FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 51895/99 by Bogdan KWIEK against Poland

The European Court of Human Rights (Fourth Section) , sitting on 17 June 2003 as a Chamber composed of

Sir Nicolas Bratza , President , Mrs E. Palm , 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 August 1998,

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 deliberated, decides as follows:

THE FACTS

The applicant, Mr Bogdan Kwiek, is a Polish national, who was born in 1968 and lives in Chełm, Poland.

A. The circumstances of the case

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

1. Criminal proceedings against the applicant and his detention

On 10 September 1994 the applicant began serving a sentence of 5 years’ imprisonment that he had received for robbery on an unknown date.

On 16 December 1994 the Lublin Regional Prosecutor ( Prokurator Rejonowy ) charged the applicant with homicide. On the same day the prosecutor also ordered that the applicant be detained on remand.

The investigation, which involved 7 defendants, was terminated on an unknown date in November 1995. In the course of that investigation, the prosecution obtained evidence from 221 witnesses and reports from pathologists, psychiatrists, fingerprint experts and several other forensic experts. The defendants were also subjected to polygraph tests.

At the beginning of December 1995 the Regional Prosecutor lodged a bill of indictment with the Lublin Regional Court ( Sąd Wojewódzki ). The applicant was indicted on charges of homicide, aggravated robbery and possessing a firearm and ammunition without a licence. The bill of indictment comprised 15 charges brought against 7 accused. The prosecution called 97 lay witnesses and several expert witnesses. It also asked the court to read out records of testimonies given by 124 other witnesses.

The trial began on 4 December 1996. In the course of the proceedings the Regional Court held 46 hearings in all. They were held on the following dates: 4, 5, 23 and 30 December 1996; 20 January; 24, 27 and 28 February; 23 May; 18, 19, 23 and 26 June; 15 October; 19 November; 10, 17 and 19 December 1997; 4, 5, 6 and 25 February; 21 and 23 September; 4 November and 3 December 1998; 12 February; 19 March; 22 April; 26 May; 30 June; 4 August; 3 and 30 September; 22 October; 29 November and 8 December 1999; 10 January; 9 February, 30 March; 12 April; 15 and 25 May; 26 June; 13 July and 9 August 2000.

The applicant many times asked for release but all his applications were refused in view of the serious nature of the offences with which he had been charged, the need to secure the proper conduct of the proceedings and the severity of the sentence to which he was liable (from 8 years imprisonment up to a life sentence).

On 28 October 1997 the Lublin Regional Court ordered, under Article 211 § 1 of the Code of Criminal Procedure of 1969 (“the 1969 Code”), that the applicant be kept in detention pending trial for at least 1 year following the date on which he had completed serving his previous sentence.

The applicant appealed. He alleged, among other things, a breach of Article 222 of the 1969 Code. That provision laid down a statutory time-limit of 2 years for keeping an accused in detention pending trial. The applicant argued that he had already spent in custody nearly 3 years and that that fact had made his detention unlawful.

On 30 December 1997 the Lublin Court of Appeal ( Sąd Apelacyjny ) altered the contested decision and ordered that the applicant’s detention should continue until 30 September 1998. It further held that, in the light of the Supreme Court’s ( Sąd Najwyższy ) case-law, statutory time-limits for detention on remand did not apply to persons who were simultaneously detained in order to serve a sentence imposed in other proceedings.

On 23 September 1998 the Lublin Regional Court prolonged the applicant’s detention pending trial until 31 December 1998 in view of the high probability that the applicant had committed the serious offences with which he had been charged, the severity of the anticipated sentence and the need to secure the proper conduct of the proceedings. That decision was upheld on appeal on 7 October 1998.

It appears that, subsequently, the applicant’s detention was prolonged on several occasions. The applicant has not, however, produced the relevant decisions.

On 11 August 2000 the Lublin Regional Court gave judgment. The applicant was convicted of armed robbery and possessing a firearm and ammunition without a licence. He was sentenced to 15 years’ imprisonment. The court also ordered that he be deprived of his civic rights for 10 years.

On 26 April 2001, on the applicant’s appeal, the Lublin Court of Appeal partly amended the first-instance judgment. It corrected the legal classification of the second offence of which the applicant had been convicted, ordered that the period of his detention from 11 August 2000 to 26 April 2001 be deducted from his sentence and upheld the remainder of the original conviction and the sentence imposed.

The applicant did not file a cassation appeal ( kasacja ) with the Supreme Court.

2. Censorship of the applicant’s correspondence

The applicant produced 6 envelopes. Some of them contain letters. All envelopes bear traces of opening after being sealed; their sides were cut open and, in some instances, resealed with self-sticking paper slips. The following facts emerge from the applicant’s submissions and the material adduced by him.

