AS TO THE ADMISSIBILITY OF

                      Application No. 33492/96

                      by Henryk JABLONSKI

                      against Poland

     The European Commission of Human Rights (Second Chamber) sitting

in private on 16 April 1998, the following members being present:

           MM   J.-C. GEUS, President

                M.A. NOWICKI

                G. JÖRUNDSSON

                A. GÖZÜBÜYÜK

                J.-C. SOYER

                H. DANELIUS

           Mrs  G.H. THUNE

           MM   F. MARTINEZ

                I. CABRAL BARRETO

                J. MUCHA

                D. SVÁBY

                P. LORENZEN

                E. BIELIUNAS

                E.A. ALKEMA

                A. ARABADJIEV

           Ms   M.-T. SCHOEPFER, Secretary to the Chamber

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 2 January 1995 by

Henryk JABLONSKI against Poland and registered on 19 October 1996 under

file No. 33492/96;

     Having regard to :

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the observations submitted by the respondent Government on

     18 June 1997 and the observations in reply submitted by the

     applicant on 25 July 1997;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is a Polish citizen born in 1957.  He is currently

detained in Kaminsk prison.  In the proceedings before the Commission

he is represented by Ms Zofia Daniszewska-Dek, a lawyer practising in

Bialystok.

     The facts of the case, as submitted by the parties, may be

summarised as follows:

A.   Particular circumstances of the case:

a)   Uncontested facts

     On 21 May 1992 the applicant was detained on remand on suspicion

of aggravated theft, armed robbery and attempted homicide.

     On an unspecified date in August 1992 the investigations were

completed.

     Apparently, after this date the applicant requested an order

remanding the case for further investigation.  In particular, he asked

for evidence to be taken from certain witnesses.

     The applicant's request for witnesses to be called was dismissed;

however a psychiatric expert report was ordered.

     On 12 October 1992 the Bialystok Regional Prosecutor (Prokurator

Wojewódzki) lodged a bill of indictment with the Bialystok Regional

Court (S*d Wojewódzki).

     On 22 October 1992 the court scheduled the first hearing for

27 November 1992.

     On an unspecified date in October 1992 the applicant, who at the

material time was detained in the Bialystok Detention Centre, went on

hunger strike.  His hunger strike lasted until the end of 1993.  The

applicant lost nineteen kilos.  During his strike he was once, on an

unspecified date, examined by a psychologist and psychiatrist who

stated that he had a psychopathic personality and suffered from a

neurasthenic syndrome and alcoholic epilepsy.  Subsequently, on 1 April

1993, upon the Bialystok Regional Court's request, an internist and

cardiologist examined the applicant and found that he should remain in

prison as his life was not in danger; however, they stated that the

applicant should be placed under intensive medical observation and, in

view of his serious weight loss, feeding by intravenous drip should be

considered.  Subsequently, the applicant was given a liquid diet.

     On 18 November 1993 a prison doctor examined the applicant and

found that he could be treated in prison.

    In the meantime, on an unspecified date in September 1993, the

applicant was given a blood test; the tests did not show any disorder.

Since the applicant complained of general weakness, pallor, headaches

and chest pains, blood tests were again ordered in December 1993.  They

showed that he was suffering from severe anaemia.

     On 9 December 1993 the applicant was admitted to the hospital of

the Faculty of Gastrology of the Bialystok Academy of Medicine.  He

received treatment until 17 December 1993.  The extract from the

medical records, which was issued on 17 December 1993, stated, inter

alia:

     "he was admitted to the hospital in a state of extreme exhaustion

     ..., complaining about general weakness, pains in his chest and

     heart palpitations. Subsequent analyses showed that there was an

     extremely low level of haemoglobin in his blood ... [4.1%; 6,7%

     according to the relevant tests] ... resulting from a chronic

     deficiency of iron and vitamins.  During the treatment he was

     given two transfusions and iron compounds were administered ...

     and therefore his condition improved ... Recommendations: good

     food and further treatment.  From the medical point of view, he

     should not be kept in prison."

     As from 17 December 1993 the applicant was again detained in

Bialystok Detention Centre.  He was placed in a medical ward, where he

remained until 24 December 1993.  As he refused to consent to any

further medical tests or to take medicines, the authorities decided not

to administer any treatment against his will.  However, he received

psychological and psychiatric consultation.  He was again placed in a

prison ward when diagnosed as having anaemia and gastritis.

     In the meantime, the hearings scheduled for 27 November 1992,

20 January, 2 June, 24 September and 1 December 1993 were adjourned on

the ground that the applicant was continuing his hunger strike.

     On an unspecified date the applicant complained to the Governing

Board of Prisons about the inadequate medical treatment which he had

received in the Bialystok Prison.

     On 23 February 1994 the Head of the Legal Department of the

Governing Board of Prisons replied to the applicant's complaint and

stated, inter alia, that the complaint was unsubstantiated as the

applicant's illness resulted only from his "refusal to eat".

     On 27 February 1994 the applicant complained to the Governor of

the Bialystok Detention Centre about his inadequate treatment in the

prison hospital.

