FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 24244/94 by Witold MIGO Ń against Poland

The European Court of Human Rights ( Fourth Section) , 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 5 May 1994 and registered on 1 June 1994,

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 observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant,  Witold Migoń, is a Polish [Note1] national, who was born in 1965. He was represented before the Court by Mr Zbigniew Cichoń, a lawyer practising in Kraków.

A. The circumstances of the case

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

In 1992 the Tarnów Regional Prosecutor instituted criminal proceedings against the applicant on suspicion of aggravated fraud, falsification of documents and issuing fraudulent checks.

By a letter of 6 October 1993 the Tarnów Regional Prosecutor informed the applicant that the fact that two summonses for questioning had been sent both to his new and old address did not infringe in anything his defence rights.

On 13 October 1993 the applicant informed the Tarnów Regional Prosecutor of a change of his address.

On 15 October 1993 the Tarnów Regional Prosecutor issued a warrant for the applicant’s arrest, considering that there were strong grounds for believing that he had committed an offence of a serious danger to society; there was a risk of collusion and absconding as the applicant had failed to comply with certain summonses and had changed his address several times.  On the same day the applicant was remanded in custody.

The applicant appealed against this decision. He submitted that the character of the offence was such that the all evidence was contained in documents of his company, which had already been seised by the prosecutor or kept by the banks. The witnesses in case had already been heard by the prosecuting authorities. Thus there was no risk of collusion as the applicant was not in the position to alter or suppress evidence. The applicant had usually complied with summonses, except on the rare occasions when he was ill, and had submitted relevant medical certificates, including a certificate drawn up by the Kraków Forensic Medicine Institute.  There was no risk of absconding as he had informed the prosecutor of his change of address and could not leave the country as his passport had been taken away by a decision given in November 1991. The applicant further submitted that the high sum with the fraud of which he had been charged was so high only as a result of high statutory interest at the time of hyperinflation and that it could not be used as an argument in support of the seriousness of the offence concerned.

On 25 October 1993 the Tarnów Regional Court dismissed the applicant’s appeal against the detention warrant.  The court first observed that the applicant had on several occasions failed to comply with the summonses without justification. In particular, the case-file did not contain documents which would show that there had been justified medical grounds for his absence. Even though he had informed the prosecutor of his change of address, it appeared to be false as there was a convent at that addrss . Moreover, it seemed that the applicant did not live there.  The court considered that in the light of the financial documents in the case-file, the offence of which the applicant was suspected was serious enough to warrant detention on remand, the more so as the value of the embezzled property had been assessed without regard to the sums of statutory interest, contrary to the applicant’s submissions in his appeal.

On 6 November 1993 the prosecutor appointed an expert in accountancy to analyse certain financial documents of the applicant’s companies, relating to his credit applications, in order to assess the size of damage caused by the offences with which the applicant had been charged.

On 8 November 1993 the applicant submitted medical certificates stating that he had been ill from 1 August 1993 to 10 September 1993.

On 15 November 1993 the Tarnów Regional Prosecutor refused to authorise the applicant to meet his counsel in the absence of a policeman, considering that the applicant had had an opportunity to see his lawyer in the presence of a policeman at each occasion he had requested this. There were no grounds on which to accept that this amounted to an undue restriction on the exercise of his defence rights. The fact that the applicant had not been communicative when talking to his lawyer seemed to stem from the tactics which he adopted in the proceedings, not from the presence of a policeman.

On the same date the prosecutor refused the access to the case-file to the applicant’s lawyer.

The applicant filed an appeal, arguing inter alia that his defence rights had been unduly limited, in particular by the fact that neither the lawyer nor the applicant himself had had any, albeit limited, access to the case-file, or to any evidence gathered so far in the proceedings. The only part of the file that the applicant had been given access to was the decision to bring charges against him and the arrest warrant. As a result, the role of the defence counsel had been rendered meaningless.

On 3 December 1993 the Tarnów Regional Prosecutor rejected the appeal, finding that no appeal lay against the contested decision, and considering that this decision did not infringe the applicant’s defence rights, given that he would be granted access to the case-file in the time set out in Article 277 of the Code of Criminal Procedure.

