FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31583/96 by Ryszard KLAMECKI against Poland

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

Mr C.L. Rozakis , President , Mrs F. Tulkens ,

Mr G. Bonello ,

Mr J. Makarczyk Mrs S. Botoucharova , Mr A. Kovler , Mrs E. Steiner , judges , and Mr E. Fribergh , Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 6 December 1995 and registered on 24 May 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 Commission’s partial decision of 20 October 1997,

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 Ryszard Klamecki , is a Polish national, who was born in 1948 and lives in Wrocław , Poland. He is represented before the Court by Mr Z. Cichoń , a lawyer practising in Kraków , Poland. The respondent Government are represented by their Agent, Mr K. Drzewicki , of the Ministry of Foreign Affairs.

A. The circumstances of the case

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

1. Criminal proceedings against the applicant and his detention on remand

On 22 November 1995 the Wrocław -Stare Miasto District Prosecutor ( Prokurator Rejonowy ) charged the applicant with fraud committed together with several accomplices and detained him on remand for three months in view of the reasonable suspicion that he had committed the offence in question and the risk that he might obstruct the proper course of the proceedings.

On an unknown later date the applicant appealed to the Wrocław-Śródmieście District Court ( Sąd Rejonowy ) against the order for his detention and, on 27 November 1995, lodged a pleading supplementing his appeal. In that pleading, he submitted that his detention had been imposed by a prosecutor, a party to the proceedings, whereas under the European Convention of Human Rights detention had to be ordered either by a judge or by another officer exercising judicial power.

On 5 December 1995 a single judge, sitting as the Wrocław-Śródmieście District Court, dismissed the appeal, finding that the applicant’s detention had an adequate legal basis. The applicant did not participate in the court session, whereas the Wrocław -Stare Miasto District Prosecutor did.

On 28 November and 14 December 1995 the applicant asked the Wrocław-Śródmieście District Court to appoint a defence lawyer for him. The application was granted on 19 January 1996.

On 11 December 1995 the applicant asked the Wrocław -Stare Miasto District Prosecutor to release him. The application was dismissed on 12 December 1995 by the prosecutor at first instance and on 30 December 1995 on appeal. The authorities held that there was a reasonable suspicion that the applicant had committed the offence with which he had been charged and that holding him in detention was necessary to secure the proper conduct of the proceedings.

On 21 December 1995 the applicant made a further application for release. He complained about the prison conditions and maintained that his continued detention had severely affected his health. The prosecution asked medical experts to examine the applicant. The doctors made their report on 22 December 1995. They concluded that the applicant could receive adequate medical treatment in prison.

On the basis of that report, the authorities refused to release the applicant. The relevant decisions were made on 2 January 1996 by the prosecutor at first instance and on 24 January 1996 on appeal. The prosecutors, referring to the experts’ report, held that the applicant’s health did not militate decisively against his being kept in detention.

In the meantime, the Wrocław Regional Prosecutor ( Prokurator Wojewódzki ) took over the investigation from the Wrocław -Stare Miasto District Prosecutor.

On 5 February 1996 the applicant asked the Regional Prosecutor to release him in view of his bad health. He stressed that he was suffering from diabetes, high blood pressure and arteriosclerosis. He maintained that he did not receive proper medical treatment and diet in prison. The application was dismissed on 7 February 1996 by the prosecutor at first instance and on 21 February 1997 on appeal. The main ground on which the authorities relied was that, according to a medical report obtained on 6 February 1996, the applicant’s general condition was not an obstacle to keeping him in detention.

On 15 February 1996, on an application made by the Wrocław Regional Prosecutor, the Wrocław-Śródmieście District Court prolonged the applicant’s detention until 30 June 1996.  The applicant appealed on 26 February 1996. He argued that he had never been brought before a judge at any stage of the proceedings relating to the lawfulness of his detention. On 1 March 1996 the Wrocław Regional Court ( Sąd Wojewódzki ) upheld the first-instance decision. The Wrocław Regional Prosecutor participated in the court session but neither the applicant nor his lawyer did.

On 18 March 1996 the applicant asked the Wrocław-Śródmieście District Court to release him under police supervision. The matter was referred to the Wrocław Regional Prosecutor because at the investigation stage only a prosecutor could deal with an application for release. That application was rejected on 3 June 1996 at first instance and on 28 June 1996 on appeal. The prosecution considered that there was a reasonable suspicion that the applicant had committed the offence with which he had been charged. They also pointed out that there were no particular circumstances militating in favour of his release, as defined in Article 218 of the Code of Criminal Procedure.

On 6 May and 3 June 1996 the applicant again asked the Wrocław-Śródmieście District Court to release him under police supervision. Those applications, after having been referred to the Wrocław Regional Prosecutor, were dismissed by that prosecutor on 28 June 1996 and, on appeal, on 14 July 1996. The authorities considered that the original grounds given for the applicant’s detention were still valid.

On 25 June 1996, on an application by the Wrocław Regional Prosecutor, the Wrocław-Śródmieście District Court prolonged the applicant’s detention until 30 September 1996.

