FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33866/96 by Józef BOGULAK against Poland

The European Court of Human Rights ( Fourth Section) , sitting on 11 December 2001 as a Chamber composed of

Sir Nicolas Bratza , President , Mr A. Pastor Ridruejo , Mrs E. Palm , Mr J. Makarczyk , Mrs V. Strážnická , Mr M. Pellonpää , Mr S. Pavlovschi , judges , [Note1] and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 30 July 1996 and registered on 18 November 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, Józef Bogulak, is a Polish [Note2] national , born in 1946 and living in Wrocław , Poland.

A. The circumstances of the case

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

In October 1995 the applicant was apprehended by the police in front of his house, handcuffed and escorted to the Wrocław Regional Police Headquarters. At the police premises he was forced under threats of arrest to sign a document stating his collaboration with the police in connection with the criminal proceedings against A.S. The applicant submits that he did not receive a copy of a “ proces verbal setting out the reasons for his arrest” neither was he informed of his rights.

Since the applicant had refused to act as a police informer, several weeks later, on 24 October 1995, his flat was searched by the police and he himself was detained in a custody in a company of two other persons who, in the applicant’s opinion, had been previously instructed to “give him a hard time”.

Two days later, the applicant was brought to the Wrocław Regional Prosecutor Office and kept waiting. Despite his repeated requests, he was not allowed to use a toilet for 40 minutes. After about an hour, the applicant was interrogated by a prosecutor and a police officer who again tried to press him to collaborate with them. The applicant’s lawyer was not allowed to take part in the interrogation. The prosecutor charged the applicant with the offence of obstructing the criminal proceedings against A.S. When the interrogation  finished, the applicant was released.

On 13 March 1996 after having searched the applicant’s flat, the applicant was arrested on suspicion of an attempt to swindle money in VAT refunds.

On 15 March 1996 the prosecutor issued an order of detention against the applicant on charges of the tax frauds and obstructing the conduct of the criminal proceedings against A.S. by inciting witnesses to give false testimony.

On 1 April 1996 the applicant’s lawyer’s appeal against the decision of 15 March 1996 was dismissed by the Wrocław Regional Court. The court considered that the applicant’s detention was justified by the existence of strong evidence of his guilt, the gravity of charges against him and in order to secure the proper course of the proceedings.

On 4 April 1996 the Wrocław Regional Prosecutor rejected the appeal against the decision of 15 March 1996 filed by the applicant himself, observing that it was submitted too late. On the same date the applicant’s request to be granted a leave to appeal out of time was rejected since he had not shown that the failure to lodge the appeal within the proscribed time-limit was without a fault on his part.

On 26 April 1996 the Wrocław Regional Prosecutor dismissed the applicant’s motions of 28 March 1996 and of 19 April 1996 to be released, referring to the charges against him and considering that the applicant’s case did not disclose any of the grounds for release provided by Article 218 of the Code of Criminal Procedure.

On 24 May 1996, in reply to a letter of 7 May 1996 signed by the applicant’s sons, the Wrocław Regional Prosecutor informed them that the applicant had been arrested at 7.30 on 24 October 1995 and released at 14.05 on 25 October 1995. Therefore, his detention did not exceed the statutory time-limit of 48 hours. As regards the “ proces verbal setting out the reasons for his arrest”, the applicant refused to accept it and to sign it.  Moreover, the applicant himself decided not to lodge an appeal against the arrest with a court. The prosecutor further explained that when the applicant’s lawyer turned up, the charges against the applicant had already been preferred and his examination had started. However, the interrogation continued on the following day, i.e. 26 October 1995 in the presence of his lawyer.

On 7 June 1996 the Wrocław Regional Court prolonged the applicant’s detention on remand until 31 August 1996. The court  relied on the strong probability of the applicant’s guilt, the gravity of charges against him and the high risk of his hindering the proper conduct of the proceedings.

On 7 June 1996 the Wrocław Regional Court dismissed the applicant’s appeal against the decisions of 4 April 1996 given by the Wrocław Regional Prosecutor. On 14 June 1996 the Wrocław Appellate Prosecutor dismissed the applicant’s appeal against the decision of 26 April 1996, considering that the evidence strongly supported charges against the applicant and having regard to the Wrocław Regional Court’s opinion expressed in the decision of 7 June 1996.