The applicant appealed, arguing that the decisions infringed his defence rights. The case-file, which so far numbered thirteen volumes, had not been made accessible to him or to his lawyer. All knowledge that they had about the investigations originated from the decision to bring charges against the applicant and from the decision to appoint an expert.  This was clearly insufficient for conducting an effective defence.

On 8 December 1993 the Tarnów Regional Court quashed the refusal to meet the counsel in the absence of a policeman. The court considered that the applicant had not given any ground on which to accept that he intended to jeopardise, by unlawful methods, the investigations against him. Consequently, the contested decision unduly limited his defence rights.

On 16 December 1993 the Tarnów Regional Prosecutor declined to consider the applicant’s request to be released, considering that the grounds on which the detention warrant had been given had not ceased to exist, and that no such new grounds as to justify his release had been invoked by the applicant.

On 21 December 1993 the Kraków Appellate Prosecutor upheld the refusal to grant access to the case-file.

On 31 December 1993 the Regional Prosecutor prolonged the investigations as, in view of new circumstances which were coming to light, further evidence had to be taken.

On 10 January 1994 the Tarnów Regional Court prolonged the applicant’s detention until 30 March 1994, considering, first, that the grounds on which the applicant had been detained had not ceased to exist, and, secondly, that a psychiatric observation had to be carried out, and an expert opinion had to be drafted by a certified accountant.  The applicant appealed.

On 1 February 1994 the Kraków Court of Appeal dismissed the applicant’s appeal.  The court considered that, in the light of the material gathered so far during the investigations, there were serious grounds for believing that the applicant had committed the offences in question. It was emphasised that the applicant had not questioned this in his appeal. The court further had regard to the fact that the offences in which the applicant seemed to have been involved had been committed on a grand scale. Moreover, these offences were serious enough to warrant detention on remand.  There was also a risk of collusion.

On 25 March 1994 the Tarnów Regional Court further prolonged the applicant’s detention until 31 May 1994.  The court stated in its decision that both an expert opinion and the psychiatric report were not completed yet.  The expert opinion had to be supplemented by further financial details, which would allow for assessing the size of the applicant’s fraudulent banking operations. The court considered that the risk of collusion persisted as the applicant had on several occasions failed to appear when summoned.  The court referred in this respect to its own decision of 25 October 1993. The court further commented unfavourably on considerable delays in hearing the witnesses, as between 8 December 1993 and 25 March 1994 only four witnesses had been heard, while the prosecutor estimated in his submissions to the court that between one hundred and three hundred witnesses would have to be heard.

The applicant appealed, submitting, inter alia , that in the course of the preliminary investigations he had twice changed his address and had on the second occasion informed the prosecutor of the change, and that he had complied with the summonses.

On 11 April 1994 the Tarnów Regional Prosecutor supplemented the charges against the applicant by further multiple charges of obtaining credit under fraudulent pretences, forgery of financial documents and issuance of fraudulent checks.

On 20 April 1994 the Kraków Court of Appeal dismissed the applicant’s appeal against the decision of 25 March 1994 as it found that the Regional Court had been justified in reaching the conclusion that there was a risk of absconding and collusion. The court pointed out that the applicant had changed his address and that he had been trying to obtain a passport in various passport offices. Thus, his past conduct suggested that, if released, he would jeopardise the good conduct of the investigations. The court also noted that the serious number of charges brought so far against the applicant and the scale of the offences with which he had been charged, argued in favour of his continued detention. These circumstances indicated that in his actions the applicant had overstepped the border between taking a justified business risk and fraudulent financial operations, punishable under criminal law.

On 29 April 1994 the Tarnów Regional Prosecutor refused the access to the expert opinion of a certified accountant, considering that the conclusions of the opinion indicated that certain witnesses should be heard in connection with further possible offences the commission of which the expert report had rendered likely. The questioning of the expert would also be indispensable. Therefore, granting the applicant access to the report would be premature as being prejudicial to the interests of the investigations.

On 11 May 1994 the applicant filed an appeal against this decision, contending inter alia that the Public Prosecutor was not expeditious enough in questioning of the witnesses, and that the applicant’s defence right were breached in that the opinion, which seemed so far to constitute an essential piece of evidence, had not been communicated to him.