On 25 July and 5 August 1996 the applicant made further applications for release under police supervision to the Wrocław Regional Court, claiming a breach of Article 5 § 3 of the Convention in that he was neither tried within a reasonable time nor released pending trial.

On 30 August 1996 the court held a session and, after having heard the submissions of the Wrocław Regional Prosecutor, dismissed the applications in view of the reasonable suspicion that the applicant had committed the offence with which he had been charged and the need to ensure the proper conduct of the proceedings.

In his appeal of 6 September 1996, the applicant stressed that the proceedings concerning his applications for release were not adversarial because he could not take part in any court session at which those applications were examined, whereas the prosecution could put forward any arguments they wished in his absence. On 16 September 1996 the Wrocław Court of Appeal ( Sąd Apelacyjny ), after having heard the prosecutor’s submissions, upheld the first-instance decision and the reasons given therefor.

On 9 August 1996 the Wrocław-Śródmieście District Court dismissed the applicant’s subsequent application for release, finding, inter alia , that the fact that the detention had been imposed by the prosecutor, i.e. a party to the proceedings, was not a factor that would justify releasing him. On 31 October 1996, on an appeal filed by the applicant, the Wrocław Regional Court quashed the decision of 9 August 1996 and held that, in accordance with the Law of 4 August 1996 on Amendments to the Code of Criminal Procedure (see also “Relevant domestic law and practice” below), only a regional court was competent to deal with the applicant’s application for release.

The court further examined that application and rejected it in view of the reasonable suspicion that the applicant had committed the offence with which he had been charged. The court also considered that the need to ensure the proper course of the proceedings and the likelihood of a severe sentence to be imposed on the applicant justified his being held in custody. The Wrocław Regional Prosecutor participated in the court session but neither the applicant nor his lawyer did.

The applicant appealed. On 22 November 1996 the Wrocław Court of Appeal held a session and, after having heard the prosecutor’s opinion, upheld the first-instance decision and the reasons given therefor.

On 30 September 1996 the Wrocław Regional Prosecutor lodged a bill of indictment with the Wrocław-Śródmieście District Court. The applicant was indicted together with ten other persons on charges of aggravated fraud, appropriation of public property, receiving stolen goods, making a false declaration, and forgery. The case-file comprised 19 volumes.

On 21 November 1996 the court appointed a new lawyer for the applicant.

The trial was listed for 18 and 19 December 1996.

On 1 December 1996 the applicant asked the District Court to release him. He maintained that his detention had lasted an excessively long time and, what was more, he had previously been detained in other criminal proceedings for some two years. He had accordingly spent in custody in all more than three years. That, he stressed, had in reality amounted to serving a prison sentence. He relied on Article 5 § 3 of the Convention.

On 4 December 1996 his application was dismissed at first instance and on 31 December 1996 on appeal. The courts considered that the applicant should still be kept in custody in view of the severity of the sentence which might be imposed and the need to ensure the proper conduct of the proceedings.

On 18 December 1996 the court postponed the trial to 29 January 1997 because one of the applicant’s co-defendants was ill.

On 19 December 1996 and, subsequently, on 13, 15 and 29 January 1997 the applicant made complaints about the conduct of his officially-appointed counsel and asked the trial court to appoint a new lawyer for him.

On 31 December 1996 the applicant again asked the court to release him under police supervision. On 7 January 1997 the application was dismissed in view of the need to ensure the proper conduct of the trial and the severity of the sentence that might be imposed on him.

On 15 January 1997 the applicant appealed, submitting that neither he nor his lawyer had been informed of, or summoned to, the court’s session at which his application for release had been examined and that the relevant procedure did not comply with the requirements of Article 5 § 4 of the Convention. On the same day he asked the Regional Court to allow him to attend the session at which that court would deal with his appeal so that he could put forward his arguments.

On 17 January 1997 the Wrocław-Śródmieście District Court refused to proceed with the appeal since, under the relevant provisions of the Law of 6 December 1996 on the Amendments to the Code of Criminal Procedure, no appeal laid in law against a court decision on an application for release.

On 29 January 1997 the court postponed the trial to 20 February 1997 because a certain J.F., one of the applicant’s co-defendants had failed to appear. The court severed the charges against J.F.

On 10 February and on 3, 10, 17 and 25 March, and on 1, 8 and 17 April 1997 the applicant made further unsuccessful applications for release under police supervision to the Wrocław-Śródmieście District Court. The applications were dismissed on 12 February and on 10, 12, 20 and 28 March, and on 4, 11 and 22 April 1997 respectively. The court considered that the applicant should still be kept in custody in view of the need to secure the proper conduct of the trial and the severity of the sentence which might be imposed, a sentence that ranged from one to ten years’ imprisonment.

On 20 February 1997 the trial was to start but the applicant made yet another complaint about the conduct of his officially-appointed counsel and the court adjourned the hearing, finding it necessary to appoint a new defence lawyer for him.