     On 9 March 1994 the applicant had further blood tests; according

to them the applicant had a level of haemoglobin of 12,4 % in his

blood.

     On 13 and 22 March 1994 the applicant inserted several pieces of

metal into his eyes.  On 23 March 1994 he was examined by a

psychiatrist who stated that these self-inflicted injuries were a

consequence of the applicant's protest against the prolongation of the

criminal proceedings against him.  He was placed in an ophthalmic ward

of the Bytom Prison Hospital where he remained from 25 April to 23 June

1994.  Following his treatment in that hospital, there are still three

pieces of metal in the applicant's eyes.

     On 17 May 1994 the Governor of the Bialystok Detention Centre

replied to the applicant's complaint of 27 February 1994 and stated

that there had been no indication of inadequate treatment in the prison

hospital.  He also asserted that the applicant's inflexible attitude

to the treatment in prison and his refusal to face trial had obstructed

proper treatment.

     On 31 August 1994 the applicant requested the Bialystok Regional

Court to call ophthalmology experts, submitting that he was suffering

from a severe pain in his eyes.  His request was transferred to the

authorities of the Bialystok Detention Centre.

     On 28 September 1994 the Deputy Governor of the Bialystok

Detention Centre refused to call ophthalmological experts on the ground

that in the view of the experts who had previously examined the

applicant, there had been no need to treat the applicant outside the

prison.

     On 5 October 1994 the next hearing before the Bialystok Regional

Court was adjourned.  It transpires from the subsequent letter of the

Chief Justice of the Bialystok Regional Court dated 3 October 1996 that

the hearing was cancelled in view of the fact that the applicant had

inflicted injuries on himself.

     In the meantime, on an unspecified date, the applicant again

inflicted injuries on himself, in particular by hitting his head

against a wall.

     On 22 November 1994 the Bialystok Regional Court adjourned the

next hearing, apparently in view of the fact that the applicant had

inflicted the above injuries on himself.

     On 28 November 1994 the applicant again complained to the Head

of the Governing Board of Prisons about the inadequate treatment which

he had received in the prison hospitals.  He also asked the Chief of

the Bialystok Detention Centre to call ophthalmological experts at his

own expense.

     On 5 December 1994 the Bialystok Regional Court again adjourned

a hearing.  It transpires from the subsequent letter of the Chief

Justice of the Bialystok Regional Court, which was dated 3 October

1996, that the court had found that the applicant had injected saliva

into his leg.  On 17 January 1995 the Bialystok Regional Court again

adjourned a hearing on the same ground.

     Meanwhile, from the beginning of December 1994, the applicant

complained to the prison authorities about an abscess and phlegmon in

his leg.

     On 19 January 1995 the Head of the Legal Department of the

Governing Board of Prisons replied to the applicant's complaint of

28 November 1994.  He stated, inter alia, that the Chief Prisons

Physician had not found any irregularities in the applicant's treatment

in the prison hospitals and that the latter had obstructed his

treatment by inflicting injuries on himself.

     From 17 to 22 February 1995 the applicant was treated in the

Barczewo Prison Hospital.

     On 21 February 1995 the Bialystok Regional Court adjourned a

hearing in view of the fact that the applicant was receiving treatment

in the prison hospital.

     On 29 March 1995 the Olsztyn Penitentiary Court (S*d

Penitencjarny), on the request of the Governor of the Barczewo Prison,

ordered the applicant to pay all the costs of the above treatment as

it had resulted from self-inflicted injury.

     On an unspecified date the applicant appealed against this

decision.  He denied that the treatment in question had resulted from

any self-inflicted injury.

     In the meantime, on an unspecified date, the applicant swallowed

two metal rods and three pieces of wire.  He did not consent to surgery

in the prison hospital.

     On 27 April 1995 the Bialystok Regional Court adjourned a

hearing.  It transpires from the subsequent letter of the Chief Justice

of the Bialystok Regional Court of 3 October 1996 that the hearing was

cancelled on the ground of the above-mentioned self-inflicted injury.

     On 5 May 1995 the Olsztyn Regional Court dismissed the

applicant's appeal against the order of 29 March 1995 and held that the

applicant had deliberately inflicted injuries on himself "... in order

to compel the authorities to take certain measures".

     On an unspecified date the applicant requested the Bialystok

Regional Court to release him.

     On 24 November 1995 his request was dismissed in view of the

reasonable suspicion that the applicant had committed the offences with

which he had been charged and their serious nature.  The court referred

also to the medical statement of 18 November 1993 confirming that the

applicant could be treated in prison.

     In the beginning of November 1995 the applicant complained to the

authorities about various subsequent ailments, in particular a cyst in

his kidney and urinary problems.  The previous ultrasound examinations

(of December 1993 and April 1994) as well as the subsequent

examinations of 17 November 1995 and November 1996 showed that the

applicant had a cyst of a diameter of twenty millimetres in his kidney,

the size of which had remained unchanged.  The applicant refused to

undergo a kidney operation in a urological ward of the Lódz Detention

Centre Prison Hospital, requesting that he be released so as to enable

him to receive medical treatment outside the prison.

