THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35489/97 by Marek SAŁAPA against Poland

The European Court of Human Rights (Third Section) , sitting on 30 April 2002 as a Chamber composed of

Mr G. Ress , President , Mr L. Caflisch ,

Mr J. Makarczyk , Mr P. Kūris , Mr R. Türmen , Mr J. Hedigan , Mrs H.S. Greve , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 23 July 1996,

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

Having regard to the partial decision of 3 April 2001,

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, Mr Marek Sałapa,  is a Polish national, born in 1955. He is currently serving a prison sentence in Grudziądz prison. He is represented before the Court by Mr Karol Węgliński , a lawyer practising in Jawor .

A. Circumstances of the case

1. The criminal proceedings against the applicant

On 24 February 1996 the applicant was arrested.

On 26 February 1996 the Regional Prosecutor remanded the applicant in custody on suspicion of drug trafficking, committed from August until November 1995 in co-operation with other persons. The prosecution stressed that  the testimony given by the co-suspects strongly supported the suspicion against the applicant, and that there was a risk of absconding.

On 15 March 1996 the Jelenia Góra Regional Court (“the Regional Court”) dismissed the applicant’s appeal against the detention order. On 25 March 1996 and on an unknown later date the applicant’s requests for release were refused by the Wrocław Regional Prosecutor. On 29 March 1996 the Regional Prosecutor prolonged the applicant’s detention until 30 June 1996 due to the complexity of the case. On 2 and 22 April 1996 the applicant’s appeals against these decisions were dismissed by the Appellate Prosecutor, who relied, inter alia , on the findings made in the investigations that the applicant had had a leading role in the organisation of a drug trafficking network, and to the fact that the evidence gathered so far included a forged passport of the applicant. This revealed a risk of absconding if the applicant were to be released.

On 16 May 1996 the Regional Court prolonged the applicant’s detention on remand until 31 August 1996, referring to new circumstances coming to light in the investigations, which justified that charges be brought against new suspects. Moreover, certain evidence had to be translated from German into Polish. On 5 June 1996 the WrocÅ‚aw Court of Appeal (“the Court of Appeal”) dismissed the applicant’s appeal against this decision. The court emphasised that the medical examination of the applicant by the physician in the WrocÅ‚aw prison had shown that his health was not such as to justify his release. On 19 June 1996 the Regional Prosecutor decided to prolong the investigations further, until 30 September 1996.

On 24 June 1996 the Regional Prosecutor refused the applicant’s request for release and for change of the detention on remand for a more lenient preventive measure.

On 26 August 1996 the Court of Appeal prolonged the applicant’s detention until 30 September 1996, invoking a need to take expert evidence. On 25 September 1996 the Wrocław Regional Prosecutor prolonged the investigations until 31 December 1996. On 30 September 1996 the Court of Appeal prolonged the applicant’s detention until the same date. On 14 November 1996 the Supreme Court upheld the decision of 30 September, considering, inter alia , that applicable domestic law did not require that the evidence in support of his detention was such as to allow a conviction. It was sufficient that there were strong indications that the applicant had committed the offence in question, such as disclosed by the testimony of the co-accused.

On 19 December 1996 the Court of Appeal prolonged the applicant’s detention until 24 February 1997, having regard to new circumstances of the case which would justify bringing charges of forgery against the applicant, and to the need of translating some judicial documents from German. The Wrocław Regional Prosecutor prolonged the investigations until 31 May 1997. On 7 February 1997 the Prosecutor General  lodged a motion with the Supreme Court to have the applicant’s detention prolonged until 30 April 1997.

On 10 February 1997 the Supreme Court upheld the decision of 19 December 1996. On 17 February 1997 it prolonged the applicant’s detention until 30 April 1997. On 25 March and 7 April 1997 the Regional Prosecutor refused the applicant’s further requests for release. The applicant appealed to the higher prosecutor. On 2 and 22 April 1997 the Appellate Prosecutor upheld these decisions, relying, inter alia , on the findings of the investigations that the applicant had had a leading role in the organisation of a drug trafficking network, and to the fact that the evidence included the applicant’s forged passport. This revealed a risk of absconding if the applicant were to be released.

