FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34090/96 by W. B. against Poland

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

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr A. Pastor Ridruejo , Mr J. Makarczyk , Mrs E. Palm , Mr R. Maruste , Mr S. Pavlovschi , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 7 July 1996 and registered on 10 December 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 deliberated, decides as follows:

THE FACTS

The applicant , W. B. , is a Polish national, who was born in 1967 and lives in Dębica, Poland.

A. The circumstances of the case

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

On 10 October 1995 the applicant and other suspects were arrested on suspicion of assault and involvement in a break-in at a jewellery shop. On the same day the Tarnów District Court dismissed the applicant’s complaint about the unlawfulness of his arrest. On 11 October 1995 the applicant was remanded in custody by the Tarnów District Prosecutor, who referred to the strong probability of the applicant’s guilt, the gravity of the charges against him and the high risk of his hindering the proper conduct of the proceedings by exerting pressure on witnesses. On the same day the applicant lodged an appeal against the detention order, questioning the credibility of the evidence of the victims of the alleged assault and claiming that he was innocent.

On 20 October 1995 the Tarnów Regional Court dismissed the applicant’s appeal of 11 October 1995, considering that the victims of the assault had given evidence pointing to the applicant’s guilt. The court was of the view that the applicant’s case did not disclose any of the grounds provided by Article 218 of the Code of Criminal Procedure for challenging the lawfulness of his detention.

On 15 December 1995 the Tarnów District Prosecutor ordered that the identity of a certain witness questioned during the investigation be kept secret.

By a decision of 18 December 1995 the Tarnów District Prosecutor stayed the preparatory proceedings in the case in view of the fact that the whereabouts of one of the co-accused were unknown.

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

On 6 February 1996 the Tarnów District Prosecutor lodged a bill of indictment with the Tarnów Regional Court.

In a letter of 31 May 1996 the Ombudsman informed the applicant that he lacked competence to intervene in pending criminal cases. He further suggested that the applicant file a civil action for damages in connection with the publication of a newspaper article relating to the charges laid against him.

Apparently, several articles were published in local newspapers reporting on the investigative proceedings in the applicant’s case and alleging that a certain W. B. had been involved in an assault.

On 1 July 1996 the Tarnów Regional Court refused to consider the applicant’s complaint against the court’s decision of 17 June 1996 concerning the confrontation of the anonymous witness, pointing out that the issue had already been examined by the court (on an unspecified date). On 8 August 1996 the Kraków Regional Court dismissed the applicant’s appeal against this decision. On the same day the Kraków Court of Appeal dismissed the applicant’s appeal against the decision of the Kraków Regional Court of 23 July 1996 refusing to release him. In the view of the court, the final verification of the evidence was not possible at that stage of the proceedings and there was no clear indication that the charges laid against the applicant were unfounded. The court also observed that the conditions for release referred to in Article 218 of the Code of Civil Procedure were not satisfied since effective steps were being taken to support the applicant’s family.

On 22 and 26 August and 2 September 1996 the applicant lodged complaints with the Tarnów Regional Court, the Minister of Justice and the Tarnów Regional Prosecutor, complaining about the slow progress in the proceedings and maintaining that he was being discriminated against on the grounds that he had a low income and had been convicted of a criminal offence in the past. He alleged that the prosecuting authorities had breached his rights guaranteed by the European Convention on Human Rights. He also submitted that he and his family had endured torment since there were no grounds whatsoever justifying his detention.

On 4 September 1996 the Tarnów Regional Court dismissed the applicant’s request for release. The court observed that the victims of the assault had left the country and could not be heard. The court further noted that the applicant had failed to indicate any new circumstances justifying his request.

On 9 September 1996 the Tarnów Regional Court rejected the applicant’s complaint about the insufficient commitment on the part of his lawyer and dismissed the applicant’s request to grant him a new legal representative.

On 23 September 1996 the Tarnów Regional Prosecutor informed the applicant that his allegations about the investigating prosecutor’s lack of objectivity were unfounded.

On 24 September 1996, in a letter to the Tarnów Regional Court, the applicant, invoking his right to liberty guaranteed by the Polish Constitution and the European Convention on Human Rights, again challenged the impartiality of the investigating prosecutor and complained about the authorities’ failure to take any steps in order to establish the whereabouts of the victims of the assault.

On 24 September 1996 the Tarnów Regional Court convicted the applicant of assault and sentenced him to six years’ imprisonment. On 25 September and 30 September 1996 the applicant requested the prosecuting authorities to institute proceedings against the Tarnów District Prosecutor M.S. and a Tarnów Regional Police Officer H.K., who allegedly invited witnesses to fabricate evidence against him in the proceedings and induced the anonymous witness to incriminate the applicant.