     On 20 December 1995 the applicant requested the Bialystok

Regional Court to release him.

     On 29 December 1995 the Bialystok Regional Court made a request

to the Supreme Court (S*d Najwyzszy) to prolong the applicant's

detention on remand until 30 December 1996.  This request was prepared

in view of the fact that on 1 January 1996 an amendment to the Polish

Code of Criminal Procedure was to take effect (see Relevant domestic

law).  The court stated, inter alia:

     "When the applicant finished his hunger strike, he deliberately

     inflicted injuries on himself in order to compel [the court] to

     make a favourable decision on altering the preventive measure

     imposed on him.  For these reasons it is not known when the

     accused will be brought to trial and therefore his detention

     should be prolonged until 30 December 1996."

     Eventually, the amendment concerning the maximum period of

detention on remand came into force on 4 August 1996 and the above

request was not lodged with the Supreme Court.

     On 30 December 1995 the Supreme Court transferred the applicant's

request of 20 December 1995 to the Bialystok Regional Court.

     On 15 January 1996 the Chief Justice of the Bialystok Regional

Court transferred the request to the Chief Judge of the Criminal

Division of the Bialystok Regional Court.

     On 18 January 1996 the Supreme Court informed the applicant that

all requests for release should be lodged with the court of first

instance, i.e. the Bialystok Regional Court.

     On 19 January 1996 the Bialystok Regional Court dismissed the

applicant's request for release dated 20 December 1995.  The court held

that there had been no circumstances concerning the applicant's health

which might have militated in favour of his release and that the state

of the applicant's health had been caused entirely by his own conduct.

The court stated that the applicant had wished to compel the court to

make a favourable decision on his detention and that the impossibility

of bringing the applicant to trial had diminished the chances of

resolving his complaints.

     In the meantime, on an unspecified date, the applicant complained

to the Ombudsman about inadequate treatment in prison.  He submitted

that a cyst which had appeared in his kidney called for immediate

treatment.  Apparently, the complaint was transferred to the

authorities of the Olsztyn Detention Centre.

     On 22 January 1996 the Governor of the Olsztyn Detention Centre

replied to the above complaint and stated that according to the results

of the ultrasound examination of 17 November 1995 there was no reason

for the requested treatment and that the main problems concerning the

applicant's health had resulted from injuries which he had been

inflicting on himself.

     In the meantime, on an unspecified date, the applicant complained

to the Supreme Court about the length of his detention which had

meanwhile exceeded three years.

     On an unspecified date the applicant requested the Bialystok

Regional Court to order further investigations in his case and remit

his case to the investigating prosecutor.  This request was dismissed

on 25 January 1996.

     On 25 January 1996 the applicant's complaint about the length of

his detention, which had originally been addressed to the Supreme

Court, was transferred to the Bialystok Court of Appeal (S*d

Apelacyjny).

     On 8 February 1996 the Deputy Chief Justice of the Bialystok

Court of Appeal replied to the applicant's above complaint.  He stated

that the hearings in the applicant's case had been cancelled five times

in view of the fact that the applicant had gone on hunger strike and

then on the ground that the applicant had inflicted injuries on

himself.  He also held that there had been no indication that the

applicant should have been released on account of his state of health

as he had been under medical care in prison.

     On an unspecified date the applicant applied to the Bialystok

Regional Court to release him in view of his state of health.  This

application was dismissed on 29 March 1996.

     On an unspecified date the applicant appealed against the above-

mentioned decision, arguing that his detention on remand had meanwhile

exceeded four years and that his state of health was desperately bad.

     On 19 April 1996 the Bialystok Court of Appeal dismissed his

appeal, finding that the length of the applicant's detention had been

attributable to his behaviour alone and that a change in the

applicant's attitude would result in the immediate examination of his

case, and that it might have resulted in "... a change of opinion as

to whether the detention should be maintained further".

     On an unspecified date the applicant again filed a request for

release.

     On 11 June 1996 the Bialystok Regional Court dismissed the

applicant's request in view of the high probability that he had

committed the offences with which he had been charged and their serious

nature.  The court also found that no circumstances concerning the

applicant's health had argued for his release as the current state of

his health had resulted only from the hunger strike and self-inflicted

injuries.

     On 6 August 1996 the Bialystok Regional Court requested the

Supreme Court to prolong the applicant's detention on remand until

30 July 1997 in view of the fact that he had attempted to obstruct the

due course of proceedings.  The court also stated:

     "... the detention should be prolonged until 30 July 1997 ... for

     the reason that the accused has inflicted injuries on himself and

     therefore, it is not known when he will be able to be brought to

     trial."

     On 5 September 1996 the Supreme Court, sitting in camera,

prolonged the applicant's detention until 1 March 1997 and found that

the applicant had exceptionally obstructed the due course of

proceedings and had intentionally contributed to their length.  The

court also held that it was not necessary to prolong the applicant's

detention until 30 July 1997 and that by 1 March 1997 the court of

first instance should be able to order an additional medical

examination of the applicant, to schedule the hearing and to give

judgment.

