Lexploria

Application No. 27376/95

by Adam ADAMCZEWSKI

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 14 January 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 28 June 1994 by

Adam ADAMCZEWSKI against Poland and registered on 23 May 1995 under

file No. 27376/95;

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

8 April 1997 and the correspondence between the Secretariat and

the applicant since 29 November 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Polish citizen born in 1968, is an economist

currently detained in Wejherowo prison.

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

summarised as follows:

Particular circumstances of the case

On 24 January 1994 the applicant was arrested by the police. On

25 January 1994 the Malbork District Prosecutor (Prokurator Rejonowy)

charged the applicant with fraud and detained him on remand until

24 March 1994 in view of the reasonable suspicion that he had committed

the offence with which he had been charged.

On 4 February 1994 the Malbork District Prosecutor laid twenty-

three charges of fraud, aggravated fraud and forgery against the

applicant. The charges were based on information given by several

firms, banks and individuals, and also resulting from various

documents.

On 7 February 1994 the applicant filed an appeal against the

detention order. The appeal was dismissed on 21 March 1994 by the

Elbl*g District Court (S*d Rejonowy) which found that there was a

strong probability that the applicant had committed serious offences

together with other persons.

In the meantime, on 17 March 1994, the Malbork District

Prosecutor prolonged the applicant's detention until 24 April 1994 on

the ground that the investigations had not yet been concluded; that

there was a danger of collusion; that the applicant was suspected of

having committed serious offences; and that no circumstances argued for

his release.

On 18 April 1994, upon the request of the Malbork District

Prosecutor, the Elbl*g Regional Court (S*d Wojewódzki) prolonged the

applicant's detention until 20 June 1994 in view of the continuing

suspicion that he had committed the offences in question, and as the

investigations had not been terminated. This decision was upheld by

the Gdansk Court of Appeal (S*d Apelacyjny) on 11 May 1994.

In May 1994, on an unspecified date, the Gdansk Regional

Prosecutor (Prokurator Wojewodzki) took over the investigations from

the Malbork District Prosecutor.

On 8 June 1994 the decision relating to the charges laid against

the applicant dated 4 February 1994 was communicated to him.

On 14 June 1994 the Gdansk Regional Court prolonged the

applicant's detention until 30 September 1994. Upon his appeal, this

decision was upheld by the Gdansk Court of Appeal on 6 July 1994 in

view of the numerous charges against the applicant and the continuing

suspicion that he had committed the offences in question.

On 28 June 1994 the applicant wrote to the Commission. From a

stamp on the first page of his letter it transpires that the letter was

opened and read by the Gdansk Regional Prosecutor on 6 July 1994.

Meanwhile, in June 1994 the applicant requested the Gdansk Regional

Prosecutor to release him. He also requested access to the case-file.

These requests were refused on 24 June and 2 July 1994 by the Gdansk

Regional Prosecutor and, upon appeal, by the Gdansk Prosecutor of

Appeal (Prokurator Apelacyjny) on 29 July 1994. The latter confirmed

that there was a suspicion that the applicant had committed serious

offences.

On 25 August 1994 the applicant again wrote to the Commission.

His letter was opened and read by the Gdansk Regional Prosecutor on

5 September 1994.

On 22 September 1994 the Gdansk Regional Court prolonged the

applicant's detention on remand until 30 December 1994. This decision

was upheld on 23 November 1994 by the Gdansk Court of Appeal, inter

alia with reference to the grounds given by that court on 6 July 1994.

The court nevertheless expressed the opinion that continuation of the

investigations after 30 December 1994 would be undesirable and might

result in the applicant's release.

On 30 September 1994 the Public Prosecutor's Office requested a

graphology expert to establish whether the applicant had signed certain

documents.

On 24 November 1994 the applicant again wrote to the Commission.

His letter was opened and read by the Gdansk Regional Prosecutor on

29 November 1994.

On 12 and 19 December 1994 the investigating prosecutor charged

the applicant with further counts of fraud.

From 12 December 1994 until 16 December 1994 the investigating

prosecutor permitted the applicant to consult the case-file which,

according to the applicant, consisted of twelve volumes.

On 19 December 1994 the applicant wrote a letter to the

Commission which was opened and read by the Gdansk Regional Prosecutor

on 29 December 1994.

On 20 December 1994 the applicant requested access to the entire

case-file. He also requested that certain witnesses and experts should

be called, and that he should be confronted with other witnesses and

with a co-suspect. On 28 December 1994 this request was refused as

irrelevant.

On 30 December 1994 the Gdansk Regional Prosecutor sent a bill

of indictment to the Gdansk Regional Court.

On 31 December 1994 the applicant complained to the Chief Justice

of the Gdansk Regional Court about his detention on remand. In his

view, his detention order had expired on 31 December 1994 at 6.20 a.m.

The request was considered to be an application for release. It was

transferred to the Criminal Division of the Gdansk Regional Court and

dismissed on 5 January 1995. On 18 January 1995, upon the applicant's

appeal, the Gdansk Court of Appeal upheld the decision of the court of

first instance. On an unspecified date in March or April 1995 the

applicant filed further requests for release with the Gdansk Regional

Court. At the same time he also filed requests for certain evidence

to be obtained.

On 20 April 1995 the Gdansk Regional Court dismissed the

applicant's requests in view of the continuing suspicion that he had

committed serious criminal offences. However, the relevant decision

specified the applicant's name as "Adamski" not "Adamczewski" and the

grounds of accusation were indicated as robbery committed by a

recidivist.

