FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44165/98 by Piotr SKROBOL against Poland

The European Court of Human Rights (Fourth Section), sitting on 8 July 2003 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mrs V. Strážnická , Mr M. Fischbach , Mr J. Casadevall , Mr R. Maruste , Mr L. Garlicki , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 17 June 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the partial decision of 15 January 2002,

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, Piotr Skrobol , is a Polish national, who was born in 1958 and lives in Koszalin , Poland.

A. The circumstances of the case

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

Facts concerning the criminal proceedings against the applicant

On 26 July 1993 the Warsaw District Public Prosecutor instituted an investigation into offences of obtaining credit by false pretences. On 4 November 1993 the Szczecin Regional Public Prosecutor charged the applicant with the offence of obtaining 71,000,000,000 PLZ by false pretences. On the same date the prosecutor issued a warrant of arrest against the applicant, accompanied by a decision to impose detention on remand on the applicant for the period of 7 days from the date of his arrest.

The applicant was arrested on 6 November 1993 and on 9 November 1993 the Szczecin Regional Public Prosecutor detained the applicant on remand for a period of 3 months. On 15 November 1993 the prosecutor decided to invalidate the applicant’s passport. On the same date the prosecutor heard two other suspects in the case.

On 16 November 1993 the applicant appealed against the detention order. By a decision of 22 November 1993, the Szczecin Regional Court upheld the contested decision. On 19 November 1993 police officer H.P. reported to the prosecutor that the applicant had informed him about his intention to commit suicide. Between 24 November and 1 December 1993 the prosecutor appointed an expert graphologist and heard three witnesses.

On 13 December 1993 the Szczecin Regional Public Prosecutor decided to prolong the investigation in the applicant’s case. On 28 December 1993 the prosecutor appointed translators of English and German. On 30 December 1993 and on 13, 19, 24 and 26 January 1994 the prosecutor heard further witnesses in the case. On 24 January 1994 the prosecutor appointed an expert in banking.

On 28 January 1994 the Szczecin Regional Court prolonged the applicant’s detention until 6 May 1994. The court observed that the charges laid against the applicant were sufficiently substantiated and that extensive evidence had still to be taken in the case. There were serious grounds for believing that the applicant, if he were to be released, would go into hiding.

Between 31 January and 21 February 1994 the prosecutor heard a further seventeen witnesses in the case. On 21 February 1994 the prosecutor decided to supplement the charges against the applicant.

Between 24 February and 21 March 1994 the prosecutor heard eleven witnesses and one suspect, and decided to appoint an expert in building matters. On 23 March 1994 the graphologist submitted his opinion. On 24, 25, 28, 29, 30 and 31 March 1994 the prosecutor heard eight witnesses.

On 28 March 1994 the Poznań Appeal Public Prosecutor transmitted the applicant’s request for release of 22 February to the Szczecin Regional Public Prosecutor. On 30 March 1994 the Szczecin Regional Public Prosecutor decided to dismiss the applicant’s request for release. On 12 April 1994 the applicant’s defence counsel appealed against that decision. On 22 April 1994 the Poznań Appeal Public Prosecutor decided to uphold the contested decision.

On 12 and 15 April 1994 the prosecutor heard further witnesses in the case. On 21 April 1994 the prosecutor again decided to supplement the charges against the applicant. The applicant was heard on the next day. On 26 April 1994 the Szczecin Regional Public Prosecutor decided to prolong the investigation of the case until 6 September 1994.

On 29 April 1994 the Szczecin Regional Court decided to prolong the applicant’s detention until 6 September 1994. The court considered that further evidence was required in order to establish all the facts in the case and that the detention was indispensable to ensure the proper conduct of the proceedings. On 15 June 1994 the Poznań Appeal Court upheld this decision.

On 4, 23, 25 and 27 May 1994 the prosecutor heard further witnesses in the case. On 24, 27 May and 5 June 1994 the applicant submitted to the prosecutor his complaints concerning the conduct of the investigation in his case. He claimed that the charges brought against him were unfounded. On 30 May 1994 the prosecutor heard the applicant. Between 6 and 10 June 1994 further five witnesses were heard in the case.

On 15 June 1994 the Szczecin Regional Public Prosecutor appointed a medical expert in order to assess the applicant’s wife’s state of health. On the same date the applicant’s defence counsel was informed by the prosecutor that the applicant’s request for release based on his wife’s allegedly bad state of health would be considered after her medical examination.