On 21 April 1997 the Wrocław Regional Prosecutor closed the investigations.

On 24 April 1997 the Wrocław Regional Prosecutor submitted the bill of indictment against the applicant and nine other co-accused to the Regional  Court. The indictment contained a list of twenty witnesses to be interviewed and two hundred twenty-four items of evidence to be presented at the hearing.

On 30 April 1997 the Regional Court dismissed the applicant’s motion for release of 23 April 1997. On 27 May 1997 the Regional Court prolonged the applicant’s detention until 24 February 1998.

On 28 May 1997 the Regional Court filed a motion with the Court of Appeal, requesting that the case be taken over for consideration by the Wrocław Regional Court. It was stressed that the Regional Prosecutor and the most of the witnesses to be summoned resided in Wrocław. On 4 June 1997 the Court of Appeal dismissed the motion.

On 17 June 1997 the Regional Court dismissed the applicant’s appeal against the prolongation of his detention. On 26 June 1997 the Court of Appeal upheld this decision. On 18 August 1997 the applicant filed a subsequent motion for release or to have the preventive measures changed. On 3 September 1997 the Regional Court dismissed the applicant’s motion.

On 4 September 1997 the Regional Court ordered the Detention Centre in Wrocław to carry out a thorough medical examination of the applicant, including an examination by a neurologist.

On 30 October 1997, at the applicant’s request, the Regional Court sent the files of the case, which by then numbered twenty-one volumes, to the Wrocław prison to make them available to the applicant. From 3 until 6 November 1997 the applicant  was reading the case-file. On 7 November 1997 the applicant requested again to have the access to the case-file in order to be able to study it thoroughly. He was subsequently granted such access on four occasions.

The first hearing in the case was held on 17 November 1997. During the hearing the Regional Court dismissed a motion lodged by one of the co-accused to have the case returned to the prosecution to complete the investigations. The hearing was adjourned as one of the co-accused failed to comply with the summons. The court informed the applicant that it would consider his new request for release after conducting inquiries at his home. The court fixed dates for next hearings for 22 December 1997 and 5 January 1998. From 2 until 6 December 1997 the case-file was, at the applicant’s request,  sent to the prison so that the applicant could study it.

On 15 December 1997 the court held a hearing at which it refused the applicant’s a subsequent motion for release. Due to the absence of two co-accused the court adjourned the hearing. On 22 December 1997 the same two co-accused again failed to attend the hearing. One of them, a certain D. M., was looked for by a "wanted" notice. The defence counsel of another co-accused, I. M., requested that experts be appointed in order to establish her state of mental health after the suicide of her brother some days earlier. The hearing was adjourned until 19 January 1998.

On 31 December 1997 the Regional Court requested the Warszawa-Praga District Police to conduct enquiry at the applicant’s home as to his family situation. As the results of the enquiry showed that the situation of the applicant’s family was not such as to require that he be released, on 14 January 1998 the court refused his request of 17 November 1997. On 9 and 10 January 1998 the expert reports were submitted to the court, confirming the capacity of I. M. to take part in the hearings before the court.

At a hearing held on 19 January 1998 the co-accused D.M. failed to attend.  She was in the seventh month of pregnancy and had been looked for by a “wanted” notice after her escape from  the hospital. The court did not allow the applicant’s request for release and adjourned the hearing.

On 10 February 1998 the Supreme Court prolonged the applicant’s detention until 31 July 1998. On 20 February and 9 March 1998 the applicant requested to be allowed access to the case-file. On 9 March 1998 during the subsequent hearing the applicant filed a motion that the case-file be remitted to the prosecutor to supplement investigation with regard to circumstances and conditions in which two of the witnesses had made statements in their cases before the German courts. The applicant also challenged the judges of the panel examining the case and all judges of the Regional Court. He also requested to stay the proceedings until D. M. would be arrested and that the file from Germany be sent to the Regional Court and translated. He also requested his release. During the same hearing the court rejected all the applicant’s requests. The applicant immediately filed appeals against these refusals and requested to adjourn the hearing in order to have the case-file sent to the Court of Appeal for his appeals to be considered. The court refused to do so. The cases of the two absent co-accused were separated from the applicant’s case to be considered in separate proceedings.