On 5 March 1997 the court adjourned the next hearing since E.Cz., one of the applicant’s co-defendants, had failed to appear. The court ordered that E.Cz. would be brought by the police to the next hearing, which was listed for 19 March 1997. Yet on the latter date the hearing was cancelled as the presiding judge was ill.

The trial began on 10 April 1997. On 10 and 21 April 1997 the court heard evidence from the applicant.

At the hearing of 10 April 1997 the applicant again asked the court to release him under police supervision. The court rejected his application. It found that keeping him in custody was necessary to secure the proper conduct of the trial. The court also stressed that the severity of the sentence that might be imposed on the applicant was an important factor that argued against releasing him.

Later, throughout the trial, the applicant made numerous – but likewise unsuccessful – applications for release. Between 14 May and 4 December 1997 he made 26 such applications and appealed against each refusal. The courts reiterated the grounds they had previously given for his continued detention.

Furthermore, the applicant repeatedly challenged the impartiality of the trial judges and complained about the conduct of the registry clerk who was responsible for the record of the trial. From 12 May to 1 December 1997 he made 16 applications for the judges to be disqualified from dealing with his case.

After the hearing that was held 10 April 1997, the next one was listed for 21 May 1997.

Subsequently, the court made an application under Article 222 § 3 of the Code of Criminal Procedure to the Supreme Court ( Sąd Najwyższy ), asking it to prolong the applicant’s and Cz.S. ’ s , his co-defendants’ detention for six further months.

In the meantime, hearings set for 18 June and 3 July 1997, had been cancelled; the former because J.S., one of the applicant’s co-defendants, had failed to appear, the latter because the District Prosecutor and another co-defendant, E.Cz. had not been present.

On 12 and 13 July 1997 a massive flood-wave inundated the South-West part of Poland, severely affecting Wrocław . A considerable part of the city was washed away or destroyed.

On 14 July 1997 the applicant complained to the Wrocław-Śródmieście District Court that his health deteriorated very rapidly and that it was seriously affected by the harsh prison conditions resulting from the flood in Wrocław . He asked for release.

On the same day the applicant made a petition to the President of the Wrocław Regional Court, the President of Wrocław-Śródmieście District Court and the Wrocław-Śródmieście District Court.  He complained that on 12 and 13 July 1997 a flood-wave had inundated the prison building up to the third floor. The light, electricity and sewage systems had been destroyed. There had been no drinking water, food or washing facilities. He and his fellow inmates were, in his words, kept like animals in unventilated, overcrowded and stinking cells. He asserted that an official tolerance for that situation amounted to inhuman and degrading treatment.

Subsequent hearings, which were to be held on 6 and 27 August 1997, did not take place because, on the first date, the defence counsel for J.S. and Cz.S . had not been present and, on the second, J.S.’s counsel had not appeared and the police had not brought E.Cz. from prison.

The hearing scheduled for 9 September 1997 was postponed to 13 October 1997 because E.Cz. had failed to appear.

On 13 October 1997 the District Court adjourned the trial since E.Cz. and one of the judges sitting in the trial chamber were absent. It ordered, however, that E.Cz., on account of his repeated failure to comply with the court order, be searched for by a “wanted” notice and detained pending trial.

On the same day the court made the second application under Article 222 § 4 of the Code of Criminal Procedure to the Supreme Court, asking it to prolong the applicant’s and Cz.S.’s detention for a further period of six months. In the reasoning, the court reiterated the grounds previously given for the applicant’s detention, in particular the risk that he might induce witnesses to give false testimonies or to obstruct the trial by other unlawful means, and the likelihood of a heavy penalty being imposed on him. The court considered that those grounds were still valid and stressed that the applicant, when giving evidence, had refused to reveal names of certain clients of his company and stated that he would not do so unless he had considered it to be pertinent. The court next pointed out that the applicant’s detention should continue because there were no special circumstances justifying his release, as defined in Article 218 of the Code of Criminal Procedure.

Furthermore, the Supreme Court underlined the complexity of the case and the fact that the trial had several times been postponed due to the circumstances for which the court could not be held responsible, such as the repeated failure to comply with the court order on the part of some of the applicant’s co-defendants. The court also stressed that it still needed to obtain voluminous evidence. In its opinion, all those above-mentioned obstacles made it impossible for it to give judgment within the terms referred to in Article 222 § 3 of the Code of Criminal Procedure.

On 27 October 1997 the applicant applied to the President of the Criminal Chamber of the Supreme Court, asking that he be brought to the session concerning the prolongation of his detention beyond the statutory time-limit, so that he could present his arguments. He relied on Article 6 § 3 (c) of the Convention and a number of constitutional provisions, notably those stipulating that self-executing provisions of an international treaty took priority over domestic law. He also complained that the District Court had not served a copy of the application of 13 October 1997 on him and that, in consequence, he could not contest effectively the grounds for the prolongation his detention given by that court.