Between 13 and 30 June 1994 the prosecutor heard twenty-six witnesses in the case. On 24 June 1994 the applicant requested that one of his prison guards be subjected to psychiatric examination. On 2 July 1994 this request was dismissed as manifestly ill-founded. On 30 June 1994 the prosecutor decided to appoint an expert in building matters.

On 21 July 1994 the medical expert appointed for the case informed the prosecutor and the applicant’s defence counsel that the medical examination of the applicant’s wife had not taken place due to the lack of medical documentation concerning her previous medical treatment. On 8 August 1994 the medical opinion concerning the applicant’s wife, stating that she was able to take care of their children and to carry on business activities, was submitted to the prosecutor. On 9 August 1994 the prosecutor decided to dismiss the requests for release submitted by the applicant, his wife and his defence counsel of 10 and 28 June, 26 and 27 July 1994. The applicant’s defence counsel appealed against this decision. On 9 September 1994 the Poznań Appeal Public Prosecutor upheld the contested decision.

On 1 and 5 July 1994 the applicant complained to the Ministry of Justice and the prosecutor conducting the investigation that the documents in the case-file had been forged. Between 11 and 21 July 1994 the prosecutor heard seven witnesses in the case. On 11 July 1994 the public prosecutor dismissed the applicant’s request for release submitted on the same day. On 3 August 1994 the applicant again requested his release.

Between 3 and 10 August 1994 the prosecutor heard six further witnesses in the case. On 5 August 1994 he decided to appoint another expert. Between 19 August and 7 September 1994 the prosecutor heard eleven witnesses and, on two occassions , the applicant.

On 22 August 1994 the prosecutor decided to prolong the investigation of the case. By a decision of 26 August 1994 the Szczecin Regional Court prolonged the applicant’s detention on remand until 6 November 1994.  The court pointed to the necessity of continuing investigative proceedings. In particular, there was a need to carry out certain specific examinations and to examine a number of witnesses. On 4 October 994 the Poznań Appeal Court upheld this decision.

On 21 September 1994 the applicant again requested his release, relying on the fact that his wife was in hospital. This request was dismissed on 26 September 1994. The prosecutor considered that the applicant’s wife was capable of taking care of the children and of carrying on business activities.

On 28 September 1994 the expert in building matters submitted his opinion to the prosecutor. On 5, 6 and 7 October 1994 the prosecutor heard three witnesses and on 7 October 1994 decided to prolong the investigation of the case until 31 May 1995. On 13 October 1994 the applicant requested that an investigation be instituted against the Szczecin Regional Public Prosecutor in charge of the case. On 25 and 26 October 1994 two experts submitted their opinions to the prosecutor.

By a letter of 2 October 1994 the applicant informed the prosecutor that somebody had tried to kill him in prison. He also submitted that he had been poisoned. On 11 October 1994 the prosecutor requested the prison administration to submit information concerning the applicant’s health. The prosecutor emphasised that all medical examination of the applicant should be conducted in the presence of his defence counsel, since the applicant had  expressed his concerns regarding the alleged criminal behaviour of some prisons guards.

On 4 November 1994 the Supreme Court, upon the request of the General Public Prosecutor, decided to prolong the applicant’ detention on remand until 6 May 1995. The court found that there was sufficient likelihood that the applicant had committed the offence in question and there was a real danger of collusion on his part. The case was complex and multi -layered. It was necessary to pursue further investigative proceedings, including a request for judicial assistance from the prosecution authorities in the Netherlands, Luxembourg, Sweden and Germany. The court observed that the applicant had relapsed into crime and that he had been sought by a wanted notice at the initial stage of proceedings. In addition, there were no grounds to release him under Section 218 of the Code of Criminal Procedure.

On 14 November 1994, in reply to the applicant’s letters of 13 and 25 October 1994, the prosecutor informed him that his allegations about having been given poisonous and radioactive substances would be examined. On 14 November 1994 the prosecutor requested the prison administration to submit information concerning the state of health of the applicant who was at that time on hunger strike.

Between 25 November and 15 December 1994 the prosecutor heard five witnesses in the case. On 16 December 1994 the Gorzów Wielkopolski Regional Public Prosecutor refused to institute an investigation against the Szczecin Regional Public Prosecutor as requested by the applicant.

On 14 December 1994 the prosecutor dismissed the applicant’s subsequent request for release. Upon the applicant’s appeal the Poznań Appeal Public Prosecutor upheld the contested decision on 16 January 1995. On 5 January 1995 the applicant again complained that the prosecutor in charge of his case had allegedly committed a crime.