     On 13 September 1996 the applicant complained to the Minister of

Justice about the length of his detention on remand and the conduct of

the proceedings in his case.  This complaint was transferred to the

Bialystok Regional Court.

     In the meantime, on an unspecified date, the applicant again

filed a request for release.

     On 24 September 1996 the Bialystok Regional Court dismissed his

request on the grounds that there was a reasonable suspicion that he

had committed the offences in question and that the need to ensure the

due course of proceedings militated against his release.  The court

held that the applicant's illness did not amount to a danger to his

life or health and that it had resulted from the deliberate acts of the

applicant.

     On 26 September 1996 a copy of the decision of the Supreme Court

was served on the applicant.

     On 3 October 1996 the Chief Justice of the Bialystok Regional

Court replied to the applicant's complaint of 13 September 1996.  He

found that there had been no irregularities in the conduct of the

proceedings.  He stated that all the twelve hearings scheduled from

27 November 1992 until 27 April 1995 had been cancelled in view of the

fact that the applicant had inflicted injuries on himself.

     On 10 October 1996, on the applicant's appeal, the Bialystok

Court of Appeal upheld the decision of the Bialystok Regional Court of

24 September 1996 and held:

     "It is true that the accused is sick, though his illness results

     from self-inflicted injuries ... . As the accused is under

     medical care in the prison, there is no danger to his life ..."

     On 21 November 1996 the applicant was brought from the Barczewo

prison to the Bialystok Detention Centre as the court had scheduled a

hearing for 10 December 1996.

     On 10 December 1996 the hearing was cancelled as the court was

improperly composed.  The next hearing was held on 10 January 1997.

During the hearing the applicant requested the court to call witnesses

proposed by him.  On 24 February 1997 the hearing was adjourned as the

majority of prosecution and defence witnesses as well as the injured

party failed to appear.

     During the hearings of 27 and 28 February 1997 the court heard

evidence from witnesses and dismissed the applicant's request for

further evidence to be called.  On 28 February 1997 the Bialystok

Regional Court pronounced judgment.  It convicted the applicant of

aggravated theft and attempted homicide and sentenced him to fifteen

years' imprisonment, deprivation of his civil rights for eight years

and a fine of PLN 400.

     On an unspecified date the applicant's lawyer lodged an appeal

against this judgment.  Subsequently, on an unspecified date, the

applicant challenged J.D.-S. and J.Z.-L., judges of the Bialystok Court

of Appeal who were assigned to sit on the appeal panel, submitting that

both of them had previously dealt with his requests for release and

that they did not, therefore, offer sufficient guarantees of

impartiality.  His challenge was dismissed by the Bialystok Court of

Appeal on 9 September 1997 as being ill-founded.

     On the same day the court held an appellate hearing and gave

judgment dismissing the applicant's appeal.

     On 18 September 1997 a copy of the judgment of the Bialystok

Court of Appeal was served on the applicant.  On 1 October 1997 the

applicant filed a notice of cassation appeal, requesting the court to

serve the written reasoning of the judgment on him.  He submitted it

to the authorities of the Barczewo prison on 3 October 1997.

     On 20 October 1997 the Bialystok Court of Appeal rejected the

applicant's notice of appeal, refusing to serve the written reasoning

on him since he had failed to lodge the notice within the seven-day

time limit prescribed by Section 464 para. 3 of the Code of Criminal

Procedure.

     On 1 November 1997 the applicant requested the Minister of

Justice to lodge an ex officio cassation appeal on his behalf.  The

request was dismissed on 22 January 1998.

b)   Contested facts

     The Government submit that in 1996 the applicant constantly

inflicted injuries on himself by swallowing various objects.

     The applicant denies this.

     The relevant entries in the applicant's medical records made from

the end of 1995 to 15 July 1996 do not contain any indication that he

had swallowed any objects.  The entry made on 16 May 1996 contains a

doctor's note: "objects in [the] stomach?".  The entry of 20 November

1996 reads: "refusal to undergo an X-ray examination; no confirmation

as to the objects in his stomach". The entry made on 28 December 1996

reads:

     "Complaints by a detainee, previous ailments and operations:

     objects in eyes: no complaints at present; objects in his

     stomach: on 25 October and 20 November 1996 [the applicant]

     refused to undergo an X-ray examination; on 23 December 1996 [he]

     claimed that there were no further objects. ... I administer a

     further X-ray examination. [He] complains about a pain in his

     stomach. ... Psychiatric examination of 4 November 1996 disclosed

     an abnormal personality ... Diagnosis: objects in eyes; [as

     regards the] objects in the stomach, [to date] in the absence of

     results of the X-ray examination there is no confirmation that,

     as [the applicant] states, there are no such objects ... General

     condition: good; some peritoneal symptoms ... Conclusions: [the

     applicant] can be detained in prison.  Doctor [name and signature

     illegible]."

     The subsequent X-ray examination made on an unspecified date in

January 1997 did not disclose any objects in the applicant's stomach;

it confirmed a diaphragm hernia.

B.   Relevant domestic law and practice

1.   Medical treatment of detainees.

     The medical records concerning the treatment of a detainee in the

course of detention on remand are kept in the prison archives.  The

court competent to deal with the case usually has at its disposal only

such documents as the experts' reports or medical certificates

submitted by the parties or requested by a court as evidence.

