FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38816/97 by G.K. against Poland

The European Court of Human Rights (Fourth Article), sitting on 12 November 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr A. Pastor Ridruejo , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi ,

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 4 June 1997,

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 Court’s partial decision of 8 December 1998,

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, G.K., is a Polish national, who was born in 1967 and lives in Wrocław , Poland. He was represented before the Court by Mr W. Hermeliński , a lawyer practising in Warsaw. The respondent Government were represented by their Agent, Mr K. Drzewicki , of the Ministry of Foreign Affairs.

A. The circumstances of the case

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

1. Criminal proceedings against the applicant

On an unknown date in 1995 the Wrocław District Prosecutor ( Prokurator Rejonowy ) issued a warrant to search for the applicant by “wanted” notice on suspicion of his having committed fraud.

On 3 March 1995 the police arrested the applicant under that warrant.

On 10 March 1995 the applicant was brought before the Wrocław Stare Miasto District Prosecutor ( Prokurator Rejonowy ). The prosecutor charged him with several counts of aggravated fraud and ordered that he be remanded in custody until 2 June 1995. The detention order was based on Articles 210 § 1 and 217 § 1(2) and (4) of the Code of Criminal Procedure. As to the grounds for the applicant’s detention, the prosecution first relied on the reasonable suspicion that he had committed the offence with which he had been charged. They also considered that the offence in question represented a serious danger to society ( wysoki stopień społecznego niebezpieczeństwa czynu ) and considered that there was a risk that the applicant might induce witnesses to give false testimony or obstruct the criminal proceedings against him by other unlawful means.

On 26 May 1995, on an application made by the Wrocław District Prosecutor, the Wrocław-Śródmieście District Court ( Sąd Rejonowy ) prolonged the applicant’s detention until 31 August 1995 in view of the reasonable suspicion that he had committed the offence with which he had been charged and the serious nature of that offence. The court also found that, in the light of the material collected in the investigation, there was a high risk that the applicant would obstruct the proper conduct of the proceedings. Finally, the court held that the interests of the investigation, such as the need to obtain and secure evidence, militated in favour of keeping him in custody.

Subsequently, the Wrocław Regional Prosecutor ( Prokurator Wojewódzki ) took over the investigation from the District Prosecutor.

On 24 August 1995 the Wrocław Regional Court ( Sąd Wojewódzki ), on an application made by the Wrocław Regional Prosecutor, prolonged the applicant’s detention until 30 November 1995, finding that it was necessary because there was a reasonable suspicion that the applicant had committed the serious offence. Furthermore, the court found that the need to secure the proper conduct of the proceedings militated against releasing him since, at the current stage of the investigation, it was necessary to hear evidence from all the injured parties, to carry out confrontations between witnesses and defendants and to lay further charges of dealing in stolen goods against several other persons who had not to date been involved in the proceedings.

On 24 November 1995, on the subsequent application from the Wrocław Regional Prosecutor, the Wrocław Regional Court prolonged the applicant’s detention until 31 December 1995, holding that there was a reasonable suspicion that he had committed the serious offence with which he had been charged. The court also stressed that the applicant should be kept in custody in order to secure the proper conduct of the proceedings, especially as the charges originally laid against the suspects needed to be supplemented.

On 27 December 1995 the Wrocław Regional Prosecutor completed the investigation and, on 30 December 1995, lodged a bill of indictment with the Wrocław Regional Court. The applicant was indicted on several counts of aggravated fraud. The bill of indictment comprised charges against 13 co-defendants. The prosecution asked the court to hear evidence from 9 expert witnesses and 104 lay witnesses, and to consider 400 pieces of documentary evidence.

On 15 April 1996 the first hearing was to be held but it was eventually cancelled because one of the applicant’s co-defendants, who had already been released under police supervision, was absent.

Subsequently, between 15 April 1996 and 28 August 1997, the Wrocław Regional Court listed twelve hearings for various dates but cancelled all of them because several of the applicant’s co-defendants who had already been released under police supervision had repeatedly failed to appear before it. They had submitted medical certificates to the effect that they could not participate in the trial because of their poor health and asked the court to adjourn the proceedings.

During that time the applicant made numerous unsuccessful applications for release on bail or under police supervision. He submitted that even though his detention pending trial had exceeded any reasonable limits, not a single hearing on the merits had so far been held. He also asked the Regional Court to order, under Article 24 § 3 of the Code of Criminal Procedure, that the charges against the released co-defendants be severed from the case so as to ensure that the trial proceeded without any further impediment.

In the meantime, on 31 December 1996, the Wrocław Regional Court had released A.A. , one of the thirteen co-defendants, under police supervision. From then on, only the applicant and two other co-defendants ( D.P. and W.K.) were still kept in detention pending trial.

