FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32056/96 by Mirosław KUJAWA against Poland

The European Court of Human Rights (Fourth Section), sitting on 4 December 2001 as a Chamber composed of

Sir Nicolas Bratza , President , Mrs E. Palm , Mr J. Makarczyk , Mrs V. Strážnická , Mr M. Fischbach , Mr J. Casadevall , Mr R. Maruste , judges , and Mr M. O’Boyle , Deputy Registrar

Having regard to the above application lodged with the European Commission of Human Rights on 21 February 1996 and registered on 27 June 1996,

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

Having regard to the partial decision of 11 May 1999,

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, Mirosław Kujawa, is a Polish national, who was born in 1956 and lives in Kudowa Zdrój. He was represented before the Court by Mr W. Koncewicz, a lawyer practising in Wałbrzych, Poland. The respondent Government were 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.

On 24 June 1995 the applicant was arrested by the police on suspicion of, inter alia , having committed forgery.

On 26 June 1995 the Skierniewice District Prosecutor ( Prokurator Rejonowy ) charged the applicant with forgery and handling stolen goods, and detained him on remand until 25 September 1995. That decision was based on two principal grounds, namely, the reasonable suspicion that the applicant had committed the offences with which he had been charged and the risk that he would obstruct the proper conduct of the investigation.

On 13 July 1995, on an appeal by the applicant, the Skierniewice Regional Court ( Sąd Wojewódzki ) upheld the detention order and the reasons therefor. On the material before it, the court found that the applicant had acted together with several other persons. It considered that that circumstance, in addition to the grounds already invoked by the District Prosecutor, strongly militated in favour of holding the applicant in custody.

On unknown later dates seven other persons were charged and remanded in custody in connection with the investigation against the applicant.

On 2 August and 2 September 1995 the applicant lodged two unsuccessful applications for release and subsequently appealed, likewise unsuccessfully, against each refusal.

On 20 September 1995 the Skierniewice Regional Court, on an application by the Skierniewice District Prosecutor, prolonged the applicant’s and his co-suspects’ detention until 22 December 1995.  The court considered that the previous grounds for detaining the applicant were still valid and that his detention should be prolonged because fresh voluminous evidence needed to be obtained. In that regard, the court noted that, despite the fact that the investigation progressed steadily, the prosecution had to obtain several expert reports, notably from an expert in graphology and experts in mechanics and technology. They also had, through Interpol, to ask for documentary evidence from abroad and establish the circumstances surrounding various purchases of cars in which the suspects had been involved and which had taken place in Belgium and Germany.

The applicant appealed. He argued that the Regional Court had failed to ascertain whether evidence obtained by the prosecution had indeed sufficiently justified a “reasonable suspicion” that he had committed the offences with which he had been charged.

That appeal was dismissed by the Łódź Court of Appeal ( Sąd Apelacyjny ) on 31 October 1995. The court considered that the impugned decision was correct, albeit that the grounds for it had been stated vaguely. It found it necessary to enumerate specific pieces of evidence that justified a “reasonable suspicion” against the applicant.  It referred, in particular, to testimonies of two witnesses and to certain forged customs documents that had been found on the applicant. Lastly, the court held that, given the number of the suspects involved in the case, the extent to which the charges against them were mutually related and the serious nature of the offences in question, keeping the applicant in custody was necessary to ensure that the process of obtaining evidence followed its proper course.

In the meantime, on 17 October and 1 December 1995, the Skierniewice District Prosecutor had laid new charges of forgery and appropriation of a car against the applicant.

On unknown later dates the applicant made two applications for release to the Skierniewice District Prosecutor. They were rejected on 8 and 15 December 1995 respectively. On 5 January 1996 the Skierniewice Regional Prosecutor upheld the decision of 8 December 1995. One of the bases for that ruling was the fact that the authorities had found that the applicant had tried to contact one of his detained co-suspects and to obstruct the investigation.

In the meantime, on 12 December 1995, the Skierniewice Regional Court, on an application by the Skierniewice District Prosecutor, had prolonged the applicant’s detention until 14 March 1996.  The court attached considerable importance to the complexity of the investigation, which involved several suspects and the large number of witnesses, and to the need to obtain complex expert evidence. It also stressed that, even though most of expert reports had already been prepared, the prosecution could not take evidence from an expert in graphology because one of the suspects, D.S., had refused to supply a sample of his handwriting. Furthermore, it underlined that the new charges had meanwhile been laid against the applicant. That, in the court’s opinion, required further, time-consuming inquiries. Consequently, keeping the applicant in custody was necessary to secure the proper conduct of the investigation.

