THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38654/97 by Jerzy GORAL against Poland

The European Court of Human Rights (Third Section), sitting on 7 November 2002 as a Chamber composed of

Mr G. Ress , President , Mr L. Caflisch , Mr R. Türmen , Mr B. Zupančič , Mrs H.S. Greve , Mr K. Traja , Mr L. Garlicki , judges , Mr M. Villiger , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 22 July 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 observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Jerzy Goral, is a Polish national, who was born in 1944 and lives in Lublin, Poland. He was represented before the Court by Mr W. Myśliborski, a lawyer practising in Warsaw. The respondent Government were represented by their Agent, Mr K. Drzewicki.

A. The circumstances of the case

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

1. The applicant’s pre-trial detention and the criminal proceedings against him

(a) The arrest

On 23 May 1996 the applicant was taken into custody by the police. On 24 May 1996 the Lublin District Prosecutor ( Prokurator Rejonowy ) charged the applicant with hiding a stolen car and possession of a counterfeit banknote and remanded him in custody. The District Prosecutor considered that there existed a danger of pressure being brought to bear on witnesses. Moreover, he referred to a significant danger to society of the criminal acts allegedly committed by the applicant.

The applicant appealed against the District Prosecutor’s decision but on 18 June 1996 the Lublin Regional Court ( Sąd Wojewódzki ) dismissed his appeal. The court considered that the reasons given for the applicant’s detention had not ceased to exist.

On 14 August 1996 the Lublin Regional Court extended the applicant’s detention until 23 November 1996. It pointed out that the investigation had not been completed and that there was a risk that if released the applicant would obstruct the criminal proceedings against him. The applicant appealed against this decision but on 12 September 1996 the Lublin Court of Appeal ( Sąd Apelacyjny ) dismissed his appeal.

On 14 October 1996 the Lublin Regional Prosecutor decided to take evidence from an anonymous witness. The applicant did not appeal against this decision.

In November 1996 the prosecution dropped the charge of possession of a counterfeit banknote.

(b) The bill of indictment

On 22 November 1996 the Lublin Regional Prosecutor filed with the Lublin Regional Court a bill of indictment against the applicant.

On 16 December 1996 the applicant applied for bail but on 17 December 1996 the Lublin Regional Court dismissed his application. It considered that the applicant’s two adult children could help his wife, who was ill. Moreover, the evidence gave rise to reasonable suspicion that the applicant had committed the criminal offence with which he was charged. The applicant appealed against this decision but on 15 January 1997 the Lublin Court of Appeal dismissed his appeal. The appellate court referred to Articles 209 and 217 § 2 of the Code of Criminal Procedure. It also pointed out that the recent medical examinations of the applicant’s wife had shown that she did not need the help of third persons.

On 24 March 1997 the applicant applied to the Lublin Regional Court for release from detention. He submitted that his wife was ill and required his help.

On 25 March 1997 the Regional Court dismissed the applicant’s application. It considered that the evidence gave rise to a reasonable suspicion that the applicant had committed the criminal offence with which he was charged. In addition, the applicant’s wife did not require hospitalisation and could be helped by other members of her family.

(c) The first hearing before the trial court

On 28 August 1997 the first hearing took place before the Lublin Regional Court.

On 26 September 1997 the Lublin Regional Court examined an anonymous witness.

Subsequently, hearings took place on 1 October and 5 November 1997.

(d) The end of pre-trial detention

During the hearing held on 20 November 1997 the Regional Court released the applicant from detention.

On 18 December 1997 and 7 January 1998 the trial court held hearings.

On 9 January 1998 the Lublin Regional Court convicted the applicant as charged and sentenced him to one year and five months’ imprisonment and a fine. The applicant appealed his conviction.

On 26 May 1998 the first hearing took place before the Lublin Court of Appeal.

During the hearing held on 20 August 1998 the appellate court decided to refer a question on a point of law to the Supreme Court ( Sąd Najwyższy ). The question concerned the legal qualification of the criminal offence with which the applicant was charged.

On 18 November 1998 the Supreme Court adopted a resolution on the question submitted by the Lublin Court of Appeal.

The next hearing before the Lublin Court of Appeal took place on 10 December 1998. The court quashed the applicant’s conviction and remitted the case to the trial court.

In the course of 1999 the Lublin Regional Court held hearings on 26 March, 29 April, 2 June, 6 and 9 September, 8 October.

On 24 and 29 September, 5 and 26 October 1999, and also 5 April and 10 May 2000 the above-mentioned anonymous witness failed to appear before the court.

The first hearing in 2000 was held on 8 August.

On 18 September 2000 the applicant informed the court that he was ill.

The next hearing took place on 4 October 2000. The Regional Court decided to consider the charges against the applicant in separate proceedings.