On the same day the Regional Court held a session in camera at which the Regional Prosecutor was present. It made an application under Article 222 § 4 of the Code of Criminal Procedure to the Supreme Court ( Sąd Najwyższy ), asking it to prolong the applicant’s and his two co-defendants’ detention for six further months. That application was prepared in view of the fact that on 1 January 1997 the amendments to the Code of Criminal Procedure were to take effect. The new provisions set statutory time-limits for detention pending trial and, in consequence, in all cases where detention had already exceeded, or was about to exceed, the relevant terms, the courts had either to release the person concerned or to ask the Supreme Court to prolong his detention (see also “B. Relevant domestic law and practice” below).

The reasons for the Regional Court’s application read, in so far as relevant:

“[In respect of the applicant and two other co-accused] the [maximum] time-limits for detention on remand laid down in Article 222 § 3 of the Code of Criminal Procedure have expired and 31 December 1996 is the deadline for lodging a request for further prolongation of their detention on remand.

During the period following the date on which the bill of indictment was lodged with this court, it scheduled numerous hearings; however, the trial has not yet began as this court, for valid reasons [,such as the fact that the defendants, one after another, had failed to appear before us,] could not proceed with the trial. In this connection, this court has, in accordance with the suggestion of the Wrocław Court of Appeal, considered whether it would be sensible to sever the charges laid against the co-defendants concerned, pursuant to Article 24 § 3 of the Code of Criminal Procedure. Yet, as all the charges in the present case are interrelated, this court finds that there is no just cause to proceed in this way.

The detained defendants have repeatedly asked this court to lift or vary the preventive measure imposed on them. This court has dismissed their applications and in doing so it has had [particular] regard to the serious nature of the offences, the likelihood that a severe penalty would be imposed and, more particularly, to the conduct of the defendants during the investigation, that is to say [the fact that they had had to be] searched for by a “wanted” notice and that there had been problems in the course of their arrest [which had justified the risk that] they might go into hiding. The [ Wrocław ] Court of Appeal, which has dealt with the defendants’ appeals [against decisions refusing to release them], expressed the same opinion.

That being so, and there being other serious obstacles [to the proper course of the trial] the present application for the defendants’ detention to be prolonged must be submitted to the Supreme Court.”

Since at the beginning of January 1997 the case-file was sent to the Court of Appeal, the application was posted to the Supreme Court on 13 January 1997.

On 24 January 1997, a panel of three judges, sitting in camera as the Criminal Chamber of the Supreme Court, after obtaining oral comments from the State Prosecutor ( Prokurator Krajowy ), who had been summoned to the session and represented the prosecution, dealt with, and granted, the application. The Supreme Court prolonged the applicant’s and his co-defendants’ detention “from 24 January 1997 to 24 July 1997”. The defendants were not present. Nor were they legally represented since, under Polish law as it stood at that time, defendants or their counsel were not entitled to participate in court sessions held in camera (see also “B. Relevant domestic law and practice” below).

The Supreme Court’s decision contained exhaustive reasons, the relevant part of which may be summarised as follows:

The Supreme Court, noting that the application was filed on 31 December 1996 but posted as late as 13 January 1997, first considered what was the proper date of “lodging” such an application for the purposes of Article 222 § 4 of the Code of Criminal Procedure.

The Supreme Court next observed that, depending on the answer to this question, it will have to determine the legal consequences of a potential failure on the part of the Wrocław Regional Court to respect the rule laid down in Article 10 (a) § 2 of the Interim Law of 1 December 1995, which stated that in cases where no request for a further prolongation of detention on remand had been “lodged”, the detention on remand had to be lifted and the person concerned released not later than on 1 January 1997.

The Supreme Court considered that it should also deal with the question of whether it was competent to rule on the application if it had been “lodged” after the expiry of the term referred to in Article 10 (a) of the Interim Law of 1 December 1995, i.e. after 1 January 1997.

Referring to the first question, the Supreme Court held that the proper date of “lodging” an application under Article 222 § 4 of the Code of Criminal Procedure had to be deemed either the date of posting the request or the date of submitting it to the registry of the Supreme Court since to hold otherwise would mean leaving a detainee without any guarantee that the Supreme Court was properly supervising his detention. Moreover, if the requesting court was not bound by any time-limits for submitting its application, detention, the most severe among the preventive measures, might continue for an unspecified and unlimited time outside the Supreme Court’s supervision. In consequence, an application under Article 222 § 4 of the Code of Criminal Procedure, a mere “proposal” to continue detention, would, for all practical purposes, transform into a basis for continuing detention. Clearly, that was not the intention of the legislator.

The Supreme Court therefore concluded that since in the applicant’s case no application for a further prolongation of his detention was “lodged” before 1 January 1997, the applicant’s (and his co-defendants’) detention from that date to the date of its present decision lacked any legal basis and was, accordingly, unlawful.

It went on to find that it was, nevertheless, competent to deal with the application lodged outside the relevant date. It considered that a lower court’s obligation to release a detainee in case of its failure properly to lodge an application under Article 222 § 4 of the Code of Criminal Procedure was one thing, but its right to make such an application at any time was another. In the Supreme Court’s opinion, the application in question should be deemed a “fresh application” and be examined as such.

