FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 14348/02 by Grzegorz GARYCKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 19 May 2005 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr G. Bonello , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , Mr J. Borrego Borrego , judges , and Mr M. O ' Boyle , Section Registrar ,

Having regard to the above application lodged on 10 October 2001 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Grzegorz Garycki , is a Polish national who was born in 1976 and lives in Sosnowiec .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1 . The applicant ' s pre-trial detention

The applicant was arrested by the police on 17 January 2000 . On the following day the Katowice District Court ( Sąd Rejonowy ) ordered that the applicant be detained on remand in view of the reasonable suspicion that he had committed a burglary. The court found that there was a reasonable risk that the applicant would obstruct the proper conduct of the proceedings, having regard to the severity of the anticipated penalty. The detention order was subsequently extended by the Katowice Regional Court ( Sąd Okręgowy ) on unspecified dates.

On 15 September 2000 the applicant was indicted on charges of aggravated burglary (2 counts) and burglary (21 counts). There were 11 co-accused in the case, including the applicant. Five of those co-accused were also remanded in custody. The prosecution asked the court to hear evidence from 34 witnesses. The case-file comprised at that time some 32 volumes.

On an unspecified later date the Regional Court ordered that the case be joined with that of a certain M.K.

On 15 January 2001 the Katowice Regional Court prolonged the applicant ' s detention until 15 May 2001 . In addition to the grounds originally given for his detention, it observed that the evidence obtained so far indicated that there was a strong likelihood that the crimes in question had been committed by the applicant, having regard in particular to evidence from two of the appl icant ' s co- accussed .

On 14 May 2001 the Regional Court ordered that the applicant be held in custody until 15 October 2001 , relying on the same grounds as previously. In addition, it observed that so far the trial court had not commenced an examination of the merits due to reasons that were beyond the court ' s control, such as the failure of some of the co-accused or their lawyers to appear before the court or the police ' s failure to bring the detained co-accused for trial from prison. The Regional Court noted that the continued detention of the applicant and some of his co-accused was necessary in order to secure the proper conduct of the proceedings in the case with such voluminous evidence to be examined at trial. That decision was upheld on appeal on 13 June 2001 .

On 8 October 2001 the Regional Court prolonged the applicant ' s detention until 17 January 2002 . It reiterated the grounds given in its previous decisions. It also noted that all of the 8 hearings scheduled to date had had to be cancelled for various reasons such as: the illness of the tr i al judge or one of the co-accused, the unwarranted ab sence of some of the co-accused, the absence of the legal aid lawyer of one of the co-accused , the fact that one of the lawyers ha d left the court when the bill of indictment was being read out and the failure of the police to bring the detained co-accused for trial from prison. That decision was upheld by the Court of Appeal ( SÄ…d Apelacyjny ) on 30 October 2001 . The Court of Appeal stated in the relevant part of the reasons for its decision that:

“The appeal is not well-founded. Firstly, it should be state d that, contrary to the accused ' claims, they committed the offences with which they are charged. The evidence proving this consists not only of the allegations made by P.S., but also by R.S. who in the official record of the hearing of 16 December 1999 ( ... ) described the persons with whom he had committed burglaries of warehouses in Olkusz and Lubliniec , but later , on 26 February 2000, stated that what he had said was not true ; the [trial] court will assess which of th ese accounts is credible ”

On 22 November 2001 the trial started . However, the Regional Court was only able to hear two of the co-accused. Four subsequent hearings had to be cancelled for various reasons: the police ' s failure to bring the detained co-accused from prison (18 October and 8 November 2001 ), the absence of one of the legal aid lawyers ( 29 November 2001 ) and the illness of one of the defence lawyers ( 20 December 2001 ).

On 28 December 2001 the Regional Court made an application under Article 263 § 4 of the Code of Criminal Procedure to the Katowice Court of Appeal, requesting that the applicant ' s detention be prolonged until 15 June 2002 . It emphasised that the grounds originally given for his detention were still valid and that the court was not able to proceed with hearing evidence due to reasons that could not be attributed to the court. It noted that out of 13 hearings scheduled to date 12 had had to be cancelled. In addition to the reasons specified in the decision of 8 October 2001 , th e reasons were the illness of one of the defence lawyers and the police ' s failure to bring the detained co-accused from prison (on two occasions). It also observed that the continued detention of the applicant was necessary in order to secure the proper conduct of the trial and that no other measures would prevent the applicant and his co-accused from obstructing the proceedings or going into hiding.

On 9 January 2002 the Court of Appeal granted the Regional Court ' s application. The applicant appealed against that decision. On 20 February 2002 the Court of Appeal, sitting in a different panel of three judges, upheld the contested decision.