On 17 October 2000 the Regional  Court stayed the criminal proceedings against the applicant because he was in a hospital and could not attend hearings.

On 19 December 2000 the court examined the anonymous witness.

On 4 January 2001 the court received information that the applicant was released from the hospital. On 13 March 2001 it resumed the proceedings.

The hearing held on 9 July 2001 was adjourned until 20 September 2001.

It appears that the proceedings are still pending.

2. The monitoring of the applicant’s correspondence

On 13 October 1997 the applicant mailed a letter to the European Commission of Human Rights. He handed a sealed envelope containing the letter to the prison authorities. The authorities submitted it to the Lublin Regional Court where the letter was opened and read.

On 20 October 1997 the court returned the letter to the applicant.

Subsequently, he did not send the letter through the prison service but instead mailed it through third persons. The letter was received by the European Commission of Human Rights on 4 November 1997.

B. Relevant domestic law

1. The pre-trial detention

(a) The Code of Criminal Procedure 1969

At the material time, the Code of Criminal Procedure 1969 listed as preventive measures, inter alia, detention on remand, bail and police supervision. Article 209 of the Code, which set out general grounds justifying the imposition of preventive measures, provided as follows:

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

Furthermore, the Code of Criminal Procedure allowed authorities a margin of discretion as to whether to continue the enforcement of preventive measures. Detention on remand was regarded as the most severe preventive measure. Article 213 § 1 of the Code provided as follows:

“A preventive measure shall be immediately quashed or changed if the grounds therefor have ceased to exist or if new circumstances have arisen, which justify quashing a given measure or replacing it with one that is either more or less severe.”

Article 225 of the Code provided:

“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.”

Article 217 §§ 1 and 2 of the Code provided:

Ҥ 1. Detention on remand may be imposed if:

1. there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent domicile, or

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

§ 2. 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.”

Article 218 provided:

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

1. it may seriously jeopardise the life or health of the accused; or

2. it would entail hardship for the accused or his family.”

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

Article 222 § 3 of the Code of Criminal Procedure, as applicable after 4 August 1996, provided:

“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.”

(b) The Supreme Court’s resolutions

On 6 February 1997 the Supreme Court adopted a resolution (no. I KZP 35/96) in which it construed the amendments to the Code of Criminal Procedure 1969, entered into force on 4 August 1996. The Supreme Court replied in the affirmative to the question whether, after the lodging of a bill of indictment, the trial court was obliged to take 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 Article 211 § 2. However, it did not emerge explicitly from Article 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 Article 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 (Article 222 §§ 1 and 2), there is no reason why there should not be one at the stage of the court proceedings ...”.

2. The monitoring of correspondence

Article 89 § 2 of the Code of Execution of Criminal Sentences 1969, which was in force until 1 September 1998, provided, in so far as relevant, as follows:

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

Rule 33 of the Rules on Detention on Remand 1989, as amended on 29 December 1995, provides, in so far as relevant, as follows:

“(1) A detainee has a right to correspond.

(2) Detainee’s correspondence shall be censored by the organ at whose disposal he remains (...).

(3) Correspondence with the Ombudsman and international institutions for the protection of human rights, which act on the basis of international agreements ratified by the Republic of Poland, is mailed through the intermediary of [that] organ (...).”

3. Anonymous witnesses

In so far as relevant, Article 164a § 5 of the Code of Criminal Procedure 1969 reads:

“A decision to keep secret information which would make it possible to identify a witness, can be appealed to a court by an accused within 3 days. ... If the appeal is allowed, evidence taken from the witness shall be destroyed. ...”

COMPLAINTS

The applicant complained that his pre-trial detention after 23 November 1996 was unlawful because there was no judicial decision authorising it.

The applicant also complained under Article 5 § 3 of the Convention about the unreasonable length of his pre-trial detention.

Furthermore, he complained that the unreasonable length of the criminal proceedings violated Article 6 § 1 of the Convention.

The applicant further alleged that he did not have a fair trial because he was not allowed to examine an anonymous witness against him and that the part of evidence obtained was not disclosed to him.

Finally, the applicant submitted that the monitoring of his letter of 13 October 1997 to the European Commission of Human Rights was in breach of Article 8. In this connection, he also alleged a breach of former [1] Article 25 of the Convention (presently Article 34).

THE LAW

1. The applicant complained that his pre-trial detention after 23 November 1996 was unlawful because there was no judicial decision authorising it. This complaint falls under Article 5 § 1 of the Convention which provides, in so far as relevant:

“1. 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 submitted that the complaint was manifestly ill ‑ founded. They pointed out that after the prosecution service had filed a bill of indictment with the trial court, the applicant “remained at the disposal of the Lublin Regional Court”. The Regional Court and the Court of Appeal on four occasions dismissed his applications for release. Therefore, the applicant’s detention “was under permanent supervision of competent courts”.

