Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31488/96

by Stefan CIEPLUCH

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 6 May 1996 by

Stefan CIEPLUCH against Poland and registered on 15 May 1996 under file

No. 31488/96;

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 20 May

1997 and the observations in reply submitted by the applicant on

24 July 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Polish citizen born in 1959, is a policeman

residing in Zlotowo, Poland. In the proceedings before the Commission

he is represented by Mr Marian Urbanski, a lawyer practising in

Chodziez, Poland.

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

summarised as follows:

A. Particular circumstances of the case

On 6 August 1994 the applicant shot a woman causing her death.

On 7 August 1994 the Zlotowo District Prosecutor (Prokurator

Rejonowy) charged the applicant with homicide and detained him on

remand in view of the reasonable suspicion that he had committed the

offence with which he was charged and its serious nature.

On 24 October 1994, upon the request of the Zlotowo District

Prosecutor, the Poznan Regional Court (Sad Wojewódzki) prolonged the

applicant's detention until 31 December 1994 on the grounds that the

investigations had not yet been concluded as it was necessary to obtain

a report from psychiatric experts and that there was a reasonable

suspicion that he had committed a serious crime.

On an unspecified date the investigating prosecutor ordered that

evidence be taken from psychiatric experts in order to establish

whether tempore criminis the applicant had acted in a state of

diminished responsibility. As a consequence, from 10 November 1994 to

17 January 1995, the applicant was placed under psychiatric

observation.

On 19 December 1994, on the request of the Zlotowo District

Prosecutor, the Poznan Regional Court prolonged the applicant's

detention on remand until 13 February 1995.

On 13 February 1995, upon the subsequent request by the Zlotowo

District Prosecutor, the Poznan Regional Court prolonged the

applicant's detention until 31 March 1995 in view of the continuing

suspicion that he had committed homicide, the seriousness of the

offence in question, and the fact that the investigations had not been

terminated as the psychiatric report was not ready.

On 17 March 1995 the applicant's lawyer applied to the Zlotowo

District Prosecutor for the applicant to be released. He submitted,

inter alia, that as the investigations had come to an end and as the

applicant's detention entailed excessively burdensome effects for his

client and his family, the detention should not be maintained further.

On 20 March 1995 the prosecutor dismissed this request on the

grounds that the fact that the investigations had come to an end was

not a sufficient reason to release the applicant in the light of the

seriousness of the crime committed, and that no particular

circumstances argued for his release.

On 29 March 1995 the Zlotowo District Prosecutor lodged a bill

of indictment with the Poznan Regional Court. The applicant was

indicted of homicide committed in a state of diminished responsibility.

On 7 September 1995 the trial commenced. During the first

hearing the court heard evidence from the applicant and ten witnesses,

out of eighteen called by the prosecution. D.A., the only eye-witness

to the shooting, appeared late before the court, i.e. when the hearing

had already been proceeding for two or three hours. The applicant

requested the court to hear evidence from the eye-witness, however, it

declined to do so, assuming that examining her might take several

hours. The next hearings were held on 15 November and 27 December 1995

and the court heard evidence from the other witnesses, a forensic

medicine expert and a ballistics expert. D.A. failed to appear before

the court on both occasions.

On 4 January 1996 the applicant's lawyer applied to the court to

quash or alter the preventive measure imposed on the applicant (see

below, "Relevant domestic law"). He argued that there were strong

indications that the applicant had acted unintentionally and proposed

release on bail or police supervision as adequate and sufficient

measures.

On 22 January 1996 the Poznan Regional Court dismissed this

request on the ground of the continuing suspicion that the applicant

had committed homicide and found that the lawyer's submissions on the

assessment of evidence were premature and ill-founded. Upon the

lawyer's appeal, the decision was upheld by the Poznan Court of Appeal

(S*d Apelacyjny) on 7 March 1996 in view of the continuing suspicion

that the applicant had committed a serious crime, the need to ensure

the due course of the proceedings and the likelihood of a severe

penalty.

On 21 March 1996 the subsequent hearing was adjourned. On this

date, the witnesses' testimony was completed, though the court decided

to order a fresh psychiatric report. In the course of the hearing the

applicant requested the court to release him. This application was

dismissed on the same day in view of the seriousness of the offence in

question and as no particular circumstances militated in favour of the

applicant's release. Upon the lawyer's appeal, which also referred to

the length of the proceedings, the original decision was upheld by the

Poznan Court of Appeal on 25 April 1996 on the grounds that there was

a continuing suspicion that the applicant had committed a serious

crime, that the fresh psychiatric report had been ordered and that a

severe penalty was likely to be imposed. The court also found that as

the court of first instance had a total discretion to call additional

evidence, this fact did not raise a question of unreasonable delay of

proceedings which might justify the applicant's release.