On 20 March 1998 the applicant again requested that the proceedings be stayed. On 24 March 1998 the Court of Appeal upheld the decision of 9 March 1998 refusing the applicant’s motion. On 23 March 1998 the applicant requested to be allowed access to the case-file and filed six new procedural motions with the court. During the next hearing held on 30 March 1998 the applicant filed five other procedural motions.

At the beginning of April 1998 the applicant challenged the prosecutor  conducting his case and requested that another one be appointed. On 6 April 1998 the applicant filed a complaint with the court, alleging inadequate access to the case-file which had not allowed him to prepare his defence properly.

On 7 April 1998 the Court of Appeal upheld the refusal to stay the proceedings of 30 March 1998. On 16 April 1998 the Wrocław Regional Prosecutor dismissed the applicant’s challenge of the prosecutor, finding that it did not satisfy the applicable legal requirements. On 11 May 1998 the applicant complained to the Regional Court against his allegedly insufficient access to the case-file and requested permission to consult the records of the hearings. On 21, 22, 27, 28 and 29 May 1998 the applicant had access to the case-file in the detention centre.

During the hearing held on 1 June 1998 the applicant filed a motion for release and requested that the proceedings be stayed. He also requested that the case against D.M. , which had been previously separated from his case, be examined together with his case. He further complained that his procedural  rights had not been observed by the court, in particular that he had no proper access to all  the volumes of the case-file at the same time and that he had not been given sufficient time for meetings with his defence counsel. His requests and complaints were dismissed by the court.

On 17 June 1998 the Appeal Court upheld the refusal to stay the proceedings of 1 June 1998. On 22 June 1998 the hearing was adjourned until 17 August 1998 due to the illness of one of the co-accused I.M.

On 30 July 1998 the Supreme Court, at the Regional Court’s request of 3 July 1998, decided to prolong the applicant’s detention until 31 December 1998. A hearing fixed for 17 August 1998 was adjourned due to the absence of three defendants, and the subsequent hearings were held on 24 August, 14 September, 5 and 19 October 1998. The applicant was again allowed access to the case-file from 28 September until 2  October 1998.

During the hearing held on 26 October 1998, the court questioned four witnesses. Two other witnesses failed to appear. The hearing was adjourned until 9 November 1998. During that hearing five witnesses were interviewed and three other witnesses failed to comply with the summons. The hearing was adjourned until for 30 November 1998.

On 30 November 1998 four witnesses were interviewed. Seven other witnesses failed to attend the hearing. The court dismissed the applicant’s new request for release and decided to admit evidence from the testimony of some police officers, concerning the conduct of the investigation in the case.

Next hearings were fixed for 14 December 1998 and 4 January 1999. On its session held in camera on 7 December 1998 the Regional Court decided to request the Supreme Court to prolong the applicant’s detention until 30 June 1999.

On 14 December 1998 next hearing was held. Three witnesses were heard and one failed to attend. The applicant’s subsequent request for release was dismissed. On 30 December 1998 the Regional Court requested the District Police in Brzeg Dolny to establish the whereabouts of witness D. M. At the hearing held on 4  January 1999 the court questioned one witness, whereas four others were absent. The applicant submitted a request to adjourn the questioning of the witnesses, relying on the absence of his defence counsel.

On 6 January 1999 the Supreme Court prolonged the applicant’s detention until 30 April 1999. The Court observed that a number of hearings had been adjourned due to the failure of certain accused and of a number of witnesses to attend the hearings as summoned. It also had regard to the applicant’s motions to take additional evidence. At the hearing held on 11 January 1999 witness G.D. was questioned and three other persons summoned as witnesses failed to  appear.

