FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 5648/02 by Robert JÄ„KALSKI against Poland

The European Court of Human Rights (Fourth Section) , sitting on 23 April 2002 as a Chamber composed of

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

Having regard to the above application lodged on 26 March 2001 and registered on 8 February 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Robert Jąkalski, is a Polish national, who was born in 1980 and resides in Kraków. He is currently detained in Katowice Prison, Poland.

A. The circumstances of the case

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

On 31 July 1999 the applicant was arrested on suspicion of having committed the offences of robbery and burglary.

On 4 August 1999 the Gliwice District Prosecutor ( Prokurator Rejonowy ) charged the applicant with robbery and burglary, and detained him on remand until 31 October 1999. That decision was based on the suspicion that the applicant had committed the offences in question, the serious nature of these offences and the risk that he might obstruct the proper conduct of the proceedings if released.

On 28 September 1999 a bill of indictment was lodged with the Katowice Regional Court ( S ą d Okręgowy ).

On 11 October 1999, the Katowice Regional Court prolonged the applicant’s detention on remand until 31 March 2000. The court held that there was a reasonable suspicion that he had committed the offences in question and stressed the serious nature of the charges against him.

On 26 November 1999 the applicant filed an application for release with the Katowice Regional Court. He referred to his difficult family situation, in particular his mother’s poor state of health and lack of financial means. On 17 January 2000 the Katowice Regional Court rejected that application. It found that the relevant evidence supported a reasonable suspicion that the applicant had committed the offences. The court stressed the serious nature of the offences and considered that he should be kept in custody in view of the need to ensure the proper course of the trial. The court did not find that the applicant’s mother’s situation was so serious as to justify his release under Article 259 § 1 (2) of the Code of Criminal Procedure.

On 7 February 2000 the applicant filed a subsequent request for release. On 28 February 2000 the court rejected his application in view of the existence of a reasonable suspicion that he had committed the offences. As to the applicant’s family situation, the court repeated its previous reasoning.

The first hearing on the merits was held on 21 March 2000. The court heard evidence from the applicant, his co-defendant and from witnesses. It also prolonged the applicant’s detention until 30 June 2000. The court held that there was a reasonable suspicion that the applicant had committed the offences and again stressed their grave nature. The Katowice Court of Appeal ( Sąd Apelacyjny ) upheld this decision and the reasons therefor on 12 April 2000.

A hearing listed for 30 May 2000 was adjourned.

On 26 June 2000 the court prolonged the applicant’s detention until 30 September 2000, repeating the reasons referred to in its decision of 21 March 2000. The applicant appealed. On 2 August 2000 the Katowice Court of Appeal dismissed the appeal.

A hearing listed for 19 September 2000 was adjourned at the applicant’s co-defendant’s request.

On 25 September 2000 the court prolonged the applicant’s detention until 31 December 2000. The court reiterated the grounds previously given for keeping the applicant in custody.

On 2 November 2000 the case was assigned to a new panel of judges. The trial continued on 12 December 2000. A hearing listed for 18 December 2000 was adjourned.

On 27 December 2000 the court prolonged the applicant’s detention until 30 March 2001. It considered that there was a risk of his absconding. He appealed against this decision. On 7 March 2001 the Katowice Court of Appeal dismissed the appeal.

The next hearing took place on 21 February 2001. On that day the court stayed the proceedings until 16 March 2001 because most of the witnesses failed to appear.

The next hearing took place on 16 March 2001. In the course of the hearing the applicant again asked the court to release him. The court dismissed his request and prolonged his detention until 30 April 2001. The court reiterated the grounds previously given for keeping him in custody. On the same day the court stayed the proceedings until 5 April 2001.

At the hearing on 5 April 2001 the court heard witnesses and adjourned the trial as the applicant asked for a change to be made to the composition of the court.

The next hearing took place on 18 April 2001. The court stayed the proceedings until 16 May 2001 and prolonged the applicant’s detention until 20 May 2001. The court observed that the applicant was suspected of serious offences and that there was a risk of collusion.

On 25 April 2001, on the applicant’s appeal, the Katowice Court of Appeal upheld that decision.

At the hearing on 15 May 2001 the court prolonged the applicant’s detention until 31 July 2001. The court reiterated the grounds previously given for his detention. On 13 June 2001 the Katowice Court of Appeal upheld that decision and the reasons therefor.