On a later unknown date the Skierniewice District Prosecutor made yet another application to the Skierniewice Regional Court, asking it to prolong the applicant’s detention until 14 June 1996 because the investigation had not yet been completed. The court granted the application on 12 March 1996. It held that there were strong indications that the applicant had committed the offences with which he had been charged. In addition, new circumstances had recently emerged and showed that the applicant had had in his possession a Canadian-registered car which, however, had never been registered in that country. That involved the need to obtain fresh documentary and other evidence from abroad. The court therefore considered that the applicant’s detention should be prolonged in order to secure the proper conduct of the investigation.

The investigation was terminated at the beginning of May 1996.

On 13 May 1996 the Skierniewice Regional Prosecutor lodged a bill of indictment with the Skierniewice Regional Court.  The applicant was indicted on four charges of handling stolen cars, two charges of forgery and one charge of appropriation of a car.  The prosecution asked that evidence from 20 witnesses be heard and that records of testimonies of further 22 witnesses be read out at the trial. They also adduced 93 pieces of documentary evidence in support of the indictment.

On 10 September 1996 the Łódź Court of Appeal ordered that the case be transferred to the Wrocław Regional Court since most witnesses involved in the applicant’s trial resided in Wrocław Province.  The case-file was received at the registry of the Wrocław Regional Court on 30 September 1996.

On an unknown date the applicant asked the Wrocław Regional Court to release him. He maintained that at the current stage of the proceedings there was no danger of his absconding or obstructing the course of the trial and that the proper conduct of his trial could be secured by bail. The Regional Court rejected the application on 18 November 1996.

On 13 December 1996, on an appeal by the applicant, the Wrocław Court of Appeal released him on bail and on the condition that he would report weekly to a police station in his place of residence. It also ordered him to surrender his passport. The court considered that since evidence against the applicant had been gathered, bail and the restrictions put on his liberty of movement would sufficiently secure the proper conduct of the trial.

The trial began on 17 January 1997. On that day the court heard evidence from the applicant.  It listed the next hearing for 5 March 1997 but later, at the applicant’s request, postponed it to 26 March 1997.  Subsequently, the trial was again adjourned because the applicant was in hospital. He received treatment until mid May 1997.

The court listed a hearing for 22 July 1997 but, at the applicant’s request, postponed it to 7 August 1997. On that day the court heard evidence from 5 witnesses and fixed the subsequent hearing for 16 December 1997. Further hearings were held on 6 March, 7 May, 10 July, 10 and 28 September 1998.  The applicant did not appear at the hearing held on 6 November 1998 but the court decided to proceed with the trial and heard evidence from witnesses. The date for the parties’ final submissions was set for 24 November 1998. The applicant did not appear either. He submitted a pleading, asking for acquittal.

On 24 November 1998 the court gave judgment. The applicant was convicted of one count of forgery and appropriation of a car and acquitted of handling stolen cars and of one count of forgery. He was sentenced to two years’ and six months’ imprisonment and a fine.

Both the applicant and the prosecutor appealed.

The Wrocław Court of Appeal heard appeals on 17 June 1999. It set aside the first-instance judgment and remitted the case.

The retrial started on 29 October 1999. On that day the court heard evidence from the applicant. The next hearing was fixed for 2 December 1999.

On 25 September 2000 the Wrocław Regional Court gave judgment. As in the original first-instance judgment, the applicant was convicted of one count of forgery and appropriation of a car and acquitted of the remaining offences. The sentence imposed was, however, more lenient since the applicant was sentenced to two years’ imprisonment and a fine.

The applicant and the prosecution appealed against that judgment.

The Wrocław Court of Appeal heard appeals on 7 February 2001. It upheld the conviction but amended the first-instance judgment in part concerning the imposition of the fine.

On 5 April 2001 the applicant filed a cassation appeal ( kasacja ) with the Supreme Court. The cassation proceedings are pending.

B. Relevant domestic law and practice

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” ( Kodeks postępowania karnego ) (“the Code”) 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.

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. That 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 this 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.”

Article 214 of the Code of Criminal Procedure provided that an accused could at any time lodge an application for release. It read:

“An accused may at any time apply to have a preventive measure lifted or varied.

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

COMPLAINTS

The applicant complained under Article 5 § 3 of the Convention that his detention on remand had been excessive.

He further alleged a breach of Article 6 § 1 of the Convention, submitting that his right to a “hearing within a reasonable time” had not been respected.

THE LAW

1. Relying on Article 5 § 3 of the Convention, the applicant complained about the length of his detention on remand.

Article 5 § 3, in its relevant part, states:

“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.”

