FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 13425/02 by Sebastian MICHTA against Poland

The European Court of Human Rights (Fourth Section), sitting on 23 March 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mrs V. Strážnická , 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 21 August 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Sebastian Michta, is a Polish national, who was born in 1976. He is detained in the Sosnowiec Detention Centre.

A. The circumstances of the case

1. The applicant's pre-trial detention and the criminal proceedings against him

On 17 January 2000 the applicant was arrested by the police. On 18 January 2000 he was remanded in custody by the Katowice District Court (Sąd Rejonowy) on charges of burglary . The applicant appealed against this decision but his appeal was dismissed on 4 February 2000 by the Katowice Regional Court (Sąd Okręgowy) .

On 14 September 2000 the prosecution service closed the investigation in the applicant's case.

On 15 January 2001 the Katowice Regional Court extended the applicant's detention until 15 May 2001. The court considered that it was probable that the applicant had committed the crimes with which he was charged. It also referred to the fact that the case involved twelve accused and thirty-four witnesses. Moreover, the crimes allegedly committed by the applicant carried a heavy sentence and there existed a risk of collusion. Finally, the court was of the view that the applicant's case did not disclose any of the grounds for release from pre-trial detention listed in Article 259 of the Code of Criminal Procedure.

On 15 January 2001 the Katowice Regional Court decided that some of the charges laid against the applicant would be considered in separate proceedings before the Sosnowiec District Court. However, on 21 February 2001 the Katowice Court of Appeal (SÄ…d Apelacyjny) quashed that decision. The appellate court admitted that the number of charges and accused made the applicant's case difficult. At the same time, it pointed out that the trial court had failed to schedule the date of the first hearing despite the fact that five months had passed since the bill of indictment had been lodged with the trial court.

The hearing fixed for 22 March 2001 was cancelled because one of the accused was not escorted from the detention centre to the court.

On 29 March 2001 a hearing was cancelled as several accused were not escorted from the detention centre to the court because of “the lack of escorting facilities”.

The hearing scheduled for 18 April 2001 was cancelled because the judge was ill.

On 14 May 2001 the Katowice Regional Court extended the applicant's detention until 15 October 2001. The court considered that the evidence collected in the case sufficiently supported the charges laid against the applicant. Moreover, since the applicant's case had been joined with the case of M.K. it involved twelve accused and thirty-four witnesses. The proceedings in such a case required longer time. The court was not responsible for the fact that it had not begun the consideration of the merits of the case as this delay had been caused by the absence of some of the accused and their counsel at the hearings and the lack of police officers to escort detained accused to the court. The Regional Court further referred to the gravity of the charges laid against the applicant and the fact that they carried a heavy sentence. It considered that the applicant's case did not disclose any of the grounds for release from pre ‑ trial detention listed in Article 259 of the Code of Criminal Procedure and that the applicant could go into hiding or interfere with the proceedings.

The hearing scheduled for 30 May 2001 was cancelled as one of the counsel was absent.

The applicant made a fresh application for release from pre ‑ trial detention but it was dismissed on 25 June 2001 by the Katowice Regional Court. The court considered that the evidence collected in the case made it probable that the applicant had committed the crimes with which he was charged.

On 28 June 2001 the hearing was adjourned after one of the defence lawyers left the hearing room while the bill of indictment was being read.

The hearing scheduled for 19 July 2001 was cancelled because one of the accused was ill.

The hearings fixed for 16 August and 20 September 2001 were cancelled since some of the accused could not attend them.

On 8 October 2001 the Katowice Regional Court extended the applicant's detention until 17 January 2002. The court considered that the evidence collected in the case made it probable that the applicant had committed the crimes with which he was charged. The case involved twelve accused and thirty-four witnesses. The trial court had held so far eight hearings. The court further referred to the gravity of the crimes allegedly committed by the applicant and the fact that they carried a heavy sentence. There was also a risk of collusion. In the court's view the applicant's case did not disclose any of the grounds for release from pre ‑ trial detention listed in Article 259 of the Code of Criminal Procedure. The court concluded that the applicant's detention “was necessary in order to secure the proper conduct of the proceedings”.