At a subsequent hearing held on 18 January 1999 one of the co-accused was absent following an accident. The applicant and another co-accused requested that three new defence witnesses be heard in the case. The court adjourned the hearing. The subsequent hearing in the case was held on 25 January 1999 and two witnesses  were questioned.

At the hearing held on 8 February 1999 the applicant requested access to the case-file alleging that before the hearing his access had been insufficient to prepare his defence properly because he had never had access to all of the twenty volumes of the case-file at the same time. The applicant’s counsel requested appointment of an expert in graphology in order to examine the authenticity of the signature of the co-accused S. P. on a certain document. The court adjourned the hearing.

On 15 February 1999 the applicant requested the Regional Court to grant him access to the entire case-file.

On 1 March 1999 the court continued the hearing. Two witnesses were interviewed and one was absent. The court decided to cross-examine three witnesses and to question another one.

At the next hearing held on 8 March 1999 one witness failed to appear. The court appointed an expert in graphology in order to examine the authenticity of the signature of the co-accused S.P. The court allowed the applicant’s request that a new witness be interviewed and dismissed other requests concerning the taking of further evidence.

On 15 March 1999 the hearing was continued and one witness was heard. The court decided to impose fines on two absent witnesses. It also allowed a the applicant’s lawyer’s request to examine a file of another criminal case and adjourned the hearing. On 17 March 1999 a lawyer of one of the co-accused  requested to have three new witnesses questioned and the court granted that request.

At the hearing on 22 March 1999 the court heard four witnesses. On 29 March 1999 the court decided to hold the hearing despite the fact that two of the co-accused failed to comply with the summonses. The court, at the applicant’s request, called two new witnesses as since the applicant’s lawyer had not agreed that their testimony be read out in the court. The court adjourned the hearing and fixed its next  dates.

On 6 April 1999 the court held the despite the absence of the co-accused I. M. Four witnesses summoned for that date failed to comply with the summonses. The applicant and another co-accused requested to accept as disclosed the testimony of two witnesses living abroad without them being read out in the court. .

On 12 April 1999 a next hearing was held. The court read out the testimony of the co-accused D. M, whose whereabouts remained unknown, and two further witnesses were questioned.

At a next hearing, held on 13 April 1999, one witness refused to answer questions. One of the co-accused was absent, but the court decided to continue the hearing. The court dismissed a request to admit evidence from the file of another criminal case, related to the present case and terminated by the German courts. The court also refused  to allow the applicant’s motion for a fresh expert report on the signature of the accused S. P,  enclose a file of another case against persons who had been witnesses in the case against the applicant and to hear two new witnesses.

At the hearing held on 14 April 1999 the Regional Court requested the Supreme Court to prolong the applicant’s detention until 15 June 1999 so that further witnesses could be heard. The Regional Court observed that the proceedings had essentially come to a close, but that it was impossible to hear one witness who was detained in another case, and one of the accused who was ill.

A new witness was interviewed on 19 April 1999. One co-accused, who was ill, did not attend the hearing. The court decided to summon a subsequent witness and fixed dates for next hearings. On 26 April 1999 the court adjourned the hearing due to the absence of one of the lawyers. The presence of the lawyer was mandatory and the co-accused had not consented to the hearing being held in his absence.

On 29 April 1999 the Supreme Court prolonged the applicant’s detention until 15 June 1999, having regard to such essential obstacles as the illness of the co-accused I. M., new circumstances which were coming to light during the court proceedings and the new evidence allowed by the court.

At a hearing before the Regional Court held on 30 April 1999 a new witness was present, but the hearing had to be adjourned due to the absence of the applicant’s lawyer. The applicant did not agree that the hearing be continued. The court fixed dates for eight subsequent hearings until 1 June 1999.

