THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39251/98 by Bogdan WĘGRZYN against Poland

The European Court of Human Rights ( Third Section) , sitting on 5 December 2002 as a Chamber composed of [Note1]

Mr G. Ress , President , Mr I. Cabral Barreto , Mr P. Kūris , Mr B. Zupančič , Mr J. Hedigan , Mrs M. Tsatsa - Nikolovska , Mr L. Garlicki, judges , and Mr V . Berger , Section Registrar ,

Having regard to the above application introduced 8 August 1997with the European Commission of Human Rights,

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,  Bogdan Węgrzyn, is a Polish national, who was born in 1962 and lives in Tarnów, Poland.

A. The circumstances of the case

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

On 10 October 1995 the applicant and other suspects were arrested on suspicion of assault. By a decision of 11 October 1995 of the Tarnów District Prosecutor, the applicant was remanded in custody. His detention was ordered for a period of three months, i.e. until 10 January 1996.The prosecutor referred to the strong probability of the applicant’s guilt, the gravity of the charges against him and the high risk of his hindering the proper conduct of the proceedings by exerting pressure on witnesses.

On 7 December 1995 the Tarnów District Prosecutor dismissed the applicant’s motion concerning his request for a medical expert opinion his state of health at the time the crime was committed.

On 3 January 1996 the Tarnów Regional Court prolonged the applicant’s detention until 10 February 1996. The court noted that the investigation had not yet been completed since one of the co-accused had lodged a complaint concerning an anonymous witness and, in addition, some of the witnesses whose whereabouts were unknown had still to be heard. The court further noted that, in spite of the fact that the victims of the assault had changed their initial testimony, there were still serious grounds for believing that the applicant had committed the offences in question. The court also observed that the law did not require that the evidence in support of detention had to be such as to justify a conviction.

On 1 and 2 February 1996 the Tarnów District Prosecutor dismissed the applicant’s motions concerning the witnesses to be summoned by the court.

On 7 February 1996 the bill of indictment was lodged with the Tarnów Regional Court.

By a decision of 19 February 1996 the Tarnów District Prosecutor refused to institute criminal proceedings against the police officers who allegedly overstepped their competence by exerting pressure on the applicant to plead guilty and to incriminate other suspects. According to the applicant, the pressure had been also put upon the witnesses. The prosecutor found these allegations unsubstantiated and observed that there was nothing wrong in persuading a suspect to plead guilty, since a confession would constitute a mitigating factor.

On 18 March 1996 the Tarnów District Court, in view of the fact that the applicant’s wife was going to give birth to a child and that there was nobody who could take care of the applicant’s other children, decided to put them in public care for the period of their mother’s stay in hospital.

On 23 March 1996 the Tarnów Regional Prosecutor upheld the decision of 19 February 1996 of the Tarnów District Prosecutor.

On 5 April 1996 the Ombudsman informed the applicant that he could not intervene in the pending proceedings because this might constitute an interference with judicial independence.

On 19 August 1996 the applicant lodged a motion, requesting suspension of the criminal proceedings due to the fact that the whereabouts of the victims of the alleged assault were unknown and he was unable to put questions to them. The applicant relied on his right to be given an opportunity to question witnesses on his behalf on the same conditions as those against him, as guaranteed by the European Convention on Human Rights.

On 23 August 1996 the Tarnów Regional Court refused to release the applicant, observing that he had failed to indicate any new circumstances justifying his request.

By a decision of 6 September 1996 the Tarnów Regional Court dismissed the applicant’s motion for the suspension of the proceedings, finding that Section 337 § 1 of the Code of Criminal Procedure allowed for a possibility of using indirect testimony in case the witnesses could not be examined at a hearing.

On 24 September 1996 the Tarnów Regional Court convicted the applicant and sentenced him to three years’ imprisonment. On the same date the court decided to uphold the applicant’s and other defendants’ detention, finding that all of them had been sentenced to at least three years’ imprisonment and that the grounds for release provided by Section 218 of the Code of Criminal Procedure were insufficient.

In a letter of 28 March 1997 to the applicant’s lawyer, the Kraków Court of Appeal observed that the appeal against the first-instance judgment submitted by him was not entirely consistent with the appeal prepared by his client and asked him to respond to the applicant’s allegations that he had failed in his duties as a legal counsel by not discussing with him the issue of the appeal.