On 16 May 1994 the Tarnów Regional Prosecutor rejected this appeal as no appeal lay against the contested decision.

On 20 May 1994 the Regional Prosecutor refused to release the applicant, recalling that he had been arrested as he failed to comply with the summonses and tried to obtain new passport after the old one had been invalidated in connection with the criminal proceedings. The taking of evidence had not been completed and certain evidence essential for the case had still to be taken.

On 21 May 1994 the applicant’s lawyer was served with the completed opinion of the book-keeping expert.

On 26 May 1994 the Tarnów Regional Court prolonged the applicant’s detention until 15 August 1994, considering in particular that the grounds on which the detention had been ordered and maintained, still existed.  The court noted that 80 witnesses remained to be heard and that documents relating to over 100 various bank loans, taken by the applicant’s companies, had to be examined.

On 13 June 1994 the Tarnów Regional Prosecutor refused to give the applicant access to the case-file, which numbered over 50 volumes, considering inter alia that the investigations were coming to end.

On 22 June 1994 the Kraków Court of Appeal dismissed the appeal against the decision of 26 May 1994, considering that the charges against the applicant had been sufficiently substantiated by the evidence, both this gathered at the time of the applicant’s arrest, and later in the course of the proceedings. It was true that the investigations had not been conducted speedily enough, given that the applicant was in detention, which necessitated special diligence on the part of investigating authorities. This was also dictated by the particularly serious character of the offence concerned. However, the investigations could not proceed during almost four months, the time during which proceedings concerning the review of the lawfulness of the applicant’s detention were conducted.  The court further stressed that new evidence was coming to light gradually, revealing new aspects of the case and thereby prolonging the investigations. Had the applicant cooperated with the prosecuting authorities, the proceedings would have progressed quicker. He did not have such an obligation, but he had to be aware that his failure to do so further prolonged the proceedings.

On 5 July 1994 the Tarnów Appellate Prosecutor gave his permission to the applicant to have access to the case-file of the investigations, considering that this undoubtedly would contribute to the acceleration of the proceedings and would make it possible for the suspect to formulate possible requests for further evidence to be taken. 

On 5 August 1994 the Tarnów Regional Court again prolonged the applicant’s detention. The court noted that on 14 July 1994 certain evidence had been obtained from one of the banks, concerning fraudulent transactions of the applicant’s company. New witnesses would have to be heard in connection with these transactions. As new evidence had come to light,  prolongation of the detention was necessary. Moreover, new charges had been brought against the applicant, which also necessitated that the detention be prolonged. The court further disagreed with the arguments, advanced by the applicant that the charges against him were not credible and considered that, on the contrary, the charges against him were sufficiently substantiated to justify his further detention, which was also necessary to ensure the proper course of the proceedings. The court also noted that, contrary to the applicant’s assertions, in July 1994 further documentary evidence had been taken, even though it was true that no further witnesses had been heard.

On 15 August 1994 the Kraków Court of Appeal upheld the decision of 5 August 1994.

On 18 August 1994 the Regional Prosecutor refused to release the applicant.

On 2 September 1994 the Regional Prosecutor again refused to release the applicant. On an unspecified date in September 1994 the applicant’s lawyer was informed that he could not have access to the case-file as it had been sent to the Supreme Court for the purposes of a decision to be given as to the prolongation of the applicant’s detention.

On 30 September 1994 the prosecutor appointed an expert to examine further book-keeping documents in the case-file.

On 6 October 1994 the applicant detention was prolonged by the Supreme Court.

On 14 October 1994 the Tarnów Regional Prosecutor informed the applicant’s lawyer that from 21 October 1994 the applicant would daily be brought to the prosecutor’s office in order to have access to the case-file. The lawyer’s attention was drawn to the fact that the lawyer had so far failed to make use of his right to consult the file.

On 24 October 1994 the Regional Prosecutor permitted the applicant to make copies and notes of numerous documents in the case-file.

On 29 December 1994 the Regional Prosecutor refused to give to the applicant the copies of the prosecutor’s requests to have the applicant’s detention prolonged which had so far been examined in the proceedings, considering that these documents had not been included in the principal case-file, and that the applicant’s argument that he had to have access to them in order to exercise his defence rights, were ill-founded.