A. The parties’ arguments

The Government maintained that the applicant’s pre-trial detention had not been unreasonably lengthy. They stressed that Article 5 § 3 did not guarantee an accused the right to be tried within a precisely indicated time-limit and that the question of whether or not a given term of detention was “reasonable” had to be assessed in the light of the particular circumstances of the case.

In the present case, the Government further argued, there had been valid grounds for holding the applicant’s in custody for the entire period in question.

To begin with, there had been a well-founded suspicion that he had committed the offences with which he had been charged. All those offences had involved a high degree of social harm. Moreover, as the investigation had continued, new charges had been laid against the applicant and, eventually, he had been indicted on several serious charges, comprising forgery and handling stolen cars.

Secondly, holding the applicant in detention had been necessary to ensure the proper conduct of the proceedings. Given the important number of persons involved in illegal dealings and the applicant’s attempts to obstruct the investigation, there had been a danger that the applicant, had he been released, might have tampered with evidence. In addition, as the authorities had had to gather voluminous documentary evidence, releasing the applicant in the course of collecting the relevant material had carried the substantial risk that he might have attempted to destroy some documents or otherwise have interfered with the process of obtaining evidence.

The Government contended, thirdly, that the investigation had been very complex. That factor, by the nature of things, had inevitably prolonged the applicant’s detention because, in connection with the charges against him, the authorities had needed to obtain evidence from numerous expert and lay witnesses and from many foreign authorities or persons.

Referring to the conduct of the Polish authorities, the Government stressed that they had handled the case expeditiously.  The investigation, despite its high complexity, had been terminated within some 11 months. The trial court had promptly prepared the case for a main hearing and had proceeded with the trial without any delay. Apart from that, during the entire period in question, the relevant courts had duly supervised the “reasonableness” of the applicant’s detention and, having found that the grounds for his detention had no longer been valid, had immediately released him pending trial.

In sum, the Government invited the Court to declare the complaint inadmissible as being manifestly ill-founded.

The applicant contested this. He considered that the authorities had not given sufficient grounds for his detention.

In the applicant’s opinion, the bases for the charges against him had been dubious and uncertain. That was shown by the fact that, eventually, he had been acquitted of five out of seven offences for which he had been indicted.

The applicant next maintained that the authorities had not displayed diligence in dealing with his case, as required under Article 5 § 3. In the course of the investigation the authorities had – sometimes for months – not taken any procedural steps requiring his involvement. The inquiries made by them had been of only minor importance for the charges against him. Had the prosecution, the applicant further argued, evaluated evidence against him properly, the investigation could have been terminated within three months and he would not have had to spent in custody such a long time.

In conclusion, the applicant contended that his right to “trial within a reasonable time or to release pending trial” had not been respected.

B. The Court’s assessment

The Court notes that the period to be considered under Article 5 § 3 started on 24 June 1995, when the applicant was arrested and ended on 13 December 1996, when he was released pending trial. It accordingly lasted 1 year, 5 months and 19 days.

The Court reiterates that it falls in the first place to the national judicial authorities to ensure that the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must, paying due regard to the principle of the presumption of innocence, examine all the facts arguing for or against the existence of the genuine public interest justifying a departure from the rule of respect for individual liberty laid down in Article 5 and must set them out in their decisions on the applications for release. It is essentially on the basis of the reasons given in those decisions and of the well-documented facts stated by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, §§ 110 et seq., ECHR 2000-X).

The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. The Court must then establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also be satisfied that the national authorities displayed “special diligence” in the conduct of the proceedings (ibid.).

In the instant case, the Court observes that the authorities invoked several grounds for the applicant’s continued detention. They stressed in the first place that there was a strong suspicion that he had committed the offences with which he had been charged. In that respect, they relied on witness and documentary evidence.

As the investigation proceeded and several new charges were laid against the applicant, the authorities put forward two further arguments for prolonging his detention, namely the serious nature of the offences in which he had been involved and the risk of his obstructing the process of obtaining evidence.

The Court considers that the authorities, in their detention decisions, carefully examined the pertinent circumstances and that they made a realistic assessment of various factors that militated for holding the applicant in custody for the time necessary for them to gather and secure evidence.

It accordingly finds that the reasons adduced by the domestic authorities for the applicant’s detention were both sufficient and relevant.

As to the question whether the proceedings were conducted with diligence required under Article 5 § 3, the Court notes that the applicant was suspected of, and prosecuted for, several offences of forgery and handling stolen cars, which necessitated the obtaining evidence from abroad, the hearing of numerous witnesses and the taking of several expert opinions.

