FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 27913/95 by Mieczysław FIECEK against Poland

The European Court of Human Rights, sitting on 23 October 2001 as a Chamber composed of

Mr G. Ress , President , Mr A. Pastor Ridruejo , Mr L. Caflisch , Mr J. Makarczyk , Mr I. Cabral Barreto , Mrs N. Vajić , Mr M. Pellonpää , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 10 January 1994 and registered on 20 July 1995,

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 2 July 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, Mieczysław Fiecek, is a Polish national, born in 1964 and living in Gliwice, Poland. In the proceedings before the Court, the applicant is represented by Mrs K. Wisłocka-Sieprawska, a lawyer practising in Cracow, 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. The facts as established by the Commission when the case was communicated

On 12 March 1987 the Gliwice District Court ( Sąd Rejonowy ) sentenced the applicant to five years and six months’ imprisonment. It deducted the period spent by the applicant in detention on remand from his sentence. In consequence, the applicant served that sentence during the following periods: from 23 April 1986 to 6 September 1988; from 2 to 16 November 1988; from 4 February 1993 to 8 October 1993 and from 26 November 1993 to 22 April 1996.

On 5 October 1993 the Bielsko-Biała Regional Court ( Sąd Wojewódzki ) released the applicant on probation for one month.  Shortly afterwards, the applicant asked the court to prolong his release for a further, unspecified term.

On 24 November 1993 the applicant was arrested by the police on suspicion of having committed robbery.  On 26 November 1993 he was brought before the Gliwice District Prosecutor ( Prokurator Rejonowy ), charged with robbery and detained on remand in view of the reasonable suspicion that he had committed the offence with which he had been charged. On the same day the Bielsko-Biała Regional Court rejected his application for the prolongation of his release, on the ground that he had been remanded in custody on suspicion of having committed a new, serious offence.

On 6 December 1993 the Katowice Regional Court, on an appeal by the applicant, upheld the detention order of 26 November 1993 and the reasons therefor.

On 13 December 1993 the applicant made an application for release, submitting that his detention lacked any basis because the investigating prosecutor had not admitted evidence proposed by him. That application was dismissed by the Gliwice District Prosecutor on 22 December 1993 and, on appeal, by the Katowice Regional Prosecutor ( Prokurator Wojewódzki ) on 8 January 1994.  The authorities held that there was a reasonable suspicion that the applicant had committed the offence in question and that his detention was necessary in order to ensure the proper conduct of the proceedings.

On 20 January 1994 the applicant filed a subsequent application for release. It was dismissed on 9 March 1994 by the Gliwice District Prosecutor and, on appeal, by the Katowice Regional Prosecutor on 30 March 1994. The prosecutors at both instances considered that the grounds originally given for his detention were still valid.

On 16 February 1994 the Katowice Regional Court prolonged the applicant’s pre-trial detention until 23 March 1994. On 21 March 1994 the court extended his detention until 23 April 1994. Those decisions, on an appeal by the applicant, were upheld by the Katowice Court of Appeal on 27 April 1994.

On 4 March 1994 the applicant complained to the investigating prosecutor that correspondence he received from the European Commission of Human Rights was being opened and censored.

On 22 June 1994 the Gliwice District Prosecutor lodged a bill of indictment with the Katowice Regional Court.

In the meantime, on an unspecified date, the applicant filed two further applications for release. They were dismissed on 24 October and 14 November 1994 by the Katowice Regional Court and on 30 November 1994 by the Katowice Court of Appeal ( SÄ…d Apelacyjny ). The courts held that the serious nature of the offences with which he had been charged justified the continued detention.

On a later unknown date, the trial court granted the applicant’s application for an officially-appointed lawyer.

On 6 February 1995 the Katowice Regional Court dismissed the applicant’s subsequent application for release.  That decision was upheld on appeal on 22 March 1995.  The courts reiterated the previous grounds given for the applicant’s detention.

On 9 May 1995 the Katowice Regional Court convicted the applicant as charged and sentenced him to four years and six months’ imprisonment, a fine and deprivation of his civic rights for four years.

In the meantime, on an unspecified date, the applicant again asked the court to release him.  The application was dismissed on 27 September 1995 in view of the fact that his detention pending appeal was mandatory under Article 222 of the Code of Criminal Procedure because the first-instance sentence exceeded 3 years’ imprisonment.

