FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29293/02 by Zbigniew GUZ 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 24 June 2002 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Zbigniew Guz , is a Polish national who was born in 1962 and lives in Subkowy , Poland . He is represented before the Court by Mr Czesław Pastwa , a lawyer practising in Świecie .

A. The circumstances of the case

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

On an unspecified date t he Tczew District Prosecutor ( Prokurator Rejonowy ) issued a search and arrest warrant in respect of the applicant on suspicion of aggravated assault. On 13 November 2000 the applicant was arrested by the police.

Subsequently, the District Prosecutor applied to the Tczew District Court ( SÄ…d Rejonowy ) for the applicant to be detained pending the investigation. On 16 November 2000 the District Court remanded the applicant in custody until 13 February 2001 on suspicion of aggravated assault, handling stolen goods and forgery of a car body. It considered that in the light of the evidence obtained, in particular witnesses ' testimonies, there was a strong likelihood that the applicant had committed the offences with which he had been charged. It also observed that there was a reasonable risk of the applicant going into hiding given that he had been at large since 1995.

It appears that the applicant ' s pre-trial detention was prolonged by the Gdańsk Regional Court ( Sąd Okręgowy ) on 8 February, 12 April and 7 June 2001 .

On 12 July 2001 the Regional Court extended the applicant ' s detention until 13 October 2001 . It considered, having regard in particular to the victim ' s evidence, that there was a strong suspicion that the applicant had committed the offence s in question. It also observed that the applicant ' s continued detention was necessary in order to secure the proper conduct of the proceedings given the gravity of the anticipated sentence. The applicant ' s lawyer appealed against that decision and complained in particular that he had not been notified of the Regional Court ' s session of 12 July 2001 . On 8 August 2001 the Gdańsk Court of Appeal ( Sąd Apelacyjny ) upheld the contested decision. It observed that the applicant ' s detention was necessary given the fact that he had evaded justice for several years. It also noted that the severity of the applicable penalty alone justified the applicant ' s continue d detention. It appears that the applicant ' s detention was subsequently extended on later unspecified dates.

On a number of occasions the applicant unsuccessfully requested the trial court to release him.

On 11 July 2001 the applicant was indicted on charges of attempted homicide, handling stolen goods, forgery of documents and a car body and having used a forged driving licence. The prosecution requested the trial court to hear evidence from 21 witnesses.

On 18 June 2002 the Regional Court prolonged the applicant ' s detention until an unspecified date. That decision was upheld by the Court of Appeal on 10 July 2002 . The courts repeatedly relied on the strong likelihood that the applicant had committed the offences with which he was charged. In addition, they had regard to the severity of the anticipated penalty and the fear that he might go into hiding if released. The latter was justified, in the courts ' view, by the applicant ' s long evasion of justice prior to his arrest and his having used a forged identity document.

The Gdańsk Regional Court held 18 hear ings on the following dates: 12 and 24 October, 13 November, 4 and 19 December 2001; 8 January, 12 and 19 February, 12 March, 9 and 30 A pril, 21 May, 4 and 18 June, 3 September, 1, 17 and 25 October 2002.

On 31 October 2002 the Gdańsk Regional Court gave judgment. It convicted the applicant as charged and sentenced him to seven and a half years ' imprisonment. It also prolonged the applicant ' s detention on remand until 31 January 2003 . The applicant appealed against the first-instance judgment.

On 15 October 2003 the Gdańsk Court of Appeal upheld the judgment of the Regional Court . The applicant lodged a cassation appeal against the judgment of the Court of Appeal.

On 20 May 2004 the Supreme Court ( Sąd Najwyższy ) , sitting in camera and without the participation of the parties , dismissed the applicant ' s cassation appeal due to its manifestly ill-founded character . It decided , pursuant to Article 535 § 2 of the Code of Criminal Procedure, not to provide written grounds for its decision.

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 Articles 5 § 1, 5 § 4, 6 § 1, 6 § 2, 6 § 3, 8 and 13 of the Convention that his detention was unlawful .

2. He also complains about the length of his detention on remand. He does not rely on any provision of the Convention in that respect.