On an unknown date in December 1997 the applicant wrote a letter to his defence counsel. The envelope bears stamps: “Censored”( “ cenzurowano ” ) and “ 1997-12-9”.

On 17 July 1998 the applicant’s defence counsel sent a letter to him. The envelope bears a stamp that reads: “Censored. R[ egional ] C[ ourt ] Lublin ”. A hand written note indicates that on 21 July 1998 the letter was received at the Regional Court’s registry and posted to the applicant on the same day.

On 28 September 1998 a letter that the applicant received from the Constitutional Court was opened and stamped “censored” by the Lublin Regional Court.

On 21 October and 9 November 1998 the Regional Court opened and stamped “censored” 2 letters sent to the applicant by a certain O.K., his sister in law.

On 15 April 1999 the Regional Court opened and censored a letter sent to the applicant by the Court’s registry on 6 April 1999. In that letter the registry informed the applicant that his defence counsel had been asked to provide more detailed information of his trial. A copy of the registry’s letter to the counsel – which, in addition to the request for information, contained an explanation as to why the applicant’s complaint about the length of detention lacked prospects of success – was enclosed with that letter.

B. Relevant domestic law and practice

1. Cassation appeal

Under Article 519 of the so-called “new” Code of Criminal Procedure ( Kodeks postępowania karnego ) of 6 June 1997 (“the 1997 Code”), a party to criminal proceedings may lodge a cassation appeal with the Supreme Court against a final judgment of an appellate court which has terminated the criminal proceedings.

Article 523 of the 1997 Code provides, in so far as relevant:

“A cassation appeal may be lodged only on the grounds referred to in Article 439 [these include a number of procedural irregularities, such as, for instance, incorrect composition of the trial court; lack of legal assistance in cases where such assistance was compulsory; breach of rules governing jurisdiction in criminal matters; trying a person in absentia where his presence was obligatory etc.] or on the ground of another flagrant breach of law provided that the substance of the ruling in question was significantly affected as a result of such a breach. No cassation appeal may be directed against the severity of the penalty imposed.”

As regards “another flagrant breach of law”, an appellant can invoke any breach of substantive or procedural provisions of criminal law capable of affecting the substance of the contested judgment. This includes a breach of defence rights, which are guaranteed under Article 6 of the 1997 Code. That provision reads:

“An accused shall have a right to defence, including a right to be assisted by a defence counsel. He should be informed thereof.”

2. Censorship of correspondence

Until 1 September 1998 censorship of correspondence was effected under the provisions of the Code of Execution of Criminal Sentences ( Kodeks karny wykonawczy ) of 19 April 1969 (“the 19 April 1969 Code”). The Code is no longer in force. On 1 September 1998 it was repealed and replaced by the “new” Code of Execution of Criminal Sentences of 6 June 1997 (“the 6 June 1997 Code”).

(a) Rules applicable until 1 September 1998

Pursuant to Article 89 § 2 of the 19 April 1969 Code, all correspondence of a detainee was, as a rule, censored, unless a prosecutor or a court decided otherwise. There was no legal means whereby a detainee could appeal against or, in any other way, contest censoring of his correspondence or the scope of that measure (cf. Niedbała v. Poland , no. 27915/95, judgment of 4 July 2000, §§ 33-36).

(b) Rules applicable after 1 September 1998

Article 103 of the 6 June 1997 Code, which is contained in Chapter IV entitled “Rights and duties of convicted persons”, provides as follows:

“Convicted persons, their counsel, representatives and the relevant non-governmental organisations have a right to lodge complaints with institutions set up by international treaties ratified by the Republic of Poland concerning the protection of human rights. In those cases, correspondence of persons deprived of their liberty shall be sent to the addressee without delay and shall not be censored.”

Provisions relating to the execution of detention on remand (Articles 207-223) are contained in Chapter XV entitled “Detention on remand”.

Article 217 § 1 reads, in so far as relevant:

“... a detainee’s correspondence shall be censored by [the authority at whose disposal he remains], unless the authority decides otherwise.”

Pursuant to Article 214 § 1,

“Unless exceptions are provided for in the present Chapter, a detainee shall enjoy at least the same rights as are secured to a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison. No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings, to maintain order and security in a remand centre and to prevent demoralisation of detainees.”

Article 242 § 5, which is contained in Chapter XXI entitled “Definitions”, provides:

“The prohibition of censorship shall also mean the prohibition of acquainting oneself with the content of a letter.”

COMPLAINTS

1. The applicant complains under Article 5 § 1 of the Convention that his detention from 1 January to 28 October 1998 was not based on a judicial decision and was, consequently, not “lawful”, as required under that provision. He also submits that the prolongation of his detention ordered by the Lublin Regional Court on 28 October 1997 was unlawful.