It considered that further prolongation of the applicant’s detention was necessary. In essence, it repeated the arguments adduced by the Wrocław Regional Court and stressed the complexity of the case.

On 9 July 1997 the Wrocław Regional Court made another application under Article 222 § 4 of the Code of Criminal Procedure. It asked the Supreme Court to prolong the applicant’s, W.K.’s and D.P.’s detention until 31 December 1997. The Regional Court submitted that regardless of its consistent efforts to proceed with the trial, it could not begin the main hearing because several released co-accused had repeatedly failed to appear before it. However, the applicant had to be kept in custody since there was still a risk that he might go into hiding because at the initial stage of the proceedings he had had to be searched for by a “wanted” notice and, likewise his two detained co-defendants, had obstructed his arrest. Finally, the court relied on the complexity of the case and the fact that evidence gathered in the investigation sufficiently supported the charges laid against him.

In the meantime, in July and August 1997, the applicant repeatedly complained to the Wrocław Regional Prosecutor, the Wrocław Regional Court, the Supreme Court, the Minister of Justice and the Ombudsman ( Rzecznik Praw Obywatelskich ) that, from 1 to 24 January 1997, he had been kept in detention without any legal basis. He also asked for release.

On 28 August 1997 a panel of three judges, sitting in camera as the Criminal Chamber of the Supreme Court, after obtaining oral comments from the State Prosecutor, prolonged the applicant’s, W.K.’s and D.P.’s detention pending trial until 31 December 1997. The Supreme Court fully upheld the arguments adduced by the Wrocław Regional Court in its application. However, it expressed the opinion that, for the sake of the proper conduct of the trial, the charges against the released co-defendants should be severed from the case.

On 8 September 1997 the Wrocław Regional Court held a hearing but it did not dealt with the merits of the case but only ordered that the charges against three of the released co-defendants be severed from the case and adjourned the trial until 13 October 1997. The applicant asked for release. The court refused, holding that the reasons for his continued detention, as cited in the Supreme Court’s decision of 28 August 1997, were still valid.

In August, September and October 1997 the applicant sent numerous petitions, letters and applications to, inter alia , the Minister of Justice, the Supreme Court, the Ombudsman, the Wrocław Regional Court, the Wrocław Regional Prosecutor and the Wrocław District Prosecutor. He complained about the unlawfulness and length of his detention, the slow conduct of his trial and asked the authorities to release him and to institute criminal proceedings against the persons who had kept him in unlawful custody. He invoked Article 5 § 4 of the Convention, submitting that he had no remedy whereby he could challenge the lawfulness of his detention from 1 to 24 January 1997 and obtain release. He also relied on Article 5 § 3 of the Convention and maintained that his right to trial within a reasonable time or to release pending trial was not respected.

On 15 September 1997 the applicant made an application for release to the Wrocław Regional Court. He asserted that there was no risk of his going into hiding. He admitted that it was true that, nearly three years previously and before he had been detained, he had used a false identity card. However that single fact could not justify holding him in custody for such a long time. At that point, he added, his detention had already exceeded thirty months. The applicant further complained that there had been an exceptional delay in the proceedings which, in his opinion, had resulted solely from the fact that the Regional Court had failed to ensure the presence of the released co-defendants at the trial. He also maintained that, following his arrest, there had been no single attempt on his part to obstruct the proper course of the proceedings. In his view, there was no evidence whatsoever to demonstrate that, had he been released, he would have evaded justice or any sentence that might be imposed.

The Wrocław Regional Court dismissed that application on 9 October 1997. It repeated the reasons previously given to justify his detention. It was stressed that the applicant should be kept in detention to secure the proper conduct of the proceedings. Moreover, the court considered that the applicant had failed to adduce any arguments militating in favour of his release.

Meanwhile, on 6 October 1997, the applicant, relying on the Supreme Court’s decision of 24 January 1997, filed an application under Article 487 of the Code of Criminal Procedure to the Wrocław Regional Court, seeking compensation for unjustified detention. The parties have not informed the Court of the subsequent course of those proceedings.

On 13 October 1997 the court cancelled a hearing since one of the released co-defendants had failed to appear before it and submitted a medical certificate stating that he was ill.

On 28 October 1997 the Wrocław Regional Court held the first hearing on the merits. Since some of the co-defendants decided not to give any oral evidence at the trial stage, the court read out the record of evidence given by them in the investigation.

The next hearing was to be held on 18 November 1997 but was cancelled because one of the released co-defendants had submitted a medical certificate stating that he was ill.

On 20 November 1997 the Regional Court, at the Minister of Justice’s request, submitted to the Ministry a report on the progress of the proceedings. Further similar reports were submitted on 23 and 30 March, 25 May, 26 August and 9 December 1998.