On 3 November 1997 the applicant received a copy of that application. On 4 November 1997 he prepared a pleading addressed to the President of the Criminal Chamber of the Supreme Court and once again asked that he be brought from prison to the session concerning the prolongation of his detention. He also complained about the conduct of the presiding judge. He stressed that the judge was not fair in considering that he should be held in custody because the trial had to be postponed only because of his released co-defendants’ repeated failure to appear before the court. In that context, the applicant pointed out that the court would have avoided the delays caused by the conduct of those co-defendants if it had severed promptly the charges against them.

On 6 November 1997 the District Court cancelled a hearing because the Supreme Court had not yet examined the application of 13 October 1997 and had not returned the case-file.

On 13 November 1997 the Supreme Court held a session at which it dealt with that application. It prolonged the applicant’s detention until 30 March 1998.

At the beginning of the session the Supreme Court considered the applicant’s motion in which he asked it to be brought before it and allowed to present his arguments. The State Prosecutor ( Prokurator Krajowy ) was summoned to, and took part in, the session. The applicant’s representative was not summoned. After having heard the Prosecutor’s arguments (who opposed the motion), the Supreme Court rejected the applicant’s request.

Referring to the basis for the extension of the applicant’s detention beyond the statutory time-limit, the Supreme Court held that the circumstances adduced by the District Court showed that it was likely that he would induce the witnesses to give false testimonies or otherwise obstruct the trial. It further found that, given the fact that the case was of a particular complexity and that the trial court had to obtain various evidence, the applicant should still be held in custody in order to secure the proper conduct of the trial. Lastly, the Supreme Court pointed out that despite the factors that had to date contributed to the prolongation of the trial, the District Court should nevertheless accelerate the proceedings.

The trial was to restart on 15 December 1997 but it was postponed to 12 January 1998 because the police had not brought E.Cz. from prison and J.S.’s counsel had not appeared before the court.

On 5 January 1998 the District Court dismissed the applicant’s application for his detention to be lifted and replaced by another preventive measure. The court considered that the applicant should be held in custody because a severe penalty might be imposed on him. It stressed that the applicable sentence ranged from 1 to 10 years’ imprisonment. It further mentioned that the fact that the applicant had refused to reveal the identity of some of his company’s clients showed that, had he been released, he would have induced witnesses to give false testimonies or otherwise obstructed the proper course of the trial.

On 12 January 1998 the court cancelled a hearing because the police had not brought the applicant and E.Cz. from prison. On the same day the applicant made an application for release, asking the court to vary the preventive measure imposed on him. He maintained that his prolonged detention was putting a severe strain on himself and on his family.

He made a further, similar application on 19 January 1998, in which he wrote that he “would be very grateful if [he] could obtain an explanation as to what for and for whom [he] was needed to be prison”. He submitted two subsequent applications in January and two in February 1998.

The court dismissed those applications on 20, 28 and 30 January, and on 6 and 18 February 1998 respectively. The reasons for those decisions were nearly identical to the decision of 5 January 1998.

On 5 February 1998 the court cancelled a hearing. On 23 February 1998 the court decided to conduct the trial from the beginning and to rehear all evidence that had so far been obtained. The court read out the records of  the evidence heard from the applicant on 10 and 21 April 1997.

On 9 March 1998 the applicant was released pending trial.

On 16 December 1999 the Wrocław-Śródmiescie District Court gave judgment. It convicted the applicant as charged and sentenced him to 3 years’ imprisonment and a fine.

2. Censorship of correspondence

During his detention, the applicant received many letters, including those from his lawyers, without envelopes.

From 6 December 1995 to 21 July 1997 the applicant sent sixty-one letters to the Commission, of which forty-six were opened and stamped “censored” ( cenzurowano ) by the Polish authorities before being sent on.

On 9 February 1996 the Secretariat of the Commission sent to the applicant a letter together with an application form and the relevant enclosures. The official stamps put by the authorities showed that the letter was delivered to Wrocław Prison on 4 March 1996, sent to the Wrocław Regional Prosecutor on 5 March 1996, and opened and censored by that prosecutor on 6 March 1996.

On 18 March 1996 the applicant sent a letter to the Wrocław Regional Bar Council ( Okręgowa Rada Adwokacka ). On 20 March 1996 the authorities opened the letter and stamped it “censored”.

In his letter of 15 April 1996 the applicant complained to the Commission that he would not be able to submit the application form within the term of six weeks referred to in the Commission’s letter of 9 February 1996 because the authorities had opened and censored that letter and its delivery had been delayed.  He also complained that the authorities of Wrocław prison had refused him any assistance in preparing copies of the relevant documents and that, for that reason, he could not submit the application within the prescribed time-limit. Finally, he filed the form on 15 March 1996. It was posted, with enclosures, on 15 May 1996. It was received at the Commission’s secretariat on 24 May 1996.

On 14 August 1996 the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment sent a letter to the applicant. On 28 August 1996 the authorities opened the letter. The envelope bears the stamp “censored”.

On 29 November and 2 December 1996 the applicant sent two letters to the Wrocław Court of Appeal. The envelopes were cut open. They bear the stamp “censored”.