Between 17 and 27 January 1995 the public prosecutor heard fourteen witnesses and appointed one additional expert in building matters. On 16 January 1995 the prosecutor dismissed the applicant’s subsequent request for release of 13 January 1995. On 3 February 1995 the Poznań Appeal Public Prosecutor upheld the contested decision.

On 21 January 1995 the Poznań Appeal Public Prosecutor transmitted to the Regional Prosecutor several complaints made by the applicant as regards the prosecutor’s behaviour. On 13 February 1995 the Regional Prosecutor brought charges against the applicant’s wife and decided to impose police supervision on her. Between 1 February and 2 March 1995 the prosecutor heard twenty-five witnesses in the case. On 23 February 1995 the prosecutor decided to amend the charges already brought against the applicant. On 1 March 1995 the applicant obtained a temporary leave from prison in order to participate at his brother’s funeral.

On 15 February 1995 the prosecutor dismissed the applicant’s subsequent request for release. On 3 March 1995 the Poznań Appeal Public Prosecutor upheld the contested decision. On 26 February and on 8, 11 and 13 March 1995 the applicant again lodged unsuccessful requests for his release.

On 13 April 1995 the Regional Prosecutor dismissed the applicant’s subsequent request for release of 11 April 1995. On 5 May 1995 this decision was upheld by the Poznań Appeal Public Prosecutor. On 4 May 1995 the Regional Prosecutor decided to close the investigation and on 5 May 1995 he submitted the bill of indictment against the applicant to Szczecin Regional Court. The bill of indictment amounted to 150 pages, listed 111 witnesses to be summoned and requested 716 items of evidence to be disclosed at the hearing.

On 5 May 1995 the applicant’s defence counsel requested that the case be referred back for further investigation. On 17 May 1995 the Szczecin Regional Court allowed this request, but dismissed the applicant’s request for release of 11 May 1995. On 23 May 1995 the Regional Prosecutor appealed against the decision to refer the case back for further investigation. On 6 July 1995 the Poznań Court of Appeal decided to adjourn the examination of the appeal and to request the Supreme Court for the interpretation of the legal issues arising in the case.

On 31 July 1995 the Supreme Court referred the case-file back to the Poznan Court of Appeal for examination of the applicant’s requests of 1 and 28 June 1995 for release. On 10 August 1995 the Poznań Court of Appeal dismissed the applicant’s requests for release. On 22 September 1995 the Supreme Court issued a resolution concerning certain legal questions arising in the case. On 6 October 1995 the Poznań Court of Appeal dismissed the decision of the Szczecin Regional Court as regards referral of the case back for further investigation and decided that the case should be examined in the judicial proceedings.

On 3 and 7 November 1995 the applicant and his defence counsel again requested the applicant’s release. The applicant offered a bail bond. On 8 November 1995 the Szczecin Regional Court refused to release the applicant. On 20 November 1995 the applicant appealed against this decision. On 21 December 1995 the Poznań Court of Appeal dismissed the applicant’s appeal.

On 21 November 1995 the Szczecin Regional Court requested the Poznań Court of Appeal to consider transferring jurisdiction over the case to the Koszalin Regional Court as most persons to be summoned lived in that region. On 21 December 1995 the Poznań Court of Appeal decided that the case should be examined by the Koszalin Regional Court.

On 8 and 16 January 1996 the applicant again requested to be released on bail. On 31 January 1996 the Koszalin Regional Court dismissed the applicant’s request for release. On 12 February 1996 the applicant’s defence counsel appealed against this decision. On 13 March 1996 the Gdańsk Court of Appeal dismissed this appeal.

The applicant’s subsequent requests for release were submitted to the court on 9 February, 22 March and 25 April 1996. All those requests were dismissed on 5 and 29 April 1996. On 23 May 1996 the president of the court fixed the dates of the hearing in the case for 24, 25, 26, 27 and 29 June 1996. The applicant’s subsequent requests for release were submitted on 6 May, 19 and 24 June 1996. The last of the above mentioned requests for release was submitted to the court during the first hearing held in the case. All those requests were dismissed at this hearing.

The subsequent hearings in the case were held on 25, 26 and 27 June 1996. At the hearing on the latter date the applicant again unsuccessfully requested to be released on bail. The hearing was adjourned until 27 August, and further hearings were fixed for 28, 29 and 30 August 1996.