On 25 May 1995 the Gdansk Regional Court dismissed the subsequent

request for release by the applicant, finding that the grounds for his

continuing detention had not ceased to exist.

On 31 July 1995 the trial commenced before the Gdansk Regional

Court. However, this hearing was adjourned as neither the applicant's

lawyer nor that of his co-defendant appeared.

On the same day, the court fixed the hearing for 23 November 1995

and also dismissed the applicant's request for release or for the

preventive measure imposed on him to be altered.

On 9 August 1995, upon the applicant's further appeal, the Gdansk

Court of Appeal altered the preventive measure imposed and ordered the

applicant's release on police supervision, i.e. on condition that he

report weekly to the Gdynia police authorities. The court considered

that the suspicion that the applicant had committed the relevant

offences persisted; however, continuation of the detention on remand

would amount to anticipation of serving a prison sentence.

On 18 November 1995 the applicant was arrested and detained on

remand on suspicion of having committed a further offence of fraud on

15 November 1995. His requests for release were dismissed on

23 February and 24 May 1996 by the Gdynia District Court in view of the

serious nature of the offences committed. The court further noted that

the applicant had not complied with the conditions of his release

ordered on 9 August 1995 and also referred to a danger that he might

abscond.

COMPLAINTS

1. The applicant raises the following complaints under Article 5 of

the Convention.

He submits that no clear grounds were given for his detention on

remand.

He further complains that the length of his detention on remand

was excessive, and that it was unjustifiably prolonged.

The applicant submits that as from 6.20 a.m. on 31 December 1994

his detention was unlawful, as the period fixed by the Gdansk

Provincial Court on 22 September 1994 had by then expired.

The applicant further complains that his requests for release

from detention on remand filed in January and March 1995 were not

decided speedily. Moreover, the decision of the Gdansk Provincial

Court of 20 April 1995 did not give sufficient reasons for prolonging

his detention, spelt his name wrongly and incorrectly described the

legal provisions governing the charges.

The applicant complains, lastly, that his renewed arrest and

detention as from 18 November 1995 was unjustified. He submits that

his detention as a whole has meanwhile exceeded two years.

2. The applicant also raises various complaints under Article 6 of

the Convention.

a) In respect of the investigations the applicant complains that the

Public Prosecutor's Office did not take sufficient account of his

complaints that the investigating prosecutor attempted to beat him and

that attempts were made to obtain money from him.

b) The applicant complains that the charges brought against him on

4 February 1994 were communicated only after five months.

c) The applicant complains that he had access to only three volumes

of his case-file, which altogether comprised 12 files. Moreover, as

he did not duly receive the bill of indictment, he was unable

effectively to defend himself.

d) As regards evidence and witnesses, the applicant submits that the

charges against him were based on graphological analyses although he

had never been asked to give a handwriting sample. He also complains

that he was not shown the expert opinion.

The applicant further complains that the witnesses in his defence

were not called. He was not confronted with the prosecution witnesses.

He was neither permitted to call accountancy experts, nor to produce

further evidence himself.

The applicant also complains that his firms' documents were

confiscated without any written report concerning their content being

made.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 28 June 1994 and registered on

23 May 1995.

On 27 November 1996 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on 8 April

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

purpose. On 22 April 1997 a copy of these observations was sent to the

applicant who was invited to submit, before 10 June 1997, his

observations in reply. No such observations were received by the

Commission. Neither did the applicant request the Commission to extend

the time-limit fixed.

On 23 January 1997 the applicant requested the Commission to

grant him legal aid. Accordingly, on 19 February 1997, he was provided

by the Secretariat with the necessary forms and informed that the

relevant documents should be returned by him before 19 March 1997.

On 25 February and 12 March 1997 the applicant wrote two letters

to the Commission, both concerning his request for legal aid. Neither

the forms nor the supporting documents were returned by him.

In letters of 8 September and 3 November 1997, sent by registered

mail and addressed on both occasions to his home address and the

Wejherowo prison, the applicant was reminded that the time-limit for

the submission of his observations in reply had expired on 10 June

1997. He was further invited to state whether he intended to pursue

his application and informed that, pursuant to Article 30 para. 1 (a)

of the Convention, the Commission may strike his application out of

its list of cases where the circumstances lead to the conclusion that

he does not intend to pursue it. The applicant did not react thereto.

REASONS FOR THE DECISION

The Commission notes that the applicant did not react when

invited to submit his observations in reply to the Government's

observations. It also observes that since 12 March 1997 he has not

resumed his correspondence with the Commission.

Furthermore, on 8 September and 3 November 1997, two warning

letters were sent to the applicant by registered mail. Again, no

response has been received.

In these circumstances, the Commission concludes, in accordance

with Article 30 para. 1 (a) and (c) of the Convention, that the

applicant does not intend to pursue his petition and that it is,

therefore, no longer justified in continuing the examination of the

petition.

The Commission also finds no reasons of a general character,

affecting respect for human rights, as defined in the Convention, which

require the further examination of the present application by virtue

of Article 30 para. 1 in fine of the Convention.

For these reasons, the Commission, unanimously,

DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.

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

Secretary President

to the Second Chamber of the Second Chamber

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ADAMCZEWSKI v. POLAND

ADAMCZEWSKI v. POLAND

LEXI