     Section 219 of the Polish Code of Criminal Procedure provides:

     " If the state of health of the accused requires treatment in a

     medical establishment, he cannot be further detained except in

     such an establishment."

2.   Preventive measures, in particular, detention on remand.

     The Polish Code of Criminal Procedure lists as preventive

measures, inter alia, detention on remand, bail and police supervision.

     Section 209 of the Code of Criminal Procedure provides:

     "Preventive measures may be imposed in order to secure the due

     course of proceedings if the evidence against the accused

     sufficiently justifies the opinion that he has committed a

     criminal offence."

     The Code of Criminal Procedure sets out the scope of discretion

as to maintaining the preventive measures.  Detention on remand is

regarded as the most extreme measure among 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 of the Code of Criminal Procedure provides:

     "1.   A preventive measure (including detention on remand) shall

     be immediately quashed or altered, if the basis therefor has

     ceased to exist or new circumstances have arisen which justify

     quashing or replacing a given measure with a more or less severe

     one."

     Section 218 of the Code of Criminal Procedure provides:

     "If there are no special reasons to the contrary, detention on

     remand should be quashed, in particular when:

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

     accused, or

     (2)   it would entail excessively burdensome effects for the

     accused or his family."

     Section 225 of the Code of Criminal Procedure provides:

     "Detention on remand shall be imposed only when it is mandatory;

     this measure shall not be imposed if bail or police supervision,

     or both of these measures, are considered adequate."

3.   Statutory time-limits for detention on remand.

     Until 4 August 1996, i.e. the date on which the relevant

provisions of a new Law of 29 June 1995 on Amendments of the Code of

Criminal Procedure and Other Criminal Statutes entered into force, the

national law did not set out any time-limits concerning the detention

on remand after the bill of indictment has been lodged with the court

competent to deal with the case.  Initially, the relevant provisions

of the new Law concerning the time-limits for detention were to enter

into force on 1 January 1996; however, their vacatio legis was

eventually prolonged until 4 August 1996.

     Section 222 of the Code of Criminal Procedure in the version

applicable after 4 August 1996, insofar as relevant, provides:

     "3.   The whole period of detention on remand until the date on

     which the court of first instance gives judgment may not exceed

     one year and six months in cases concerning offences.  In cases

     concerning serious offences this period may not exceed two years.

     4.    In particularly justified cases the Supreme Court may, upon

     the request of the court competent to deal with the case, ...

     prolong detention on remand for a further fixed period exceeding

     the periods referred to in paras. 2 and 3, when it is necessary

     in connection with a suspension of the proceedings ... or when

     the accused has deliberately obstructed the termination of the

     proceedings in the terms referred to in para. 3."

     In principle, a detainee is entitled to appeal against a decision

prolonging his detention.  However, when the Supreme Court prolongs

detention on remand under Article 222 para. 4 of the Code of Criminal

Procedure, the law provides for no appeal.

4.   Cassation appeal.

     As from 1 January 1996, i.e. the date on which the relevant

provisions of a new Law of 29 June 1995 on Amendments to the Code of

Criminal Procedure and Other Criminal Statutes entered into force, a

party to criminal proceedings may lodge a cassation appeal with the

Supreme Court against any final decision of an appellate court which

has terminated the criminal proceedings.

     Section 463a para. 1 of the Code of Criminal Procedure, insofar

as relevant, provides:

     "1.   A cassation appeal may be lodged only on the grounds

     referred to in Section 388 [these include a number of procedural

     irregularities] or on the ground of another flagrant breach of

     law provided that the judicial decision in question was affected

     by such breach. ..."

     Section 464 of the Code of Criminal Procedure provides:

     "1.   Parties to criminal proceedings shall be entitled to lodge

     a cassation appeal.

     2.    A cassation appeal which has been lodged by a party other

     than a prosecutor shall be filed and signed by a lawyer.

     3.    Notice of a cassation appeal must be lodged with the court

     which has given the decision to be appealed against within seven

     days from the date on which such decision was pronounced.  The

     appeal itself must be lodged within thirty days from the date on

     which the decision was served on the party concerned."

     Accordingly, lodging a notice of cassation appeal within the

prescribed time-limit is a prerequisite for lodging the appeal itself.

     As regards the substantive grounds for a cassation appeal, an

appellant can invoke any breach of the substantive or procedural

provisions of criminal law.  This includes a breach of the presumption

of innocence, guaranteed under Section 3 para. 2 of the Code, which

states:

     "2.   An accused shall not be presumed guilty until his guilt is

     proved according to principles provided by this Code."

      Moreover, an appellant who claims that failure to examine

witnesses affected the outcome of his trial or that the rules

concerning the admissibility of evidence were violated, or that the

manner in which evidence was taken or refused to be called was contrary

to procedural provisions may, in his appeal, invoke a breach of the

relevant provisions (Section 152 et seq.) of the Code relating to the

admissibility of evidence.