On 27 May 1997 the Kraków Court of Appeal quashed the judgment of 24 September 1996 and referred the case back to the Regional Court, concluding that the reasoning of the first-instance court, which had led to the applicant’s conviction, contained a number of flaws regarding both fact and law and was thus not entirely satisfactory. The court also expressed its concern that the rights of the defence had been violated. On the same date the court decided to uphold the applicant’s detention on remand, considering that there was still a strong probability of his guilt and that it was necessary to ensure the proper conduct of the proceedings. The court found no circumstances justifying the applicant’s release under Section 218 of the Code of Criminal Procedure.

On 9 July 1997 the Kraków Court of Appeal dismissed the applicant’s request for release, considering that his detention was necessary to ensure the proper conduct of the proceedings and finding no particular family circumstances requiring his release. The court observed that burdensome  effects on a detainee’s family were inherent in detention. On 28 July 1997 the Tarnów Regional Court refused to release the applicant, invoking the same arguments as above.

In a letter of 4 August 1997 the President of the Tarnów Regional Court confirmed the view expressed in his letter of 11 July 1997 to the applicant concerning the question of determining the period of detention on remand once a first-instance judgment had been rendered. The fact that the first-instance judgment had been quashed did not affect his opinion. He further stated that it was not his function to assess the evidence gathered in the proceedings. Concerning the complaint about the excessive length of the proceedings, the President noted that the case file had been transferred back to the Tarnów Regional Court and that the case would be allocated to a judge rapporteur after he was back from holidays.

On 8 August 1997 the Tarnów Regional Court, referring to the resolution I KPZ 23/97 of 2 September 1997 by the Supreme Court, informed the applicant that the period of detention on remand was limited only until the delivery of the first-instance judgment even though it was to be quashed by the second-instance court.

On 19 August 1997 the Supreme Court informed the applicant that it examined complaints concerning detention on remand only in accordance with the procedure prescribed under the Code of Criminal  Proceedings

On 12 September 1997 the Tarnów Regional Court dismissed the applicant’s request for release. The court expressed the opinion that the applicant’s concerns as regards his family’s situation were premature.

On 19 September 1997, in reply to the applicant’s letter of 5 August 1997, the Tarnów Regional Prosecutor observed that all the applicant’s motions with regard to quashing his detention on remand could be only examined by the court at the disposal of which he was placed.   

On 22 September 1997 the President of the Tarnów Regional Court sent an explanatory letter to the Ministry of Justice. It transpires from this report that the courts refused to quash the applicant’s detention on remand on 12 February 1996, 28 February 1996, 20 March 1996, 16 April 1996, on 3 and 23 July 1996, 23 August 1996 and 6 September 1996, 16 January 1997, 3 April 1997, on 9 and 28 July 1997 and on 12 September 1997. The President admitted that the problem of the indefinite time-limit of the detention on remand after the delivery of the first-instance judgment, until it was decided by the Supreme Court, might be a controversial one. In his view, the notion of “the judgment” under Section 222 § 3 of the Code of  Criminal Procedure covered the notion of “the judgment quashed by a second-instance court” since “ lege non distinguente nec nostrum est distinguere”. The phrase “delivery of the first-instance judgment” must have been used by the legislator knowingly and clearly indicated the date until which the court was obliged to determine the time-limit of the detention on remand.

At the hearing of 2 October 1997 the Tarnów Regional Court refused to release the applicant, considering that in view of the seriousness of the charges, his detention was warranted. The court also noted that the time-limits for detention on remand set out in Section 222 § 4 of the Code of Criminal procedure did not apply to the applicant’s case. As regards the applicant’s family’s situation, difficult as it might be, it was not so critical as to justify his release.