On an unspecified date the applicant requested the trial court to lift his detention on the ground that it entailed a difficult financial situation for his wife and a child. On 11 March 2002 the Regional Court refused that request. His repeated request to that effect was refused on 10 June 2002 .

On 20 May 2002 the Regional Court made another application to the Katowice Court of Appeal, requesting extension of the applicant ' s detention until 1 October 2002 . I t stressed that , despite some progress in the trial (all the co-accused and 23 out of 34 witnesses called by the prosecution had been heard) , there were still prosecution witnesses (11) and witnesses called by the co-accused (20) to be heard. On 29 May 2002 the Court of Appeal granted that application.

The trial court held hearings on the following dates: 31 January, 15 and 21 March, 11 and 25 April, 16 May 2002 , 3 and 27 June, 31 July, 29 August and 12 September 2002 . Four hearings were cancelled for the following reasons: the absence of some of the co- accused and defence lawyers ( 24 January 2002 ); the trial judge ' s illness ( 22 February 2002 ); the failure to appear by one of the co-accused ( 26 September 2002 ) and the failure to appear by one of the defence lawyers ( 17 October 2002 ).

On 16 September 2002 the trial court made yet another application to the Court of Appeal for extension of the applicant ' s detention until 4 November 2002 . It referred to the necessity to hear witnesses called by the co-accused and to obtain an expert report as to state of mental health of one of the co-accused. On 25 September 2002 the Court of Appeal granted that application. Another similar application of the trial court of 18 October 2002 was granted by the Court of Appeal on 30 October. The applicant ' s detention was prolonged until 20 December 2002 .

On 3 December 2002 the Regional Court held the last hearing and closed the trial. On 10 December 2002 it gave judgment. The applicant was not brought from prison for the delivery of the judgment. His legal aid lawyer, although being properly summoned, failed to appear before the court without providing any explanations. The applicant was convicted of 2 counts of aggravated burglary and 14 counts of burglary and sentenced to 9 years ' imprisonment. On the same day the Regional Court prolonged the applicant ' s detention until 20 March 2003 .

On 22 December 2002 the applicant sent a letter to the Regional Court inquiring about the prolongation of his detention beyond 20 December 2002 . On 31 December 2002 he was served with the Regional Court ' s decision of 10 December 2002 extending his detention until 20 March 2003 .

It appears that the applicant ' s legal aid lawyer filed a notice of appeal within the prescribed time-limit of 7 days from the delivery of the first-instance judgment and subsequently filed an appeal against that judgment. On 23 October 2003 the Court of Appeal upheld the judgment of the Regional Court in respect of the applicant.

The applicant has not specified whether he lodged a cassation appeal with the Supreme Court ( Sąd Najwyższy ).

2 . Censorship of correspondence

On 21 October 2002 the Court ' s Registry sent a letter to the applicant acknowledging the receipt of his letter of 15 September 2002 . That letter was delivered to the applicant after having been controlled by the authorities. The Court ' s envelope bears two stamps that read “ Katowice Detention Centre. Received 25 October 2002 ” and “ Katowice Detention Centre. Received 4 November 2002 ” ( Aresz t Śledczy w Katowicach . wpł . 25 PAŹ 2002 and wpł . 4 LIS. 2002 ) and a hand-written note “return after censorship” ( zwrot po cenzurze ).

B. Relevant domestic law and practice

1. Preventive measures, including detention on remand

The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998 , defines detention on remand as one of the so-called “preventive measures” ( środki zapobiegawcze ). The other measures are bail ( poręczenie majątkowe ), police supervision ( dozór policji ), guarantee by a responsible person ( poręczenie osoby godnej zaufania ), guarantee by a social entity ( poręczenie społeczne ), temporary ban on engaging in a given activity ( zawieszenie oskarżonego w określonej działalności ) and prohibition to leave the country ( zakaz opuszczania kraju ).

Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads:

“1. Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused ' s committing another, serious offence; they may be imposed only if the evidence gathered shows a significant probability that an accused has committed an offence.”

Article 249 § 5 of the 1997 Code, in the version applicable at the relevant time, provides:

“The court shall inform the detainee ' s lawyer of the time of a court session at which a decision is to be taken on the prolongation of detention on remand or at which an appeal against a decision imposing or prolonging detention on remand is to be examined.”

Article 258 lists grounds for detention on remand. It provides, in so far as relevant:

“1. Detention on remand may be imposed if:

(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland ];

(2) there is a reasonable risk that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means;

2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years ' imprisonment, or if a court of first instance has sentenced him to at least 3 years ' imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.”