On 10 October 1995 the Katowice Court of Appeal, on an appeal by the applicant, quashed the first-instance judgment and remitted the case.

On 12 February 1996 the applicant’s case was transferred to the Gliwice District Court because, under amendments to the Code of Criminal Procedure, as from 1 January 1996 a district court was competent to deal with such cases.  The trial was held on 25 and 26 March 1996.

On 27 June 1996 the Gliwice District Court convicted the applicant of robbery and sentenced him to four years and six’ months imprisonment, a fine and deprivation of his civic rights for four years. The court deducted the period of the applicant’s detention on remand from 22 April 1996 and 27 June 1996 from his sentence. The applicant appealed.

On 23 July 1996 the applicant asked the Gliwice District Court to quash the order for his detention.  The application was dismissed on 31 July 1996.

On 3 December 1996 the Katowice Regional Court heard the applicant’s appeal and upheld the first-instance judgment.

On 10 December 1996 the applicant lodged a notice of a cassation appeal with the Regional Court.  On 12 December 1996 he asked that court to appoint a lawyer for him in order to assist him in cassation proceedings.  He submitted that he had no occupation and income, and that he could not bear the costs of his defence.  He also stressed that under the relevant provisions of the Code of Criminal Procedure a cassation appeal had to be filed and signed by an advocate.  On 2 January 1997 the applicant made yet another application for legal assistance.

On 15 January 1997 the court rejected the application, finding that the applicant had not proved that he could not afford legal assistance, namely, that the costs of legal assistance would entail a substantial reduction of his and his family’s standard of living, as defined in Article 69 of the Code of Criminal Procedure.

2. The facts that emerged after the case was communicated

On 23 May 1997 the applicant made a subsequent application for legal assistance. He submitted documentary evidence showing his difficult financial situation. On 25 July 1997 the Regional Court granted the application and, on 6 August 1997, appointed a lawyer for the applicant. On a later unknown date in August or September 1997, the applicant’s officially-appointed lawyer filed a cassation appeal.

On 14 January 1999 the Supreme Court ( Sąd Najwyższy ) heard the appeal and rejected it as obviously lacking any basis.

B. Relevant domestic law and practice

1. 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 ( 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.

Pursuant to Article 210 of the Code (in the version applicable at the material time), the prosecutor was authorised to detain a suspect on remand, provided that such person had previously been charged and heard by that prosecutor.

At the relevant time the Code set out three different legal avenues whereby a detainee could challenge the lawfulness of his detention and obtain release: an 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 during an investigation; and proceedings relating to the detainee’s applications for release.

As regards the last of these, Article 214 of the Code provided the following:

“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.”

2. Legal assistance

Under Article 69 of the Code, an accused who had proved that he could not afford legal assistance (i.e. that the costs of such assistance “would entail a substantial reduction in his and his family’s standard of living”) might apply to a court and ask to appoint him a defence counsel.

Article 71 laid down the principle known as “compulsory assistance of an advocate” ( przymus adwokacki ). That Article provided, in so far as relevant:

“An accused must have a defence counsel [of his own choice or officially appointed] when a regional court is competent to deal with his case as a court of first instance. The counsel must take part in the main hearing; he must also take part in any appellate hearing if the president of the court or the court itself has found this necessary.”

Under Article 75 § 1, the official appointment of a lawyer was valid as long as the proceedings lasted and, subject to explicit exceptions, an officially-appointed lawyer was also obliged to act on behalf of his client after the judgment became final.  However, according to domestic practice which started after 1 January 1996 (the date on which a new cassation appeals procedure was introduced into the system of criminal justice), a lawyer had again to be officially appointed in cassation proceedings.

3. Cassation appeal

As from 1 January 1996, i.e. the date on which the relevant provisions of the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes entered into force, a party to criminal proceedings might lodge a cassation appeal with the Supreme Court against any final decision of an appellate court which had terminated criminal proceedings.

Article 463a § 1 of the Code provided, in so far as relevant:

“A cassation appeal may be lodged only on the grounds referred to in Article 388 [these included a number of procedural irregularities, such as, for instance, incorrect composition of the trial court; lack of legal assistance in cases where such assistance was compulsory; breach of the rules governing jurisdiction in criminal matters; trying a person in absentia in cases where his presence was obligatory and thus depriving him of an opportunity to defend himself, etc.] or on the ground of another flagrant breach of law provided that the judicial decision in question was affected as a result of such a breach.  No cassation appeal may be directed against the disproportionality of the penalty imposed.”