On 23 July 1996 the applicant again requested to be released. His request was dismissed on 13 August 1996. On 27, 28 and 29 August 1996 the court held hearings in the case. The applicant’s request to be released on bail of 29 August 1996 was dismissed at the hearing on 30 August 1996. The dates of the subsequent hearings were fixed for 9, 10 and 11 October 1996. On 3 and 5 September 1996 the applicant and his defence counsel appealed against the decision of 30 August 1996. Both appeals were dismissed by the Gdańsk Court of Appeal on 25 September 1996. The court considered that the applicant’s three-year detention was justified in view of a high probability of his guilt, the seriousness of the charges against him and a risk of a long-term imprisonment. There were no grounds to replace the detention by a more lenient preventive measure given that the bail in a form of real estate, as proposed by the applicant, was of a relatively small value by comparison with the extent of damage caused by him.

On 8 and 9 October 1996 the applicant again requested his release on bail. These requests were dismissed at the hearing held on 9 October 1996. On this date the court also dismissed the applicant’s motion to challenge the panel of judges appointed to adjudicate his case. On 11 October 1996 the applicant appealed against the decision to maintain him in custody. On 30 October 1996 the Gdańsk Court of Appeal dismissed the applicant’s appeal.

On 15 November 1996 the prosecutor requested the Koszalin Regional Court to prolong the applicant’s detention. On 22 November 1996 the Koszalin Regional Court requested the Supreme Court to prolong the applicant’s detention until 31 December 1997. The court submitted that the applicant’s detention was justified by the existence of a sufficient probability of his guilt and the gravity of the charges against him. In addition, the amount of the evidence in the case was enormous. The regional court also expressed the opinion that the applicant, if released, would deliberately obstruct and slow down the course of the proceedings or go into hiding.

On 28 November 1996 the Koszalin Regional Court decided to dismiss the applicant’s requests for release of 12 November 1996. On 6 December the applicant appealed against this decision.

On 3 January 1997 the Supreme Court decided to prolong the applicant’s detention until 31 December 1997. The court relied on the grounds invoked in the previous decisions, i.e. sufficient probability of the applicant’s guilt, a justified fear of his absconding as well as the exceptional complexity of the case and the lack of grounds for release provided by Section 218 of the Code of Criminal Procedure.

On 22 January 1997 the Gdańsk Court of Appeal refused to examine the applicant’s appeal of 6 December 1996, pointing out that by virtue of a decision of the Supreme Court of 3 January 1997 his detention on remand had been prolonged until 31 December 1997.

On 31 January 1997 the applicant again requested his release. On 6 February 1997 the Koszalin Regional Court dismissed the applicant’s requests for release, considering that the grounds on which the detention was ordered had not ceased to exist. The subsequent hearings in the case were held on 10, 11, 12, 13 and 14 March 1997. The applicant offered bail in the form of mortgage of a real estate belonging to a third person. The court dismissed the applicant’s request and adjourned the hearing until 15 April 1997. Further hearings were fixed for 16, 17 and 18 April 1997.

On 24 March and 3 April 1997 the applicant again requested his release. On 15, 16, 17 and 18 April 1997 the court held hearings. The applicant’s requests for release were dismissed at the latter hearing. On 25 April, 13 and 26 May 1997 the applicant submitted to the court his subsequent requests for release. Those requests were dismissed on 20 April, 19 and 30 May 1997 respectively.

On 23, 23, 25, 26 and 27 June 1997 the court held hearings in the case. At the hearing of 26 June 1997 the applicant requested to be released on bail and under police supervision. At the subsequent hearing of 27 June 1997 the court dismissed that request. In the meantime the court ordered that the applicant be examined by psychiatrists and a psychologist. The opinion on his state of mental health was submitted to the court on 10 July 1997.

On 16 July 1997 the court again refused to release the applicant. The subsequent hearings in the case were held on 25, 25, 27, 28 and 29 August 1997. At the latter hearing the applicant requested to be released on bail. The court decided to adjourn the examination of the applicant’s request for release and ordered that the applicant’s defence counsel should submit within 14 days documents concerning the real estate offered as a bail by the third person. The court requested also that a medical opinion on the applicant’s childrens ’ state of health should be submitted within the same time-limit.

On 9 September 1997 the defence counsel submitted the requested documents. On 22 September 1997 the court held a sitting in order to examine the applicant’s request for release. On 23 September 1997 the Koszalin Regional Court ordered that the applicant be released and that he remain under police supervision on condition that he paid 20,000 PLN. The court considered that bail in form of the real estate, which belonged to a friend of the applicant, was not acceptable in view of the fact that it constituted a part of the conjugal property.