On 25 November 1997 the court held a hearing and had the record of evidence taken from other five co-defendants in the investigation read out. The court then started to hear witnesses. After hearing evidence from two of them, it adjourned the trial in order to hear six other witnesses.

In the meantime, in November 1997, the applicant had again filed several petitions with the Ombudsman, the Minister of Justice and the Division of Judicial Supervision ( Wydział Wizytacyjny ) of the Wrocław Regional Court. He complained that the overall period of his detention had meanwhile amounted to nearly thirty-three months but the determination of the charges against him had merely begun. He asked the authorities concerned to react, in an appropriate manner, to the fact that he had been unlawfully detained in January 1997, a fact that had already been confirmed by the highest national court.

On 11 December 1997 the Wrocław Regional Court dismissed a further application for release which had been filed by the applicant on an unknown date. The court held that all the legal and factual grounds previously given for his detention were still valid. It also considered that since there were no circumstances justifying release, as listed in Article 218 of the Code of Criminal Procedure, his detention should continue to ensure the proper conduct of the proceedings.

On 19 December 1997 the court held a hearing. It heard evidence from three witnesses and adjourned the trial until 30 January 1998 as other witnesses had not appeared.

On the same day the Regional Court made a fresh, and third, application under Article 222 § 4 of the Code of Criminal Procedure to the Supreme Court, asking for the applicant’s, D.P.’s and W.K.’s detention to be prolonged until 31 March 1998. It stressed that it had eventually been able to begin the trial. It considered that, given that evidence had already been taken from all the co-defendants, it could not be said that the court had not handled the case efficiently. While it was true that the process of obtaining evidence had not come to an end, that was not due to any fault on the part of the trial court but had arisen out of other factors. There were still valid reasons justifying the defendants’ continued detention, notably the well-founded suspicion that they had committed the offences with which they had been charged and the risk that they might abscond or go into hiding.

From 19 December 1997 to the beginning of January 1998 the applicant filed numerous petitions with the Minister of Justice, the Supreme Court and the Wrocław Regional Court, submitting that his constitutional right to personal liberty, as well as his rights secured by Article 5 §§ 3 and 4 of the Convention, had been violated.  He maintained that he had spent nearly three years in detention because the trial court had – wrongly – concluded that there was a risk of his absconding even though, after his arrest, there had never been a single basis for such a finding. Whatever his arguments, the court had never believed him and never given him a chance to prove that his release would not have obstructed the course of the trial. In fact, the applicant claimed, the proper conduct of the proceedings had constantly been impeded by his seven released co-defendants.

On 15 January 1998 a panel of three judges, sitting in camera as the Criminal Chamber of the Supreme Court, after obtaining oral comments from the State Prosecutor, prolonged the applicant’s, W.K.’s and D.P.’s detention until 31 March 1998. The Supreme Court fully upheld the reasons given by the Wrocław Regional Court to justify its application.

On 30 January 1998 the Wrocław Regional Court held a hearing but the trial was again adjourned since, in the applicant’s words, “one of the defence counsel [had] left the courtroom”.

On 20 March 1998 the court released the applicant, D.P. and W.K. under police supervision. In its decision, the court conceded that the period of nearly three years that the applicant had spent in detention had been nearly as long as the anticipated penalty and that, in consequence, his continued detention would amount to serving a sentence of imprisonment.

Between 20 March 1998 and 4 February 1999 the Regional Court held eleven hearings. At the hearings held on 30 November and 1 December 1998 the court heard evidence from thirty-one witnesses. On 5 January 1999 the court heard fifteen witnesses. The applicant twice failed to appear before the court.

The parties have not informed the Court of the further course of the proceedings.

2. The control of the applicant’s correspondence with the Court

On 16 January 2001 the Court’s registry received the applicant’s declaration of means filed on 12 December 2000. It was delivered in an envelope bearing two stamps. The first of them read:

“ Wrocław Remand Centre - Department of Records and Employment.

Received on [handwriting] 2000-12-13.  No. 651/099”

The second stamp read “ cenzurowano ” (censored).

The envelope itself bore traces of opening after being sealed: its right side had been cut open and then resealed with six white self-sticking paper slips.

It was postmarked 8 January 2001.

B. Relevant domestic law and practice

1. Amendments to Polish criminal legislation

Over the period to which the facts of the present case relate, i.e. from March 1995 to the beginning of 1999, Polish criminal legislation was amended on several occasions.

In so far as the present case is concerned, there were two relevant amendments to the Code of Criminal Procedure (“the 1969 Code”), a law which is no longer in force as it was repealed and replaced by the so-called “New Code of Criminal Procedure” of 6 June 1997 (“the 1997 Code”), which entered into force on 1 September 1998.

The first such amendment was made by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes which entered into force on 1 January 1996, except the amendments relating to the imposition of detention on remand (in particular, those stating that only a judge was empowered to detain a suspect on remand); the entry into force of the latter amendments being postponed until 4 August 1996 (see below).