On the same date the president of the Kraków Court of Appeal informed the applicant that the detention order given by the prosecutor was in compliance with the then (i.e. in 1995) applicable provisions of procedural law. The entry into force of the new provisions on 4 August 1996 did not result in the unlawfulness of the detention orders issued prior to that date. In addition, the preventive measure imposed on the applicant had been repeatedly examined by the courts, i.e. on 20 October 1995, 3 January 1996, 24 January 1996, 28 February 1996, 26 April 1996, 17 June 1996, 23 July 1996, 4 November 1996, 24 September 1996, 14 October 1996, 24 January 1997, 27 May 1997, 9 and 28 July 1997 and  12 September 1997. He further stated that he was not in a position to interfere with the decisions of independent courts, including those concerning the imposition of preventive measures and determining the time-limit of the detention on remand. He finally observed that the applicant could at any time apply to the court to be released.

On 3 October 1997 the Chancellery of the President explained to the applicant that he could not interfere with court proceedings since, in accordance with the constitutional principle of division of powers, the judicial authorities were independent of the executive organs.

At a hearing of 15 October 1997 the Tarnów Regional Court dismissed the applicant’s request for release, considering that his detention was justified by the strong evidence of his guilt. The court reiterated that the obligation to determine the period for which detention could be prolonged existed only until the judgment of the first-sentence had been given.

In a letter of 21 October 1997 the Minister of Justice shared the view put forward by the President of the Tarnów Regional Court in his letter of 4 August 1997, as regards the interpretation of the notion of “the judgment” in the phrase: “until the date of the delivery of the first-instance judgment”, arguing that it also referred to “the judgment quashed by a higher instance”. He further stated that he was not empowered to review the grounds on which the courts ordered detention on remand and that the applicant could at any time file a request for release.

In a letter of 23 October 1997 the applicant complained about the refusal of the Tarnów Regional Court at the hearing on 22 October 1997 to allow his request for his release and the suspension of the proceedings. He observed that the alleged victims had given contradictory testimony and had left Poland.  Further, the applicant stated that the proceedings served mainly the purpose of establishing the truth and therefore, reading out the indirect evidence at the hearing would be in breach of his defence rights and contrary to the requirements of a fair trial. The applicant relied on his rights guaranteed by the Polish Constitution and the European Convention on Human Rights.

A the hearing of 22 October 1997 the Tarnów Regional Court dismissed the applicant’s request for release, which had been submitted by his lawyer, reiterating its position as regards the time-limits for the detention on remand after the delivery of the first-instance judgment. The court invoked the resolution no. I KPZ 435/96 OSNKW of 6 February 1997 of the Supreme Court.

On 28 October 1997 the Tarnów Regional Court dismissed the applicant’s request for release, considering that he had failed to indicate any new circumstances justifying his request.

In a letter of 4 November 1997 the President of the Tarnów Regional Court informed the applicant that on 27 May 1997 the Kraków Court of Appeal had quashed the first-instance judgment of 24 September 1996 and upheld the applicant’s detention  without  fixing the date up until which the detention was to last. On 10 October 1997 the applicant had been in detention for two years. The case had been referred to the Tarnów Regional Court for re-examination. The Regional Court had not found it necessary to determine the point until which the detention should last or to file a request with the Supreme Court to prolong the applicant’s detention on remand, considering that there were no time-limits for the detention on remand after the delivery of the first-instance judgment. The court admitted that there was a legal problem as regards the interpretation of Section 222 § 3 of the Code of Criminal Procedure, which should be resolved by the Supreme Court in order to establish common practice. The court maintained its position on this matter, declaring that the period of detention on remand was limited only until the delivery of the first-instance judgment even though it was quashed by the second-instance court.

On 19 November 1997 the Tarnów Regional Court dismissed the applicant’s request for release, relying on the grounds invoked in the previous decisions.

By a judgment of 10 December 1997 of the Tarnów Regional Court, the applicant was found guilty of the charges against him and sentenced to three years’ imprisonment. On the same date the court decided to release the applicant, observing that the judgment had been pronounced and there was no further need for the applicant’s continuing detention. The court observed that family situation of the applicant and the co-accused was difficult and that they had been already detained for over two years.

On 22 December 1997 the Ombudsman informed the applicant that the stance on the issue of time-limits for detention on remand taken by the President of the Tarnów Regional Court as well as the Ministry of Justice was in line with the jurisprudence of the Supreme Court at that time. As regards the preventive measure imposed on the applicant, he did not consider it contrary to Article 5 § 1 of the European Convention on Human Rights. In addition, under Section 214 of the Code of Criminal Procedure, the applicant could at any time apply to have a preventive measure quashed or altered. As to the applicant’s complaint relating to the length of the proceedings, the Ombudsman had requested the Tarnów Regional Court to inform him about the state of the proceedings.