On 4 May 1999 the hearing was adjourned, due to absence of the lawyers of three of the accused, including the applicant’s. On 17 May 1999 the court decided to continue the hearing despite the absence of the accused I.M. who had submitted sick leave certificate. One witness was questioned. The court ordered I. M.’s lawyer to submit I. M. ‘s sick leave certificate issued by a physician authorised to give certificates to justify the absence before the court on medical grounds.

On 20 May 1999, at the request of one of the lawyers, the court adjourned the oral pleadings of the parties until 24 May 1999.  On 24 May 1999 the last hearing was held.

On 31 May 1999 the court gave a judgement in the case. The applicant was convicted of drug trafficking and forgery of documents and sentenced to ten years’ imprisonment and a fine of 250,000 PLN. The court prolonged the applicant’s detention until 30 September 1999 and the applicant appealed against the decision.

The applicant requested that written grounds for the judgment be prepared. On 2 July 1999 the Regional Court informed him that the case-file had been sent to the Court of Appeal as the complaints against the decision concerning  prolongation of detention had to be considered and therefore the written grounds for the judgment could only be drawn up after the return of the case-file. On 9 July 1999 the Regional  Court prolonged the time-limit for the grounds of the judgment to be prepared until 31 August 1999. The court stressed that the case was particularly complex and voluminous and that the case-file had meanwhile had to be sent to the Court of Appeal.

On 28 July 1999 the court informed the applicant about the new time-limit fixed for the preparation of the written grounds of the judgment . On 31 August 1999 the Regional Court again prolonged the time-limit in respect of the written grounds of the judgment until 10 September 1999, having regard to the complexity of the case.  On 21 September 1999 the reasoned judgement, numbering sixty-four pages, was served on the applicant.

On 15 October 1999 the applicant lodged an appeal against the first instance judgment with the Court of Appeal.

On 16 February 2000 the Court of Appeal dismissed the applicant’s appeal.

On 28 April 2000 the applicant lodged a cassation appeal against the second-instance judgement with the Supreme Court. He argued that the appellate court had failed to rectify errors of law committed by the first-instance court. The first-instance court had in particular failed to address correctly the complaints relating to certain refusals to take evidence and to the fact that certain evidence was not taken in an adversarial manner as the court had only decided to include it to the case-file. The applicant had thus been deprived of the possibility of questioning certain witnesses.

On 2 April 2000 the Appellate Prosecutor in Wrocław filed his response to the cassation appeal with the Supreme Court. On 7 June 2000 the Supreme Court dismissed the applicant’s request to stay execution of his sentence.

On 30 October 2001 the Supreme Court dismissed the applicant’s cassation appeal and the appeals filed by the two co-accused, the applicant’s brother A.S . and A.M.

2. The applicant’s correspondence with the organs of the European Convention of Human Rights

The letters from the applicant to the Secretariat of the European Commission of Human Rights, dated 29 April 1997, 13 May 1997, 14 May 1997 (2 letters) and 17 June 1997, were intercepted by prison guards, who opened and apparently forwarded them to the prosecuting authorities, who in turn later read and forwarded them to the addressee. This is shown by the stamps of the Wrocław Detention Centre on the envelopes, together with the stamp “censored” (“ ocenzurowano ”).

The letters from the applicant to the Secretariat of the European Commission of Human Rights and to the Registry of the Court dated 23 July 1996, 4 March, 21 March and 13 November 1997, 12 February 1998 and 6 March 2000 reached the organs of the Convention within periods ranging from 15 to 27 days. These letters were stamped only with the stamp of the Detention Centre, but did not bear the “censored” stamp, referred to above.

B. Relevant domestic law

1. Preventive measures

The 1973 Code of Criminal Procedure, applicable at the relevant time, listed as "preventive measures", inter alia , detention on remand, bail and police supervision.

Articles 210 and 212 of the Code applicable at the relevant time provided that before the bill of indictment was lodged with the trial court, detention on remand was imposed by a decision of a prosecutor. The decision to impose detention on remand could be appealed against, within a seven-day time-limit, to the court competent to deal with the merits of the case.  In pursuance of Article 222 of the Code, the prosecutor could order detention on remand for a period not exceeding three months. When, in view of the particular circumstances of the case, the investigations could not be terminated within this period, detention on remand could, if necessary, be prolonged by the court competent to examine the merits of the case, upon the prosecutor’s request, for a period not exceeding one year. This decision could be appealed against to a higher court.