In a letter of 3 October 1996 the Tarnów Regional Prosecutor informed the applicant that his complaints regarding the concealment and fabrication of evidence by the prosecuting authorities were unsubstantiated and that it would ultimately be for the court to assess the reliability of all the evidence gathered in the proceedings.

On 14 October 1996 the Tarnów Regional Court dismissed the applicant’s request of 9 October 1996 to release him. The court observed with reference to the first-instance judgment delivered on 24 September 1996 that the applicant had been sentenced to six years’ imprisonment.

On 17 December 1996 the Tarnów District Prosecutor informed the applicant that his request to hear as a witness the author of an article about the case, published on 26 October 1995, had been dismissed and that the prosecuting authorities could not bear any responsibility for the contents of newspaper articles.

On 15 January 1997 the Tarnów District Prosecutor rejected the applicant’s motion to exclude the Tarnów District Prosecutor’s Office from dealing with his complaint about the false evidence given by the witness E.R., who was the anonymous witness in the criminal proceedings against the applicant.

In response to the applicant’s request of 4 December 1996, by a decision of 17 February 1997 the Kraków Court of Appeal appointed a new lawyer under the legal aid scheme and in a letter of 28 March 1997 asked the lawyer to assist the applicant in the appellate proceedings. The court also expressed the hope that the applicant’s new lawyer would establish a good working relationship with his client.

On 8 May 1997 the Ombudsman requested the President of the Tarnów Regional Court to inform him about progress in the case.

By a decision of 29 April 1997 the Tarnów District Prosecutor decided to discontinue the investigative proceedings concerning 1) the allegation that false evidence was given by the witness E.R.,; 2) the allegation that police officer H.K induced the co-accused and witnesses to give false evidence; 3) the allegation that police officer H.K. neglected his official duties; 4) the allegation that evidence was fabricated; and 5) the allegation concerning the non-disclosure of evidence relevant to the defence in the criminal proceedings against the applicant.

On 27 May 1997 the Kraków Court of Appeal quashed the judgment of  24 September 1996 and referred the case back to the Regional Court, concluding that the reasoning of the first-instance court, which led to the applicant’s conviction, contained a number of flaws as regards both facts and law and was thus not entirely satisfactory. The court also expressed its concern about the fact that all the co-accused had alleged that their rights of defence had been violated.

On 12 June 1997 the Tarnów District Prosecutor refused to institute investigative proceedings concerning the unlawful dissemination of information relating to the charges laid against the applicant, arguing that the author of the text refused to disclose the identity of his source pursuant to section 15 of the Press Act, and that no legally prescribed restrictions could be imposed on the publication of this kind of newspaper article given the general nature of the  information in question.

On 19 June 1997 the Tarnów Regional Prosecutor’s Office informed the applicant that his appeal against the decision of 29 April 1997 of the Tarnów District Prosecutor had  been rejected.

On 24 June 1997 the applicant lodged a complaint with the Kraków Court of Appeal, claiming that he was detained in breach of Article 5 § 3 of the European Convention on Human Rights. On 29 June and 1 July 1997 the applicant lodged complaints with the prosecuting authorities, complaining about the refusal to instigate the investigation proceedings which he had requested.

On 9 July 1997 the Kraków Court of Appeal dismissed the applicant’s request for release, considering that, in the circumstances of the case, and given the number of witnesses to be heard, his continuing detention did not exceed a reasonable time; nor did his family situation militate against his continuing detention.

On 11 July 1997, in response to the applicant’s letters of 1 and 2 July 1997, the President of the Tarnów Regional Court informed the applicant, inter alia , that the obligation to determine the precise period for which detention could be prolonged, pursuant to Article 222 of the Code of Criminal Procedure, ceased to be valid after the first-instance court had pronounced a judgment, even though that judgment was not final.

On 17 July and 1, 3 and 5 August 1997, the applicant sent letters to various authorities complaining about the shaky evidence on which the accusation was founded, the refusal to release him, the indefinite time-limit and the lack of any legal basis for his continuing detention on remand, which expired on 10 February 1996. He pointed out in the latter connection that no further decisions had been given in respect of his detention.

On 7 August 1997 the president of the Tarnów Prison informed the applicant that there were no legal grounds for his release. In two letters sent  on 8 August 1997 from the Tarnów Regional Court the applicant was informed that the periods of his detention on remand were limited until a judgment at first-instance had been given. On 19 August 1997 the President of the Tarnów Regional Court reiterated this position.