On 19 and 30 September, and 2 and 3 October 1997 the court held further hearings in the applicant’s case. At the hearing on 29 September 1997 the court again considered the question of bail sum offered by the third person. On 30 September and 2 October 1997 the applicant appealed against the decision of 23 September 1997. On 3 October 1997 the applicant once again requested the court to accept a bail bond offered by the third person. He submitted that he and his wife had been declared bankrupt and therefore he had no other possibility of paying the required sum.

At the hearing of 3 October 1997 the court decided to consider the applicant’s appeals as requests for release and dismissed them. The court underlined that the time-limit of 14 days for paying the bail sum proposed was still valid and the applicant’s appeals were premature.

Further hearings in the case were held on 27, 28 and 29 October 1997. At the hearing of 29 October 1997 and on 5 November 1997 the applicant again requested to be released on bail. On 7 November 1997 the applicant appealed against the decision of 3 October 1997. On 18 November 1997 the applicant requested to be released and to remain under police supervision. On 20 November 1997 the Koszalin Regional Court dismissed the applicant’s requests for release and ordered again that the applicant’s detention be continued. However, the court envisaged the possibility of imposing a less severe preventive measure provided that the applicant paid 20,000 PLN as bail.

On 28 November 1997 the applicant again requested to be released under police supervision. On the same day the applicant appealed against the decision of 20 November 1997 fixing 20,000 PLN as bail. On 1 December 1997 the Koszalin Regional Court ordered that the applicant be released on condition that he paid 15,000 PLN. The court noted that police supervision alone was not a sufficient preventive measure in the circumstances of the case. Since the applicant did not pay the bail, his detention on remand continued.

On 17 and 18 December 1997 the court held hearings in the case. At the hearing on the merits on 18 December 1997, the Koszalin Regional Court requested the Supreme Court to extend the applicant’s detention on remand until 30 June 1998. The court found  that the applicant’s request to have certain witnesses heard and some additional expert opinions taken would cause a delay in the final stage of the proceedings. Furthermore, there was a reasonable risk that the applicant, if released would deliberately obstruct the proper course of the proceedings or go into hiding. The court refused to impose police supervision on the applicant, offering again the possibility of granting bail in the sum of 15,000 PLN.

By virtue of the Supreme Court decision of 20 January 1998 the applicant’s detention on remand was prolonged until 30 June 1998. On 23 January 1998 the Koszalin Regional Court decided to dismiss the applicant’s requests for release of 20 January 1998. The court found that the circumstances justifying the applicant’s detention had not ceased to exist. Besides, the applicant had not availed himself of the possibility of paying bail in the sum of 15,000 given to him by the court on 1 December 1997.

On 10, 17, 19 and 27 February 1998 the applicant and his defence counsel submitted subsequent requests for release. Those requests were dismissed on 12, 23 February and 3 March 1998. In its decision of 23 February 1998 the court observed that more time was required in order to assess new evidence submitted by the applicant. The court further considered that there was a serious threat that the applicant might obstruct and prolong the proceedings. In its decision of 3 March 1998 the court referred to the reasoning of  the previous decisions.

On 23 March 1998 the applicant again requested his release. This request was dismissed on the next day. Then the applicant and his defence counsel unsuccessfully requested the applicant’s release at the hearing held on 2 April 1998 and on 24 April 1998. The latter request was dismissed on 19 May 1998.

Further hearings in the case were held on 25 and 16 May 1998. At the latter hearing the applicant again requested to be released on bail in amount of 15,000 PLN. The court dismissed the applicant’s request at the same date. The applicant’s subsequent request for release of 5 June 1998 was dismissed on 19 June 1998.

The last hearing in the case was held on 26 June 1998. At the hearing the court decided to release the applicant. On 29 June 1998 the court delivered judgment in the case. The applicant was convicted by the first-instance court and sentenced to six and a half years imprisonment.

On 19 April 2000, upon the applicant’s appeal, the Gdańsk Court of Appeal upheld the first instance judgment with reference to the sentence imposed on the applicant. The appeal court changed the legal qualification of the offences committed by the applicant and his wife.

By a decision of 6 November 2001 by the Koszalin Regional Court the applicant was conditionally released from prison. By a decision of 21 August 2002 the Supreme Court dismissed the applicant’s cassation appeal against the second-instance judgment of 19 April 2000, considering it manifestly unfounded.

Facts concerning civil proceedings

On 11 June 1996 the Koszalin   District Court declared the applicant and his wife’s company insolvent on the grounds that the applicant had definitely stopped paying his debts. On 29 October 1996 the Koszalin Regional Court dismissed the applicant’s appeal against this decision. By a decision of 29 October 1996 the Koszalin Regional Court upheld the declaration of insolvency.