The Code sets out the margin of discretion as to the continuation of a specific preventive measure. Article 257 reads, in so far as relevant:

“1. Detention on remand shall not be imposed if another preventive measure is sufficient.”

Article 259, in its relevant part, reads:

“1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would:

(1) seriously jeopardise his life or health; or

(2) entail excessively harsh consequences for the accused or his family.”

The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue.

Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided:

“1. Imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months.

2. If, due to the particular circumstances of the case, an investigation cannot be terminated within the term referred to in paragraph 1, the court of first instance competent to deal with the case may – if need be and on the application made by the [relevant] prosecutor – prolong detention for a period [or periods] which as a whole may not exceed 12 months.

3. The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed 2 years.

4. Only the Supreme Court may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, a prolonged psychiatric observation of the accused, a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad, when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.”

On 20 July 2000 paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs 2 and 3 has been vested with the court of appeal within whose jurisdiction the offence in question has been committed. In addition, new paragraph 5 was added. It provides:

“A decision of the Court of Appeal taken pursuant to paragraph 4 may be appealed against to the Court of Appeal sitting in a panel of three judges.”

2. Censorship of correspondence

Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in the Code of Execution of Criminal Sentences ( Kodeks karny wykonawczy ) of 1 September 1998 .

Article 103 of that Code, which is contained in Chapter IV entitled “Rights and duties of convicted persons”, provides as follows:

“Convicted persons, their counsel, representatives and the relevant non-governmental organisations have a right to lodge complaints with institutions set up by international treaties ratified by the Republic of Poland concerning the protection of human rights. In those cases, correspondence of persons deprived of their liberty shall be sent to the addressee without delay and shall not be censored.”

Provisions relating to the execution of detention on remand (Articles 207-223) are contained in Chapter XV entitled “Detention on remand”.

Article 217 § 1 reads, in so far as relevant:

“... a detainee ' s correspondence shall be censored by [the authority at whose disposal he remains], unless the authority decides otherwise.”

Pursuant to Article 214 § 1:

“Unless exceptions are provided for in the present Chapter, a detainee shall enjoy at least the same rights as are secured to a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison. No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings, to maintain order and security in a remand centre and to prevent demoralisation of detainees.”

Article 242 § 5, which is contained in Chapter XXI entitled “Definitions”, provides:

“The prohibition of censorship shall also mean the prohibition of acquainting oneself with the contents of a letter.”

COMPLAINTS

1. The applicant complains under Article 5 § 3 of the Convention about the excessive length of his detention.

2. He also complains under Articles 6 § 1 and 6 § 2 that the Court of Appeal in its decision of 30 October 2001, given following the applicant ' s appeal against the decision of the Regional Court of 8 October 2001 on prolongation of his detention, expressed the opinion that the applicant had committed the offences with which he had been charged.

3. The applicant further complains under Article 13 of the Convention that in respect of the Court of Appeal ' s decision of 9 January 2002 , prolonging his detention on an application from the trial court, he could only appeal against that decision to the same Court of Appeal.

4. The applicant complains that he was not brought to the court for the hearing on 10 December 2002 when the trial court delivered the judgment against him. He does not rely on any provision of the Convention.

5. He also complains that between 20 December 2002 and 31 December 2002 he was detained without being served with any court decision authorising the deprivation of his liberty beyond the former date. He does not invoke any provision of the Convention in that respect.

6. Lastly, the applicant complains that the Court ' s letter of 21 October 2002 addressed to him was censored by the authorities. He does not invoke any provision of the Convention in that respect.

THE LAW

1. The applicant complains under Article 5 § 3 of the Convention about the length of his pre-trial detention.

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary to give notice of this part of the application to the respondent Government.

2. He also complains, invoking Articles 6 § 1 and 6 § 2 of the Convention, that the grounds for the C ourt of Appeal ' s decision of 30 October 2001 contained a suggestion that he had committed the offences in question.

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary to give notice of this part of the application to the respondent Government.

3. The applicant further complains under Article 13 of the Convention that in respect of the Court of Appeal ' s decision of 9 January 2002 he could only appeal against that decision to the same Court of Appeal.