From 24 June to 23 August 1996 the applicant was placed under

psychiatric observation. The experts submitted their report to the

court on 23 August 1996. On 3 September 1996 the court scheduled a

hearing for 28 October 1996.

On 11 October 1996 the applicant's lawyer lodged a motion with

the Poznan Regional Court submitting that the applicant, after having

been acquainted with the content of the psychiatric experts' report,

had no wish to put further questions to the experts and that he neither

challenged the experts' conclusions nor wished to take oral evidence

from them.

On 28 October 1996 the court adjourned a hearing since the

experts had failed to appear. Before the adjournment the applicant

requested the court to release him and to continue his trial in the

experts' absence since the parties had not challenged their report and,

therefore, there was no need to take oral evidence from the experts.

The court dismissed both requests and scheduled the next hearing for

18 December 1996.

On 15 November 1996 the Poznan Court of Appeal dismissed the

applicant's appeal against the decision of 28 October 1996 and found

that his continuing detention was justified by the reasonable suspicion

that he had committed the offence in question, the likelihood of a

severe penalty and the need to ensure the due course of the

proceedings.

On 18 December 1996 the court adjourned a hearing as the experts

had again failed to appear. Before the adjournment the applicant's

lawyer unsuccessfully requested the court to release the applicant.

The applicant asked the court to continue his trial, submitting that

there was no need to take oral evidence from the experts as the

psychiatric reports submitted in the course of the trial were

consonant. The prosecutor stated that he did not wish to put any

questions to the experts.

On 31 December 1996 the Poznan Regional Court ex officio altered

the preventive measure imposed on the applicant since, under Section

10a of the Interim Law of 29 June 1995, the applicant's detention could

be maintained only until 1 January 1997. Accordingly, the court

released him under police supervision, finding that there were no

grounds justifying his further detention under Section 222 para. 4 of

the Code of Criminal Procedure.

On 15 January 1997 the Poznan Regional Court, after having heard

evidence from experts, convicted the applicant of unintentional killing

and sentenced him to five years' imprisonment. On the same day, the

applicant's lawyer requested the court to amend the trial records.

Subsequently, on an unspecified date, both parties filed a notice

of appeal. On 21 April 1997 the applicant lodged his appeal with the

Poznan Regional Court.

On 20 June 1997 the Poznan Regional Court examined the

applicant's lawyer's request of 15 January 1997 and amended the records

of the trial.

Subsequently, on an unspecified date, the Poznan Court of Appeal

scheduled an appellate hearing for 18 September 1997.

On 18 September 1997 the Poznan Court of Appeal upheld the

judgment of the court of first instance.

On 25 September 1997 the applicant filed a notice of a cassation

appeal. The proceedings are pending.

B. Relevant domestic law and practice

1. 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 210 para. 1 of the Code of Criminal Procedure stated (in

the version applicable at the material time):

"Preventive measures shall be imposed by the court; before a bill

of indictment has been lodged with the competent court, the

measures shall be imposed by the prosecutor (...)"

Section 209 of the Code of Criminal Procedure stated:

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

course of proceedings if the evidence against the accused

sufficiently justifies the opinion that he has committed a

criminal offence."

The Code of Criminal Procedure sets out the margin of discretion

as to maintaining the specific preventive measure. Detention on remand

is regarded as the most extreme 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 para. 1 of the Code of Criminal Procedure provides:

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

be immediately quashed or altered, if the basis therefor has

ceased to exist or new circumstances have arisen which justify

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

one."

Section 225 of the Code of Criminal Procedure provides:

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

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

or both of these measures, are considered adequate."

The relevant provisions of the Code which provided for "mandatory

detention" were repealed by virtue of a new Law of 29 June 1995 on

Amendments to the Code of Criminal Procedure and Other Criminal

Statutes.

2. Statutory time-limits for detention on remand

The Law of 29 June 1995 entered into force on 4 August 1996 and

until this date the national law did not set out any time-limits

concerning detention on remand. Since then, according to Section 222

of the Code of Criminal Procedure (as amended), the whole period of

detention on remand until the date on which the court of first instance

gives judgment may not exceed one year and six months (in cases

concerning offences) or two years (in cases concerning serious

offences).

However, under Section 1 of the Interim Law of 1 December 1995,

if detention on remand exceeded the above-mentioned time-limits before

4 August 1996, it could be maintained until 1 January 1997. After this

date, under Section 10a of the Interim Law, the relevant court had to

quash the detention order. In exceptional cases (in particular when

an accused had obstructed the due course of the trial) the court could,

under Section 222 para. 4 of the Code of Criminal Procedure, request

the Supreme Court to prolong the detention for such further period as

was required.

3. Domestic remedies against the length of detention

At the material time the Polish Code of Criminal Procedure

provided for three different proceedings enabling a detainee to

challenge the lawfulness of his detention and thus possibly obtain a

release. Under Section 212 para. 2 of the Code he could appeal to a

court competent to deal with his case 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 a court to have a preventive

measure quashed or altered.