After the bill of indictment was transmitted to the court, orders relating to detention were to be made by the court. A decision concerning preventive measures could be appealed to a higher court.

2. Grounds for detention on remand

Article 217 of the old Code of Criminal Procedure, provided that a person could be held in detention on remand if there were serious grounds for believing that he or she would abscond, in particular when he or she did not have a permanent address or his/her identity could not be established. Further, detention could be imposed if there were serious grounds for believing that there was a risk of collusion or that an accused would otherwise jeopardise criminal proceedings. Finally, alternative grounds for detention on remand were either the fact that an accused was charged with an offence of a particular danger to society, or that he was a recidivist within the meaning of the Criminal Code.

The notion of “danger to society” as set out in the Criminal Code related to the assessment of the seriousness of criminal offences and, if the "danger to society" represented by a given offence was serious, this was also an aggravating circumstance which the court had to take into consideration  when determining a sentence.

Pursuant to Article 218 of the Code of Criminal Procedure, if there were no special considerations to the contrary, detention on remand should not be imposed or should be lifted, if it involved danger to life or limb or entailed particular hardship for a suspect or his family.

After the Interim Law of 1 December 1995 entered into force on 1 January 1996, grounds of imposition of detention on remand were restricted to situations in which there was a reasonable risk of absconding, in particular when his identity could not be established or he had no permanent domicile. Secondly, detention could be imposed if there was a reasonable risk that he would attempt to induce witnesses to give false testimony or to hinder the proper course of proceedings by any other unlawful means.

3. Proceedings to examine the lawfulness of detention on remand

At the material time there were three types of proceedings enabling a detainee to challenge the lawfulness of his detention. Under Article 221 § 2 of the Code of Criminal Procedure he could appeal to a court against a detention order given by a prosecutor (see above). Under Article 222 §§ 2 (1) and 3 he could appeal against a further decision by that court prolonging his detention at a prosecutor’s request. Under Article 214 the detainee could at any time request the competent authority to quash or alter the decision concerning the preventive measure imposed in his case. Such an application had to be decided by the prosecutor or, after the bill of indictment had been lodged with the court competent to deal with the case, by that court, within three days.

4. Correspondence of persons detained on remand with the Convention organs

The situation of persons detained on remand was at the relevant time governed by the Code of Execution of Criminal Sentences of 1969. Under Article 89, all correspondence of a detainee was to be opened, read and, if need be, subject to censorship, unless a prosecutor and a court decided otherwise. No provision of the Code provided for any remedy to contest the manner or scope of the censorship of a detainee’s correspondence.

The rights of persons detained on remand as regards their correspondence were further set out in Rule 33 of the Rules on Detention on Remand. They provided that the correspondence of persons detained on remand was subject to censorship by the authority conducting the criminal proceedings, i.e. either a public prosecutor or a court, depending on the stage reached in the proceedings.

On 6 July 1997 a new Code of Enforcement  of Criminal Sentences was enacted by parliament. Article 102 of this Code, which entered into force on 1 January 1998, provides that the convicted persons are entitled to uncensored correspondence with the State authorities and with the Ombudsman. Article 103 of the Code further provides that convicted persons and their lawyers may lodge complaints with the international agencies established under international treaties on protection of human rights, ratified by Poland. Prisoners’ correspondence in such cases shall be dispatched with no delay and is not subject to censorship.

Pursuant to Article 512 of the new Code, the rights of persons detained on remand shall, in principle, be at least equal with those of persons convicted by a final judgment .

COMPLAINTS

1. The applicant complains under Article 5 § 3 of the Convention that he was deprived of liberty by a decision of the public prosecutor who was not a “judge or other officer authorised by law to exercise judicial power”.