3 . The applicant further complains under Article 6 § 3 (c) of the Convention that his lawyer was not summoned to the Regional C ourt ' session of 12 July 2001 in which his detention on remand was prolonged.

4 . The applicant complains under Article 6 § 1 of the Convention that his trial was unfair . He alleges that his numerous applications for admitting evidence were rejected. He also complains that he was deprived of a fair hearing in the proceedings before the Supreme Court and alleges that his cassation appeal was not thoroughly examined.

THE LAW

1. The applicant complains under Articles 5 § 1, 5 § 4, 6 § 1, 6 § 2, 6 § 3, 8 and 13 of the Convention that his detention was unlawful .

The Court considers that this complaint falls to be examined under Article 5 § 1 (c) of the Convention which reads:

“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:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... ”

The Court observes that in the present case the applicant was detained on reasonable suspicion of having committed aggravated assault, handling stolen goods and forgery of a car body. It also observes that the lawfulness of his detention was examined und upheld on numerous occasions by the competent courts. The Court finds no indication that in the present case the applicant ' s detention was unlawful or effected in an arbitrary fashion.

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

2. The applicant also complains, without invoking any provision of the Convention, about the length of his detention on remand. The Court finds that this complaint should be examined under Article 5 § 3 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.

3. The applicant further complains under Article 6 § 3 (c) of the Convention that his lawyer was not summoned to the Regional C ourt ' session of 12 July 2001 on which his detention on remand was prolonged. In the Court ' s view this complaint falls to be examined under Article 5 § 4 of the Convention.

The Court notes that the applicant ' s appeal against the Regional Court ' s decision of 12 July 2001 on prolongation of his detention was upheld by the Gdańsk Court of Appeal on 8 August 2001 . The Court finds that in respect of the complaint under Article 5 § 4 of the Convention the final decision was given by the Gdańsk Court of Appeal on 8 August 2001 . It follows that this complaint had been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

4. The applicant also complains under Article 6 § 1 of the Convention that his trial was unfair . He alleges that his numerous applications for admitting evidence were rejected. He also complains that he was deprived of a fair hearing in the proceedings before the Supreme Court.

Article 6 § 1 provides, in so far as relevant:

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

T he Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see Schenk v. Switzerland , judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45-46) and Garcia Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). In the present case, the Court finds no indication that the domestic courts, when assessing evidence before them went beyond the permissible margin of appreciation under Article 6 § 1 or that they made arbitrary findings of fact.

In respect of the alleged unfairness of the proceedings before the Supreme Court which dismissed the applicant ' s cassation appeal due to its manifestly ill-founded character, the Court recalls that it has already examined the similar complaint in the case of Walczak v. Poland ( see ( dec .) , no. 77395/01 , unreported). In that case the Court found that it was open for the Supreme Court under Article 535 § 2 of the Code of Criminal Procedure to dismiss the cassation appeal at a session held in camera , without the participation of the parties. That was limited to cases in which the Supreme Court considered, having examined the written submissions of the parties, that the cassation appeal had been manifestly ill-founded in that the alleged procedural shortcomings either had not occurred, or had not been substantiated, or that the shortcomings complained of had not fallen within the ambit of procedural irregularities which could be relied on in the cassation appeal proceedings. The Court went on to observe in the Walczak decision that the issue for the Supreme Court ' s decision was whether the applicant has demonstrated the existence of arguable grounds, which would justify holding a hearing in the cassation proceedings (cf. Monnell and Morris v. the United Kingdom , judgment 2 March 1987, Series A, no. 115, p. 22, § 56). In the Walczak decision the Court rejected the complaint about unfairness of the proceedings before the Supreme Court, having concluded that in the light of the procedure designed for examination of the cassation appeal, seen as a whole, there had been no reason to doubt that the Supreme Court ' s decision had been based on a thorough assessment of the relevant factors.

The Court finds no grounds on which a different conclusion could be reached in the present case. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ' s complaint under Article 5 § 3 concerning the length of his pre-trial detention ;

Declares the remainder of the application inadmissible.

Michael O ' Boyle Nicolas Bratza Registrar President