On 11 January 1995 the bill of indictment was lodged with the Tarnów Regional Court.  The applicant was charged with fraud of a sum of 80,000,000,000 (old) Polish zlotys to the detriment of six banks, the issuance of false checks and other economic offences.

On an unspecified date in January 1995 the applicant requested that the case be referred back to the prosecutor in order to have serious lacunae in the investigations filled.

On 16 February 1995 the Tarnów Regional Court refused to release the applicant, but agreed to fix the sum of bail at 500,000 Polish zlotys (new).  The court noted the applicant’s argument that the borderline between the business acts which could be qualified only as failure to respect the rules of civil law in business relations and criminal offences of fraud was sometimes difficult to determine. However, in the applicant’s case, the evidence gathered against him sufficed for strong belief that he had committed criminal offences. The court further noted that the applicant had moved and tried to obtain a new passport. In the context of the criminal proceedings pending against him, these facts could not be perceived as a normal exercise of his civil rights. Moreover, the proper course of the proceedings necessitated that the applicant be either maintained in custody, or released on a high bail.

The applicant appealed.

On 27 February 1995 the Tarnów Regional Court allowed the applicant’s request to have the case referred back to the prosecutor.  On 22 March 1995 the Kraków Court of Appeal, at the prosecutor’s request, quashed this decision  and ordered that the case be referred to the competent court so that the proceedings on the merits could be held. It also upheld the decision of 16 February 1995, observing that there were strong grounds for believing that the applicant, if released, would abscond, as was repeatedly stressed by courts throughout the proceedings. The court further held that the sum of bail, as fixed by the lower court, was appropriate to the circumstances of the case and sufficiently safeguarded the interest of further proceedings.

On 15 June 1995 the applicant was released.

B. Relevant domestic law

I. Preventive measures

The Polish Code of Criminal Procedure of 1969 (“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 Code of Criminal Procedure 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. Pursuant to Article 222 of the Code, 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 to a higher court.

2. Grounds for detention on remand

Article 217 §§ 1 (2) and (4) of the Code of Criminal Procedure, as applicable  at the material time, provided that detention on remand could be imposed if, inter alia , there was a reasonable risk that an accused will attempt to abscond or to induce witnesses to give false testimony or to obstruct the due course of proceedings by any other unlawful means, or an accused has been charged with an offence which creates a serious danger to society.

3. 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 or her detention and thus possibly obtain release. Under Article 221 § 2 of the Code of Criminal Procedure of 1969 he could appeal to a court against a detention order made by a prosecutor.  Under Article 222 §§ 2(1) and 3 he could appeal against a further decision by that court prolonging his detention at a prosecutor’s request. Finally, 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.

Under all the relevant provisions of the Code of Criminal Procedure of 1969 read together, a detainee was entitled to appeal against any decision prolonging his or her detention on remand, regardless of whether it had been made at the investigative or judicial stage of proceedings.

Imposition and prolongation of preventive measures, including detention on remand, were examined by the courts in proceedings held in camera . T he presence of the parties at court sessions other than hearings, including sessions held in proceedings concerning review of detention on remand, was regulated in Articles 87 and 88 of the Code of Criminal Procedure, which, insofar as relevant, provided:

Article 87

"The court pronounces its decisions at a hearing if the law provides for it; and otherwise, at a court session held in camera. ..."

Article 88

"A court session in camera may be attended by a prosecutor (...); other parties may attend if the law provides for it."

Access to the case file in the course of preliminary investigations was regulated by Article 143 § 3 of the Code of Criminal Procedure, which provided, insofar as relevant, that access to the case file and making certified copies thereof in the course of the preliminary investigations was granted only upon the permission of the authority person conducting the investigations.

Under Article 277 of the Code, after the investigations were completed and it was decided that there were grounds on which to prepare the bill of indictment, the prosecutor was to ensure access to the case-file to the suspect, inform him that he was entitled to avail himself of this right personally, and allow the counsel to have access to the file.

Until 4 August 1996, the date on which the 1973 Code of Criminal Procedure was extensively amended by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes, the law did not fix any time-limits concerning detention on remand in judicial proceedings. During the investigations, the prosecutor could order detention for up to three months. Prolongation of this period was possible by a court order, for a period not exceeding one year, and for any further periods, by a decision of the Supreme Court given at a request of the Prosecutor General.