On 21, 22 and 26 August and 3 September 1997 the applicant again lodged several complaints with various authorities, claiming that his detention on remand lacked any legal basis. He also requested the Tarnów Regional Court to allow him to be present at the court session at which the lawfulness of his detention on remand was to be examined.

On 12 September 1997 the Tarnów Regional Court dismissed the applicant’s request for release. The court also considered that the law did not provide for the presence of a detainee in proceedings concerning prolongation of detention on remand.

In a letter of 25 September 1997 the President of the Kraków Court of Appeal explained to the applicant that the entry into force of the new provisions concerning detention on remand on 4 August 1996 did not result in the unlawfulness of a detention order imposed by a prosecutor prior to that date. In addition, the grounds for the applicant’s detention on remand were repeatedly examined by the courts during numerous proceedings held on 20.10.1995, 3.01.1996, 24.01.1996, 28.02.1996, 26.04.1996, 17.06.1996, 23.07.1996, 4.09.1996, 24.09.1996, 14.10.1996, 24.01.1997, 27.05.1997, 9.07.1997, 28.07.1997 and 12.09.1997.

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

On 3 October 1997 the President of the Kraków Court of Appeal rejected the applicant’s complaint about the excessive length of the criminal proceedings against him. He further refused the applicant’s request to place the proceedings under his administrative supervision.

On 6 October 1997 the President of the Tarnów Regional Court reiterated his view about the time-limits for detention on remand, which had been already expressed in several letters addressed to the applicant.

By a judgment of 10 December 1997 of the Tarnów Regional Court the applicant was found guilty of the charges against him and sentenced to six year’s imprisonment. Additionally, the court deprived him of his civic rights for three years. According to the applicant’s submissions, he was released on the same date. By a judgment of 17 June 1998 of the Kraków Court of Appeal, the applicant was acquitted of all the charges against him. The prosecutor filed a cassation appeal against this judgment. On 23 November 1999 the applicant lodged a motion with the Tarnów Regional Court requesting compensation for his unjustified imprisonment. The proceedings are still pending before the Supreme Court.

B. Relevant domestic law

1°° The Code of Criminal Procedure of 1969

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“1. Detention on remand may be imposed if:

...

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

...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

...

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

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

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

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

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

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

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

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

Section 14 of that code provided:

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

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

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

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

2.°° The 1997 Code of Criminal Procedure.

On 1 September 1998 the 1997 Code of Criminal Procedure replaced the 1969 Code.

Article 263 of the 1997 Code, insofar as relevant, provides:

Ҥ 1. During investigation the court which decides about detention on remand shall impose it for a period not longer than 3 months.

§ 2. If the special circumstances of a case make it impossible to conclude the investigation within the time-limit provided in § 1, detention on remand may be prolonged, at the request of the prosecutor and when it is necessary, by:

the trial court – for up to 6 months,

the appeal court – for a further fixed period necessary to conclude the investigation but not longer than 12 months.

§ 3. The length of detention on remand until the delivery of a first judgment by the trial court shall not exceed 2 years.

§ 4. Detention on remand may be prolonged for a fixed period exceeding the periods provided in §§ 2 and 3 only by the Supreme Court at the request of the court dealing with a case (...) – if it is necessary because of the suspension of criminal proceedings, the prolonged psychiatric observation of an accused, the prolonged preparation of an expert opinion, the collection of evidence in a particularly complicated case or abroad, a delay in the proceedings caused by an accused as well as other obstacles which could not be overcome”.

COMPLAINTS

1. The applicant complains under Article 5 § 1 of the Convention that he was deprived of his liberty without justification, since the charges against him were based on the fabricated evidence as well as on the unsound testimony of the anonymous witness and the victims of the assault. He also submits that the prosecuting authorities offered the status of “anonymous witness” to his co-accused on condition that they testified against him.

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

3. The applicant further complains that his detention as from 10 February 1996 lacked a legal basis, in breach of Article 5 § 1.

4. The applicant complains under Article 5 § 3 of the Convention that he was remanded in custody by a prosecutor who was not “a judge or other officer authorised by law to exercise judicial power”.

5. The applicant also raises a complaint under Article 6 § 1 about the unreasonable length of the criminal proceedings against him.

6. The applicant complains under Article 6 § 3(c) and (d) that he was deprived of adequate defence facilities, in that his officially appointed lawyer was not involved in the case and that he was unable to have his witnesses examined.