COMPLAINTS

1.   The applicant complains under Article 3 of the Convention about

inadequate medical treatment in prison.  He also complains that he was

subjected to degrading treatment in view of the manner in which his

criminal case, his numerous complaints concerning his state of health

and requests for release were dealt with by the Polish authorities.

2.   The applicant complains under Articles 4 para. 1 and Article 5

para. 3  of the Convention about the length of his detention on remand,

submitting that he was held in slavery as his detention on remand

exceeded a reasonable time.

3.   Under Article 5 para. 4 of the Convention he complains that the

proceedings relating to the prolongation of his detention were

conducted slowly and unpredictably and that he did not receive adequate

information concerning either the grounds for prolongation of his

detention or the period for which his detention was to be prolonged.

4.   The applicant also complains under Article 6 para. 1 of the

Convention that the criminal proceedings against him were unreasonably

long.

5.   Under Article 6 para. 2 and Article 7 of the Convention he

complains that the authorities considered him to be guilty from the

date on which the case was referred to the competent court.

6.   The applicant invokes Article 6 para. 3 (b) and (d) of the

Convention, submitting that the domestic authorities did not order

further investigations in his case.  He claims that the witnesses who

were proposed by him were not called in the course of the

investigations.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 2 January 1995 and registered

on 19 October 1996.

     On 27 February 1997 the Commission decided to communicate the

application to the respondent Government.

     The Government's written observations were submitted on 18 June

1997, after a second extension of the time-limit fixed for that

purpose.  The applicant replied on 25 July 1997.

     On 28 October 1997 the Commission granted the applicant legal

aid.

     On 6 February 1998 the Government submitted a translation of

their observations.

     On 12 March 1998 the applicant submitted his additional

observations.

THE LAW

1.   The applicant complains under Article 3 (Art. 3) of the

Convention about inadequate medical treatment in prison.  He also

complains that he was subjected to degrading treatment in view of the

manner in which his criminal case, his numerous complaints concerning

his state of health and requests for release were dealt with by the

Polish authorities.

     Article 3 (Art. 3) of the Convention provides:

     "No one shall be subjected to torture or to inhuman or degrading

     treatment or punishment."

a)   The Government submit that the Convention entered into force with

respect to Poland on 19 January 1993.  Poland recognised the

Commission's competence to receive individual applications "from any

person, non-governmental organisation or group of individuals claiming

to be a victim of a violation by Poland of the rights recognised in the

Convention through any act, decision or event occurring after 30 April

1993".  Since all the complaints submitted by the applicant relate to

the criminal proceedings against him which commenced on 21 May 1992,

i.e. before 30 April 1993, the application, insofar as it relates to

events prior to this date, is outside the competence ratione temporis

of the Commission.

     The applicant does not address this issue in his submissions.

     The Commission observes that the present application relates in

part to a period prior to 1 May 1993, the date on which Poland's

declaration acknowledging the right of individual petition took effect.

Since, in that declaration Poland limited the Commission's competence

to facts subsequent to the declaration, the Commission, by reason of

its competence ratione temporis, can examine the applicant's complaints

only insofar as they relate to the period after this date.

     It follows that this part of the application is inadmissible as

being incompatible ratione temporis with the provisions of the

Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

b)   The Government further submit that in any event the applicant's

complaint under Article 3 (Art. 3) of the Convention is manifestly ill-

founded because throughout the entire period of his detention he

received medical treatment adequate to his state of health.  They

stress that he failed to cooperate with prison doctors in the course

of treatment either by his refusals to undergo various medical

examinations or tests, or by his failure to take medicines administered

by them.  Moreover, he systematically deteriorated his condition by his

repeated self-inflicted injuries.  Also, he did not consent to undergo

surgery proposed by prison doctors even though the prison medical

services were able to provide him with medical care needed by him.

     The Government admit that according to the recommendation of

doctors of the Bialystok Academy of Medicine of 17 December 1993,

following the applicant's treatment prompted by his hunger-strike, from

the medical point of view the applicant should not have been kept in

prison.  This, however, did not mean that he could not be detained in

the prison hospitals, which could provide him with medical care equal

to the level of public health care.  In the Barczewo Prison Hospital,

where he was placed after being discharged from the hospital of the

Bialystok Academy of Medicine, the authorities were able to provide him

with the treatment required by his condition.  Furthermore, the

authorities carefully supervised his state of health, which is shown

by the fact that they subsequently placed him in various medical wards

when he needed a specific type of treatment, i.e. an ophthalmic or

urological one.

     The Government conclude that the measures applied by the

authorities in the applicant's case, in particular his continuing

detention on remand, did not amount to treatment contrary to Article 3

(Art. 3) of the Convention.

     The applicant contests this.  He submits that he inflicted

injuries on himself since he could not see any other way to draw the

authorities' attention to the length of his detention and of the

proceedings against him and to his desperately bad state of health.

The authorities, by their lack of any serious response to his various

complaints, prompted him to go on hunger strike for fourteen months.

As late as 9 December 1993, when he was extremely exhausted, they

placed him in the hospital of the Bialystok Academy of Medicine but

ignored the doctors' conclusion that he should not be kept in prison.

