Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27506/95

by Adam OWCZARZAK

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 3 December 1997, the following members being present:

Mrs G.H. THUNE, President

MM J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

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 7 February 1994

by Adam Owczarzak against Poland and registered on 2 June 1995 under

file No. 27506/95;

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 2 July

1997 and the observations in reply submitted by the applicant on

27 August 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Polish citizen born in 1972, resides in Gryfice.

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

summarised as follows:

Particular circumstances of the case

On 8 November 1993 the applicant was arrested by the police.

On 10 November 1993 the Gryfice District Prosecutor (Prokurator

Rejonowy) detained the applicant on remand on suspicion of aggravated

theft, considering that the offence concerned was dangerous and the

applicant's detention was necessary to guarantee the proper conduct of

the investigations.

On 1 December 1993 the Gryfice District Court (S*d Rejonowy)

dismissed the applicant's appeal against this decision, considering

that there was a reasonable suspicion that he had committed the offence

concerned, supported by the evidence given by three witnesses. Regard

being had to the significant sum in question and to the fact that the

main witness was changing his submissions, the court considered the

applicant's further detention to be necessary.

On 27 December 1993 the Gryfice District Prosecutor refused to

confront the applicant with witness R.Z., considering that the court

would assess the credibility of the witness's submissions in the light

of the evidence as a whole and that the applicant would have an

opportunity to question the witness before the court.

On 28 December 1993 the Gryfice District Prosecutor lodged an

indictment against the applicant with the Gryfice District Court. The

applicant was charged with aggravated theft.

On 6 January 1994 the Gryfice District Court refused to grant the

applicant's request for release, finding that there was a reasonable

suspicion that he had committed the offence concerned. The court

considered that the the applicant's release would jeopardise the

proceedings. On 20 January 1994 the applicant lodged an appeal against

this decision.

On 27 January 1994 the Szczecin Regional Court (S*d Wojewódzki)

dismissed the applicant's appeal against this decision, finding that

there were no reasons which would justify his release.

On 8 February 1994 the Gryfice District Court, in other criminal

proceedings, convicted the applicant of entering and breaking and

theft, and sentenced him to two years and three months' imprisonment.

On 12 April 1994 the applicant handed over a letter addressed to

the Commission to the prison authorities so that it be sent. The

letter was subsequently transmitted to the Court before which the case

was pending.

In a letter of 11 May 1994 the Gryfice District Court informed

the applicant that an application to the Commission could be submitted

only after domestic remedies had been exhausted. As his case was still

pending before the first instance court and no final judgment had been

pronounced, his letter to the Commission had been included in the case-

file.

On 14 June 1994 the applicant sent to the Commission a copy of

the letter of 12 April 1994, apparently through unofficial channels,

and informed the Commission also of the fact that his previous letter

had been intercepted and included in the case-file.

On 21 June 1994 the Szczecin Regional Court upheld the judgment

of 8 February 1994.

On 15 July 1994 the Gryfice District Court refused the

applicant's request for release, finding that the evidence taken in the

course of the investigations justified a reasonable suspicion that he

had committed the offence concerned. The proceedings were not

completed yet and there were no new circumstances which would justify

the applicant's release.

On 4 August 1994 the Szczecin Regional Court dismissed the

applicant's appeal against this decision, considering that his release

would jeopardise the court proceedings. The Court further took into

consideration the seriousness of the offence concerned, the

considerable value of the stolen goods and the fact that the presumed

offenders had acted in an organised group.

On 6 September 1994 the execution of the prison sentence imposed

by the judgment of 8 February 1994 was ordered.

On 28 November 1994 the Gryfice District Court dismissed the

applicant's request for release. On 5 December 1994 the applicant

filed an appeal.

On 16 December 1994 the Szczecin Regional Court dismissed the

applicant's appeal. The Court considered that the grounds for the

applicant's continued detention relied on by the lower Court in its

decision of 28 November 1994 were still valid. The fact that the

proceedings were lengthy did not constitute a sufficient reason to

release the applicant, regard being had in particular to the danger of

the offence and to a potentially serious sentence risked by the

applicant. The Court further drew the attention of the Gryfice

District Court to the fact that the case should be examined with no

further delay.

Hearings were held before the Gryfice District Court on

28 February 1995, 7 and 28 March 1995 and 25 April 1995. The Court

heard the evidence from nine witnesses. At the hearing on 25 April

1995 the Court heard evidence from R.Z.

On 25 April 1995 the Gryfice District Court convicted the

applicant of aggravated theft and sentenced him to one year and six

months' imprisonment and a fine. The applicant filed an appeal.