COMPLAINTS

1 . The applicant complains under Article 5 § 3 of the Convention about his unreasonably long and, in the light of his behaviour during the investigations, unjustified detention.

2 . He further complains under Article 5 § 4 that neither he nor his counsel could attend hearings concerning the prolongation of his detention on remand before the Kraków Court of Appeal, whereas the prosecutor was able to do so.  Thus the equality of the parties was not safeguarded and the proceedings were not adversarial.

3 . The applicant complains under Article 6 § 3 (c) of the Convention that in the proceedings concerning the review of the lawfulness of his detention, neither he nor his counsel were granted access to the case-file of the investigation, and in particular to the copy of an expert opinion of a certified accountant, which provided relevant evidence in the case.

4 . The applicant complains under Article 4 of Protocol No. 4 to the Convention that he was deprived of his liberty as he was unable to fulfil a contractual obligation.  Under Article 2 § 3 of this Protocol he complains that his detention was motivated solely by the fact that he had changed his address which breached his right to freedom of movement and his freedom to choose his residence.

THE LAW

1. The applicant complains under Article 5 § 3 of the Convention about his unreasonably long and unjustified detention. The Court has examined this complaint under Article 5 §§ 1 and 3, which, insofar as relevant, reads:

“1. 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;...

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and 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) As regards the complaint that the applicant’s detention was unjustified and based on insufficient evidence, the Court has taken note of the parties’ arguments.

The Government submit in this respect that the applicant’s detention was ordered in compliance with the applicable provisions of domestic law, both procedural and substantive. The arrest warrant was given in order to ensure the proper conduct of the proceedings, and the evidence gathered so far during the investigations gave sufficient reasons for believing that the applicant had committed an offence. There were, first, grounds indicating that the applicant would abscond: he had at least once failed to inform the prosecutor about his change of address;  he had applied for the issuance of a new passport in a passport office different from that competent for the area where he had his permanent address, and he had  once informed the prosecutor about the change of address, but this later proved to be an address of a convent, where the applicant obviously did not reside.

The authorities also had regard to the fact that the offence which the applicant had been suspected to have committed, was of a considerable danger to society within the meaning of the Code of Criminal Procedure as applicable at that time.

The Government further noted that it was true that some of the documentary evidence concerning the case had already been in the case-file at the time of the applicant’s arrest. Therefore some weight could be given to the argument that there was no risk that the applicant, if released, would try to suppress evidence. However, it was not this factor which was decisive for the authorities. What was decisive was the probability that the applicant would jeopardise the proceedings by absconding.

The applicant submits that the authorities remanded him in custody having regard, first and foremost, to the alleged “danger to society” of the offence concerned. This ground for detention had been a heritage of the communist law of criminal procedure and had been widely considered, at the time when it was applied in the proceedings against the applicant, as imprecise and obsolete and, also, open to abuse. This provision was subsequently repealed within the framework of the far-reaching reform of the law of criminal procedure, which came into force in 1995.

Moreover, the applicant did not fail to inform the prosecuting authorities that he had applied for a new passport. He needed the passport in order to make efforts to protect the foreign interests of his companies. A theoretical possibility that he would leave the country in order to paralyse the criminal proceedings, was not enough to impose detention on him. The applicant, until he was arrested, complied with the summonses, except only for the last summons before he was arrested. That summons was sent to the applicant’s address to Kraków only, while he resided in Brzesko at that time. It was the only occasion at which he failed to comply with the summons.

The Court recalls in this connection 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 § 1 (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 or while the arrested person is in custody. The object of questioning during detention under Article 5 § 1 (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 does not find any 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 considers that 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. In the warrant arrest the Regional Prosecutor stated that the applicant had failed to comply with certain summonses to his questioning. It is to be noted in this context that, as it transpires from the letter of 6 October 1993, the prosecution authorities had normally been sending summonses to the applicant’s two addresses. Therefore special attention was paid to ensuring that the applicant was effectively informed of the dates of his questioning. In its decision of 25 October 1993 the Regional Court emphasised that the applicant had on several occasions failed to comply with the summonses, and that the changes of address seemed to indicate that the applicant wanted to abscond. What is more, in its decision of 16 February 1995 the Tarnów Regional Court noted the applicant’s argument that the borderline between the taking of financial risk in business  and criminal offences of fraud was sometimes difficult to determine. However, in the applicant’s case, the evidence gathered against him sufficed for strong belief that he had committed criminal offences.