Article 464 of the Code stipulated:

“1. Parties to criminal proceedings shall be entitled to lodge a cassation appeal.

2. A cassation appeal, which has been lodged by a party other than a prosecutor, shall be filed and signed by an advocate.

3. Notice of a cassation appeal must be lodged with the court which has given the [relevant] decision within seven days from the date on which such decision was pronounced. The appeal itself must be lodged within thirty days from the date on which the decision, together with the reasons therefor, was served on the party concerned.”

Under Article 467 § 2, the court which gave the decision appealed against was competent to decide whether the formal requirements for a cassation appeal had been complied with. If an accused’s appeal was not filed and signed by an advocate, it had to be rejected on formal grounds. If such an appeal complied with the formal requirements, the case was referred to the Supreme Court.

4. Censorship of correspondence during detention on remand

At the relevant time, under Article 89 of the Code on Execution of Criminal Sentences of 19 April 1969 ( Kodeks karny wykonawczy ), all correspondence of a person detained on remand was censored, unless a prosecutor or a court decided otherwise.  No provision of the Code provided for a remedy enabling a detainee to contest the manner or scope of the application of that measure (see, for reference, Niedbała v. Poland , no. 27915/95, § 33, 4 July 2000).

COMPLAINTS

1. The applicant firstly complained under Article 5 § 4 of the Convention that his applications for release had not been decided “speedily” as required under that provision.  He referred, in particular, to the applications he made on 13 December 1993, 20 January 1994 and 23 July 1996.

2. Under Article 6 §§ 1 and 3 (c) of the Convention, the applicant complained that the refusal to grant him free legal assistance in cassation proceedings had infringed his right to defend himself effectively and resulted in his being deprived of access to a cassation court.

3. Lastly, relying on Article 8 of the Convention, the applicant submitted that in the course of the investigation the correspondence that he received from the European Commission of Human Rights was opened and censored.  That complaint was introduced on 10 October 1994.

THE LAW

1. The applicant complained that his applications for release had not been determined “speedily” and he alleged a breach of Article 5 § 4 of the Convention, which 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.”

A. The parties’ submissions

1. The Government

The Government considered that the complaint was unsubstantiated. They stressed that during the almost entire period of his pre-trial detention on the charge of robbery, the applicant served the sentence of imprisonment imposed on him by the Gliwice District Court’s judgment of 12 March 1987. In consequence, the requisite supervision over the lawfulness of his detention had already been incorporated in that judgment. Moreover, the Government stressed that his repeated applications for release pending trial would in any event have been of no practical effect because, had they been granted, he would not have been released from prison but would still have served his prior sentence.

On that point, the Government also maintained that a ruling declaring the order for the applicant’s detention unlawful would only have changed the regime under which his detention had been effected. The applicant would simply have been kept in detention under the prison rules, not under the rules applicable to persons detained on remand.

In the Government’s opinion, if seen from that perspective, the length of the proceedings complained of could not be regarded as incompatible with the requirement of “speediness” for the purposes of Article 5 § 4.

2. The applicant

The applicant disagreed. He submitted that that requirement had not been satisfied because the Polish authorities had not respected the time-limit of 3 days for dealing with applications for release, laid down in Article 214 of the Code of Criminal Procedure.

Referring to the application that he had made on 13 December 1993, the applicant underlined that the District Prosecutor had examined it as late as 22 December 1993 and had substantially exceeded the statutory time-limit.  Similarly, his application of 20 January 1994 had not been dealt with “speedily” because it had been rejected on 9 March 1994, that is to say, after 48 days.  The further appellate proceedings had been terminated on 30 March 1994. Lastly, the application of 23 July 1996 had been examined by the Gliwice District Court on 31 July 1996, i.e. after eight days and ‑ again – after the expiry of the time-limit.

In conclusion, the applicant considered that his right to have the lawfulness of his detention examined “speedily” had been violated.

B. The Court’s assessment

1. Applicability of Article 5 § 4

The Court notes at the outset that the applications that the applicant made on 13 December 1993 and 20 January 1994 were not “decided by a court” but by the Gliwice District Prosecutor and, on appeal, by the Katowice Regional Prosecutor because, under Article 214 of the Code of Criminal Procedure as then in force, prosecution authorities made decisions on applications for release as long as the investigation lasted.