On 12 November 1996 the applicant requested an ex officio lawyer to be appointed for him by the Koszalin Regional Court for the purpose of bringing a cassation appeal against the decision declaring the applicant and his wife’s company insolvent.

On 18 November 1996 the applicant submitted to the Koszalin Regional Court his own cassation appeal against insolvency decision.

On 4 December 1996 the Koszalin Regional Court appointed an ex officio lawyer in the applicant’s case for the purpose of bringing the cassation appeal against the insolvency decision. The court also exempted the applicant from paying the court’s fee in the cassation proceedings. On 19 December 1996 the applicant’s lawyer submitted the cassation appeal to the Koszalin Regional Court.

On 20 January 1998 the Supreme Court dismissed the applicant’s cassation appeal against the decision of 29 October 1996. The court considered that the applicant had acted as a business enterprise and he was therefore able to be declared insolvent. The cassation hearing was held on 20 January 1998 in the presence of the applicant’s wife representing the interests of the company which was declared insolvent. The applicant’s officially assigned lawyer failed to attend the hearing before the Supreme Court.

B. Relevant domestic law

1.  The 1969 Code of Criminal Procedure

The 1969 Code of Criminal Procedure, which remained in force until 1 September 1998, listed as preventive measures, inter alia , detention on remand, bail and police supervision.

Article 209 of the Code, which set out general grounds justifying the imposition of preventive measures, provided that preventive measures could be imposed in order to secure the proper course of proceedings if the evidence against the accused sufficiently justified the opinion that he had committed a criminal offence.

Article 210 read:

"1. Preventive measures [i.e. detention on remand, bail and police supervision] shall be imposed by the court; before a bill of indictment is lodged with the court, they shall be ordered by the prosecutor (...)."

Article 212 provided that a decision concerning preventive measures could be appealed to a higher court.  A prosecutor’s order on detention on remand could be appealed to the court competent to deal with the merits of the case.

Article 213 of the Code provided that a preventive measure should be immediately quashed or changed if the grounds therefor ceased to exist or if new circumstances arose, which justified quashing a given measure or replacing it with another.

Article 225 of the Code provided that detention on remand should be imposed only when it was mandatory and should not be imposed if bail or police supervision, or both of these measures, were considered adequate.

Article 217 of the Code, before it was amended on 1 January 1996, provided insofar as relevant:

“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 domicile,

2. there is a reasonable risk that he will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means.”

Article 218 provided:

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

(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.”

Pursuant to Article 226 of the Code, bail surety, in the form of cash, securities or mortgage, could be deposited by the accused, or by another person. Determination of the sum, form and all relevant modalities of the bail surety should be made, having regard to the financial situation of the accused and, as the case may be, another person depositing the bail surety, as well as to the assessed damage which could have been caused by the offence concerned and to the character of the offence.

Until 4 August 1996, when the Code of Criminal Procedure was amended, Polish law did not set out any statutory time-limits concerning detention on remand in court proceedings but only in respect of the investigative stage.

Article 222 of the Code of Criminal Procedure, as applicable after 4 August 1996, provided that the whole period of detention on remand until the date on which the court of first instance gave judgment could not exceed one year and six months in cases concerning ordinary offences. In cases concerning serious offences this period could not exceed two years.

In particularly justified cases the Supreme Court could, upon the request of the court competent to deal with the case, prolong detention on remand for a further fixed period exceeding the above-mentioned periods, when it was necessary in connection with a suspension of the proceedings or because of the prolonged psychiatric observation of the accused or when evidence had to be obtained from abroad or when the accused deliberately obstructed the termination of the proceedings within the above-mentioned time-limits.

2.  The 1997 Code of Criminal Procedure

On 1 September 1998 the 1997 Code of Criminal Procedure replaced the 1969 Code.

Article 263 of the 1997 Code, 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 6 months,

the appeal court – for a further fixed period necessary to conclude the investigation but not longer than 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 only by the Supreme 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 cannot be overcome”.

3.  Assistance of an officially appointed lawyer

Pursuant to Article 113 of the Code of Civil Procedure, a person may request the court to grant him or her exemption from court fees if he submits a declaration that he cannot afford to pay court fees without a substantial reduction in his and his family’s standard of living. Such a declaration shall contain details of the family situation, assets and income of the person concerned. A decision whether the financial situation of the person as set out in the declaration justifies granting exemption is left to the court’s discretion.