As regards the alleged lack of reasonable suspicion, the Court notes that in fact the prosecution authorities and the courts, in their later decisions, referred to evidence gathered in the course of the investigation. The courts had no doubts that the acts for which the applicant had been charged could be characterised as criminal offences, in particular in the light of the enormous sums that the applicant had apparently embezzled, and in the light of book-keeping and banking documents in the case-file.  The Court’s attention has also be drawn to the fact that in the decisions concerning the applicant’s detention the prosecutors and the courts repeatedly took note of the applicant’s large-scale banking and business operations which entailed serious losses on the part of the applicant’s partners, banks in particular. This indicates that the courts were correct in surmising that the acts concerned could reasonably be qualified as criminal offences. On the whole, the Court is not persuaded by the applicant’s arguments in this respect. There is nothing in the reasoning of the domestic authorities which could be regarded as arbitrary or unreasonable, or as lacking a factual basis.

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 Polish Criminal Code. It follows that the complaint under Article 5 § 1 is inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

b) As regards the length of detention complaint, the Court notes that the period to be taken into consideration began on 15 October 1993, when the applicant was arrested, and ended on 15 June 1995, when he was released from custody. It therefore lasted one year and eight months.

In this connection, the Court recalls that it falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions on the applications for release. It is essentially on the basis of the reasons given in these decisions and of the true facts mentioned 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 of the Convention (see, inter alia , the Neumeister v. Austria judgment of 27 June 1968, Series A no. 8, p. 37, §§ 4-5).

The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the validity of the continued detention (see the Stögmüller v. Austria judgment of 10 November 1969, Series A no. 9, p. 40, § 4), but, after a certain lapse of time, it no longer suffices; the Court must then establish whether the other grounds cited by the judicial authorities continue to justify the deprivation of liberty. Where such grounds are "relevant" and "sufficient", the Court must also ascertain whether the competent national authorities displayed "special diligence" in the conduct of the proceedings (see the W. v. Switzerland judgment of 26 January 1993, Series A no. 254-A, p. 15, § 30).

As regards “reasonable suspicion”, the Court notes that in the present case, throughout the proceedings, the courts emphasised the danger of absconding in the light of the applicant’s behaviour during prior investigations. The Court refers here to its above conclusion, regarding the applicant’s complaint under Article 5 §1 of the Convention.

It remains to be ascertained whether the conduct of the authorities satisfied the standards of Article 5 of the Convention. In this connection, the Court firstly notes that the proceedings in question pertained to a case of economic offences of great complexity, concerning several companies run by the applicants, numerous banks from which the applicants had taken loans, many pieces of documentary evidence and very considerable sums of money. In the Court’s view, this complexity constitutes an exceptional circumstance which in itself considerably contributed to the length of the applicant’s detention on remand.

Finally, the Court considers that even if certain delays in carrying out the investigations are attributable to the authorities, such as those referred to by the Tarnów Regional Court in its decision of 25 March 1994, they do not seem to be sufficiently important to amount to a violation of Article 5 § 3. Assessing the above elements as a whole and in view, in particular, of the overall length of the applicant’s detention on remand, the Court does not consider that the facts of the case disclose a violation of his right to a trial within a reasonable time or to release pending trial, within the meaning of this provision of the Convention.

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

2. The applicant further complains under Article 4 of Protocol No. 4 to the Convention that he was deprived of his liberty as he was unable to fulfil a contractual obligation.  Under Article 2 § 3 of this Protocol he complains that his detention was motivated solely by the fact that he had changed his address which breaches his right to liberty of movement and his freedom to choose his residence.

The Court first observes that the insofar as it could be understood that these complaints relate to the decision to remand the applicant in custody, this decision was given on 15 October 1993, whereas Poland ratified Protocol No. 4 on 10 October 1994. The Convention, however, has no retrospective effect and the Court may only deal with applications alleging violations of it which took place after that date. This part of the application therefore appears to be incompatible with the provisions of the Convention.