On 11 July 2001 the Katowice Court of Appeal prolonged the applicant’s detention until 31 October 2001. The applicant appealed. On 14 August 2001 the Katowice Court of Appeal upheld that decision. It appears that the criminal proceedings against the applicant are still pending before the court of first instance.

B. Relevant domestic law

The Polish Code of Criminal Procedure of 6 June 1997 lists as “preventive measures” ( środki zapobiegawcze ), inter alia , detention on remand, bail and police supervision.

Article 249 § 1 of the Code sets out general grounds justifying imposition of preventive measures. This provision reads:

“Preventive measures [including detention on remand] may be imposed in order to ensure the proper conduct of proceedings and, in exceptional cases, in order to prevent the accused from committing a new serious offence; they shall be ordered only if evidence against the accused sufficiently indicates a high likelihood that he has committed a criminal offence.”

Article 258 of the Code sets out the grounds justifying the imposition of detention on remand. This provision provides:

“1. Detention on remand may be imposed if:

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

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

2. If an accused has been charged with a serious offence or any other 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 ensure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed.

3. Detention on remand may also exceptionally be imposed if there is a reasonable risk that an accused who has been [already] charged with a serious offence or any intentional offence, will commit an offence against the person or public order, in particular if he has threatened to commit any of such offences.”

The Code defines the margin of discretion as to maintaining a specific preventive measure. Articles 253 § 1, 257 and 259 of the Code are based on the precept that detention on remand is a most extreme preventive measure and should not be imposed if more lenient measures are appropriate.

Article 253 § 1 of the Code of Criminal Procedure provides:

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

Article 257 § 1 of the Code states:

“Detention on remand shall not be imposed if any other measure is considered adequate.”

Article 259 § 1 provides:

“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.”

Article 263 of the Code of Criminal Procedure sets out the time-limits for detention on remand in the court proceedings. It provides as follows:

“3. The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed two years.

4. 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 this is necessary in connection with a suspension of the proceedings, a prolonged psychiatric observation of the accused, a prolonged preparation of an expert report, when evidence needs to be obtained in a very complex case or from abroad, when the accused has deliberately obstructed the termination of the proceedings or because of other significant obstacles, which could not be overcome [by the authorities conducting the proceedings].”

COMPLAINTS

1. The applicant complains under Article 5 § 3 of the Convention that the length of his detention on remand exceeded a “reasonable time” within the meaning of this provision.

2. He further complaints under Article 6 § 1 of the Convention that the length of the criminal proceedings against him exceeded a “reasonable time”.

THE LAW

1. The applicant complains under Article 5 § 3 of the Convention that the length of his detention on remand exceeded a “reasonable time” within the meaning of this provision.

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

2. The applicant also complaints under Article 6 § 1 of the Convention that the length of the criminal proceedings against him exceeded a “reasonable time”.

Article 6 § 1, in its relevant part, provides:

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

In assessing the reasonableness of the length of the time in question, the Court will have regard to the particular circumstances of the case and the criteria laid down in its case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (see, for instance, Kudła v. Poland [GC], no. 30210/96, § 124, ECHR 2000-XI).

The Court observes that the period to be considered under Article 6 § 1 started on 4 August 1999, when the applicant was charged. According to the material in the Court’s possession, the applicant’s case is still pending before the Katowice Regional Court. Consequently, the relevant proceedings have so far lasted 2 years and 7 months.

The trial started on 21 March 2000 without any substantial delay on the part of the authorities. The court proceeded with the determination of the case expeditiously and hearings were held at reasonable intervals of between 2 and 6 months.

As regards the nature of the case, it could be regarded as complex, given the nature and  number of the charges against the applicant.

In the circumstances, the Court finds no indication that the relevant authorities failed to act with all due diligence in handling the applicant’s case.

As to the conduct of the applicant, the Court observes that it does not appear from the case file that he was responsible for any significant prolongation of the proceedings.

Assessing the circumstances of the case as a whole and having regard to the total length of the proceedings and, more particularly, to the fact that the domestic authorities conducted the case with the diligence required of them under Article 6 § 1, the Court considers that it cannot be said that the applicant’s right to a “hearing within a reasonable time” was violated.

It follows that this part of the application is inadmissible as being 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 concerning the length of his detention in custody;

Declares inadmissible the remainder of the application.

Michael O’Boyle Nicolas Bratza Registrar President