Under Article 117 of the Code, a party to the proceedings who obtained exemption from court fees is entitled to request the court to assign an advocate or a legal counsel to represent him or her in the proceedings. The court shall grant such request if it considers that it is justified, having regard to the circumstances of the case. The court shall subsequently request the local Chamber of Advocates or the Chamber of Legal Counsel to appoint a lawyer to represent the party before the court. If a person so appointed is obliged to perform a judicial act before another court in connection with the proceedings, the Chamber of Advocates or the Chamber of Legal Counsel shall, if it considers it necessary, on the request of the lawyer appointed to the case, designate another advocate or counsel practising within the jurisdiction of that court.

4. Cassation appeal

Following amendments made to the Code of Civil Procedure by the Law on Amendments to the Code of Civil Procedure of 1 March 1996, a party can lodge a cassation appeal with the Supreme Court against a final judicial decision of a second-instance court which has terminated the civil proceedings.

Pursuant to Article 393 of the Code, a cassation appeal may be lodged on the ground that the courts have committed errors of law in that they have incorrectly interpreted or wrongly applied substantive laws; or on the ground of such flagrant breach of procedural provisions as could have seriously affected the outcome of the proceedings.

The presence of the lawyer or a legal counsel at a cassation hearing is not obligatory.

COMPLAINTS

1. The applicant complained under Article 5 § 3 of the Convention about the length of his detention on remand and the fact that the courts, without providing sufficient justification, imposed unattainable and unfair conditions on his release, in that they did not accept a bail bond offered by third persons and insisted on his paying the bail sum although he and his wife had been declared bankrupt. The applicant submitted that in this way the prosecutor tried to blackmail him into withdrawing his motions as to evidence.

2. The applicant complained that he was deprived of legal aid at the cassation appeal hearing held in the insolvency proceedings on 20 January 1998 before the Supreme Court because his officially assigned lawyer failed to attend this hearing.

3. The applicant complained under Article 8 of the Convention about the alleged censorship and interception of his correspondence with the Convention organs.

4. In his observations dated 29 April 2003 the applicant submitted a complaint that he was deprived of his liberty by a decision of a prosecutor who was not a judge or other officer authorised by law, contrary to Article 5 § 3 of the Convention.

THE LAW

1. The applicant complained that the length of his detention on remand had exceeded a “reasonable time” within the meaning of Article 5 § 3 of the Convention. He also complained that his requests for release on bail had been unjustly rejected. Article 5 § 3, in its relevant part, states:

“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 Government admitted that the applicant’s detention on remand for a period of four years, seven months and twenty days, had lasted a considerably long time. However, the Government asserted that there had been valid reasons for holding the applicant in custody. The applicant had been charged with serious offences, based on sufficient evidence. There was a high risk of his absconding, colluding and tampering with evidence, if he had been released. The applicant had clearly contributed to the prolongation of the investigations in that complex case by reading only a few pages a day of the voluminous case-file. His continued detention was subject to  permanent and diligent supervision by the domestic courts. Moreover, at some stage of the proceedings, the courts expressed the willingness to release the applicant on bail, but he had not availed himself of that opportunity. In the Government’s view, the bail bond in a form mortgage on  real estate, belonging to a friend of the applicant, had not provided sufficient guarantees in view of the fact that it formed a part of a joint marital property.

The applicant submitted that the overall period of his detention on remand was exceptionally long and as a result it was, at least to some extent, a punitive measure against him. In his opinion the reasons given by the authorities in their detention decisions could not be considered as relevant and sufficient so as to justify the whole lengthy period of his detention. The applicant submitted that there was no legal obstacle preventing the establishment of a mortgage on real estate that constituted a part of joint marital property provided that the spouse gave his or her consent. As regards the bail, which was at first fixed in the amount of PLN 20,000 and then in the amount of PLN 15,000 by the Koszalin Regional Court, it exceeded by nineteen and fourteen times the then average monthly salary in Poland, whereas the applicant was in a very difficult financial position, having been declared bankrupt by a decision of the Koszalin District Court of 11 June 1997. The applicant argued that the investigative proceeding were not conducted with special diligence on the part of the authorities. He pointed out that the first hearing in his case was held more than fifteen months after the investigation was closed and more than thirteen months after the bill of indictment was lodged with a court.

The Court considers that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.

2. The applicant further complained that he had been deprived of legal aid at the cassation appeal hearing held in the insolvency proceedings on 20 January 1998 before the Supreme Court because his officially assigned lawyer had failed to attend the hearing. Article 6 § 1 of the Convention, insofar as relevant, reads:

“In the determination of his civil rights and obligations..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...”