However, as the applicant has at no stage of the procedure before the Court or the Commission made a complaint alleging the non-judicial nature of the review of the lawfulness of his detention at the investigation stage or challenging the independence or impartiality of the decision-making authority, and as the respondent Government have not contested the applicability of Article 5 § 4 to the relevant proceedings, the Court will proceed further on the assumption that that Article applies across the board to all the proceedings complained of (cf. the X v. the United Kingdom judgment of 5 November 1981, Series A no. 46, p. 23, § 53 in fine ).

2. Compliance with Article 5 § 4

The Court recalls that Article 5 § 4, in guaranteeing to persons arrested or detained a right to have the lawfulness of their detention reviewed, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of detention and to an order terminating it if proved unlawful (see, for instance, Baranowski v. Poland no. 28358/95, § 68, ECHR 2000-III).

With regard to Article 5 § 4 complaints, the Court has repeatedly held that the content of the obligation imposed on the States by that provision will not necessarily be the same in all circumstances and as regards every category of deprivation of liberty (see, for instance, the X v. the United Kingdom judgment cited above, in § 52). It has, for instance, held that there is a special need for a swift decision determining the lawfulness of detention pending trial because the defendant should benefit fully from the principle of the presumption of innocence (see, for instance, Jabłoński v. Poland no. 33492/96, § 80, 21 December 2000, § 93).

However, the latter principle applies to the present case only in as much as the applicant’s detention can be regarded as “pre-trial” detention for the purposes of Article 5 § 1 (c) read together with Article 5 § 3.

In its partial decision on the admissibility of the present application, the Commission has already dealt with, and rejected, the applicant’s complaint about the unreasonable length of his pre-trial detention.  It is established in that decision that there were only two periods of the applicant’s detention that fell within the ambit of Article 5 § 1 (c) and, accordingly, were considered under Article 5 § 3, the first from 24 to 26 November 1993 and the second from 22 April to 27 June 1996.

The Court sees no reason to depart from the findings made by the Commission and considers that they are valid in the context of the applicant’s complaint under Article 5 § 4.

In the light of the above, it is evident that the applications of 13 December 1993 and 20 January 1994 were examined during the period which entirely fell within detention following the applicant’s conviction of 1987. The application of 23 July 1996 was lodged after the applicant had finished serving that sentence but also after he had already been convicted at first instance in the course of his new trial on 27 June 1996.

That being so, the requisite supervision over the lawfulness of the applicant’s detention was already incorporated in the relevant judgments .  During that time, the applicant could have the control of the lawfulness of his detention effected only by lodging an appeal against conviction and sentence (see, among many other authorities, the De Wilde , Ooms and Versyp v. Belgium judgment of 18 June 1971, Series A no. 12, p. 40, § 76).

Consequently, looking at the applications in issue from that angle, the Court considers that they no longer had any practical effect for the applicant’s rights under Article 5 § 4 of the Convention, the supervision required under that provision being determined by, and incorporated in, the original trials.

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

2. The applicant further alleged that, on account of the refusal to grant him free legal assistance in cassation proceedings, there had been a breach of Article 6 § 1 of the Convention read in conjunction with Article 6 § 3 (c). Paragraphs 1 and 3 of Article 6 state, in so far as relevant:

“1. In the determination ...of any criminal charge against him, everyone is entitled to a ... hearing ... by ... [a] tribunal established by law.

...

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

...

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

...”

A. The parties’ submissions

The Government maintained that the new circumstances which emerged after the case had been communicated, in particular the fact that the applicant had eventually been granted free legal assistance and had had his case examined in cassation proceedings, materially changed his situation. According to the Government, those new developments meant that the applicant was no longer a “victim” for the purposes of Article 34 of the Convention.

The applicant replied that his application for legal assistance, even though granted in its entirety, had been dealt with after a substantial delay. That might have affected his right to defend himself effectively and could, in particular, have prevented him from lodging a cassation appeal within the prescribed time-limit of thirty days.  For that reason, the applicant considered that he still enjoyed the standing of a “victim” in the proceedings before the Court.

B. The Court’s assessment

The Court recalls that, as it has held on many occasions, the word “victim” in the context of Article 34 of the Convention denotes the person directly affected by the act or omission in issue, the existence of a violation of the Convention being conceivable even in the absence of prejudice; prejudice is relevant only in the context of Article 41. Consequently, a decision or measure favourable to an applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, among other authorities, Brumarescu v. Romania [GC], no. 28342/95, § 50, ECHR 1999-X).