4. Trial within a reasonable time

The Code of Criminal Procedure addresses the issue of how

criminal proceedings should progress at the investigative stage and

before the court of first instance.

Section 263 of the Code of Criminal Procedure provides that the

investigations should be terminated within three months from the day

of their institution. Where justified, the period of the

investigations may be prolonged by a higher prosecutor for a further

fixed term.

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

"2. The presiding judge should endeavour, as far as possible,

to resolve a case at the first hearing of a trial held."

COMPLAINTS

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

that the length of his detention on remand exceeded a reasonable time,

and that it was unjustifiably prolonged.

2. The applicant complains under Article 6 para. 1 of the Convention

about the unreasonable length of the proceedings in his case.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 6 May 1996 and registered on

15 May 1996.

On 17 January 1997 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on 20 May

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

purpose. The applicant replied on 24 July 1997.

On 28 May 1997 the Commission granted the applicant legal aid.

THE LAW

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

Convention that the length of his detention on remand exceeded a

reasonable time, and that it was unjustifiably prolonged.

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

"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."

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

only deal with the matter after all domestic remedies have been

exhausted, according to the generally recognised rules of international

law."

The Government submit that the applicant has not complied with

the requirements of Article 26 (Art. 26) of the Convention since he has

not exhausted all the remedies available to him under Polish law.

Firstly, the applicant failed to appeal against the detention order

made by the Zlotowo District Prosecutor on 7 August 1994. Secondly,

he did not appeal against the subsequent decisions of the Poznan

Regional Court given on 24 October and 19 December 1994, and 13

February 1995 concerning the prolongation of his detention on remand.

As a consequence, the applicant did not avail himself of remedies which

were adequate and effective and which, in case of an affirmative

decision, would have resulted in his release.

The applicant replies that it is true that he did not appeal

against the above-mentioned decisions. However, in the light of the

domestic practice, such appeals by him would offer poor prospects of

success, especially at an early stage of the proceedings. At this

stage, the purpose of which was to collect the evidence justifying the

charge laid against him, it was unlikely that the authorities would

release him, given that they subsequently refused to do so even though

all relevant evidence had already been heard. On the other hand, any

appeal by him would inevitably have resulted in the prolongation of the

investigations, and so his detention would have continued. Having

regard to the fact that the Poznan Court of Appeal ruled on his further

appeals (of, inter alia, 6 February and 21 March 1996) as late as one

month after they had been lodged, such a conclusion is justified.

The applicant contends that there is no failure on his part as

regards the exhaustion of domestic remedies since, from 17 March 1995

to 18 December 1996, he lodged numerous requests for release and

appeals against constant refusals to release him, arguing that his

detention exceeded a reasonable time.

The Commission recalls that under Article 26 (Art. 26) of the

Convention an applicant must make normal use of those domestic remedies

which are likely to be effective and sufficient. When a remedy has

been attempted, use of another remedy which has essentially the same

objective is not required (No. 11471/85, Dec. 19.1.89, D.R. 59, p. 67).

It further recalls that the rule concerning exhaustion of domestic

remedies does not require that an appeal be introduced which would have

no chance of success (see No. 13251/87, Dec. 6.3.91, D.R. 68, p. 138;

No. 13134/87, Dec. 13.12.90, D.R. 67 p. 216).

The Commission notes that the applicant failed to appeal against

the decisions referred to by the Government. However, from 17 March

1995 to 18 December 1996 he lodged five unsuccessful requests with the

Zlotowo District Prosecutor and the Poznan Regional Court for his

release. Subsequently, he filed the appeals against the consistent

refusals to release him. Under Polish law such requests and appeals

secure a judicial review of the lawfulness of detention on remand and

their purpose is to obtain release. Therefore, they constitute an

adequate and effective remedy against the length of detention. Since

the remedies relied on by the Government would have the same objective,

in the Commission's opinion the applicant should not be required to

avail himself of such other domestic remedies.

It follows that this complaint cannot be rejected for non-

exhaustion of domestic remedies.

b) The Government contend that in any event this part of the

application is manifestly ill-founded. Thus, the applicant's detention

on remand lasted only from 7 August 1994 to 31 December 1996, i.e. for

two years, four months and twenty-four days. The charge laid against

him was of a serious nature as it concerned homicide. In the course of

the investigations the applicant was placed under psychiatric

observation from 10 November 1994 to 17 January 1995 since doubts had

arisen as to his criminal responsibility. It is true that the

authorities concerned repeatedly refused to release the applicant.

However, these refusals were justified by the need to ensure the due

course of the proceedings and the likelihood of a severe penalty being

imposed on him as a consequence of the serious nature of the crime in

question.