2. The applicant complains under Article 5 § 3 of the Convention that his detention on remand was too long and therefore had a punitive character.

3. The applicant next complains, relying on Article 5 § 4 of the Convention, that the proceedings concerning the review of his detention on remand were not adversarial, as required by this provision, because he was never brought before the competent judge, whereas the prosecutor could at any time attend the court sessions. Therefore he was not aware of the prosecutor’s submissions relating to his continued detention.

4. Moreover, the applicant complains that the criminal proceedings in his case exceeded a reasonable time.

5. In his letter of 1 October 2001 the applicant complains that his detention from 31 December 1998 to 6 January 1999 lacked any legal basis since the previous detention order had expired and the Supreme Court had not prolonged it.

THE LAW

1. The applicant complains under Article 5 § 3 of the Convention that he was deprived of liberty by a decision of the public prosecutor who was not a “judge or other officer authorised by law to exercise judicial power”.

Article 5 § 3 reads:

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

The Government refrains from an assessment of this complaint.

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 requires an examination of the merits. It concludes therefore that this 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 complains under Article 5 § 3 of the Convention that his detention on remand was too long and therefore had a punitive character.

The Government submit that the lawfulness of the applicant’s detention was under continuous review of the competent authorities, including the Supreme Court which dealt with the applicant’s detention six times. During the applicant’s detention the courts ruled eighteen times on its lawfulness.  The courts were diligent in the handling of the applicant’s case. They refer in this connection to their arguments concerning the complaint under Article 6 § 1 of the Convention.

The Court first notes that the applicant’s detention started on 24 February 1996, when the applicant was arrested, and ended on 31 May 1999, when the first-instance judgment was given. It lasted therefore three years, three months and five days.

According to the Court’s case-law, the issue of whether a period of detention is reasonable cannot be assessed in abstracto . Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see, among other authorities, the W. v. Switzerland judgment of 26 January 1993, Series A no. 254-A, p. 15, § 30).

It falls in the first place to the national judicial authorities to examine all the circumstances arguing for or against the existence of such a requirement and to set them out in their decisions on the applications for release. It is essentially on the basis of the reasons given in these decisions and of the undisputed facts stated by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 (see the Contrada v. Italy judgment of 24 August 1998, Reports of judgments and decisions 1998-V, p. 2185, § 54).

The persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices: the Court must then establish whether the other grounds cited by the judicial authorities continue to justify the deprivation of liberty. Where such grounds are “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see, among other authorities, Vaccaro v.Italy , no. 41852/98, 16 November 2000, § 36; Olstowski v. Poland, no. 34052/96, 15 November 2001, §§ 74-76).

The Court observes that it is not in dispute between the parties that the applicant’s detention was initially justified by reasonable suspicion that he had committed the offences with which he was charged. It sees no grounds on which to hold otherwise. The Court notes that the domestic courts in refusing to release the applicant relied in particular on the serious character of the charges against the applicant. However, they also invoked the findings of the investigations that the applicant had had a leading role in the organisation of a drug trafficking network, and to the fact that the evidence included the applicant’s forged passport. This revealed a risk of absconding if the applicant were to be released. The courts also repeatedly relied on new circumstances coming to light during the proceedings, which disclosed a need to take further evidence, to bring new charges and to conduct the proceedings further.

The Court accordingly considers that the grounds stated in the impugned decisions were “relevant” and “sufficient” to justify the applicant’s detention.

As to whether the authorities displayed adequate diligence when dealing with the applicant’s case, the Court firstly notes that the proceedings in question should be regarded as complex as shown by the fact that it concerned charges of extensive drug trafficking, there were 224 pieces of evidence to be considered, 20 witnesses were interviewed by the court, the case-file comprised 21 at least volumes and the written grounds of the first-instance judgment numbered 64 pages. In the Court’s view, this complexity constitutes an exceptional circumstance which in itself considerably contributed to the length of the applicant’s detention on remand.