The Court considers, in the light of the parties’ submissions, that this complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. The Court concludes, therefore, that it is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

2. The applicant also complained under Article 5 § 3 of the Convention about the unreasonable length of his pre-trial detention. Article 5 § 3 provides:

“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 length of the applicant’s detention did not breach Article 5 § 3. They asserted that the detention was justified by a significant danger to society of crime with which the applicant was charged and the risk of pressure being brought to bear on witnesses. In addition, the evidence collected by the prosecution service gave rise to reasonable suspicion that the applicant had committed the criminal offence with which he was charged.

The Court considers, in the light of the parties’ submissions that this complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. The Court concludes, therefore, that it is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

3. Furthermore, the applicant complained that the unreasonable length of the criminal proceedings violated Article 6 § 1 of the Convention which, in so far as relevant, provides:

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

The Government submitted that the length of the proceedings did not disclose a breach of Article 6 § 1. They considered that it was justified by the procedural and legal complexity of the case. In this connection, the Government referred to the number of witnesses and the fact that one of the victims filed a civil suit which had to be considered in the criminal proceedings. The trial court had difficulties in taking evidence from an anonymous witness who was in hiding. In addition, the appellate court had to refer a question on a point of law to the Supreme Court. Furthermore, the applicant contributed to the length of the proceedings by filing numerous requests challenging decisions of the courts.

The Court considers, in the light of the parties’ submissions, that this complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. The Court concludes, therefore, that it is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

4. The applicant further complained that he did not have a fair trial because he was not allowed to examine an anonymous witness against him and part of evidence taken from that witness was not disclosed to him. The Court considers that this complaint falls under Article 6 §§ 1 and 3 (d), which in so far as relevant provides:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by 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 applicant admitted that the prosecution service had served on him their decision of 14 October 1996 to take evidence from an anonymous witness and that he had not appealed it. At the same time, he explained that his failure to file an appeal resulted from the fact that he realised only at the end of the investigation that the evidence given by that witness concerned him.

The Government contended that the applicant had failed to exhaust domestic remedies because he did not appeal the impugned decision to take evidence from an anonymous witness.

The Court is not required to decide whether or not the facts submitted by the applicant disclose any appearance of a violation of the Convention since he failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention. In particular, he failed to lodge an appeal against the decision to take evidence from an anonymous witness. It follows that this part of the application must be rejected, in accordance with Article 35 § 4.

5. The applicant submitted that the monitoring of his letter of 13 October 1997 to the European Commission of Human Rights was in breach of Article 8 of the Convention which, in so far as relevant, provides:

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

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

The Government submitted firstly that the applicant did not exhaust domestic remedies, as he did not file a complaint with the president of the appellate court under the Ordinance of the Minister of Justice of 29 March 1991.

However, the Court recalls that it has already ruled that such a complaint does not constitute an effective remedy within the meaning of Article 35 of the Convention (see Radaj v. Poland , (dec.), nos. 29537/95 and 35453/97, 21 March 2002, unreported).

The Government further submitted that the applicant’s complaint was manifestly ill-founded. They asserted that the Lublin Regional Court monitored the letter in accordance with Article 89 § 2 of the Code of Execution of Sentences and returned it to the Detention Center so that it could be mailed to the European Commission of Human Rights.

The Court considers, in the light of the parties’ submissions, that this complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. The Court concludes, therefore, that it is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

6. Finally, the applicant complained that the monitoring of his letter of 13 October 1997 was in breach of former Article 25 of the Convention (presently Article 34). Article 34 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 submitted firstly that the applicant did not exhaust domestic remedies, as he did not file a complaint with the president of the appellate court under the Ordinance of the Minister of Justice of 29 March 1991. However, the Court again recalls its ruling in the Radaj case to the effect that such a complaint does not constitute an effective remedy within the meaning of Article 35 of the Convention.

Furthermore, the Government disagreed with the applicant’s claim. They pointed out that the monitoring of the applicant’s letter took only a few days. The letter was then returned to the applicant who mailed it to Strasbourg. Moreover, domestic authorities did not interfere with the contents of the letter.

The Court notes that the applicant’s letter was returned to him after six days and that he was free to mail it to the Commission. Moreover, there was no interference with its content. The Court considers that, in the particular circumstances of the present case, the applicant was in no way hindered in the exercise of his right of petition to the Court (see Valašinas v. Lithuania , no. 44558/98, § 136, ECHR 2001-VIII).

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

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints concerning the unlawfulness of his detention after 23 November 1996 (Article 5 § 1); the unreasonable length of his pre ‑ trial detention (Article 5 § 3) and the criminal proceedings (Article 6 § 1); and a breach of Article 8 on account of the monitoring of his correspondence;

Declares the remainder of the application inadmissible.

Mark Villiger Georg Ress              Deputy Registrar President

[1] The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.