FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 15141/03 by Jan CZERBIŃSKI 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 G. Bonello , Mr M. Pellonpää , Mr K. Traja , Mr L. Garlicki , Mr J. Borrego Borrego , Ms L. Mijović , judges ,

and Mr M. O ' Boyle , Section Registrar ,

Having regard to the above application lodged on 2 April 2003 ,

Having regard to the partial decision of 23 March 2004 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Jan Czerbiński , was born in 1962 . He has two nationalities: Polish and German. He lives in Gliwice , Poland .

A. The circumstances of the case

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

In 1994 a cheque drawn on the applicant ' s closed account was cashed in a Polish bank. Subsequently, the police started to investigate the case and interviewed the applicant.

In 1998 the applicant moved to Germany .

In February 1999 the police summoned the appl icant, however, the summons was retu r ned undelivered as the applicant had moved .

On 2 June 1999 the prosecution service filed with the Zgorzelec District Court ( SÄ…d Rejonowy ) a bill of indictment against the applicant. He was charged with drawing and cashing the cheque on 30 November 1994 .

On 29 June 1999 a hearing was held . T he applicant, despite having been properly summoned, failed to attend it . The court was informed that the applicant did not live at the address provided by him.

On 1 July 1999 the Zgorzelec District Court ordered that the applicant be detained on remand for a period of two months. The decision was reasoned as follows:

“The pre-trial detention is justified by Article 258 § 1 (2) of the Code of Criminal Procedure since the accused is avoiding the criminal justice system.”

On 1 July 1999 a “wanted ” notic e was issued concerning the applicant.

On 19 March 2003 the applicant was taken into custody by the Polish police while crossing the German- Polish border.

On 20 and 28 March 2003 the D istrict Courts in Gliwice and Kę dzier zyn-Koź le decided that the applicant should be remanded in custody in connection with three other criminal pr oceedings pending against him.

The applicant appealed against the decision of 1 July 1999 ordering his pre ‑ trial detention but his appeal was dismissed on 10 April 2003 by the Jelenia Góra Regional Court ( SÄ…d OkrÄ™gowy ) . The court gave the following reasons for its decision:

“Among the complaints made in the appeal only one, concerning the wrong legal basis of the impugned decision is right. Admittedly, in the present case [the decision] should be based on Article 258 § 1 (1) of the Code of Criminal Procedure since the accused did not have his permanent place of residence in the country and anyway he did not properly inform the person conducting the investigation of his address but instead gave an address where he was not present and subsequently – despit e being instructed to do so – did not notify his actual place of residence. Therefore, it was justified to consider that it was probable that the accused was hiding (Article 258 § 1 (1) of the Code of Criminal Procedure). However, this mistake in the impugned decision did not have any influence on its contents as in fact the District Court had based the decis ion on the risk that the accused would go into hiding.

As for the accused ' s claim that the impugned decision did not refer to any evidence supporting the charges against him, it is not true since the reasoning of the impugned decision point to such evidence. It is obvious to everybody that in a situation where the pre-trial detention is based on the risk of flight , detention constitutes the only effective preventive measure. Therefore, the accused ' s allegation concerning the failure to explain why a different preventive measure could not be applied is groundless.

As for the accused ' s submissions made under Article 259 § 1 (2) of the Code of Criminal Procedure (provision of care to his brother, renovation of a hotel and the risk of losses in the hotel) they are groundless and unconfirmed. Therefore, they cannot justify release from pre-trial detention.

Taking the above into account and in view of the fact that the pre-trial detention of Jan Czerbiński is justified, and since his case does not disclose any grounds for release from pre-trial detention listed in Article 259 § 1 of the Code of Criminal Procedure, the impugned decision is upheld.”

On 9 May 2003 the Zgorzelec District Court dismissed an application for release from detention made by the applicant on 7 May 2003 . The decision dismissing the application referred to the fact that the criminal proceedings against the applicant had reached only “the stage of jurisdictional proceedings”. Moreover, the evidence collected in the case showed a significant probability that the applicant had committed the act with which he was charged. The detention was justified by Article 258 § 1 (1) of the Code of Criminal Procedure as the applicant had moved to Germany and had not notified his actual place of residence. There existed in his case a risk of flight. In addition, only detention on remand would “secure the proper conduct of the proceedings”. The applicant ' s case did not disclose any of the grounds for release from pre-trial detention listed in Article 259 § 1 of the Code of Criminal Procedure relating to the hardship suffered by the applicant or his family. Finally, certain effects of the applicant ' s pre ‑ trial detention “constituted the normal consequences of such a preventive measure”.

The applicant ' s appeal against th is decision was dismissed on 10 May 2003 .

On 11 May 2003 the applicant attempted to commit suicide.

On 20 May 2003 the applicant ' s pre ‑ trial detention was prolonged until 20 August 2003 . The decision repeated the grounds for pre-trial detention given in the decision of 9 May 2003 . T he applicant appealed against this decision, but his appeal was dismissed on 10 June 2003 .

On 24 June 2003 the applicant made a fresh application for release from detention to the Zgorzelec District Court but it was dismissed on 1 July 2003 . The decision dismissing the applicant ' s application repeated the grounds of the decision of 9 May 2003 .