The Government also note that the applicant's detention during

his trial proved to be reasonable since he had to undergo a further

psychiatric observation. On 21 March 1996, during the hearing, the

psychiatrists altered their opinion as to whether the applicant had

acted in a state of diminished responsibility. This resulted in his

again being placed under psychiatric observation from 24 June to

23 August 1996. The courts were obliged to establish the facts

relevant to the applicant's criminal responsibility. As a result, it

cannot be said that they failed to act with due diligence.

The applicant replies that his detention, in particular after

29 March 1995, i.e. the date on which the bill of indictment was lodged

with the Poznan Regional Court, was neither justified nor necessary.

In any event, during the hearings held on 7 September, 15 November and

27 December 1995 the trial court heard almost all the evidence from the

witnesses, including himself. Thus, after this date, what remained to

be examined was the question whether he had committed the offence in

a state of diminished responsibility. In this context, the applicant

stresses that during the first hearing he confessed and pleaded guilty

to unintentional killing. Therefore, it cannot be said that he failed

to cooperate with the authorities. As a consequence, "the need to

ensure the due course of the proceedings" ceased to exist as a ground

justifying his continued detention.

The applicant also stresses that the need to order evidence from

the fresh psychiatric report did not itself justify the prolongation

of his detention. Thus, he repeatedly requested the Poznan Regional

Court to alter the preventive measure imposed on him. The court could

have released him on bail or under police supervision and these

measures were capable of providing a sufficient guarantee that he would

appear for trial.

Moreover, the authorities failed to pursue his case with due

diligence, in particular after 27 December 1995. For instance, from

21 March to 31 December 1996 they were not able to take evidence from

the experts, which resulted in a delay of approximately nine months.

During this time he was still in detention, but the proceedings did not

progress since the psychiatrists repeatedly failed to appear before the

trial court. The applicant concludes that his detention on remand

exceeded a "reasonable time" within the meaning of Article 5 para. 3

(Art. 5-3) of the Convention.

After a preliminary examination of the present complaint in the

light of the parties' submissions, the Commission considers that it

raises complex issues of law and of fact under the Convention, the

determination of which should depend on an examination of the merits.

This complaint 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 of inadmissibility

have been established.

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

Convention about the unreasonable length of the proceedings in his

case.

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

relevant, provides:

"1. In the determination ... of any criminal charge against

him, everyone is entitled to a ... hearing within a reasonable

time by ... [a] ... tribunal established by law. ..."

The respondent Government submit that the length of the criminal

proceedings against the applicant was reasonable. In the first place,

they stress that the case was complex, in particular as in the course

of the proceedings it was necessary to establish whether the applicant

had committed the offence in question in a state of diminished

responsibility. For this reason, evidence from the psychiatric experts

needed to be taken on two occasions. As a consequence, the applicant

was twice placed under psychiatric observation. This gave rise to a

certain prolongation of the proceedings. Such delay, nevertheless, was

justified by the importance of the question of the applicant's criminal

responsibility for the outcome of his case.

Finally, the Government reiterate their submissions concerning

the conduct of the relevant authorities in respect of the applicant's

detention on remand and conclude that under Article 6 para. 1

(Art. 6-1) of the Convention they did not fail to pursue his case with

due diligence.

The applicant replies that the question of his criminal

responsibility did not involve such complicated issues as could in

themselves explain the prolongation of the proceedings. After all,

their length has currently exceeded three years. The manner, however,

in which the Poznan Regional Court conducted his trial was a principal

factor contributing to the overall length of the proceedings.

Thus, on 7 September 1995, the court declined to hear crucial

evidence from D.A., an eye-witness, even though under Section 313 para.

2 of the Code of Criminal Procedure it should have endeavoured to

resolve the case at the first hearing. As a consequence, the evidence

from that witness was heard as late as 21 March 1996.

The applicant further reiterates the other periods in which, in

his view, the Poznan Regional Court contributed very significantly to

the length of the proceedings in his case.

In particular, he refers to the period of almost ten months, i.e.

from 21 March 1996 to 15 January 1997, during which the court held no

hearing and took no steps to ensure the appearance of the psychiatric

experts before it. Also, it took the court a further five months (i.e.

from 15 January to 20 June 1997) to rule on the applicant's lawyer's

request for the records of the trial to be amended. The last of these

delays resulted in the appellate hearing being scheduled as late as for

18 September 1997, although the applicant's appeal was ready for

examination on 21 April 1997.

The applicant concludes that the length of the criminal

proceedings against him has clearly exceeded a "reasonable time" within

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

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.

For these reasons, the Commission,

unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaints under Article 5 para. 3 of the Convention;

by a majority,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaints under Article 6 para. 1 of the Convention.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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CIEPLUCH v. POLAND

CIEPLUCH v. POLAND

LEXI