By a decision of 25 June 1996 the Wrocław Court of Appeal upheld the decision of 7 June 1996, pointing out that that the applicant’s case disclosed the existence of grounds for detention provided under Section 209 and 217 § 1 of the Code of Criminal Procedure.

Apparently, on  5 July 1996 the Wrocław Court of Appeal dismissed the applicant’s lawyer’s appeal against the decision of 7 June 1996 given by the Wrocław Regional Court. The court recalled that the applicant’s appeal against this decision had already been examined. The court referred to the reasoning of its decision of 25 June, observing that that no new circumstances in the case had come to light. On 16 July 1996 the Wrocław Appellate Prosecutor dismissed the applicant’s and his lawyer’s appeals against the decision of 7 June 1996 given by the Wrocław Regional Prosecutor relying on the grounds invoked in the previous decisions.

By the decision of 7 August 1996 the Wrocław Regional Prosecutor, in view of the fact that the investigation in the case had been almost completed, quashed the detention order and replaced it with a bail of 5000 PLN and a prohibition from leaving the country. The criminal proceedings against the applicant are still pending.

B. Relevant domestic law

a) Evolution of Polish criminal law in the relevant period

Polish criminal legislation was amended several times during the relevant period. The Code of Criminal Procedure enacted in 1973 (“old” Code) was replaced by a new Code of Criminal Procedure, adopted by Parliament ( Sejm ) on 6 June 1997, which entered into force on 1 September 1998.

The “old” Code was significantly amended by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes. This Law entered into force on 1 January 1996. However, the entry into force of the provisions concerning the imposition of detention on remand was postponed until 4 August 1996. In accordance with these provisions, detention on remand was imposed by a judge (whereas before it was imposed by a prosecutor - see section (b) below).

The second amendment, effected by the Law of 1 December 1995 on Amendments to the Law of 29 June 1995 (commonly referred to as “the Interim Law of 1 December 1995”) entered into force on 1 January 1996.

b) Preventive measures

The Polish Code of Criminal Procedure (“old”), applicable at the relevant time, listed as "preventive measures", inter alia , detention on remand, bail and police supervision.

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

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

c) Grounds for detention on remand

Article 217 of the “old” Code of Criminal Procedure, as applicable at the relevant time, provided that a person could be held in detention on remand if there were serious grounds for believing that he or she would abscond, in particular when he or she did not have a permanent address or his/her identity could not be established. Further, detention could be imposed if there were serious grounds for believing that there was a risk of collusion or that an accused would otherwise jeopardise criminal proceedings. Finally, alternative grounds for detention on remand were either the fact that an accused was charged with an offence of a particular danger to society (“ wysokie spo ł eczne niebezpiecze ń stwo czynu ”), or that the accused was a recidivist (“ recydywa ”) within the meaning of the Criminal Code.

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

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

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

d) Proceedings to examine the lawfulness of detention on remand

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

COMPLAINTS

1. The applicant complains under Article 3 of the Convention that the way in which he was treated by the police upon his detention in October  1995, i.e. the fact that he was threatened and verbally abused by the interrogators, not allowed to use a toilet for 40 minutes, not instructed about his rights of a detainee and, while being detained on remand, deprived of contacts with his family for a month, amounted to inhuman and degrading treatment

2. He complains under Article 5 § 1 of the Convention that his apprehension in October 1995 and detention on remand were arbitrary as none of the grounds set out in this provision applied in the case, in particular, he had not committed any criminal offence.

3. He complains, without invoking any Article of the Convention, that he did not receive a copy of “ proces verbal setting out the reasons for his arrest” in October 1995 and therefore was not informed promptly about the reason of his arrest.

4. He complains under Article 5 § 3 that he was deprived of his liberty by a decision of a prosecutor who was not a judge or other officer authorised by law and that he was never brought before a judge to review the lawfulness of his detention.

5. He complains under Article 5 § 4 that he was not allowed to be present in the court proceedings in review of the lawfulness of his detention.

6. He further complains under Article 6 § 1 about the length of the criminal proceedings against him and that the courts are not impartial.