On 15 July 2003 the applicant ' s counsel applied to the Zgorzelec District Court for the applicant ' s release from detention and asked that it be replaced with police supervision and seizure of his passport. On 17 July 2003 the court dismissed the application. The decision dismissing the application repeated the grounds given in the decision of 9 May 2003 .

On 20 August 2003 the applicant ' s pre ‑ trial detention was further extended until 20 November 2003 . The reasons given for the extension repeated those in the decision of 9 May 2003 .

On 27 August 2003 the applicant was hospitalised in the Bytom hospital.

On 6 and 9 October 2003 the applicant made new applications for release from detention to the Zgorzelec District Court but they were dismissed on 10 October 2003 . The reasons given for the dismissal of the applications repeated those in the decision of 9 May 2003 .

On 21 November 2003 the Zgorzelec District Court gave a judgment. The applicant was convicted as charged and sentenced to 8 months ' imprisonment , suspended for two years. On the same date the Zgorzelec District Court de cided to release the applicant.

T h e applicant remained in detention on remand ordered by the Gliwice District Court in connection with another set of criminal proceedings against him . On 27 April 2004 he was released.

B. Relevant domestic law

The Code of Criminal Procedure 1997

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 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 , in a version applicable at the material time, sets out time ‑ limits for detention .

Ҥ 1. During investigation the court which decides about detention on remand shall impose it for a period not longer than 3 months.

§ 2. If the special circumstances of a case make it impossible to conclude the investigation within the time-limit provided in § 1, detention on remand may be prolonged, at the request of the prosecutor and when it is necessary, by the trial court, for up to 12 months.

§ 3. The length of detention on remand until the delivery of a first judgment by the trial court shall not exceed 2 years.

§ 4. Detention on remand may be prolonged for a fixed period exceeding the periods provided in §§ 2 and 3 by the appellate court (...) at the request of the court dealing with a case (...) – if it is necessary because of the suspension of criminal proceedings, the prolonged psychiatric observation of an accused, the prolonged preparation of an expert opinion, the collection of evidence in a particularly complicated case or abroad, a delay in the proceedings caused by an accused as well as other obstacles which could not be overcome”.

COMPLAINT

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

THE LAW

The applicant complains under Article 5 § 3 of the Convention that his detention on remand exceeded a “reasonable time” within the meaning of this provision.

Article 5 § 3 reads as follows, in so far as relevant:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

The Court notes that the applicant was arrested on 19 March 2003 . He was convicted at first instance on 21 November 2003 by the Zgorzelec District Court. On the same date the court decided to release the applicant from detention. In any event, the Court reiterates that the period to be considered under Article 5 § 3 of the Convention ends on the day on which the charges brought against the applicant were determined by a first instance court ( see, B. v. Austria , judgment of 28 March 1990 , Series A no. 175, p. 15 , § 39) .

Accordingly, the applicant ' s pre -trial detention lasted from 19 March 2003 to 21 November 2003 , that is eight months and three days.

The Government argued that the applicant ' s detention was in conformity with the reasonable time requirement of Article 5 § 3 of the Convention. They further submitted that , since the applicant had simultaneously been detained in connection with four different sets of criminal proceedin gs, an earlier release from detention in the present case would not have r esulted in his being released . In addition to that, the domestic court showed due diligence in conducting the proceedings , in particular since the organisation of the hearings depended on the course of three other sets of criminal proceedings.

The applicant disagreed and submitted that the length o f his detention was excessive.

According to the Court ' s case-law, the issue of whether a period of detention is reasonable cannot be assessed in abstracto . Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, overweighs the rule of respect for individual liberty (see, among other authorities, the W. v. Switzerland judg ment of 26 January 1993, Series A no. 254-A, p. 15, § 30 and Klamecki v. Poland , no. 25415/94, § 74, 28 March 2002 ).

The persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices: the Court must then establish whether the other grounds cited by the judicial authorities continue to justify the deprivation of liberty. Where such grounds are “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see the Muller v. France judgment of 17 March 1997, Reports 1997-II , p. 388, § 35, and the I.A. v. France judgment of 23 September 1998, Reports 1998-VII, p. 2979, § 102).

The Court observes that in their decisions concerning the applicant ' s detention on remand the domestic authorities relied , in addition to a reasonable suspicion that he had committed the offences concerned , on the risk that the applicant might go into hiding . The courts based its findings on the fact that he had moved to Germany and had not notified the authorities about his actual place of residence ; therefore, there existed a risk that once released the applicant might go into hiding again.

The Court further notes that o n 21 November 2003 the trial court convicted the applicant and decided to release him from detention . Accordingly , the Court considers that in the particular circumstances of the case and in view of its above findings as to the total length of the applicant ' s detention and the existence of the risk that he might abscond, the applicant ' s detent ion was in conformity with the “ reasonable time ” requirement of Article 5 § 3 of the Convention.

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

For these reasons, the Cou rt unanimously

Declares the remainder of the application inadmissible.

Michael O ' Boyle Nicolas Bratza Registrar President