With regard to the present case, the Court notes that the applicant is currently in the fundamentally different situation than the one in which he found himself when the Commission communicated the present complaint to the respondent Government.  The gist of his complaint was – and in some part still is – that the refusal to grant him legal assistance in cassation proceedings infringed his right to defend himself and made it impossible for him to lodge a cassation appeal because such an appeal had to be filed and signed by an advocate, on pain of the appeal filed by the accused himself being rejected.  The subsequent grant of free legal assistance did, however, remove that formal obstacle. The applicant’s officially-appointed lawyer filed a cassation appeal on his behalf. That appeal was examined by the Supreme Court on 14 January 1999.

In consequence, it can be said that the Polish authorities recognised the applicant’s right to free legal assistance under Article 6 § 3 (c) of the Convention and ensured that he could effectively defend himself in cassation proceedings, in compliance with the requirements of fair trial set out in Article 6 § 1. The applicant is, therefore, no longer affected by the original refusal to grant him legal assistance because all the consequences that that decision entailed in the sphere of his Convention rights were erased.

Bearing in mind the subsidiary nature of the Convention mechanism and having regard to the fact that the applicant obtained the appropriate redress at national level, the Court considers that he cannot be regarded as a “victim” for the purposes of Article 34 of the Convention.

It follows that this part of the application is inadmissible as being incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected, pursuant to Article 35 § 4.

3. Lastly, the applicant complained that the correspondence he received from the European Commission of Human Rights in the course of the investigation had been opened and censored by the Polish authorities. He alleged a violation of Article 8 of the Convention. That provision, in its relevant part, 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.”

A. The parties submissions

The Government maintained that the complaint had been lodged outside the six-month time-limit laid down in Article 35 § 1 of the Convention. Besides, they considered that the applicant had failed to produce any material evidence demonstrating whether, and if so when, his correspondence had indeed been censored.

Be that as it may, the Government further argued, the alleged interference must have occurred sometime before 4 March 1994, the date on which the applicant had complained to the Gliwice District Prosecutor that the letters he had received from the Commission had been opened and censored. Yet the applicant had submitted the complaint about the censorship of his correspondence to the Commission on 20 October 1994. That had been more than six months after the event in question.

The supposed control of correspondence, the Government added, was a specific occurrence and the period of six months had begun to run immediately after it had taken place. However, as the precise date of that event was unknown, the date on which the applicant had put the substance of the Article 8 complaint before the District Prosecutor should be considered the starting point of that term for the purposes of Article 35 § 1.

The applicant invited the Court to reject the Government’s preliminary objection.  He submitted that he had observed the six-month time limit because his correspondence had been censored during the entire period of his pre-trial detention, pursuant to the relevant provisions of the Code on Execution of Criminal Sentences of 1969.

B. The Court’s assessment

The Court recalls that, according to the constant case-law of the Convention institutions, the six-month time-limit set down by Article 35 § 1 runs from the date of the final decision or, in the absence of a domestic remedy, from the date of the act of which the applicant complains. Yet this rule applies only to cases where the complaint is about a particular decision or event and not where the complaint is about a situation of some duration (see, for instance, Demírel v. Turkey (dec.), no. 30493/96, 9 March 1999, unpublished).  In the latter case, the period of six months does not run as long as the situation lasts.

Turning to the circumstances of the present case, the Court observes that while it appears that in his application to the Commission the applicant referred to more than a single instance of controlling his correspondence with the Commission, he did not specify any concrete dates.

Furthermore, despite the explicit question to that effect – which was put to the parties by the Commission when the case was communicated – the applicant has not supplied the dates on which the alleged interference took place or any documentary or other evidence capable of showing the duration of the situation complained of and the manner in which the claimed control of his correspondence was effected.

In that context, the Court would also recall that under Rule 47 § 2 (a) of the Rules of Court – which is phrased in similar terms as the relevant Commission’s procedural rule was – the applicant shall “provide information, notably the documents and decisions ... enabling it to be shown that the admissibility criteria (exhaustion of domestic remedies and the six month rule) laid down in Article 35 § 1 of the Convention have been satisfied ...”.

Against that background, the Court finds it unnecessary to rule whether the Government’s objection should be allowed or dismissed because it considers that the complaint is in any event unsubstantiated.

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 by a majority

Declares the remainder of the application inadmissible.

Vincent Berger Georg Ress Registrar President