Apparently on 28 April 1998 the applicant was again detained on remand in connection with certain investigative proceedings concerning unspecified charges.

On 17 June 1998 the Kraków Court of Appeal, having examined the applicant’s appeal against the judgment of  10 December 1997 acquitted him of all charges. The prosecutor filed a cassation appeal against this judgment.

On 24 August 1998 the Tarnów District Court decided to place the applicant’s five children under temporary guardianship as his wife was pregnant and expected to give  birth at the end of August 1998.

At the hearing of 24 April 2002 the Supreme Court decided not to examine the cassation appeal due to the fact that the public prosecutor had withdrawn it.

B. Relevant domestic law

1. The Code of Criminal Procedure of 1969

At the material time the domestic provisions governing detention on remand were contained in the Code of Criminal Procedure of 1969, which is no longer in force as it was repealed and replaced by the Code of Criminal Procedure of 6 June 1997 (currently referred to as the “New Code of Criminal Procedure”).

The Code of Criminal Procedure of 1969 listed detention among the so-called “preventive measures” (those measures were, inter alia , detention on remand, bail and police supervision). Until 4 August 1996 (i.e. the date on which the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes came into force) a prosecutor was empowered to order all preventive measures as long as the investigation lasted. Also, at the material time the national law did not set out any statutory time-limits concerning the length of detention on remand in court proceedings; however, under section 210 § 1 of the Code of Criminal Procedure a prosecutor was obliged to determine in his decision the period for which detention was ordered.

That section stated (in the version applicable at the material time):

“Preventive measures shall be ordered by the court; before a bill of indictment has been lodged with the competent court, those measures shall be ordered by the prosecutor.”

Section 222 of the Code of Criminal Procedure (in the version applicable until 4 August 1996), insofar as relevant, stated:

“1. The prosecutor may order detention on remand for a period not exceeding three months.

2. When, in view of the particular circumstances of the case, the investigations cannot be terminated within the period referred to in § 1, the detention on remand may, if necessary, be prolonged by:

(1) the court competent to deal with the case, upon the prosecutor’s request, for a period not exceeding one year;

(2) the Supreme Court, upon request of the Prosecutor General, for a further fixed term required to terminate the investigations.”

Article 222 of the Code of Criminal Procedure, as applicable after 4 August 1996, provided, insofar as relevant:

“3. The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed one year and six months in cases concerning ordinary offences. In cases concerning serious offences this period may not exceed two years.

4. In particularly justified cases the Supreme Court may, upon the request of the court competent to deal with the case (...) prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a suspension of the proceedings, a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in paragraph 3.”

The courts, when ruling on a prosecutor’s request under section 222 § 2 of the code, were obliged to determine the precise period for which detention should be prolonged. If they refused to prolong detention or if the prosecutor failed to submit a request for a further prolongation before or on the expiry of the last detention order (regardless of whether it had been made by him or by a court), the detainee had to be released immediately.

Section 213 § 1 of the Code of Criminal Procedure provided:

“1. A preventive measure (including detention on remand) shall be immediately quashed or altered if the basis therefor has ceased to exist or new circumstances have arisen which justify quashing or replacing a given measure with a more or less severe one.”

Section 217 § 1 (2) and (4) (in the version applicable at the material time) provided:

“1. Detention on remand may be imposed if:

...

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

...

(4) an accused has been charged with an offence which creates a serious danger to society.”

At the relevant time there was no specific provision governing detention on remand after the bill of indictment was lodged with the competent court. Since 4 August 1996, the date of entry into force of the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes and under the present criminal legislation, the courts have been and are bound by the maximum statutory time-limits for which detention on remand can be imposed during the entire course of the proceedings. In particular, at the material time, there was no provision stating that the lodging of a bill of indictment automatically prolonged or replaced a previous detention order, or that this event itself resulted in detention which had originally been prolonged by a court for a fixed period at the investigation stage being continued either for an unlimited period or until a judgment at first instance was given. Nor was there any case-law to that effect. Nevertheless, according to domestic practice, once a bill of indictment had been lodged with the court competent to deal with the case, detention was assumed to be prolonged pending trial without any further judicial decision.