The Government submitted that advocates practising in Poland are members of independent bar associations, self-regulating, which adopt their own rules of disciplinary control. The lawyers are subject to disciplinary responsibility only before the disciplinary body of the bar association. Consequently, any shortcomings on the part of a lawyer could not engage the responsibility of the domestic authorities.

The Government further submitted that the applicant had been granted legal assistance and had been exempted from cassation fees. The Government  emphasised that, contrary to the applicant’s allegations, he had several times been granted access to the case-file. The applicant’s lawyer had prepared and filed the cassation appeal on his behalf within the prescribed time-limit. According to the relevant legal provisions, the presence of the lawyer at the cassation hearing had not been obligatory. Moreover, the applicant’s wife had been present at the cassation hearing held on 20 January 1998 and thus had represented the interests of their company.

The applicant submitted that even though the acts of individual lawyers could not be attributed to the State, in the special circumstances of this case, taking into consideration that he was deprived of liberty, the State had a duty to protect his right to a fair trial by providing him with effective legal assistance in the cassation proceedings before the Supreme Court. The applicant was granted a legal aid lawyer who was obliged to prepare the cassation pleading, but who was not obliged to attend the hearing. In the applicant’s view, the personal presence of his wife at the cassation hearing could not offset the failure of the lawyer to plead the cassation appeal before the Supreme Court.

The Court recalls that, according to Article 34 of the Convention, it is competent to receive petitions from any person claiming to be a victim of a violation by one of the Contracting Parties of the rights set out in the Convention. The responsibility of the Contracting Parties is incurred by the actions of their organs. A lawyer, even if he or she is officially appointed to a case, cannot be considered as an organ of a State. It follows from the independence of the legal profession from the State that the conduct of the defence is essentially a matter between the defendant and his counsel, whether counsel be appointed under a legal aid scheme or be privately financed, and, as such, cannot, other than in special circumstances, incur the State’s liability under the Convention (see, mutatis mutandis , the Artico v. Italy judgment of 30 May 1980, Series A no. 37, p. 18, para . 36; the Daud v. Portugal judgment of 21 April 1998, Reports of Judgments and Decisions 1998-II, p. 749, § 38; Eur . Com. H.R., no. 9022/80, Dec. 13.7.1983, D.R. 33, p. 21; no. 27266/95, Dec. 21.10.1996, D.R. 87-B, p. 100; Tuziński v. Poland ( dec ), no. 40140/98, 30.03.1999).

The Court observes that the special guarantees required with regard to defence rights in criminal proceedings are not applicable in the same way in civil proceedings, such as in the present case.

It follows that this part of the application is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected, pursuant to Article 35 § 4.

3. The applicant complained about the alleged interference with his correspondence with the Convention organs. He relied on Article 8 of the Convention, which, insofar as relevant, provides:

“1. Everyone has the right to respect for his (...) correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Government did not contest that the applicant’s letters to the Convention organs had been sent and received through the Koszalin Regional Court. However, the Government submitted that the applicant had failed to produce any evidence showing the manner in which the claimed interference with his right to respect for his correspondence had been effected. Nor had he proved that those letters had not reached their destination.

The applicant submitted that detained persons’ correspondence had been routinely controlled at the time and that the Government had failed to offer any proof that the letters in question were not subject to interference.

The Court finds that the complaint has not been substantiated and does not disclose any appearance of violation of Article 8 of the Convention ( c.f., mutatis mutandis , J.M. v. Poland , application no. 22558/93, decision of 29.06.1994; JasiÅ„ski v Poland, application no. 30865/96, decision of 19.10.1998; Ploski v. Poland application no. 27507/95, decision of 4.12.2001). It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

4. In his observations dated 29 April 2003 the applicant raised a complaint that he was deprived of his liberty by a decision of a prosecutor who was not a judge or other officer authorised by law, contrary to Article 5 § 3 of the Convention. The applicant relied on Article 5 § 3 of the Convention which, insofar as relevant, reads:

“ Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. ...”

The Court observes that that the applicant was firstly brought before a trial judge on 24 June 1996, when the first hearing was held in the criminal proceedings against him, which is more than six months before his complaint was submitted to the Court.  By virtue of Article 35 §§ 1 and 4 of the Convention, the Court is not required to examine this part of the application as it was submitted out of time. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaint concerning the length of his detention on remand;

Declares the remainder of the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President