The second amendment, effected by the Law of 1 December 1995 on Amendments to the Law of 29 June 1995 (“the 1995 Interim Law”) came into force on 1 January 1996. Section 10(a) of the Law introduced special interim rules governing the prolongation of detention on remand beyond the statutory time-limits laid down in Article 222 §§ 2 and 3 of the 1969 Code in cases where such detention had been imposed before 4 August 1996 (see below, 2 c) “Statutory time-limits for detention on remand”).

2. Preventive measures, in particular detention on remand

At the material time the 1969 Code listed as “preventive measures” ( środki zapobiegawcze ), inter alia , detention on remand, bail and police supervision.

(a) Imposition of detention on remand

Article 210 § 1 of the 1969 Code read (in the version applicable until 4 August 1996):

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

Article 222 (in the version applicable until 4 August 1996) stated, in so far as relevant:

“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 investigation cannot be terminated within the period referred to in paragraph 1, 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 investigation.”

Under Article 212 § 2 a detainee could appeal against a detention order made by a prosecutor to the court competent to deal with his case; however, he was not entitled to be brought before the judge dealing with his appeal.

(b) Grounds for applying preventive measures

Article 209 of the 1969 Code set out general grounds justifying imposition of preventive measures. That provision (as it stood at the material time) provided:

“Preventive measures may be imposed in order to ensure the proper conduct of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.”

Article 217 § 1 defined grounds for detention on remand. That provision, in the version applicable until 1 January 1996 provided, in so far 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 he has no fixed residence [in Poland] or his identity cannot be established; or

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

(3) an accused has been charged with a serious offence or has relapsed into crime in the manner defined in the Criminal Code; or

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

On 1 January 1996 paragraphs (3) and (4) were repealed. From that date on that provision read:

“(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent abode [in Poland]; or

(2) [as it stood before 1 January 1996].”

Paragraph 2 of Article 217 then read:

“If an accused has been charged with a serious offence or an intentional offence [for the commission of which he may be] liable to a sentence of a statutory maximum of at least eight years’ imprisonment, or if a court of first instance has sentenced him to at least three years’ imprisonment, the need to continue detention in order to secure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed.”

The 1969 Code set out the margin of discretion as to maintaining a specific preventive measure. Articles 213 § 1, 218 and 225 of the Code were based on the precept that detention on remand, the most extreme among the preventive measures, should not be imposed if more lenient measures were adequate.

Article 213 § 1 provided:

“A preventive measure [including detention on remand] shall be immediately lifted or varied, if the basis therefor has ceased to exist or new circumstances have arisen which justify lifting a given measure or replacing it with a more or less severe one.”

Article 225 stated:

“Detention on remand shall be imposed only when it is mandatory; this measure shall not be imposed if bail or police supervision, or both of these measures, are considered adequate.”

The provisions of the Code providing for “mandatory detention” (for instance, pending an appeal against a sentence of imprisonment exceeding three years) were repealed on 1 January 1996 by the Law of 29 June 1995 referred to above.

Finally, Article 218 provided:

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

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

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

(c) Statutory time-limits for detention on remand

Until 4 August 1996, i.e. the date on which the relevant provisions of the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes entered into force, the law did not set out any time-limits on detention on remand in court proceedings; it did so only in respect of the investigative stage (see above, 2a) Imposition of detention on remand; Article 222 in the version applicable until 4 August 1996).

Article 222 of the 1969 Code in the version applicable after 4 August 1996 provided, in so far 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 offences. In cases concerning serious offences [offences for the commission of which a person was liable to a sentence of a statutory minimum of at least 3 years’ imprisonment] this period may not exceed two years.

4. In particularly justified cases the Supreme Court may, on an application made by the court competent to deal with the case, ... prolong detention on remand for a further fixed period exceeding the time-limits set 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.”

On 28 December 1996, by virtue of the Law of 6 December 1996, paragraph 4 of that Article was amended and the grounds for prolonging detention beyond the statutory time-limits included also:

“... other significant obstacles, which could not be overcome by the authorities conducting the proceedings...”

However, as already mentioned (see above 1. “Amendments to Polish criminal legislation”), under section 10 (a) of the 1995 Interim Law, different rules applied to persons whose detention on remand started prior to 4 August 1996. That section provided:

“1. In cases where the total period of detention on remand which started prior to 1 August 1996 exceeds the [maximum] time-limits referred to in Article 222 §§ ... and 3 of the Code of Criminal Procedure [as amended by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes], the accused shall be kept in detention until the Supreme Court gives a decision on an application for prolongation of his detention under Article 222 § 4 of the Code of Criminal Procedure.

2. In cases mentioned in paragraph 1, if no [such] application has been lodged, detention shall be lifted not later than 1 January 1997.”