It was as late as 6 February 1997 that the Supreme Court, referring to the historical background to the amended criminal legislation, mentioned the practice of keeping an accused in detention under the bill of indictment. It did so in a ruling on the interpretation of the Code of Criminal Procedure. That ruling did not, however, concern criminal legislation as it stood at the material time but related to the code as amended with effect from 4 August 1996, when section 222 (as amended) set out maximum time-limits for detention on remand not only at the investigation stage, but at the whole pre-trial stage. In its resolution (no. I KZP 35/96) the Supreme Court replied – in the affirmative – to the question whether, after lodging a bill of indictment with the court competent to deal with the case, that court was obliged to give a decision prolonging detention on remand which had meanwhile exceeded the period fixed (or further prolonged) at the investigation stage. The relevant parts of the resolution read as follows:

“Under the provisions of the Code of Criminal Procedure which applied before [4 August 1996, when] the amendment of 29 June 1995 took effect, an obligation to determine the period of detention imposed by a prosecutor at the investigation stage was laid down in section 211 § 2. However, it did not emerge explicitly from section 222 §§ 1 and 2 (1) of the code that, at the investigation stage, a prosecutor or the court competent to deal with the case had each time to determine the point until which detention should last. It was deemed to be obvious that, when prolonging detention at the investigation stage, both the prosecutor and the court competent to deal with the case had to determine the time until which detention was to last under a given decision. It was therefore assumed that the obligation to determine the period of detention arose if a decision on that matter was given before the expiry of the maximum statutory terms applicable at a given stage of the proceedings.

Comparing the old legislation with the present one leads [this Court] to the conclusion that the legislator, when amending the code in June 1995, simply extended [the scope of] the rules applicable to continuing and prolonging detention on remand – which had previously applied only at the investigation stage – to the phase of court proceedings.

Before the amendment, the legislation was based on the precept that a suspect should not be detained indefinitely as long as his case was not being dealt with by an independent court. Now, the starting-point is that a suspect (and an accused) should not be detained indefinitely as long as a first-instance judgment is not rendered.

Under the previous legislation there was no need to determine the period of detention after a bill of indictment had been lodged with the court because at this point proceedings reached the phase in which there was no statutory time-limit [on this measure]. For this reason, the court concerned had no interest in [knowing] until when detention had been prolonged under the last decision[;] detention could continue because ‘detention of limited duration’ had become ‘detention of unlimited duration’. There was therefore only a need to ascertain whether there were grounds for continuing detention under section 213 of the code.”

In its further resolution no. I KZP 23/97 of 2 September 1997, the Supreme Court confirmed that:

“If the case in which detention on remand had been ordered has been referred to a court with a bill of indictment and the period of detention which had previously been fixed expires, the court has a duty to consider whether detention needs to be continued and to give an appropriate decision on this matter.”

Referring to the resolution of 6 February 1997, it also stressed that:

“... the ratio legis of the amendments to criminal legislation is based on the precept that a suspect (accused) should in no case be detained indefinitely until the first-instance judgment is rendered in his case ...

It should be noted that, from the point of view of procedural safeguards for an accused, what is material is not how long his detention at the investigation stage has lasted and how long it has lasted at the stage of the court proceedings, but the total period of his detention and whether his detention and its length are subject to review. If there is such a review at the investigation stage (section 222 §§ 1 and 2), there is no reason why there should not be one at the stage of the court proceedings ...”

Sections 295 and 296 of the Code of Criminal Procedure of 1969, referring to the formal requirements for a bill of indictment, stipulated that it should contain the first name and surname of the accused and information as to whether a preventive measure had been imposed on him, a statement of the offence with which he had been charged, a detailed description of the facts of the case along with a statement of reasons for the charges, an indication of the court competent to deal with the case and evidence on which the charges were based.

Once the bill of indictment had been lodged with the court, the president of the court carried out preparations for the main trial.

Section 299 § 1 (6) of the Code of Criminal Procedure provided:

“1. The president of the court, ex officio or at the request of a party, shall refer the case to a court session if he finds that its resolution lies beyond his own competence, in particular:

...