The applicant appealed against the Katowice Regional Court's decision to extend his detention but his appeal was dismissed on 30 October 2001 by the Katowice Court of Appeal. The appellate court gave the following reasons for dismissing the applicant's appeal:

“Firstly, it should be stated that, contrary to the accuseds' claims, they committed the crimes with which they are charged. ( Na wstępie stwierdzić należy, wbrew zarzutom oskarżonych, że popełnili oni zarzucane im przestępstwa. )”

“The evidence proving this consists not only of the allegations made by P.S (...) but also by R.S (...) who in the minutes of 16.12.1999 (pages 2513–2515) described the persons with whom he had committed burglaries of warehouses in Olkusz and Lubliniec. Although subsequently on 26.02.2000 (pages 2521-2522) he declared that he had lied, the court will decide which of these testimonies is true.

It should also be said that the court gave sufficient reasons for continuing the pre ‑ trial detention, in particular not only a possible heavy sentence – listed in Article 258 § 2 of the Code of Criminal Procedure – but also the risk of collusion by putting pressure on the co-accused who made the allegation against them. [They] use in their letters very aggressive words towards him. [There is also the risk of collusion] by going into hiding in order to avoid the penalty. In those circumstances [the court] shares the view of the trial court that only the pre-trial detention can secure the proper conduct of the proceedings.”

During the hearing held on 22 November 2001 the bill of indictment was read and two witnesses were heard.

On 28 December 2001 the Katowice Regional Court made a request under Article 263 § 4 of the Code of Criminal Procedure in which it asked the Katowice Court of Appeal to extend the applicant's detention beyond 17 December 2002, when the second year of his detention would end.

On 9 January 2002 the Katowice Court of Appeal allowed the Regional Court's request and extended the applicant's detention until 15 June 2002. The appellate court considered that the evidence collected in the case made it probable that the applicant had committed the crimes with which he was charged. The grounds for his detention listed in Article 258 §§ 1 and 2 of the Code of Criminal Procedure and given in previous decisions continued to exist. In this connection, the court stated that it was not necessary to repeat the grounds for detention given in the previous decisions. Moreover, the appellate court agreed with the Regional Court's submission that the failure to attend hearings by some of the accused and their counsel and the illness of the accused and the judge made it impossible to conclude the proceedings. The Court of Appeal further pointed out that the case was complicated. At the same time, it observed that so far only two accused had been heard and that the trial court had not started to take evidence from the witnesses. The appellate court instructed the trial court to act in the case with due diligence so that the proceedings would end before 15 June 2002.

On 16 January 2002 the Katowice Regional Court rejected the applicant's appeal against the decision of 28 December 2001 to request the extension of his detention, as such appeal was not provided by the law.

The applicant made a fresh application for release from detention in which he submitted that he suffered from several illnesses and that he wanted to help his fiancée who was in a difficult situation. On 14 January 2002 the Katowice Regional Court asked the Zabrze Detention Centre to submit a medical opinion concerning the applicant, which would clarify whether he could remain in detention. The Regional Court also asked the probation officer of the Sosnowiec District Court to carry out a background check on the applicant's fiancée.

On 20 February 2002 the Katowice Court of Appeal, sitting in a different composition, dismissed the applicant's appeal against the Katowice Court of Appeal's decision of 9 January 2002 to prolong his pre ‑ trial detention. The court gave the following reasons:

“The Court of Appeal showed that there existed grounds listed in Article 249 § 1 and Article 258 §§ 1 and 2 of the Code of Criminal Procedure. They have already been described on numerous occasions and it is obvious that they continue to exist. One should only point out that at the present stage of the proceedings the court is not authorized to assess the evidence collected in the case, including the assessment of the truthfulness of the allegations made by the co-accused, as this can be done only at the time of the delivery of the judgment. In order to apply the preventive measures, including the pre-trial detention, the assessment of the evidence under Article 249 § 1 of the Code of Criminal Procedure is limited to verifying whether the collected evidence shows a significant probability that the accused had committed the crime. [Therefore] the allegations of the co-accused fulfil this requirement.”

The court further stated that it was not convinced by the applicant's arguments concerning the delay in the conduct of the proceedings. It referred to the complexity of the case. The delay was caused by the absence of some of the accused and their counsel at the hearings and the illness of some of the accused and the judge.

