FOURTH SECTION

PARTIAL 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 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 2 April 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Jan Czerbiński, was born in 1962. He has two nationalities: Polish and German. The applicant is presently detained in the Gliwice Detention Centre, Poland.

A. The circumstances of the case

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

In 1994 a cheque drawn on the applicant's closed account was cashed in a Polish bank. The cheque was made for 450 zlotys (approximately 100 euros). Subsequently, the applicant was interviewed by the police. He admitted that he had filled out and signed the cheque but he averred that he had not cashed it. The applicant asked that he be confronted with the cashier who had cashed the cheque. During the confrontation she confirmed that the applicant had not cashed the cheque.

In 1998 the applicant moved to Germany.

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 1 July 1999 judge K. of the Zgorzelec District Court decided that the applicant should be detained 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 19 March 2003 the applicant was taken into custody by the Polish police while crossing the Polish-German border.

The applicant appealed against the decision of 29 June 1999 but his appeal was dismissed on 10 April 2003 by the Jelenia Góra Regional Court (Sąd Okręgowy) sitting as a bench of three judges. 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 did not properly inform the person conducting the investigation but instead he gave an address where he was not present and subsequently – despite being instructed to do so – he 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 decision on the risk of the accused's going 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 reasons 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 the 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 judge P. of 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 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 normal consequences of such a preventive measure”.

On 11 May 2003 the applicant attempted to commit suicide.

On 20 May 2003 judge P. decided to extend the applicant's pre ‑ trial detention until 20 August 2003. The decision repeated the grounds for pre-trial detention given in the decision of 9 May 2003.

On 24 June 2003 the applicant made a fresh application for release from detention to the Zgorzelec District Court but it was dismissed by judge P. 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 judge P. dismissed the application. The decision dismissing the application repeated the grounds given in the decision of 9 May 2003.

On 20 August 2003 judge P. extended the applicant's pre ‑ trial detention until 20 November 2003. The reasons given for the extension were repeated from 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 by judge P. The reasons given for the dismissal of the applications were repeated from the decision of 9 May 2003.

The applicant remains in custody.

B. Relevant domestic law

The Code of Criminal Procedure 1997

Article 258 of the Code provides:

“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 he has no permanent abode [in Poland]; or

(2) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper conduct of proceedings by any other unlawful means.

2. If an accused has been charged with a serious offence or any other offence [for the commission of which he may be] liable to a sentence of a statutory maximum 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 in order to ensure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed.

3. Detention on remand may also exceptionally be imposed if there is a reasonable risk that an accused who has been [already] charged with a serious offence or any intentional offence, will commit an offence against the person or public order, in particular if he has threatened to commit any of such offences.”

Article 259 § 1 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

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

He also complains under Article 6 of the Convention about a breach of his right to a fair trial.

Furthermore, the applicant invokes the following Articles of the Convention: 2, 3, 7, 8, 13, 18, 21 as well as Article 1 of Protocol No. 1 and Article 2 of Protocol No. 7.

THE LAW

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

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

2. He also complains under Article 6 of the Convention about a breach of his right to a fair trial.

However, the Court notes that the criminal proceedings against the applicant are pending before the trial court. It follows that this complaint is premature. The Court concludes that this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

3. The applicant invokes the following Articles of the Convention: 2, 3, 7, 8, 13, 18, 21 as well as Article 1 of Protocol No. 1 and Article 2 of Protocol No. 7.

However, the Court finds that the applicant's assertions about the violations of the above provisions of the Convention and Protocols are wholly unsubstantiated. It follows that these complaints are inadmissible as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

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

Declares the remainder of the application inadmissible.

Michael O'Boyle Nicolas Bratza Registrar President