(6) when there is a need to issue an order on a preventive measure.”

However, at the material time, according to the relevant domestic practice in respect of detention continuing after the last detention order had expired and after a bill of indictment had been lodged with a court, the courts did not make use of the procedure prescribed by the above-mentioned provision as it was presumed that the detention continued solely due to the fact that a bill of indictment had been lodged and, therefore, there was no need to issue a separate decision prolonging the detention.

Also, at the time, the code set out three different legal avenues whereby a detainee could challenge the lawfulness of his detention: an appeal to a court against a detention order made by a prosecutor; proceedings in which courts examined requests for prolongation of detention submitted by a prosecutor; and proceedings relating to a detainee’s application for release.

As regards the last of these, section 214 of the Code of Criminal Procedure (in the version applicable at the material time) stated:

“An accused may at any time apply to have a preventive measure quashed or altered.

Such an application shall be decided by the prosecutor or, after the bill of indictment has been lodged, by the court competent to deal with the case, within a period not exceeding three days.”

No provision of the code stipulated that exceeding the time-limit laid down in that section would have any legal consequence.

The interpretation of enforceable decisions in criminal proceedings was at the relevant time governed by the provisions of the Code of Execution of Criminal Sentences of 1969.

Section 14 of that code provided:

“1. The authority executing a decision, as well as everyone whom such a decision concerns, may request the court which has dealt with the case to rule on any doubts concerning the execution of that decision or the calculation of the penalty imposed.

2. Everyone whom the decision on interpretation referred to in paragraph 1 concerns may appeal against such a decision.”

According to section 205 of the Code of Execution of Criminal Sentences, provisions of the code referring to a “convicted person” applied by analogy to a “detainee”. However, in the light of domestic practice and legal theory it was considered doubtful whether section 14 of the code applied to cases in which a person detained on remand challenged the lawfulness of his detention since such a challenge was normally examined in the proceedings prescribed by the Code of Criminal Procedure.

Proceedings relating to a request under section 14 of the Code of Execution of Criminal Sentences were designed to obtain an interpretation of an enforceable decision which had not been formulated with adequate precision. The court which was called upon to interpret the decision in question was not competent to amend or supplement its operative part (see the decision of the Supreme Court no. VI KRN 14/76 of 2 March 1976, published in OSNPG 1976/6/59). That being so, the person concerned could not obtain his release by lodging a request under section 14 of the code.

2. The Code of Criminal Procedure of 1997

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 could not be overcome. ”

COMPLAINTS

1. The applicant complains under Article 5 § 1 of the Convention that he was twice detained on remand on the basis of trumped-up accusations.

2. The applicant further complains that his detention on remand in the criminal proceedings against him from 10 February 1996 lacked a legal basis. He maintains that there were no valid court decisions authorising his detention in the periods from 10 February 1996 till 24 September 1996 and from 27 May 1997 till 10 December 1997.

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

4. The applicant complains under Article 6 § 1 about the unreasonable length of the criminal proceedings against him.

5. The applicant also complains under Article 6 of the Convention that he was deprived of a fair trial in that the courts were biased and ignored the arguments in his favour. He complains that his rights of defence were violated in that he could not interrogate the victims of assault who had changed their testimony and left Poland. He further complains that he was pressurised and blackmailed into incriminating the co-accused and that such pressure had been also exerted on the witnesses.

THE LAW

1. The applicant complains under Article 5 § 1 of the Convention that he was twice unjustly detained on remand since the charges against him were based on false accusations. Article 5 § 1, insofar as relevant, provides as follows:

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;”

The Court first recalls that any measure depriving a person of his liberty should issue from and be executed by an appropriate authority and should not be arbitrary (see, among other authorities, Baranowski v. Poland, no. 28358/95, §§ 50-57, ECHR 2000-III; and Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A no. 33, pp. 19-20, §§ 45 et seq .).

The Court further recalls that the “reasonableness” of the suspicion on which an arrest must be based forms an essential element of the safeguard against arbitrary arrest and detention. Having a “reasonable suspicion” presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence (see Fox, Campbell and Hartley v. the United Kingdom, judgment of 30 August 1990, Series A no. 182, p. 16, § 32).