On 16 January 1997 the applicant sent a letter to his wife. The authorities opened and censored that letter.

On 27 October and 4 and 12 November 1997 the applicant submitted to the prison authorities two letters addressed to the President of the Criminal Chamber of the Supreme Court. In the letter of 27 October 1997 he asked the Supreme Court to order that he be brought to the session concerning the examination of the application for his detention to be prolonged (see above: “The applicant’s detention”). All the envelopes bear the stamp “censored”. The post-mark reveals that the letter of 27 October 1997 was sent out on 4 November 1997 and the two other letters on 25 November 1997.

On 27 November 1997 and on 5 January 1998 Mr Cichoń’s law firm received letters from the applicant. The postmark on the envelope of the first letter is unreadable. The second letter was posted on 21 December 1997. On both envelopes there were hand-written notes made with a red marker. Those notes read: “censored”.

On 1 December 1997 and 16 January 1998 the applicant handed in two further letters to the President of the Criminal Chamber of the Supreme Court to the prison authorities. On both envelopes there was a hand-written note that read: “censored”. The post-marks show that the letters were sent out on 8 December 1997 and on 23 January 1998 respectively.

3. Limitations imposed on the applicant’s contact with his wife

On 10 August 1996 the Wrocław-Śródmieście District Court ordered that the applicant should not be allowed to have any personal contact with his wife (that restriction included communication by a prison internal phone), in view of the fact that in the meantime she had been charged with fraud in which the applicant had also been involved. Before that date no restrictions had been put on their personal contact.

On 30 January 1997 the applicant requested the Wrocław District Court to grant his wife a permit to visit him in prison as they had had no personal contact since 10 August 1996. The request was dismissed on 7 February 1997 without any reasons being given.

On 7 February 1997 the applicant complained to the President of the Wrocław Regional Court that not only had all his letters to his wife been censored but some of them also intercepted or delayed and that he had not even been allowed to make phone calls to his wife. He submitted that these facts taken together with the absolute prohibition on any personal contact with his wife had amounted to inhuman treatment.

On 10 February 1997 the applicant unsuccessfully asked the Wrocław-Śródmieście District Court to stop the censorship of his letters to his wife.

On 24 March 1997 the applicant, likewise unsuccessfully, asked the court to allow his wife to visit him in prison.

On 11 April 1997 he made a similar application, submitting that at the hearing of 10 April 1997 the court had heard evidence from him and he had explained all the circumstances relating to his the charges laid against his wife. The court dismissed the application on 18 April 1997. No reasons for that decision were given.

Subsequently, on 22 and 28 April and 8, 20 and 28 May 1997 the Wrocław-Śródmieście District Court, without giving any reasons for its decisions, dismissed five further applications made by the applicant, in which he asked to be allowed to see his wife. The applicant argued that the prolonged and drastic restrictions on his contact with his wife were cruel and inhuman and had severely affected his family life. In his application of 22 May 1997, the applicant stressed that since the court had heard evidence from his wife on 21 May 1997, there was no further justification to continue the harsh measures imposed on their personal contact. He relied on Articles 3 and 8 of the Convention.

On 16 June 1997 the Wrocław-Śródmieście District Court dismissed two further, similar applications made by the applicant on 5 and 12 June 1997, holding that the prohibition on any personal contact between him and his wife was justified by the risk that they might induce one another to give false testimonies before the court or obstruct the proper course of the proceedings.

The applicant’s wife was allowed to visit him in prison on 9 August 1997. That visit took place in the presence of the prison guard.

B. Relevant domestic law and practice

1. Preventive measures, in particular, detention on remand

At the material time the rules governing detention on remand were contained in Chapter 24 of the Law of 19 April 1969 – Code of Criminal Procedure (“Code”) ( Kodeks postępowania karnego ) – entitled “Preventive measures” ( Środki zapobiegawcze ). The Code is no longer in force. It was repealed and replaced by the Law of 6 June 1997 (commonly referred to as the “New Code of Criminal Procedure”), which entered into force on 1 September 1998.

a. Imposition of detention on remand

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 (“the 29 June 1995 Law”) entered into force) at the investigation stage of criminal proceedings detention on remand was imposed by a prosecutor.

Article 210 §§ 1 and 2 of the Code (in the version applicable at the material time) stated:

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

2. A prosecutor may impose a preventive measure only with respect to a person who has been questioned in the case as a suspect.  Before ordering detention on remand or deciding on bail the prosecutor shall personally hear the suspect.”

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

b. Grounds for applying preventive measures

The Code listed as “preventive measures”, inter alia , detention on remand, bail and police supervision.

Article 209 set out the general grounds justifying imposition of the preventive measures. This provision read:

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

Article 217 § 1 defined grounds for detention on remand. The relevant part of t his provision, in the version applicable until 1 January 1996, provided:

“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 he has no fixed residence [in Poland] or his identity cannot be established; or

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

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

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

...”