On 5 September 1995 the Szczecin Regional Court upheld the

judgment.

Relevant domestic law

Pursuant to Article 217 para. 3 of the Code of Criminal Procedure

applicable at the material time, if the prison sentence imposed by the

first instance court for a premeditated offence exceeds two years, the

court shall impose detention on remand.

The Judicial Organisation Act of 1985 provides that the

supervision of the administrative aspects of judicial proceedings is

carried out by the Minister of Justice. The Minister entrusts these

functions to the presidents of the courts. Section 3 of the Rules of

Procedure of the Courts, a ministerial order of 1991, provide that the

presidents of the courts or other persons authorised by them shall deal

with complaints concerning the administrative aspects of judicial

proceedings. The Code of Administrative Procedure is applicable in

such proceedings, and in particular its Chapter VIII on Complaints and

Proposals.

This Chapter provides that citizens have a right to submit

complaints to the state administration and municipal authorities.

In particular, they can complain about the negligence of the

authorities concerned, about alleged violations of law, about

legitimate interests of the parties having been breached, and about

prolonged or bureaucratic conduct of administrative proceedings. The

party who submitted the complaint is informed of the manner in which

the complaint is dealt with.

COMPLAINTS

The applicant complains under Article 5 para. 3 of the Convention

about the length of his detention and under Article 6 para. 1 of the

Convention about the length of the proceedings.

The applicant further complains under Article 6 para. 3 (d) of

the Convention that the proceedings were unfair in that the Public

Prosecutor refused to confront him with one witness in the course of

the investigations.

The applicant submits that his letter to the Commission of

12 April 1994 was intercepted by the Gryfice District Court and

included in the case-file.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 7 February 1994 and registered

on 2 June 1995.

On 26 February 1997 the Commission decided to communicate the

applicant's complaint concerning the length of his detention, the

length of the criminal proceedings and the interference with his

correspondence with the Commission to the respondent Government.

On 13 May and 9 June 1997 extensions of the time-limit fixed for the

submission of the observations were granted.

The Government's written observations were submitted on 2 July

1997. The applicant replied on 27 August 1997.

THE LAW

1. The applicant complains under Article 5 para. 3 (Art. 5-3) of the

Convention about the length of his detention on remand.

Article 5 para. 3 (Art. 5-3) of the Convention reads:

"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."

The Government submit that the applicant was detained on remand

in the present case and at the same time in another case, in which the

Gryfice District Court on 8 February 1994 sentenced him to two years

and three months' imprisonment. On 21 June 1994 the higher court

upheld this judgment. Thus, his detention from 8 February 1994 to

21 June 1994 was under two separate detention orders and related to two

separate criminal cases. Consequently, this period was not relevant

for the purpose of Article 5 para. 3 (Art. 5-3) of the Convention.

They further submit that on 6 September 1994 the execution of the

prison sentence imposed by the judgment of 21 June 1994 was ordered and

from then on, the applicant's deprivation of liberty was again ordered

in two separate proceedings. The Government conclude that the period

which can be considered lasted only from 8 November 1993, i.e. the date

of his arrest, to 8 February 1994, and from 21 June 1994 to 6 September

1994, i.e. five months and fifteen days. This period was in conformity

with the requirements of Article 5 para. 3 (Art. 5-3) of the

Convention.

The applicant submits that there were no sufficient reasons for

his arrest and that his case could not be considered as complex, which

is shown by the fact that the investigations lasted only from

8 November 1993 to 28 December 1993, i.e. one month and twenty days.

The Commission observes that the applicant was arrested on

8 November 1993. The period to be considered under Article 5 para. 3

(Art. 5-3) 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, B. v. Austria judgment of 28 March 1990, Series A no.

175, p. 14 et seq., paras. 34 et seq.). In the present case, the

Gryfice District Court convicted the applicant on 25 April 1995.

The overall period to be considered is thus one year, five months

and seventeen days.

However, throughout this period the applicant's detention did not

continuously fall under Article 5 para. 3 (Art. 5-3) of the Convention.

On 8 February 1994 the Gryfice District Court sentenced him to two

years and three months' imprisonment and, pursuant to Article 217 of

the Code of Criminal Procedure, imposed obligatory detention on remand

on him until the final judgment in the case. This judgment was

pronounced by the Szczecin Regional Court on 21 June 1994. It is true

that under domestic law this period was to be regarded as detention on

remand. However, for the purposes of Article 5 (Art. 5) of the

Convention it must be regarded as detention after conviction and thus,

it should not be taken into consideration for the purpose of Article

5 para. 3 (Art. 5-3). Likewise, the period which started on 6

September 1994, the date on which the execution of the sentence imposed

by the judgment of 8 February 1994 was ordered, must be subtracted from

the overall period of detention.