As to the level of “suspicion”, Article 5 § 1(c) of the Convention does not presuppose that the investigating authorities should have obtained sufficient evidence to bring charges, either at the time of the arrest or while the arrested person is in custody. The object of questioning during detention under Article 5 § 1(c) of the Convention is to further the criminal investigation by way of confirming or dispelling the concrete suspicion grounding the arrest. Thus, facts which raise a suspicion need not be of the same level as those necessary to justify a conviction or even the bringing of a charge, which comes at the next stage of the process of criminal investigation. The existence or not of a reasonable suspicion in a concrete instance depends ultimately on the particular facts (see Murray v. the United Kingdom, judgment of 28 October 1994, Series A no. 300-A, p. 27, §§ 55 and 57).

a) To the extent the applicant complains about his detention which began on 10 October 1995.

The Court observes that the allegations against the applicant and the other co-accused were based on the statements made by the victims and on the testimony of other witnesses. In his decision of 11 October 1995 remanding the applicant in custody, the prosecutor referred to the strong probability of the applicant’s guilt, the gravity of the charges against him and the high risk of his hindering the proper conduct of the proceedings by exerting pressure on witnesses. It would therefore appear that the authorities had good reason to believe at that time that the applicant had committed criminal offences punishable under the Criminal Code. The Court sees no reason to doubt that the suspicion against the applicant reached the level required by Article 5 § 1(c) and that the purpose of the deprivation of liberty was to confirm or dispel that suspicion. It is to be further noted that the lawfulness of the applicant’s detention was on many occasions reviewed by the competent authorities and was considered justified. Moreover, the evidence gathered against the applicant in the course of the investigation sufficed for his conviction by the first-instance court, and the fact that the applicant was finally acquitted of all charges against him does call into question the lawfulness of his initial arrest and detention.

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 pursuant to Article 35 § 4.

b) To the extent the applicant complains about his detention which allegedly began on 28 April 1998;

The Court notes that the applicant has failed to submit any evidence in support of his allegations. In particular he has failed to submit any relevant court decisions or any documents showing that he had contested the lawfulness of his arrest and detention before the Polish authorities.

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 pursuant to Article 35 § 4.

2. The applicant further complains, invoking Article 5 § 1 of the Convention, that his detention on remand in the criminal proceedings against him lacked a legal basis. In particular, the applicant submits that there was no valid court order authorising his detention in the periods from 10 February 1996 till 24 September 1996 and from 27 May 1997 till 10 December 1997. Article 5 § 1, insofar as relevant, provides as follows:

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...

(a) the lawful detention of a person after conviction by a competent court;

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so ... ”

a) As regards the applicant’s detention on remand from 10 February 1996 till 24 September 1996.

The Court notes that on 10 February 1996 the detention order of 3 January 1996 had expired. On 12 February 1996, according to the letter of the President of the Tarnów Regional Court of 22 September 1997, the grounds of the applicant’s detention on remand were examined. The Court further notes that the applicant submitted this complaint to the Court on 8 August 1997 and the six-month period started running from the moment when the applicant appeared before a judge, i.e. 12 February 1996.

It follows that this part of the application is inadmissible for failure to respect the six-month rule referred to in Article 35 § 1 of the Convention and must be rejected under paragraph 4 of that Article.

b) As regards the applicant’s detention on remand from 27 May 1997 until 10 December 1997.

The Court recalls that, on the question of whether the contested arrest and detention are “lawful”, the Convention essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof, but requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely, to protect individuals from arbitrariness. Nevertheless, a period of detention will, in principle, be lawful if detention is carried out pursuant to a court order (see Benham the v. the United Kingdom , judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III no. 10 pp. 752-753, paras. 40-42). The Court has also stressed that where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application (see the Baranowski v. Poland cited above).

As regards the present case, the Court observes that although on 27 May 1997 the appellate court quashed the first-instance judgment of 24 September 1996, it did not acquit the applicant nor did it decide to release him. The applicant’s detention on remand was subsequently reviewed on 9 and 28 July 1997, 12 September 1997, 15, 22 and 28 October 1997 and 19 November 1997. The courts refused to issue a new detention order with a fixed period of the applicant’s detention, considering that according to Section 222 § 3 of the Code of Criminal Procedure, such an obligation existed only until the first-instance judgment had been delivered even if it was quashed by  the second-instance court.