On 1 January 1996 sub-paragraphs 3 and 4 of Article 217 § 1 were repealed and the whole provision was redrafted. From that date onwards the relevant sub-paragraphs read:

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

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

Paragraph 2 of Article 217 provided:

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

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

Article 213 § 1 provided :

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

Article 225 stated:

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

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

Finally, Article 218 stipulated:

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

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

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

c. Prolongation of detention beyond the statutory time-limits

Until 4 August 1996, i.e. the date on which the relevant provisions of the Law of 29 June 1995 entered into force, the law did not set any time-limits on detention on remand in the court proceedings.

Originally, the provisions setting out time-limits for detention were to enter into force on 1 January 1996; however, their entry into force was eventually postponed until 4 August 1996.

Article 222 of the Code of Criminal Procedure in the version applicable after 4 August 1996 provided, in so far as relevant:

“3. The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed one year and six months in cases concerning offences. In cases concerning serious offences [offences for the commission of which a person is liable to a sentence of a statutory minimum of at least three years’ imprisonment] this period may not exceed two years.

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

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

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

No appeal laid in law against the Supreme Court’s decision on an application made under Article 222 § 4.

In cases where the Supreme Court dismissed such an application, a detainee had to be released. As long as it had not reached a decision, an application of the relevant court – which had a form of a decision ( “ postanowienie ” ) – was as a basis for the continued detention.

2. Judicial authorities and prosecution

At the material time the relations between the authorities of the Polish State were set out in interim legislation, the so-called “Mini-Constitution” ( Mała Konstytucja ), i.e. the Constitutional Act of 17 October 1992. Article 1 of the Act affirmed the principle of the separation of powers in the following terms:

“The legislative power of the State shall be vested in the Sejm and the Senate of the Republic of Poland; the executive power shall be vested in the President of Poland and the Council of Ministers; and judicial power shall be vested in the independent courts.”

The Law of 20 June 1985 (as amended) on the Structure of Courts of Law ( Ustawa o ustroju sądów powszechnych ) in the version applicable at the material time provided, in Section 1:

“1. Courts of law shall dispense justice in the Republic of Poland.

2. Courts of law shall be courts of appeal, regional courts and district courts.”

The Law of 20 June 1985 (as amended) on Prosecution Authorities ( Ustawa o Prokuraturze ) set out general principles concerning the structure, functions and organisation of prosecution authorities.

Section 1 of the Law, in the version applicable at the material time, stipulated:

“1. The prosecution authorities shall be the Prosecutor General, prosecutors and military prosecutors.  Prosecutors and military prosecutors shall be subordinate to the Prosecutor General.

2. The Prosecutor General shall be the highest prosecution authority; his functions shall be carried out by the Minister of Justice.”

Chapter III of the Code entitled: “Parties to proceedings, defence counsel, representatives of the victims and representatives of society” described a prosecutor as a party to criminal proceedings. Under all the relevant provisions of the Code taken together, a prosecutor performed investigative and prosecuting functions in the course of criminal proceedings.  As regards the general position of the prosecution, at the material time they were not independent from the executive since the Minister of Justice carried out the duties of the Prosecutor General.

3. Proceedings relating to the lawfulness of detention on remand

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

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

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

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

4. Censorship of a detainee’s correspondence and rules concerning his contact with the outside world

Articles 82-90 of the Code of Execution of Criminal Sentences of 1969 (the Code is no longer in force; it was repealed and replaced by the “new” Code of Execution of Criminal Sentences of 6 July 1997, which entered into force on 1 January 1998) concerned the execution of detention on remand. Under Article 89 § 2 of the Code, a detainee might receive visitors in prison or might contact his family by prison internal phone provided that he had obtained permission in writing from the investigating prosecutor (at the investigation stage) or from the trial court (once the trial commenced). The authorities could order that a visit should take place in the presence of a prison guard.

Pursuant to the same provision, all correspondence of a detainee was, as a rule, censored, unless a prosecutor or a court decided otherwise.  There was no legal means whereby a detainee could appeal against or, in any other way, contest censoring of his correspondence or the scope of that measure (cf. Niedbała v. Poland , no. 27915/95, judgment of 4 July 2000, §§ 33-36).

COMPLAINTS

1. The applicant complained under Article 5 § 3 of the Convention that his detention on remand had been ordered by the investigating prosecutor, who could not be considered a “judge” or an “officer authorised by law to exercise judicial power”, within the meaning of that provision.

2. Still in the context of Article 5 § 3, the applicant maintained that his detention on remand had been inordinately lengthy.

3. Relying on Article 5 § 4, the applicant further submitted that the proceedings relating to the lawfulness of his detention on remand had not been adversarial, as required under that Article.

4. Under Article 8 of the Convention, the applicant complained that all his correspondence, including the letters to and from the lawyer representing him before the Commission and the Court, as well as the letters he sent to or received from the Commission, had been opened and censored and, in some instances, intercepted or delayed.

5. Lastly, again invoking Article 8, the applicant complained that on account of far-reaching restrictions imposed by the trial court on his personal contact with his wife his right to respect for his family life had been violated.