On 11 March 2002 the Katowice Regional Court dismissed an application for release from detention lodged by the applicant in January 2002. The court referred to the medical opinion of 24 January 2002 and to the background check carried out on 14 February 2002. It pointed out that the medical opinion stated that the applicant could be treated in the Detention Centre. The applicant's fiancée was in a difficult situation and required hospitalisation. However, the court considered that the applicant's case did not disclose any of the grounds for release from detention listed in Article 259 of the Code of the Criminal Procedure. In addition, the court pointed out that the evidence collected in the case showed that there existed a significant probability that the applicant had committed the crimes with which he was charged.

On 20 May 2002 the Katowice Regional Court made a request under Article 263 § 4 of the Code of Criminal Procedure in which it asked the Katowice Court of Appeal to extend the applicant's detention until 1 October 2002.

On 29 May 2002 the Katowice Court of Appeal allowed the request submitted by the Regional Court and extended the applicant's detention until 1 October 2002. The appellate court first pointed out that numerous hearings had been cancelled for reasons for which the trial court was not responsible i.e. the absence of counsel and the accused who had not been detained, as well as the failure of the police to escort the accused remanded in custody to the court. Furthermore, the appellate court was of the view that there existed a significant probability that the applicant had committed the crimes with which he was charged. The case involved twelve accused and numerous witnesses and was therefore complicated. The court also referred to the gravity of the charges and the fact that they carried a heavy sentence. The applicant's detention “was necessary to secure the proper conduct of the proceedings”.

Subsequently, the applicant applied for bail but his application was dismissed on 10 June 2002 by the Katowice Regional Court. The court gave the following reasons for its decision:

“Contrary to the applicant's claims, the grounds for his detention still exist. He is still a flight risk and is charged with a commission of an act which carries a heavy prison sentence. The reasons for release from detention given by the applicant cannot justify his release from pre-trial detention under Article 259 of the Code of Criminal Procedure. Therefore, considering that detention is necessary to secure the proper conduct of the proceedings, it was decided as in the operative part.”

The applicant appealed against this decision but his appeal was dismissed on 24 July 2002 by the Katowice Court of Appeal.

On 16 September 2002 the Katowice Regional Court made a request under Article 263 § 4 of the Code of Criminal Procedure in which it asked the Katowice Court of Appeal to extend the applicant's detention until 4 November 2002.

On 25 September 2002 the Katowice Court of Appeal allowed the request submitted by the Regional Court and extended the applicant's detention until 4 November 2002. The appellate court referred to the grounds for detention given in the previous decisions dismissing applications for release and extending the applicant's detention. It considered that the trial court's inability to conduct the proceedings speedily had resulted from reasons for which the trial court was not responsible. In addition, it was still necessary to take evidence from witnesses held in different prisons and from an expert witness. In conclusion, the Court of Appeal referred to Article 264 § 4 of the Code of Criminal Procedure and stated that the case was very complicated and required further taking of evidence.

On 18 October 2002 the Katowice Regional Court made a request under Article 263 § 4 of the Code of Criminal Procedure in which it asked the Katowice Court of Appeal to extend the applicant's detention until 20 December 2002.

On 30 October 2002 the Katowice Court of Appeal dismissed an appeal lodged by the applicant against the decision of 25 September 2002. The appellate court considered that the evidence collected in the case made it probable that the applicant had committed serious crimes. The applicant could receive a heavy sentence of imprisonment and it was necessary to secure the proper conduct of the criminal proceedings against him. Moreover, the court referred to the grounds for detention listed in the previous decisions extending the applicant's detention. The case did not disclose any delay which could be attributed to the trial court. Finally, there did not exist any of the grounds for release from detention listed in Article 259 of the Code of Criminal Procedure.

On 30 October 2002 the Katowice Court of Appeal allowed the request made by the Katowice Regional Court on 18 October 2002 and extended the applicant's pre-trial detention until 20 December 2002. The evidence collected in the case made it probable that the applicant had committed the crimes with which he was charged. He could receive a heavy prison sentence and his case did not disclose any of the grounds for release from detention listed in Article 259 § 1 of the Code of Criminal Procedure. Finally, the proceedings did not disclose any delay which could be attributed to the trial court.