There is no indication that the basis of the applicant’s detention from 10 February 1996 until 10 December 1997 was incompatible with the domestic law or with the principle of legal certainty. The Court notes that the domestic courts’ decisions were based on the common interpretation of the Section 222 § 3 of the Code of Criminal Procedure at the time. The Court does not find that the Polish courts failed to apply the relevant provision of the domestic law correctly or interpreted it in an arbitrary manner. Moreover, it is not for the Court to impose a different interpretation of the provision in question. Accordingly, the Court finds the applicant was detained in compliance with requirements of Article 5 § 1 of the Convention.

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 pursuant to Article 35 § 4.

3. The applicant complains that the length of his detention on remand was in breach of Article 5 § 3 of the Convention, which reads as follows:

“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. Release may be conditioned by guarantees to appear for trial.”

The Court notes that there are in fact two periods which must be examined under Article 5 § 3.

The first period began on 10 October 1995, namely the date on which the applicant was arrested, and ended with his conviction in accordance with the judgment of 24 September 1996 given by the Tarnów Regional Court. The Court recalls in this connection that in principle conviction by a court marks the end of the period to be considered under Article 5 § 3. From that point on, the detention of the person concerned falls within the scope of Article 5 § 1 (a) of the Convention (see B. v. Austria , judgment of 28 March 1990, Series A no. 175, p.14, § 36).

In view of these considerations, the first period of the applicant’s detention on remand lasted 11 months and 14 days. During the period following his conviction on 24 September 1996, the applicant was detained “after conviction by a competent court”, and not “for the purpose of bringing him before the competent legal authority”. Hence, notwithstanding the retrospective effect under Polish law of the judgment of 27 May 1997 which quashed his conviction, the period following his first conviction cannot be included in the period to be considered under Article 5 § 3 of the Convention (see I.A. v. France, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VII, p. 2976, § 98).

The applicant’s conviction was subsequently quashed by the Kraków Court of Appeal on 27 May 1997. From that point on, it can be considered that the applicant’s detention was again governed by Article 5 § 1(c) and not by Article 5 § 1(a). Subsequently, on 10 December 1997 the Tarnów Regional Court found the applicant guilty and sentenced him to three years’ imprisonment. On the same date the applicant was released from detention. It follows that the second part of his detention on remand lasted 6 months and 13 days.

The Court consequently finds that the whole period to be taken into consideration amounted to one year, five months and twenty seven days.

The Court considers that 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 the Court, to give notice of this complaint to the respondent Government.

4. The applicant also complains under Article 6 § 1 of the Convention about the overall length of the criminal proceedings against him. Article 6 § 1, insofar as relevant, provides:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal ...”

The Court considers that 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 the Court, to give notice of this complaint to the respondent Government.

5. The applicant also complains under Article 6 of the Convention that he was deprived of a fair trial in that the courts were biased and ignored the arguments in his favour. He complains that he was pressurised and blackmailed into incriminating the co-accused and that such pressure had also been exerted on the witnesses. He further complains that his rights of defence were violated in that he could not interrogate the victims of assault who had changed their testimony and left Poland. Article 6, insofar as relevant, reads as follows:

1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ...

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

...”

The Court recalls that pursuant to its case-law an acquitted defendant cannot claim to be a victim of violations of the procedural guarantees of Article 6 which, according to him, took place in the course of the criminal  proceedings against him. In such cases the alleged violation of Article 6 is rectified by the acquittal (see, e.g., V.Q. v. Italy , 44994/98, Dec. 14 March 2002). In the present case, the Court notes that the applicant was acquitted by the final judgment of the Kraków Court of Appeal of 17 June 1998. Consequently, he cannot claim to be a victim of a violation of the Convention, as required by Article 34 of the Convention. Accordingly, this part of the application is incompatible ratione personae with the provisions of the Convention, within the meaning of Article 35 § 3.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning the length of his detention on remand and the length of criminal proceedings as a whole;

Declares the remainder of the application inadmissible.

Vincent B erger Georg R ess Registrar President

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