THE LAW

1. The applicant alleged a breach of Article 5 § 3 of the Convention, submitting that his detention on remand had been ordered by the investigating prosecutor, who could not be considered a “judge” or an “officer authorised by law to exercise judicial power”.

Article 5 § 3 of the Convention, in its relevant part, provides:

“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 ...”

The Government submitted that even though it was true that the investigating prosecutor had ordered the applicant’s detention, the lawfulness of that measure had later been examined by the Wrocław District Court on 5 December 1995. There had, therefore, been the necessary judicial control over the prosecutor’s decision.

What was more, the Government added, given the position of a prosecutor in criminal proceedings and the fact that the prosecutors were under a general duty to remain impartial in those proceedings, the applicant’s detention had been imposed in compliance with the requirements of Article 5 § 3 of the Convention.

The applicant, relying on the Court’s case law (in particular, the Huber v. Switzerland judgment of 23 October 1990, Series A no. 188, p. 18, § 43), maintained that there could be no doubt that the prosecutor who had detained him on remand had not offered guarantees of independence from the executive and the parties, as required under Article 5 § 3.

The Court, having regard to the criteria established in its case-law in respect of a “judge” or “officer authorised by law to exercise judicial power” for the purposes of Article 5 § 3 and, more particularly, to its judgment in the case of Niedbała v. Poland (no. 27915/95, §§ 48-57, 4 July 2000), considers that an examination of the merits of the complaint is required.

2. The applicant further maintained that his detention on remand had been inordinately lengthy and, consequently, in breach of the “reasonable time” requirement laid down in Article 5 § 3.

The relevant part of Article 5 § 3 reads:

“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 considered that the applicant’s detention had not exceeded a “reasonable time”.

To begin with, they stressed that the applicant had been detained in connection with the offences he had committed shortly after having been released from pre-trial detention (that had lasted nearly two years) in other criminal proceedings. That indicated that it had been necessary to hold him in custody to secure the proper conduct of the proceedings.

There had been, the Government added, further valid grounds justifying the applicant’s continued detention, such as the complexity of his case and the serious nature of the offences with which he had been charged. Also, since the applicant had refused to reveal the names of some of his company’s clients, his own conduct had made it necessary to keep him in custody to prevent the risk of his inducing witnesses to give false testimonies or otherwise obstructing the course of the trial.

The Government accepted that detention had not been the only measure envisaged by the Code of Criminal Procedure to ensure the proper course of criminal proceedings. However, they argued that the trial court could not release the applicant on bail because his difficult financial situation had made it impossible for him to offer an appropriate security.

Lastly, the Government stressed that the prolongation of the applicant’s detention was a consequence of the fact that the trial had progressed slowly owing to his own dilatory conduct, as shown by his numerous, manifestly unfounded challenges to the impartiality of the trial court, six applications for his officially-appointed lawyers to be replaced and appeals he had made against detention decisions – despite the fact that those appeals had been inadmissible in law.

The applicant maintained that his detention, which lasted from 22 November 1995 to 9 March 1998, had been excessively long. He considered that the authorities had failed to give valid reasons for holding him in custody for the relevant period. In that context, he stressed that the main ground relied on by the courts, namely the risk of his inducing witnesses to give false testimonies, had not been based on any concrete, true circumstance but the fact that he had not confessed his guilt. That fact should never have been held against him as he – as any defendant in criminal proceedings – had a right to make a plea of non-guilty.

Furthermore, the applicant argued, the likelihood that a severe penalty of imprisonment might be imposed on him could not justify the entire period of his detention, especially as the authorities had not even indicated a single piece of evidence suggesting that, had he been released, he would have absconded or evaded justice.

On the other hand, the applicant added, the courts never seriously considered the imposition of other, more lenient preventive measures on him, even though such alternative measures of ensuring an accused’s presence at trial had explicitly been provided for by Polish law. Nor had they explained in their decisions why releasing him on bail or under police supervision, or imposing both of those measures, would not have guaranteed that the proceedings followed their proper course.

Lastly, the applicant asserted that the judicial authorities had not shown any special diligence in handling his case. In particular, the trial had several times been adjourned because the District Court had not made arrangements securing the presence of all defendants before it.

The applicant accordingly invited the Court to find that his right to trial or to release pending trial had not been respected.

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

3. Relying on Article 5 § 4, the applicant complained that the proceedings relating to the lawfulness of his detention on remand had not been adversarial, as required under that Article.

Article 5 § 4 provides:

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

The Government acknowledged that no provision of the Code of Criminal Procedure of 1969 allowed an accused or his lawyer to participate in a court session concerning the examination of an application for release. That did not mean that an accused had no opportunity to present his arguments as those could have, or had already, been set out in his application for release and had been duly considered by the court.

It was true, the Government added, that prosecutors took part in a number of sessions concerning the applicant’s applications for release (for instance, in sessions held on 9 and 30 August, 16 September and 31 December 1996). However, that fact could not in itself be decisive for a finding that the proceedings concerning the lawfulness of the applicant’s detention had been unfair. In the Government’ s submission, the applicant could have, and indeed had, presented arguments militating in favour of his release in writing or, if he had asked for release at a hearing, orally before the trial court.