     The applicant further maintains that the prison medical services

were unsatisfactory and insufficient. For instance, his treatment in

an ophthalmic ward of the Bytom Hospital resulted in three pieces of

metal being left in his eyeball.  Thus, he could not expect that his

various serious ailments, including a cyst in his kidney, would be

adequately treated or operated on in prison hospitals.  The authorities

could have released him in order to let him receive medical treatment

in a public health care establishment.  They could, by applying such

a measure, have avoided his further desperate attempts to call their

attention to his condition which was still deteriorating.  Their

refusal to do so, coupled with the inadequate medical care in prison,

seriously affected his health and thus amounted to treatment contrary

to Article 3 (Art. 3) of the Convention.

     The Commission reiterates that, according to the Convention

organs' case-law, ill-treatment must attain a minimum level of severity

if it is to fall within the scope of Article 3 (Art. 3) of the

Convention (Eur. Court HR, Ireland v. the United Kingdom judgment of

18 January 1979, Series A no. 25, p. 65, para. 162).  It recalls that

lack of medical treatment in the course of detention may raise an issue

under Article 3 (Art. 3) of the Convention.  In such cases, the factors

to be considered are the seriousness of the applicant's condition, the

quality of medical care he receives and whether his state of health is

compatible with detention.  Also, there remains the State's obligation

to maintain a continuous review of the detention arrangements employed

with a view to ensuring the health and well-being of all prisoners,

having due regard to the ordinary and reasonable requirements of

imprisonment (see, e.g. Lukanov v. Bulgaria, Comm. Report 12.1.95, D.R.

80-A, p. 128 et seq.)

     The Commission further observes that the State has no obligation

under Article 3 (Art. 3) of the Convention to release a detainee or to

transfer him to a civil hospital, even when he has a disease which is

particularly hard to treat (see, Chartier v. Italy, Comm. Report

8.12.88, D.R. 33, p. 41 et seq.).

     As regards the present case, the Commission notes that the

applicant, on several occasions, inflicted injuries on himself and that

he twice refused his consent to treatment or surgery proposed by the

authorities.  This did not, however, absolve them from their obligation

to ensure his health and well-being during detention.

     In this context the Commission observes that from October 1992

to December 1993, when the applicant was on hunger strike, the

authorities called various medical experts to assess the state of his

health, they ordered blood tests aimed at monitoring his condition and

placed him in a civil hospital on 9 December 1993, when his condition

seriously worsened.  Also, upon his subsequent placement in the medical

ward of the Bialystok Detention Centre, the applicant would have

received a more thorough medical treatment rather than a mere

psychological consultation if he had consented to further tests and

taken the medicines prescribed by doctors.

     Furthermore, when on 12 and 22 March 1994, the applicant inserted

several pieces of metal into his eyes, the authorities provided him

with ophthalmological treatment in the Bytom Prison Hospital.  He was

treated, from 17 to 22 February 1995, in the Barczewo prison Hospital

in connection with injuries to his leg.  Finally, from December 1993

to November 1996, on four occasions, the authorities ordered an

ultrasound examination in response to his complaints about a cyst in

his kidney.  They also offered him an operation in the prison hospital.

The last record relating to his health, dated 28 December 1996,

described his state of health as good.

     The Commission therefore considers that there is no indication

that the authorities did not provide the applicant with medical

treatment.  Nor can it be said that they failed to monitor carefully

his state of health or its compatibility with detention.  There is no

appearance that the quality of medical care received by him was

insufficient.  Rather, the applicant's lack of cooperation in the

course of his treatment hindered the efforts made by the authorities

in order to improve his condition.

     As a consequence, the Commission finds that the treatment

complained of did not reach the threshold of severity required to bring

it within the scope of Article 3 (Art. 3) of the Convention.

     It follows that this part of the application is inadmissible as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2.   The applicant complains under Articles 4 para. 1 and Article 5

para. 3  (Art. 4-1, 5-3) of the Convention about the length of his

detention on remand, submitting that he was held in slavery as his

detention on remand  exceeded a reasonable time.

     The Commission, noting that this complaint relates solely to the

length of the applicant' detention on remand, has examined it under

Article 5 para. 3 (Art. 5-3) of the Convention which, insofar as

relevant, states:

     "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."

     The Government maintain that the applicant's detention on remand

which, account being taken of the Commission's competence ratione

temporis, lasted from 1 May 1993 to the date of his conviction at first

instance, i.e. to 28 February 1997, did not exceed a "reasonable time"

within the meaning of this provision.

     They point out that the investigation lasted for a short period

of four and a half months and the first hearing in the applicant's case

was scheduled as early as six weeks after he had been indicted.  All

the subsequent hearings, which were scheduled for 2 June, 24 September

and 1 December 1993 and for 5 October, 22 November and 5 December 1994

and for 17 January, 21 February and 27 April 1995 were cancelled as,

in the meantime, the applicant had repeatedly inflicted injuries on

himself thus contributing to the delay in the proceedings.  In the

Government's opinion, the applicant deliberately injured himself in

order to compel the courts to release him and to prevent his being

convicted.