In cases where the Supreme Court dismissed an application under Article 222 § 4, a detainee had to be released. As long as it had not given its ruling, the application of the relevant court – which had a form of a decision ( “ postanowienie ” ) – was deemed to be a legal basis for the continued detention.

(d) Proceedings for determination of the lawfulness of detention on remand

At the material time there were three different legal avenues enabling a detainee to challenge the lawfulness of his detention: appeal to a court against a detention order made by a prosecutor; proceedings in which courts examined applications for prolongation of detention made by a prosecutor at the investigation stage and proceedings set in motion by a detainee’s application for release.

As regards the last of these, Article 214 of the 1969 Code stated that an accused could at any time apply to have a preventive measure lifted or varied. Such an application had to be decided by the prosecutor or, after the bill of indictment had been lodged, by the court competent to deal with the case, within a period not exceeding three days.

Under Article 88 of the 1969 Code the participation of the parties at judicial sessions other than hearings was a matter for discretion of the court. Sessions concerning an application for release, a prosecutor’s application for prolongation of detention or an appeal against a decision on detention on remand were held in camera . If the defendant asked for release at a hearing, the court made a decision either during the same hearing or at a subsequent session in camera .

At the material time the law did not give the detainee the right to participate – either himself or through his counsel – in any court session concerning his detention on remand. In practice, only the prosecutor was notified of, and could participate in, those sessions. If he was present, he was entitled to adduce arguments before the court.  The prosecutor’s submissions were put on the record of the session (see also Włoch v. Poland , no . 27785/95, judgment of 19 October 2000, §§ 69-73).

Under all the relevant provisions read together a detainee was entitled to appeal against any decision prolonging his detention on remand, regardless of whether it had been made at the investigative or trial stage. However, no appeal laid in law either against a decision whereby the trial court applied, under Article 222 § 4, for prolongation of detention beyond the statutory time-limit, or against a decision of the Supreme Court prolonging detention under that provision.

3. Severance of charges

Article 24 § 1 of the 1969 Code read, in so far as relevant:

“1. The court competent to deal with the charges laid against a principal offender shall be competent to determine the charges laid against all his accessories and/or other persons, if the offence[s] committed by the latter are closely related to that [or those] committed by a principal offender [and] if the criminal proceedings against [all of them] are pending simultaneously.

2. The cases of persons referred to in paragraph 1 shall be joined in the same proceedings;

3. In cases where circumstances have rendered a joint determination of all the charges referred to in paragraphs 1 and 2 difficult [the court] may sever a specific charge [or charges] from the case ... .”

A first-instance court could, either of its own motion or on an application made by a party, make a severance order at any time.

4. Compensation for unjustified detention

Chapter 50 of the 1969 Code, entitled “Compensation for unjustified conviction, detention on remand or arrest”, provided that the State is liable for wrongful convictions or for unjustifiably depriving an individual of his liberty in the course of criminal proceedings against him.

Article 487 provided, in so far as relevant:

“1. An accused who, as a result of the reopening of the criminal proceedings against him or of lodging a cassation appeal, has been acquitted or resentenced under a more lenient substantive provision, shall be entitled to compensation from the State Treasury for the damage which he has suffered in consequence of having served the whole or a part of the sentence imposed on him.

...

4. The provisions of the present chapter shall be applied by analogy to manifestly unjustified arrest or detention on remand.”

Pursuant to Article 489, an application for compensation for manifestly unjustified detention on remand had to be lodged within one year from the date on which the final decision terminating the criminal proceedings in question had become final.

Proceedings relating to an application under Article 487 were subsequent to and independent of the original criminal proceedings in which the detention was ordered. The claimant could retrospectively seek a ruling as to whether his detention had been justified. He could not, however, test the lawfulness of his continuing detention on remand and obtain release.

5. Offence of aggravated fraud

That offence, until 1 September 1998, was defined in Article 205 § 2 (1) of the Criminal Code of 1969, which provided:

“Anyone who has committed aggravated fraud shall be liable to a sentence ranging from one to ten years’ imprisonment.”

On 1 September 1998 the Criminal Code of 1969 was repealed by the so-called “New Criminal Code” of 6 June 1997 and, from then on, the offence of aggravated fraud has been defined by Article 294 § 1 read in conjunction with Article 286 § 1 of the New Criminal Code; the potential sentence still ranging from one to ten years’ imprisonment.

6. Censorship of correspondence

Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in the Code of Execution of Criminal Sentences ( Kodeks karny wykonawczy ) of 1 September 1998.

Article 103 of that 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 ratified by the Republic of Poland international treaties 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 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 the letter.”

COMPLAINTS

1. The applicant complained under Articles 5 § 1 of the Convention that his detention, in so far as it continued after 31 December 1996, had been unlawful.

2. Invoking Article 5 § 3, he complained that the length of his detention on remand had exceeded a “reasonable time”.

3. He further alleged that there had been no procedure satisfying the requirements of Article 5 § 4 whereby he could contest the lawfulness of his detention between 1 and 24 January 1997 and obtained release.

