed to display the required diligence in conducting a case and thus failed to ensure to a detainee trial within a reasonable time or to release pending trial as required by Article 5 para. 3 may not automatically mean that there has been a violation of Article 6 para. 1.  We recall that in the Neumeister case (Eur. Court HR, judgment of 27 June 1968) the Court found a violation of Article 5 para. 3 but none of Article 6 para. 1.  However, in that case the finding of a violation of Article 5 para. 3 was particularly based on the procedure for fixing the amount of the financial security or guarantee for the detainee's appearing for trial in the event of release whereas the finding of non-violation of Article 6 para. 1 was based on the particular complexity of the evidence.  (The case record comprised twenty-one volumes of about five hundred pages each as well as a large number of other documents).

The present case, although involving serious charges, does not appear to have been particularly complex (cf. para. 63 of the Report).  Accordingly, for the reasons set out at paras. 64 in fine, 65 and 66 of the Report concerning the unreasonably long period of detention on remand, we also consider that there has been a violation of Article 6 para. 1.