     The applicant replies that the overall period of his detention

which lasted for nearly five years is in itself contrary to Article 5

para. 3 (Art. 5-3) and that a person presumed to be innocent should not

be kept in detention on remand for such a long time.

     The Commission considers, in the light of the parties'

submissions, that this complaint raises serious issues of law and fact

under the Convention, the determination of which should depend on an

examination of its merits.  The Commission concludes, therefore, that

this complaint is not manifestly ill-founded, within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.  No other grounds for

declaring it inadmissible have been established.

3.   Under Article 5 para. 4 (Art. 5-4) of the Convention the

applicant complains that the proceedings relating to the prolongation

of his detention before the Supreme Court were conducted slowly and

unpredictably and that he did not receive adequate information

concerning either the grounds for prolongation of his detention or the

period for which his detention was to be prolonged.

     Article 5 para. 4 (Art. 5-4) 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."

     The Government submit that the proceedings concerned, which

lasted from 6 August 1996, when the Bialystok Regional Court requested

the Supreme Court to prolong the applicant's detention beyond the

statutory time-limit, to 5 September 1996, when the Supreme Court made

its decision, were conducted "speedily", as required under this

provision of the Convention.

     The applicant replies that on 5 September 1996 he was not aware

of the fact that his detention had been prolonged by the Supreme Court

that day, as its decision was served on him as late as 26 September

1996.  He concludes that the length of the proceedings concerned was

excessive.

     The Commission considers, in the light of the parties'

submissions, that this complaint raises serious issues of law and fact

under the Convention, the determination of which should depend on an

examination of its merits.  The Commission concludes, therefore, that

this complaint is not manifestly ill-founded, within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.  No other grounds for

declaring it inadmissible have been established.

4.   The applicant also complains under Article 6 para. 1 (Art. 6-1)

of the Convention that the criminal proceedings against him were

unreasonably long.

     Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, provides:

     "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. ..."

     The Government, relying on their arguments submitted in respect

of the applicant's complaint under Article 5 para. 3 (Art. 5-3) of the

Convention, conclude that there was no failure on the part of the

domestic authorities in the conduct of the applicant's case and that

the delays in the proceedings resulted from the applicant deliberately

obstructing the course of the trial.

     The applicant contests this, submitting that the authorities

clearly failed to act with due diligence.  In particular, no hearing

on the merits was held in his case from 27 April 1995 to 10 January

1997, even though during this time he did not inflict injuries on

himself, nor was there any other reason justifying such a long delay

in the proceedings.

     The Commission considers, in the light of the criteria

established by the case-law of the Convention organs on the question

of "reasonable time", and having regard to all the information in its

possession, that an examination of the merits of this complaint is

required.

5.   The applicant also complains under Article 6 para. 2

(Art. 6-2) and Article 7 (Art. 7) of the Convention that the

authorities considered him to be guilty from the date on which the case

was referred to the competent court.  He further invokes Article 6

para. 3 (b) and (d) (Art. 6-3-b, 6-3-d) of the Convention, submitting

that the domestic authorities did not order further investigations in

his case.  He claims that the witnesses who were proposed by him were

not called in the course of the investigations.

     However, under Article 26 (Art. 26) of the Convention the

Commission "may only deal with the matter after all domestic remedies

have been exhausted".

     The Commission reiterates that the exhaustion of domestic

remedies rule requires an applicant to make use of those remedies that

are available and sufficient, and are capable of remedying directly the

situation complained of.  It further recalls that domestic remedies

cannot be said to be exhausted when an appeal has been rejected or not

allowed because of a procedural mistake of an appellant (see, mutatis

mutandis, No. 18079/91, Dec. 4.12.91, D.R. 72, p. 263).

     In this respect the Commission notes that the applicant failed

to lodge a cassation appeal against the final judgment given in his

case by the Bialystok Court of Appeal on 9 September 1997 as he had

submitted his notice of cassation appeal, which is a prerequisite for

lodging such an appeal, outside the seven-day time-limit prescribed by

the national law.

     Furthermore, the Commission observes that, according to Polish

law, a cassation appeal can be brought against a flagrant breach of any

substantive or procedural provision of criminal law, including a breach

of the presumption of innocence or the rules concerning the

admissibility of evidence, or the manner in which evidence was taken

or refused.  The cassation appeal was therefore a remedy whereby the

applicant could have effectively submitted the substance of the present

complaints to the domestic authorities if he had complied with the

domestic procedural requirements for such an appeal.

     It follows that the remainder of the application must be rejected

for non-exhaustion of domestic remedies within the meaning of

Article 27 para. 3 (Art. 27-3) of the Convention.

     For these reasons, the Commission, unanimously,

     DECLARES ADMISSIBLE, without prejudging the merits, the

     applicant's complaints that the length of his detention on remand

     exceeded a reasonable time, that the proceedings relating to the

     prolongation of his detention on remand were not conducted

     speedily and that the criminal proceedings against him were not

     terminated within a reasonable time;

     by a majority,

     DECLARES INADMISSIBLE the remainder of the application.

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

      Secretary                                  President

to the Second Chamber                      of the Second Chamber