4. The applicant also complained under Article 6 § 1 of the Convention that his right to have the criminal charge against him determined within a “reasonable time” had not been respected.

5. As regards the control of the applicant’s correspondence relating to his application for legal aid from the Council of Europe, the Court noted that he could not be aware of the manner in which his letter to the Court had been handled by the Polish authorities.

Having regard to the obligations imposed on the High Contracting Parties by Article 1 and Article 34 and of the Convention, the Court considered it necessary to raise ex officio the issue of Poland’s compliance with Article 8 and Article 34 of the Convention with the respondent Government.

Having become aware of the relevant facts, the applicant maintained that there had been a violation of Article 8 and Article 34 of the Convention.

THE LAW

1. The applicant complained that his detention, in so far as it had continued after 31 December 1996, had been unlawful. He alleged a breach of Article 5 § 1, which, in its relevant part, provides:

“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 Government first maintained that the applicant had failed to exhaust domestic remedies, as required under Article 35 § 1 of the Convention. They considered that, before complaining to the Court, he should have made an application under Article 487 of the 1969 Code and sought compensation for his allegedly unlawful detention. Such an application could be made within a year from the date on which the final decision had been given in his case. In their submission, that was an effective remedy enabling him to review the lawfulness of his detention.

The applicant disagreed. He cited a number of examples from the Convention institutions’ case-law and in particular referred to the Commission’s decision on admissibility of the case of Baranowski v. Poland (no. 28358/95, dec. 8.12.1997, unpublished) and the Court’s ruling in the case of Zdebski , Zdebska and Zdebska v. Poland (no. 27748/95, dec. 6 April 2000, unreported).

The Court notes at the outset that the applicant brought proceedings under Article 487 of the Code of Criminal Procedure as early as 6 October 1997. It further notes that the parties have not supplied any further details that would make it possible for the Court to establish whether, and if so when and how, his application was handled.

Yet, for the reasons explained below, the Court considers that it does not have to look into the conduct and result of those proceedings because they are irrelevant for the determination of the exhaustion issue.

In that regard, the Court reiterates – as it already did in several similar cases against Poland – that where the applicant’s Convention claim concerns unlawfulness of his detention, an application for compensation for unjustified detention is not a remedy that has to be exhausted (see the above-cited decisions, with further references).

The Court has held so because that remedy only enabled a detainee to seek, retrospectively, a decision determining whether his already-terminated pre-trial detention was lawful and to obtain financial reparation if this was not the case. However, it was not the means whereby he could challenge the legal or factual grounds for his continued detention and obtain release.

In view of the foregoing, the Court holds that the Government’s preliminary objection should be dismissed.

The Government further maintained that there had been no breach of Article 5 § 1 of the Convention.

To begin with, they stressed that there had been valid grounds for keeping the applicant in custody, such as the well-founded suspicion that he had committed the offence in question and the serious nature of that offence.

They also stressed that throughout the period after 31 December 1996 the applicant’s detention had had an adequate legal basis, in particular in the form of the Supreme Court’s decisions on prolongation of that measure.

It was true, the Government conceded, that the Supreme Court had found that there had been no legal basis for holding the applicant in detention from 1 to 24 January 1997. Nevertheless, the same court had also found that his detention should be prolonged under Article 222 § 4 of the 1969 Code.

That being so, the Government concluded that the applicant’s pre-trial detention, in so far as it had continued after 31 December 1996, had been “lawful” within the meaning of Article 5 § 1.

The applicant opposed this contention and referred to the Supreme Court’s decision of 24 January 1997, in which it had been explained in plain terms why keeping him in custody after 31 December 1996 had been unlawful and, consequently, incompatible with Article 5 § 1. He also argued that there had been no grounds, as listed in Article 222 § 4 of the Code of Criminal Procedure, to extend his pre-trial detention beyond that date.

In conclusion, the applicant invited the Court to find a violation of Article 5 § 1 of the Convention.

The Court considers, in the light of the parties’ submissions, 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. No other ground for declaring it inadmissible has been established.

2. The applicant further alleged a violation of Article 5 § 3 of the Convention in that his detention pending trial had been unreasonably lengthy. That Article reads, in so far as relevant:

“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 submitted that the applicant had been remanded in custody in view of the strong suspicion that he had committed aggravated fraud. Overall, he had spent in detention pending trial about 3 years. However, having regard to the fact that during that entire period the suspicion of his having committed a serious offence and the risk of his absconding had persisted and that the authorities had not failed to act with due diligence, the Government considered that the requirements of Article 5 § 3 had been satisfied.

The applicant disagreed and maintained that such a lengthy period of detention of a person presumed to be innocent could by no means be considered compatible with Article 5 § 3. He went on to argue that, however strong was the suspicion against him, it could suffice as a basis for holding him in custody only at an early stage of the proceedings.