7. He finally complains under Article 6 § 2 that his right to be presumed innocent was breached in that the he was detained on remand in spite of the fact that the evidence against him had not sufficiently justified the opinion that he had committed a crime.

THE LAW

1. The applicant complains that the manner in which he was treated by the police upon his apprehension in October 1995, i.e. the fact that he was threatened and verbally abused by the interrogators, not allowed to use a toilet for 40 minutes, not instructed about his rights of a detainee and, while being detained on remand, deprived of contacts with his family for a month, amounted to inhuman and degrading treatment.

Article 3 provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court recalls that, in order to fall within the scope of Article 3, mistreatment must attain a minimum level of severity (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, § 162). The Court does not consider that the applicant’s treatment upon his detention in October 1996 attained the requisite level of severity to engage Article 3. 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 under Article 5 § 1 of the Convention that his apprehension in October 1995 and detention on remand were arbitrary as he was innocent.

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 § 3(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 of while the arrested person is in custody. The object of questioning during detention under Article 5 § 3(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 light of all the material in its possession the Court finds no indication that the applicant’s detention was unlawful or ordered otherwise than "in accordance with a procedure prescribed by law", within the meaning of Article 5 § 1. It was ordered and confirmed in accordance with domestic law and fell within the ambit of Article 5 § 1(c) of the Convention, as having been effected for the purpose of bringing him before the competent legal authority on suspicion of having committed an offence. As regards the alleged lack of reasonable suspicion, the Court notes that in fact the relevant decisions referred to a suspicion that the applicant had committed a serious offence and to evidence gathered in the course of the proceedings. In conclusion, the Court considers that the charges laid against the applicant were based on a reasonable suspicion of his having committed criminal offences punishable under the Criminal Code.

It follows that this complaint is manifestly ill-founded under Article 35 § 3 of the Convention and must be rejected under Article 3 5 § 4.

3. The applicant complains that he did not receive the copy of a“proces verbal setting out the reasons for his arrest” in October 1995 and in consequence was not promptly informed of the reasons for his arrest.

Article 5 § 2 reads:

“Everyone who is arrested shall be informed promptly ... of the reasons for his arrest and of any charge against him.”

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 of the Rules of Court, to give notice of this complaint to the respondent Government.

4. The applicant complains under Article 5 § 3 that he was deprived of his liberty by a decision of a prosecutor and not a judge and that he was never brought before a judge to review the lawfulness of his detention.

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 of the Rules of Court, to give notice of this complaint to the respondent Government.

5. The applicant complains under Article 5 § 4 that he was not allowed to be present in the court proceedings in review of the lawfulness of his detention.

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 of the Rules of Court, to give notice of this complaint to the respondent Government.

6. The applicant complains under Article 6 § 1 about the length of criminal proceedings against him and lack of impartiality on the part of the court.

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 of the Rules of Court, to give notice of this complaint to the respondent Government.

7. The applicant complains that he was detained on remand despite the insufficient evidence against him, and that which infringed his right to be presumed innocent until proven guilty contrary to Article 6 § 2 of the Convention, which states:

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

The Court notes that in the present case the courts which examined whether the applicant should be detained on remand held, with reference to the evidence included in the file concerning his case, that the applicant could reasonably be suspected of having committed the offences imputed to him. In the Court’s view a statement that a suspicion exists cannot be considered as a formal declaration that the applicant is guilty, nor does it affect the applicant’s rights of defence.

It follows that this complaint is manifestly ill-founded under Article 35 § 3 of the Convention and must be rejected under Article 3 5 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints about the prosecutor’s role in ordering his detention on remand, the adequacy of the review of the lawfulness of his detention on remand, the length of criminal proceedings against him as well as the fact that the applicant did not receive a copy of a “ proces verbal setting out the reasons for his arrest” and as a result was not informed promptly of the reasons for his arrest.

Declares inadmissible the remainder of the application.

Michael O’Boyle Nicolas Bratza Registrar President

[Note1] Judges names are to be followed by a COMMA and a MANUAL LINE BREAK ( Shift+Enter ). When inserting names via Alt+S please REMOVE the substitute judge’s names, if necessary, and the extra paragraph return(s). (There is to be no extra space between the judges’ names and that of the Registrar.)

[Note2] To be checked.