On 10 December 2002 the Katowice Regional Court convicted the applicant and sentenced him to eight years and six months' imprisonment. On the same day it prolonged the applicant's detention until 20 March 2003.

On 10 March 2003 the Katowice Regional Court extended the applicant's detention until 20 June 2003.

On 19 March 2003 the prosecution service lodged with the Katowice Court of Appeal an appeal against the part of the trial court's judgment in which it acquitted the applicant of some of the charges. Subsequently, the applicant lodged an appeal against his conviction.

On 10 June 2003 the Katowice Court of Appeal extended the applicant's detention until 20 September 2003. The applicant appealed against this decision but his appeal was dismissed on 9 July 2003.

On 10 September 2003 the Katowice Court of Appeal extended the applicant's detention until 20 December 2003.

During the hearing held on 23 October 2003 the Katowice Court of Appeal delivered a judgment in which it upheld the applicant's conviction and sentence.

On 19 January 2004 the applicant received a reasoned copy of the judgment of 23 October 2003. He submitted that he intended to lodge a cassation appeal to the Supreme Court ( Sąd Najwyższy ).

2. The monitoring of the applicant's correspondence

On 12 March 2002 the Court received the applicant's letter of 25 February 2002 mailed on 27 February 2002. The envelope in which the letter was delivered bears the following stamps: “254 Received on 25.02.02” ( 254 Wpłynęło dnia 25.02.02 ) and “Censored, signature” ( Ocenzurowano, podpis ), and an illegible signature.

B. Relevant domestic law

The Code of Criminal Procedure 1997

Article 259 § 1 of the Code provides:

“If there are no special reasons to the contrary, detention on remand should be lifted, in particular if:

(1) it may seriously jeopardise the life or health of the accused; or

(2) it would entail excessively burdensome effects for the accused or his family.”

Article 263, insofar as relevant, provides:

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 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”.

COMPLAINTS

1. The applicant complains about a violation of Article 5 § 3 of the Convention. He submits that his detention was too long.

2. He also complains about a violation of Article 6 § 1 of the Convention. In this connection, he submits that during a period of sixteen months the trial court took evidence from only two accused and did not held the first hearing until five months after the lodging of the bill of indictment.

3. The applicant also complains under Article 6 § 1 that he has had an unfair trial and that he was silenced by a judge during an appeal hearing held on 23 October 2003.

4. With respect to the Katowice Regional Court's decision of 30 October 2001, the applicant appears to complain under Articles 6 § 2 and 13 about a breach of his right to be presumed innocent until proved guilty.

5. With respect to the monitoring of the applicant's correspondence, the Court raises ex officio complaints about a breach of Article 8 (right to respect for correspondence) and Article 34 (effective exercise of the right to file individual applications).

THE LAW

1. The applicant complains about a breach of Articles 5 § 3 and 6 § 1 of the Convention on account of the unreasonable length of his pre ‑ trial detention and the criminal proceedings.

The Court considers that at the present stage it cannot, on the basis of the case-file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of these complaints to the respondent Government.

2. The applicant further complains, invoking Article 6 §§ 1 and 2 and Article 13, about a violation of his rights to a fair trial and to be presumed innocent until proved guilty.

However, the Court notes that the applicant did not obtain a decision of the Supreme Court as he did not file a cassation appeal. Therefore, he has not exhausted the remedies available under Polish law.

It follows that this part of the application is inadmissible for non ‑ exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.

3. With respect to the monitoring of the applicant's correspondence, the Court raises ex officio complaints about a breach of Article 8 (right to respect for correspondence) and Article 34 (effective exercise of the right to file individual applications).

The Court considers that at the present stage it cannot, on the basis of the case ‑ file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of these complaints to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant's complaints concerning the unreasonable length of his pre-trial detention (Article 5 § 3) and the criminal proceedings (Article 6 § 1);

Decides to adjourn the examination of the complaints raised ex officio by the Court concerning a breach of the right to respect for correspondence (Article 8) and the right to file individual applications (Article 34);

Declares the remainder of the application inadmissible.

Michael O'Boyle Nicolas Bratza Registrar President