The Court further observes that the investigations were completed and the bill of indictment was lodged with the court within a relatively short period, i.e. within one year and two months. The Court acknowledges that there was subsequently a period of inactivity in the proceedings on the merits of the case after the latter date, i.e. 24 April 1997, and 17 November 1997, the date on which the first hearing on the merits was held in the case. However, throughout 1998 hearings were held regularly and eleven hearings took place altogether. Moreover, in March 1998 the court, having regard to the fact that two of the co-accused had repeatedly failed to comply with the summonses for the hearings, separated their case from that of the applicant.  Similarly, in 1999 the court conducted hearings at short intervals, and eighteen hearings were held until the first-instance court gave its judgment on 31 May 1999.

Assessing the above elements as a whole, the Court does not consider that the facts of the case disclose a violation of his right to a trial within a reasonable time or to release pending trial, within the meaning of this provision of the Convention. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. The applicant next complains, relying on Article 5 § 4 of the Convention, that the proceedings concerning the review of his detention on remand were not adversarial, as required by this provision, because he was never brought before the competent judge, whereas the prosecutor could at any time attend the court sessions. Therefore he was not aware of the prosecutor’s submissions relating to his continued detention.

Article 5 § 4 reads:

“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 abstain from making their own assessment of this part of the application.

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 requires an examination of the merits. It concludes therefore that this 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 complains under Article 6 § 1 of the Convention that the criminal proceedings in his case exceeded a reasonable time.

Article 6 § 1 in its relevant part reads:

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

The Government reject the allegation.

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 requires an examination of the merits. The Court concludes therefore that this 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. The Court has also considered whether there was an interference with the applicant’s right to respect for correspondence with the organs of the European Convention on Human Rights.

Article 8 insofar as relevant 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 acknowledge that certain envelopes were sent from prison to the prosecutor’s office competent to deal with his case and stamped “subject to censorship” (“ ocenzurowano ”) by the detention centre. However, no interference with the contents of the letters by the prison guards and by the prosecutor was established. Under the domestic law as it stood at the relevant time, the correspondence of detained persons was automatically subject to screening by the authority conducting the criminal proceedings. The prosecutor had a margin of discretion in deciding whether to censor the correspondence of the detainee. In the present case the stamp on the envelope of a letter addressed to the Convention organs is not a sufficient evidence of censorship.

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 requires an examination of the merits. The Court concludes therefore that this 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 Court also considered whether there was an interference with the exercise of the applicant’s right of individual petition guaranteed by Article 34 of the Convention.

The Government emphasises in this connection that the applicant’s correspondence to the Convention organs in no case was stopped or delayed. Even the five letters which were stamped reached the addressee with no delay. There is no evidence that the applicant was hindered in the effective exercise of his right to petition.

The Court observes that there were no unreasonable delays in the service of the applicant’s letters on the Convention organs. Moreover, it has not been shown that any the applicant’s letters were stopped, or that their contents was altered in any way. Consequently, the Court finds that the prison authorities did not hinder the effective exercise of his right of petition under Article 34 of the Convention.

7. In his letter of 1 October 2001 the applicant complains that his detention from 31 December 1998 to 6 January 1999 lacked any legal basis since the previous detention order had expired and the Supreme Court had not prolonged it. The Court observes that this complaint was lodged after the six months time-limit provided for by Article 35 § 1 of the Convention and must therefore be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court

Declares admissible, unanimously, without prejudging the merits, the applicant’s complaints under Article 5 § 3 that he was deprived of his liberty by a decision of the public prosecutor who was not a “judge or other officer authorised by law to exercise judicial power”, under Article 5 § 4 that the proceedings concerning his detention on remand were not adversarial, under Article 8 that his correspondence with the Convention organs was intercepted, opened and read, and under Article 6 § 1 that the criminal proceedings against him exceeded a reasonable time;

Declares inadmissible, and by a majority, the applicant’s complaint under Article 5 § 3 that detention in his case lasted too long and, unanimously, the applicant’s complaint under Article 34 that he was hindered in the effective exercise of his right of petition.

Vincent Berger Georg ress Registrar President