2. He further alleges a breach of Article 6 § 1 in that he did not have a “fair hearing” and that, in particular, his defence rights were not respected.

3. He also alleges that his trial exceeded a “reasonable time” within the meaning of Article 6 § 1.

4. Lastly, the applicant complains that the censorship of his correspondence was contrary to Article 8 of the Convention.

THE LAW

1. The applicant complains under Article 5 § 1 of the Convention that his detention from 1 January to 28 October 1997 was not “lawful”, as required under that provision. He also submits that the extension of his detention effected under the Lublin Regional Court’s decision of 28 October 1997 was unlawful.

However, pursuant to Article 35 § 1 of the Convention:

“The Court may only deal with the matter ... within a period of six months from the date on which the final decision was taken.”

The Court notes that the first limb of the applicant’s complaint relates to a specific period of his detention, which ended on 28 October 1997.

As regards the allegedly unlawful extension of the applicant’s detention, the Court observes that, following his partly successful appeal against the Regional Court’s order, the final decision on the matter was given by the Lublin Court of Appeal on 30 December 1997.

Accordingly, the dates that mark the start of the six-month time-limit for the purposes of Article 35 § 1 are, respectively, 28 October 1997 and 30 December 1997.

Since the applicant introduced his complaints on 17 August 1998, that time-limit was not observed.

It follows that this part of the application is inadmissible as being lodged out of time and that it must be rejected, pursuant to Article 35 § 4 of the Convention.

2. The applicant further alleges a breach of Article 6 § 1 in that he did not have a “fair hearing” and that, in particular, his defence rights were not respected.

The Court recalls that, according to another principle laid down in Article 35 § 1 of the Convention, it may only deal with the matter:

“... after all domestic remedies have been exhausted, according to the generally recognised rules of international law ... .”

It further recalls that that the purpose of the rule of exhaustion of domestic remedies referred to in Article 35 § 1 is to afford Contracting States an opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. The respondent State must have a chance to put matters right through its own legal system before having to answer before an international body for its acts. In consequence, complaints intended to be brought subsequently before the Court in Strasbourg should first have been made – at least in substance – to the appropriate domestic body. In that way Article 35 § 1 obliges the applicant to try available remedies that relate to the breach alleged by him (see, among many other examples, Selmouni v. France [GC], §§ 74-76, ECHR 1999-VII; H.D. v. Poland (dec.), no. 33310/96, 7 June 2001; unreported).

In the present case the Court finds that the applicant did not file a cassation appeal against the final judgment given in his case by the Lublin Court of Appeal on 26 April 2001.

In that regard, it observes that under Polish law a cassation appeal can be brought by a party alleging a flagrant breach of any substantive or procedural provision of criminal law capable of affecting the substance of the judgment. That includes a breach of defence rights. The cassation appeal was therefore a remedy whereby the applicant could have effectively submitted the substance of the present complaints to the domestic authorities.

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. The applicant also complains that his trial exceeded a “reasonable time” within the meaning of Article 6 § 1 of the Convention.

That Article, in its relevant part, states:

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

The Court will assess the reasonableness of the length of the impugned proceedings in the light of the particular circumstances of the case and having regard to the criteria laid down in its case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 124, ECHR-2000-X).

It observes at the outset that the period to be taken into consideration began on 16 December 1994, when the applicant was charged with homicide, and ended on 26 April 2001, when the Lublin Court of Appeal gave the final judgment. It accordingly lasted 6 years, 4 months and 10 days.

The case was certainly a complex one. It involved numerous charges of serious offences and 7 defendants. Its complexity is also shown by the volume of evidence obtained and heard during the proceedings. Thus, the prosecution obtained evidence from 221 witnesses and several reports from forensic experts, including pathologists, psychiatrists and fingerprint experts. The trial court heard evidence from 97 lay witnesses and several expert witnesses.

The Court would also note that, given the nature of the case and the number of persons involved, the conduct of the investigation and the organisation of the trial seem to have in themselves been difficult tasks. Yet, despite that fact, the authorities acted with all due diligence. The investigation was completed within about 1 year which, having regard to the amount of material gathered during this time, was not a lengthy period.

It is true that the Regional Court needed 1 further year to prepare the case for the main hearing, but once it made the schedule of the trial the proceedings progressed without any delay. The trial before the Regional Court lasted 3 years and some 8 months. Having regard to the fact that during that time the court held 46 hearings, it cannot be said that the applicant did not have his case heard within a “reasonable time”.

The same holds true in respect of the appellate proceedings, which lasted merely 9 months.

In the circumstances, the Court concludes that the proceedings complained of do not disclose an unreasonable delay within the meaning of Article 6 § 1.

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

4. Lastly, the applicant complains that the censorship of his correspondence was contrary to Article 8 of the Convention.

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the censorship of his correspondence;

Declares the remainder of the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President