As regards the risk of his absconding, the applicant considered that it had not been based on any reliable evidence and that, with the passage of time, it had become irrelevant from the point of view of the proper conduct of the trial.

The applicant also stressed that the Regional Court had organised the trial badly and had repeatedly failed to ensure the presence of the released defendants before it. Moreover, even though in reality the proceedings had not progressed at all only because of their conduct, the court had put the onus of that on him and had consistently refused all his applications for his detention to be lifted or replaced by another, less severe measure. In the applicant’s submission, his release would have not upset the proper course of the trial and such means as bail or police supervision would have secured his presence before the court without putting on him a severe strain involved in detention.

For these reasons, the applicant asked the Court to find that his right to “trial within a reasonable time or to release pending trial” had been violated.

The Court considers, in the light of the parties’ submissions, 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. No other ground for declaring it inadmissible has been established.

3. The applicant maintained that he could not take any proceedings to contest, and obtain release from, his unlawful detention between 1 and 24 January 1997. He relied on Article 5 § 4 of the Convention, which provides:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

The Government considered that the applicant, in order to challenge the lawfulness of his detention during the relevant period could have applied for release under Article 214 of the 1969 Code.

The applicant replied that his complaint exclusively concerns the impossibility of challenging the lawfulness of extending his detention beyond the statutory time-limits under Article 224 § 4 of the 1969 Code. In his opinion, there had been no procedure satisfying the requirements of Article 5 § 4 and enabling him to appeal against, or otherwise contest, first, the Regional Court’s decision of 31 December 1996 and, second, the Supreme Court’s decision on prolongation of the measure. He added that that evident gap in legislation had subsequently been eradicated by the 20 July 2000 Amendment to the 1997 Code, from that date on, provided that a detainee had a right to appeal against a decision whereby a trial court asked for his detention to be prolonged beyond the maximum time-limits prescribed by law.

The Court considers, in the light of the parties’ submissions, 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. No other ground for declaring it inadmissible has been established.

4. The applicant also complained about the length of his trial and alleged a violation of Article 6 § 1 of the Convention, which reads, in so far as relevant:

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

The Government considered that the length of the criminal proceedings against the applicant was not excessive. On the date of their submission the proceedings lasted some four years and the first-instance judgment was, as they anticipated, to be delivered in 1999.

They also heavily relied on the complexity of the case, stressing that it involved 13 defendants and 104 witnesses. They maintained that the authorities had not failed to display due diligence in the conduct of the proceedings.

The applicant argued that the number of defendants and witnesses could not justify a complete lack of progress at the initial stage of the trial. For nearly 2 years following the lodging of the bill of indictment no hearing on the merits had taken place and the trial had repeatedly been postponed because the Regional Court had failed to ensure the presence of the released defendants before it. In that context, the applicant also cited a number of the Court’s judgments and submitted that persons kept in detention pending trial were entitled to “special diligence” on the part of the authorities. In his opinion, such diligence had not been shown in his case.

The Court considers, in the light of the parties’ submissions, 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. No other ground for declaring it inadmissible has been established.

5. Under Article 8 of the Convention the applicant complained that the authorities had censored his letter to the Court and had, therefore, violated his right to respect for his correspondence. Article 8, in its relevant part, reads:

“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 acknowledged that the applicant’s letter to the Court, dated 13 December 2000, had been stamped “censored”. They argued, however, that under the relevant legal provisions the authorities had a margin of discretion in deciding whether or not to censor a detainee’s correspondence. In the applicant’s case they had simply exercised their discretion but had not interfered with the content of his letter.

The applicant riposted that under Article 103 § 1 read in conjunction with Article 214 of the Code of Execution of Criminal Sentences his correspondence with the Court was privileged and could not be subjected to censorship. The interference with his correspondence had accordingly been unlawful and as such in breach of Article 8 of the Convention.

The Court considers, in the light of the parties’ submissions, 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. No other ground for declaring it inadmissible has been established.

6. The applicant maintained, lastly, that the opening and censoring of his letter to the Court had also breached Article 34 of the Convention, which provides:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

The Government considered that the mere fact that the applicant’s letter had been stamped “censored” did not in itself amount to a breach of Poland’s obligation under that Article. They stressed that on no occasion had the applicant’s correspondence with the Court been stopped or intercepted. Nor had the delivery of his letters been postponed.

The Government further maintained that, despite the fact that the envelope in question bore traces of opening after having been sealed, there was no evidence to show that it had been opened by the authorities. Moreover, the applicant himself had not claimed that his right of individual petition had been limited.

The applicant replied that the Government’s arguments were not convincing and asserted that only the authorities had had interest in being acquainted with the content of his letter and power to open it.

The Court considers, in the light of the parties’ submissions, that the present complaint should be examined together with the merits of the application.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints concerning the unlawfulness and length of his detention; the lack of procedure whereby to challenge unlawful detention; the length of his trial and the censorship of his correspondence with the Court.

Michael O’Boyle Nicolas Bratza Registrar President