On that point, the Court would also recall that while an accused person in detention is entitled to have priority given to his case, and to have the proceedings conducted expeditiously, this must not stand in the way of the efforts of the authorities to clarify fully the facts in issue (see the B. v. Austria judgment of 28 March 1990, Series A no. 175, p. 17, § 45).

It is true that the investigation against the applicant lasted nearly a year but, given its complexity and the volume of evidence obtained during that time, it cannot be said that the prosecution did not show due expedience in handling the case.

Nor does the Court find any indication that at the trial stage the relevant court failed to conduct the proceedings with the necessary diligence.

That being so, the Court concludes that the length of the applicant’s detention was not in breach of the “reasonable time” requirement laid down in Article 5 § 3 of the Convention.

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.

2. The applicant also complained under Article 6 § 1 of the Convention that his right to a “hearing within a reasonable time” had not been respected.

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...”

A. The parties’ arguments

The Government heavily relied on the complex nature of the case. Referring to the arguments they already adduced in the context of the Article 5 § 3 complaint, they underlined that the investigation had involved eight suspects and a substantial number of charges against them. That had necessitated taking voluminous evidence at the investigative stage. Furthermore, in the course of the trial, the court had had to hear evidence from 20 witnesses proposed by the prosecution and to obtain expert evidence.

In respect of the conduct of the authorities, the Government reasserted the position they stated under the Article 5 § 3 heading and added that, having regard to the fact that during the original trial the court had held 11 hearings and that the case had so far been heard by the courts at several instances, it could not be said that the authorities had failed to display diligence in the course of the proceedings.

The Government considered, however, that the applicant’s conduct contributed to the length of the proceedings. In particular, on account of his illness, no hearing had been held from March to August 1997. That had prolonged the trial for some five months. Subsequently, the applicant had delayed the delivery of judgment because he had not appeared at the hearing of 6 November 1998 and, for that reason, the final hearing had been postponed to 24 November 1998.

The applicant disagreed with the Government on all points. He acknowledged that at the beginning of the trial several hearings had been cancelled on account of his illness but, in his opinion, that had not resulted in any discernible delay. While it was true, he added, that he had been absent at the hearing of 6 November 1998, that fact had been of no importance for the progress of the trial. Indeed, not only had he justified his absence but also his lawyer had asked the court to proceed with the case and the court had done so.

In the applicant’s opinion, the authorities’ conduct was the principal reason why the proceedings had been inordinately lengthy. In that regard, he reiterated the arguments he invoked in support of his complaint under Article 5 § 3.

B. The Court’s assessment

The Court observes that the period to be considered under Article 6 § 1 started on 26 June 1995, when the applicant was charged. According to the material in the Court’s possession, the applicant’s case is still pending the examination of his cassation appeal. Consequently, the relevant proceedings have so far lasted 6 years, 5months and 8 days.

The Court, assessing the reasonableness of the length of the time in question, 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 cited above, § 124).

As regards the nature of the case, the Court has already noted that it was complex, account being given of the kind and number of charges against the applicant and the volume of evidence that needed to be obtained in the course of the proceedings.

It has also found that during the period that the applicant spent in detention on remand the prosecution and judicial authorities acted with the diligence required under Article 5 § 3. That finding is likewise valid in regard to the complaint the applicant made under Article 6 § 1.

It accordingly remains for the Court to ascertain whether the manner in which the courts acted in the subsequent phase of the trial, namely that following the applicant’s release on 13 December 1996, satisfied the “reasonable time” requirement.

In that respect, the Court observes that the trial began shortly after the applicant had been released, on 17 January 1997. Then, at the applicant’s request, the proceedings were adjourned for some seven months. They were resumed in August 1997 and, from that time to the delivery of judgment on 24 November 1998, the trial court held 8 hearings. All of them were held at reasonable intervals of from 2 to 4 months. The parties’ appeals were heard some 7 months later, on 17 June 1999.

In the Court’s view, neither the original trial nor the appeal proceedings were inordinately lengthy.

The same applies to the retrial proceedings. They started on 29 October 1999 and ended after merely eleven months, on 25 September 2000. The parties’ second appeals were heard shortly afterwards, on 7 February 2001. Later, on 5 April 2001, the applicant lodged a cassation appeal which has since then been pending before the Supreme Court.

Accordingly, during the period under consideration the case has so far been heard by the courts at four instances and has now been pending before the fifth instance.

Assessing all the pertinent circumstances as a whole and having particular regard to the fact that there have to date been no delays in the proceedings for which the authorities could be held responsible, the Court finds that the Polish authorities did not fail to secure the applicant’s right to a “hearing within a reasonable time”.

It follows that the remainder 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

Declares inadmissible the remainder of the application.

Michael O’Boyle Nicolas Bratza Registrar President