They concluded that there had accordingly been no breach of Article 5 § 4 of the Convention.

The applicant disagreed. He maintained that the Polish authorities had been fully aware of the fact that under the previous criminal legislation habeas corpus proceedings had not been adversarial and had therefore failed to satisfy the Article 5 § 4 requirements. In that respect, the applicant recalled the fact that the new Code of Criminal Procedure, in its Article 249 § 5, explicitly laid down that a defence counsel for an accused had to be notified of, and could take part in, a session concerning the imposition of detention on remand, the examination of an appeal against the imposition or prolongation of detention and the prolongation of that measure. He further relied on a number of the Court’s judgments on the matter (e.g. the Toth v. Austria judgment of 12 December 1991, Series A no. 224, p. 23, §§ 83-84 and, mutatis mutandis , the Belziuk v. Poland judgment of 25 March 1998, Reports of Judgments and Decisions 1998-II, p. 571, §§-39).

The Court, having regard to the criteria established in its case-law in respect of the procedural requirements of Article 5 § 4 and, more particularly, to its judgments in the cases of Niedbała v. Poland (no. 27915/95, §§ 48-57, 4 July 2000) and Włoch v. Poland (no. 27785/95, §§ 125-132; 19 October 2000, to be published in ECHR-2000-X), considers that an examination of the merits of the complaint is required.

4. Under Article 8 of the Convention, the applicant complained that all his correspondence, including the letters to and from the lawyer representing him before the Commission and the Court, as well as the letters he sent to or received from the Commission, had been opened and censored and, in some instances, intercepted or delayed.

The relevant part of Article 8 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 submitted that during the criminal proceedings against the applicant his correspondence had been censored pursuant to Article 89 § 2 of the Code of the Execution of Criminal Sentences of 1969. The measures applied by the authorities had not, however, included any interference with the text of his letters and had not caused any delay in delivery of his mail to the addressees.

The Government also underlined that there had been a particular reason to censor the applicant’s correspondence with his wife because she had been charged in the same case. The authorities had therefore had to take steps to ensure the proper conduct of the trial and to eliminate the risk of collusion.

In conclusion, the Government considered that the censorship complained of had been carried out in compliance with Polish law and was justified under paragraph 2 of Article 8 of the Convention.

As to the question of whether the censorship of the applicant’s correspondence was compatible with Poland’s obligations under former Article 25 of the Convention, the Government submitted that the applicant’s correspondence with the European Commission of Human Rights had not been kept by the authorities beyond the necessary time. Nor had it been delayed. There had moreover been no interference with the contents of his application or letters he had written to the Commission.

The applicant contested this. He alleged that many of his letters had never been delivered to the addressees. He submitted that the very fact of opening and reading his letters and his application to the Commission showed that Poland had not respected the obligations undertaken under former Article 25 of the Convention.

As to the censorship of all his other letters, the applicant stressed that the relevant legislation had given the authorities a virtually unlimited power to interfere with his correspondence. He maintained that, even assuming that the authorities had intended to secure the proper conduct of the criminal proceedings in his case, the duration of that measure, as well as its scope and nature had by no means been necessary in a democratic society. The need to achieve the aim pursued by the authorities had not required them to read all his letters, notwithstanding whether they had been of strictly personal or of official character. In particular, there had been no reason whatsoever to open and read his correspondence to the lawyer representing him before the Commission, especially as such letters were privileged under Article 8 of the Convention.

The applicant concluded that his right to respect for his correspondence had been violated.

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

5. Lastly, again invoking Article 8, the applicant complained that on account of far-reaching restrictions imposed by the trial court on his personal contact with his wife his right to respect for his family life had been violated.

Article 8, in its relevant part provides:

“1. Everyone has the right to respect for his ... family life ...

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 maintained that the restrictions on the applicant’s personal contact with his wife had been applied in compliance with the domestic law as it had stood at the material time and that they had been necessary to ensure the proper conduct of the applicant’s trial, in particular to eliminate the risk of collusion. They further submitted that when that risk had been lessened, i.e. when the court had heard evidence from the applicant and his wife, they had eventually been allowed to meet in the presence of the prison guard.

In view of the foregoing, the Government were of the opinion that the fact that the applicant had temporarily been deprived of personal contact with his wife had not given rise to a violation of Article 8 of the Convention.

The applicant, for his part, contended that the restrictions in issue had been of a particularly severe nature and, as they had been combined with the censorship of the letters he had written to his wife, had made impossible for him to maintain any form of communication with her. Those restraints had moreover been applied for a very long time and without any consideration given to the possibility of enabling them to see each other in the presence of a prison guard.

In conclusion, the applicant asked the Court to find a violation of Article 8 of the Convention in that his right to respect for his family life had been violated.

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

For these reasons, the Court unanimously

Declares the remainder of the application admissible, without prejudging the merits of the case.

Erik Fribergh Christos Rozakis Registrar President