Consequently, the period to be examined under Article 5 para. 3

(Art. 5-3) of the Convention, is five months and fifteen days. In view

of this the Commission cannot find that the length of the applicant's

detention exceeded what could be considered as reasonable in the

circumstances of the case.

It follows that this complaint is manifestly ill-founded within

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

2. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention about the length of the criminal proceedings.

Article 6 para. 1 (Art. 6-1), 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 ..."

The Government submit that there is no single general remedy

available under Polish law to complain about the length of proceedings.

However, the usual judicial remedies, i.e appeals against procedural

and substantive court decisions could be employed in this respect.

In particular, relevant complaints can be raised in requests for

release from detention on remand, in appeals against decisions to

prolong and maintain detention on remand. It is also possible to

complain about the length of proceedings directly to the court at

hearings. The Government conclude that the applicant had effective

remedies at his disposal in this respect and that he availed himself

thereof.

The Government further submit that the entire period to be

considered lasted from the date on which the investigations were

instituted to the date of the judgment. It lasted one year, three

months and seventeen days in all and did not exceed a reasonable time

within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

The Government further submit that the case was complex as the

applicant was charged with aggravated theft committed in collusion with

two co-accused. One of the co-accused was a minor. It was thus

necessary to establish the role which each of the accused had played

in the commission of the offence. The Court heard evidence from nine

witnesses and held four hearings.

The Government further submit that two sets of proceedings were

pending against the applicant before the Gryfice District Court at the

relevant time. The applicant was detained on remand for the purpose

of both cases. He was escorted to the hearings from Gryfice prison by

the police. The accused who were detained on remand in the cases

pending before that court were escorted to the court by the police in

the same order as the indictments had been lodged with the court.

In this sense the conduct of the proceedings concerned was determined

by the order of availability of the police escort in other cases.

However, no flagrant negligence in this respect could be held against

the authorities.

The applicant submits that the argument regarding the police

escort is not sufficient as the police escorted the accused to the

court at least twice a week.

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 with the help of the following criteria:

the complexity of the case, the conduct of the parties and the conduct

of the authorities dealing with the case. In this instance the

circumstances call for an overall assessment (Eur. Court HR, Boddaert

v. Belgium judgment of 12 October 1992, Series A no. 235-D, p. 82,

para. 36).

The Commission considers that the case, in which there were three

co-accused, concerned one count of aggravated theft. The Court heard

evidence from nine witnesses and pronounced judgment after four

hearings. The case cannot therefore be considered complex.

As regards the applicant's conduct, there is no indication that

he contributed to the prolongation of the proceedings.

In respect of the conduct of the authorities, the Commission

acknowledges that there was a long period of inactivity between

28 December 1993, the date on which the indictment was lodged with the

Gryfice District Court, and 28 February 1995, when the first hearing

was held. However, once the hearings started, they were held at

regular intervals, and the overall length of the proceedings was not

significant. The Commission therefore does not find sufficient grounds

for a finding that the proceedings on the whole exceeded a "reasonable

time" within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.

It follows that this complaint is manifestly ill-founded within

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

3. The applicant further complains under Article 6 para. 3 (d)

(Art. 6-3-d) of the Convention that the proceedings were unfair in that

in the course of the investigations the Public Prosecutor refused leave

for him to be confronted with witness R.Z.

Article 6 para. 3 (d) (Art. 6-3-d) of the Convention reads:

"3. Everyone charged with a criminal offence has the following

minimum rights: ...

d. to examine or have examined witnesses against him and

to obtain the attendance and examination of witnesses on his

behalf under the same conditions as witnesses against him;..."

As the requirements of para. 3 of Article 6 (Art. 6-3) are to be

seen as particular aspects of the right to a fair trial guaranteed by

para. 1 of that Article, the Commission will examine the complaint

under both paragraphs taken together (cf., e.g., Eur. Court HR, F.C.B.

v. Italy judgment of 28 August 1991, Series A no. 208-B, p. 20, para.

29).

The Commission considers that in the present case the Public

Prosecutor refused leave to confront the applicant with the witness

R.Z. in the course of the investigations. This witness was later heard

by the court at the hearing on 25 April 1995. There is no indication

that the applicant did not have an opportunity to put questions to

R.Z. on this occasion or that the Public Prosecutor's refusal rendered

the proceedings unfair as a whole.

It follows that this complaint is manifestly ill-founded within

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

4. The applicant submits that his letter to the Commission of

12 April 1994 was intercepted by the Gryfice District Court and

included in the case-file.