The Court considers that this complaint should be examined under Article 5 § 4 of the Convention which according to the Court ' s established case-law constitutes a lex specialis in relation to the more general requirements of Article 13. Article 5 § 4 of the Convention reads:

“4. 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 Court recalls that by virtue of Article 5 § 4, an arrested or detained person is entitled to bring proceedings for the review by a court of the procedural and substantive conditions, which are essential for the “lawfulness”, in the sense of Article 5 § 1, of his or her deprivation of liberty (see Brogan and Others v. the United Kingdom , judgment of 29 November 1988, Series A no. 154-B, p. 34, § 65). Although it is not always necessary that the procedure under Article 5 § 4 be attended by the same guarantees as those required under Article 6 § 1 of the Convention for criminal or civil litigation (see Megyeri v. Germany , judgment of 12 May 1992, Series A no. 237-A, p. 11, § 22), it must have a judicial character and provide guarantees appropriate to the kind of deprivation of liberty in question. In the case of a person whose detention falls within the ambit of Article 5 § 1 (c), a hearing is required (see Schiesser v. Switzerland , judgment of 4 December 1979, Series A no. 34, p. 13, §§ 30–31; and Kampanis v . Greece, judgment of 13 July 1995, Series A no. 318-B, p 45, § 47). In particular, in the proceedings in which an appeal against detention order is being examined, “equality of arms” between the parties, the prosecutor and the detained person, must be ensured ( Włoch v. Poland , no. 27785/95, §§ 129-135, ECHR 2000-XI).

The Court notes that Article 249 § 5 of the Code of Criminal Procedure in the version applicable at the relevant time, required the courts deciding on the prolongation of pre-trial detention to inform the detainee ' s lawyer of the time of a court session at which such a decision was to be taken, or at which an appeal against a decision to impose or to prolong detention on remand was to be considered.

In respect of the applicant ' s complaint under Article 5 § 4 of the Convention, the Court observes that his continued detention was prolonged by the Court of Appeal ' s decision of 9 January 2002 . The applicant ' s appeal against that decision, filed pursuant to Article 263 § 5 of the Code of Criminal Procedure with the same Court of Appeal, was however dismissed by that court, albeit sitting in a differe nt panel of three judges, on 20 February 2000. The Court notes that the applicant ' s complaint under Article 5 § 4 is limited to the contention that in the proceedings in which the lawfulness of his continued detention was examined, he could only appeal against the Court of Appeal ' s decision of 9 January to the same court.

However, the Court considers that the applicant has failed to advance any arguments or evidence that would establish that the impugned proceedings concerning review of the lawfulness of his continued detention fell short of the requirements of Article 5 § 4 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4. The applicant complains, without invoking any provision of the Convention, that he was not brought to the Regional Court on 10 December 2002 for the delivery of the judgment against him. The Court considers that this complaint falls to be examined under A rticle 6 § 1 of the Convention. That provision reads, in so far as relevant:

“In the determination ... of any criminal charge against him, everyone is entitled to a fair hearing by ... [a] tribunal ... . “

The Court notes that the applicant has failed to specify whether he lodged a cassation appeal with the Supreme Court against the judgment of the Katowice Court of Appeal. Even assuming that he has done so, the Court finds no indication that the fairness of the proceedings, throughout which he was represented by a legal aid lawyer, was affected by the fact that he had not been brought from prison for the delivery of the first-instance judgment which was subsequently upheld on appeal . Nor there is any other appearance of unfairness or arbitrariness which would infringe the guarantees of a fair hearing within the meaning of Article 6 § 1 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

5. The applicant also complains , without relying on any provision of the Convention, that he was unlawfully deprived of his liberty between 20 December 2002 and 31 December 2002 because he was not served with any court order authorising his detention in that period. The Court considers that this complaint falls to be examined under Article 5 § 1 (a) of the Convention which provides:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;”

The Court notes that on 10 December 2002 the Katowice Regional Court convicted the applicant of burglary and aggravated burglary and sentenced him to 9 years ' imprisonment. Accordingly, the applicant ' s detention in the period following the delivery of the first-instance judgment fell under Article 5 § 1 (a) of the Convention which authorises deprivation of liberty “after conviction by a competent court” (see, Wemhoff v. Germany judgment of 27 June 1968 , Series A no. 7, pp. 21-22, § 9.). The Court considers that the lawfulness of the applicant ' s de tention in the period complained of cannot be called into question on the grounds of the delay in the service of the court order authori si ng his deten tion pending appeal.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

6. Lastly, the applicant complains that the Court ' s letter of 21 October 2002 addressed to him was censored by the authorities. He does not invoke any provision of the Convention in that respect. The Court considers that this complaint falls to be examined under Article 8 of the Convention.

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examinati on of the applicant ' s complaint s under Article 5 § 3 concerning the length of his pre-trial detention; under Article 6 § 2 concerning a breach of the principle of the presumption of innocence and under Article 8 concerning a violation of the right to respect for his correspondence;

Declares the remainder of the application inadmissible.

Michael O ' Boyle Nicolas Bratza Registrar President