7. The applicant complains under Article 6 § 2 that some newspapers published articles about the charges preferred against him before the bill of indictment was lodged with the court.

8. The applicant also complains under Article 14 in conjunction with Article 5 § 1 of the Convention that he was discriminated against on account of his previous criminal conviction and low income.

THE LAW

1. The applicant complains under Article 5 § 1 of the Convention that his detention on remand was unjustified since the charges against him were based on fabricated evidence and on the unsound testimony of the anonymous witness and the victims of the assault. He also submits that the prosecuting authorities offered the status of “anonymous witness” to other co-accused on condition that they testified against him. Article 5 § 1, insofar as relevant, provides as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Court considers that it cannot on the basis of the case-file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of the Court, to give notice of this complaint to the respondent Government.

3. The applicant complains that his detention on remand from 10 February 1996 lacked a legal basis, in breach of Article 5 § 1 of the Convention.

(a) the period between 10 February 1996 and 28 February 1996

The Court notes on 10 February 1996 the detention order of 3 January 1996 expired, and 28 February 1996, according to the letter of the President of the Kraków Court of Appeal of 25 September 1997, the grounds of the applicant’s detention on remand were examined. The Court further notes that the applicant submitted this complaint to the Court on 5 August 1997 and the six-month period started running from the moment when the applicant appeared before a judge, i.e. 28 February 1996.

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

(b) the period between 27 May 1997 and 9 July 1997

As regards the lawfulness of the applicant’s detention in the period between 27 May 1997, i.e. the date of the second-instance judgment, and 9 July 1997, i.e. the date of the decision given by the court of appeal, the Court considers that it cannot on the basis of the case-file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of the Court, to give notice of this complaint to the respondent Government.

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

The Court considers that it cannot on the basis of the case-file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of the Court, to give notice of this complaint to the respondent Government.

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

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

The Court considers that it cannot, on the basis of the case-file, determine the admissibility of this complaint and that it is therefore necessary, in accordance of the Rule 54 § 3 (b) of the Rules of the Court, to give notice of the complaint to the respondent Government.

6. The applicant complains that he was deprived of adequate defence facilities, in that his officially appointed lawyer was not involved in the case. He relies on Article 6 § 3(c) of the Convention, which, insofar as relevant, reads:

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

...

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;”

The Court observes that by a decision of 17 February 1997 the Kraków Court of Appeal allowed the applicant’s request for a new lawyer under the legal aid scheme. Moreover, the court in a letter of 28 March 1997 asked the applicant’s new legal counsel to assist him in the appellate proceedings. Furthermore, the Kraków Court of Appeal Court, quashing the judgment of 24 September 1996, took into account the complaints of the applicant and his co-accused about their defence counsel. It is to be noted that the applicant does not raise any complaints about the fairness of his second trial or about the fairness of the later proceedings on appeal.

In these circumstances the Court finds that the applicant can no longer claim to be a victim of a violation of his rights under Article 6 § 3 (c) of the Convention, as required by Article 34 of the Convention.

7. The applicant complains under Article 6 § 2 of the Convention that newspapers published articles about the charges preferred against him before the bill of indictment was lodged with the court. He further complains under Article 6 § 3 (d) that he could not have his witnesses examined. Article 6 § 2 of the Convention reads:

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

Article 6 § 3 (d) of the Convention reads:

“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.”

In so far as the applicant’s complaints can be construed as referring to the conduct of his re-trial and subsequent appeal, and that he can claim to be a victim of a breach of his rights under Article 6 §§ 2 and 3 (d) notwithstanding that his conviction at his first trial was quashed, the Court observes that the conformity of a trial with the requirements of Article 6

of the Convention must be assessed on the basis of the trial as a whole ( Edwards v. the United Kingdom judgment of  16 December 1992, Series A no. 247-B, pp. 34 and 35, § 34). However, the Court notes that in the present case the proceedings are still pending before the Supreme Court. The applicant’s complaints are accordingly premature.

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

8. The applicant also complains under Article 14 of the Convention that, as regards the decisions to continue his detention in custody, he was discriminated against on the basis of his previous criminal conviction and low income. Article 14 of the Convention provides:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court considers that the applicant has not substantiated this complaint and there is nothing in the case file which discloses any appearance of discrimination, as alleged. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints about the unlawfulness of his detention during the period between 27 May 1997 and 9 July 1997, the prosecutor’s role in ordering his detention on remand, the unreasonable length of his detention on remand and the length of criminal proceedings as a whole;

Declares inadmissible the remainder of the application.

Michael O’Boyle Nicolas Bratza Registrar President