The Commission has examined this complaint under Articles 8 and 25

(Art. 8, 25) of the Convention.

Article 8 (Art. 8) of the Convention, insofar as relevant, reads:

"1.Everyone has the right to respect for his private and family

life, his home and his correspondence.

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

Article 25 (Art. 25) of the Convention in its relevant part reads:

"1. The Commission may receive petitions addressed to the

Secretary General of the Council of Europe from any person, non-

governmental organisation or group of individuals claiming to be

the victim of a violation by one of the High Contracting Parties

of the rights set forth in this Convention ... Those of the High

Contracting Parties who have made such a declaration undertake

not to hinder in any way the effective exercise of this right."

a) Under Article 26 (Art. 26) of the Convention, the Commission may

only deal with a matter after all domestic remedies have been

exhausted.

As regards the complaint under Article 8 (Art. 8) of the

Convention, the Government first submit that the applicant had at his

disposal an administrative hierarchical complaint, provided for by

Section 3 of the Minister of Justice's Ordinance on Rules of Procedure

of the Courts of 1991. It states that the presidents of the courts

shall deal with complaints concerning the administrative aspects of

judicial proceedings. Consequently, the president of the Szczecin

Regional Court was competent to examine the applicant's complaint

against the manner in which the District Court had interfered with his

correspondence. Such a complaint may be regarded as an effective

remedy within the meaning of Article 13 (Art. 13) of the Convention,

as the president of the regional court can supervise the non-judicial

decisions of the lower court. The Government conclude that the

applicant cannot be regarded as having exhausted available domestic

remedies in respect of his complaints under Articles 8 and 25

(Art. 8, 25) of the Convention.

The Commission first recalls that the general rules of

admissibility, including the provisions concerning the exhaustion of

domestic remedies, are not applicable with regard to the complaints

which raise a question under Article 25 para. 1 (Art. 25-1) of the

Convention (3591/68, Dec. 5.2.70, CD 12, p. 45).

The Commission further recalls the Convention organs' case-law,

according to which a hierarchical appeal which does not give the person

making it a personal right to the exercise by the State of its

supervisory powers cannot be regarded as an effective remedy for the

purposes of Article 26 (Art. 26) of the Convention (No. 7464/76, Dec.

5.12.78., D.R. 14, p. 51). The Commission has examined the nature of

a hierarchical appeal under Polish law. It notes that, according to

the relevant provisions of the Polish Code of Administrative Procedure,

a hierarchical appeal constitutes a complaint to a superior authority

for the purpose of criticising any shortcomings in the administrative

proceedings, either of a procedural nature or related to the merits of

the case. These provisions also apply to the administrative aspects

of the procedure before the courts.

Such a complaint is in fact information submitted to the

supervisory organ with the request to make use of its powers if it sees

fit to do so. If proceedings are taken upon this request, they take

place exclusively between the supervisory organ and the official

concerned, and the applicant will not be a party to these proceedings.

Under the Code of Administrative Procedure the applicant is only

entitled to obtain information about the way in which the supervisory

organ has dealt with his hierarchical appeal. As a result,

a hierarchical appeal does not give the person employing it a right to

the exercise by the State of its supervisory powers, and such an appeal

does not constitute an effective remedy within the meaning of

Article 26 (Art. 26) of the Convention.

The Commission finds that it has not been established that the

applicant had any effective remedy at his disposal which would have

enabled him to submit his complaint under Articles 8 (Art. 8) of the

Convention about the interference with his correspondence with the

Commission to the domestic authorities.

Accordingly, this part of the application cannot be declared

inadmissible for non-exhaustion of domestic remedies.

b) As regards the substance of the complaint, the Government submit

that by letter of 11 May 1994 the applicant was informed that his

letter had temporarily been included in the case-file. They further

state that an inquiry concerning this complaint is being conducted.

The applicant submits that the impugned letter did not contain any

statement to the effect that his letter had been filed "temporarily".

He submits that he was not informed either of any enquiry or of its

results. The District Court had no right to intercept his letter.

Having regard to the parties' submissions, the Commission

considers that the case raises complex issues of law and fact under the

Convention, which require an examination on the merits. The

application cannot, therefore, be declared inadmissible as being

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

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

have been established.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaint under Article 8 of the Convention that the

court intercepted and filed in the case-file his letter to the

Commission;

DECLARES INADMISSIBLE the remainder of the application;

DECIDES TO PURSUE the examination of whether the applicant's right

under Article 25 of the Convention was interfered with.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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OWCZARZAK v. POLAND

OWCZARZAK v. POLAND

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