Insofar as the applicant’s complaints could be understood as relating to decisions concerning the applicant’s arrest, taken after 10 October 1994, the Court first refers to its above conclusions concerning the character of charges on which the applicant was detained on remand. The courts, when examining the lawfulness of the applicant’s continued detention on remand, carefully examined whether the evidence gathered in the proceedings gave grounds for believing that he had committed a criminal offence, and on several occasions held that in the light of the evidence gathered against the applicant, this was the case.

The Court’s attention has also been drawn to the fact that in its decision of 16 February 1995, the Tarnów Regional Court noted the applicant’s argument that the difference between taking financial risks when doing business and criminal offences of fraud was sometimes difficult to determine. However, the court continued, in the applicant’s case the evidence gathered against him sufficed for a strong belief that he had committed criminal offences.

The Court further refers to its above consideration that the applicant’s detention 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. In these circumstances, the applicant’s detention cannot be deemed to be at variance with the provisions of Protocol No. 4, as claimed by the applicant.

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

3. The applicant further complains that neither he nor his counsel could attend hearings concerning the prolongation of his detention on remand before the Kraków Court of Appeal, whereas the prosecutor was able to do so.  Thus the equality of the parties was not safeguarded and the proceedings were not adversarial.

He also complains that in the proceedings concerning the review of the lawfulness of his detention, neither he nor his counsel were granted access to the case-file of the investigation, and in particular to the copy of an expert opinion of a certified accountant, which provided relevant evidence in the case.

The Court examined these complaints under Article 5 § 4 of the Convention, which reads:

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

The Court observes that this complaint raises the question of the applicability of Article 5 § 4 of the Convention to the proceedings concerned, and decides to join this question to the merits of the case.

a) As regards the character of the proceedings, the Government admit that the law, as applicable at the material time, provided that appellate proceedings against decisions to prolong detention were to be held in camera . The purpose of such proceedings were to examine the lawfulness of detention, and therefore not all the guarantees of a fair hearing were observed. However, the competent court had to examine both compliance with the procedural requirements set out in domestic law, and the reasonableness of the suspicion grounding the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention.

In the Government’s argument, it was true that the suspect, or later on the accused, and his or her lawyer were not allowed to attend these sessions. On the other hand, the prosecutor’s attendance was not mandatory, but only possible. Moreover, the court had an opportunity to examine the written submissions presented by the detained person in the appeal. Therefore, his arguments were known by the court.

In the present case the prosecutor of the Appellate Prosecutor’s Office was present at three sessions held before the Court of Appeal at which the applicant’s appeals were examined. In all these instances, the prosecutor’s primary task was to represent public interest and, in this capacity, to support the decisions of the first-instance court, deciding to prolong the applicant’s detention. The prosecutors only requested the court to uphold the first-instance decisions and did not put forward any new arguments, militating for the applicant’s continued detention. Therefore, it was only their secondary function to represent the prosecution.

The court had before it the first-instance decision, the applicant’s appeal and, on the other hand, had to take into consideration the prosecutor’s submissions in support of the first-instance decision. It must be concluded, continued the Government, that the proceedings were adversarial.

The applicant submitted that the law, as applicable at that time, did not allow the applicant to be brought before the judge at any time during the proceedings concerning his detention on remand.  The equality of arms in these proceedings was manifestly not respected, as the prosecutors had at their disposal the case-file, including the expert report, formulated their requests to have the applicant’s detention prolonged on this basis, and attended the court sessions in the applicant’s and his lawyer’s absence. In the present case the Prosecutor, on 15 November 1993, refused access to the case-file to the applicant’s lawyer. Later on, on 29 April 1994, he also refused access to the expert opinion, which had been prepared in the meantime. As late as in September 1994, the applicant’s lawyer was refused access to the case-file and was informed that this was because it was at the time in the hands of the Supreme Court. It was only in November 1994 that the counsel could have access to the file.

It was true that the domestic law at that time allowed the prosecutor to refuse access to the case-file until the end of the investigations, but this very regulation ran counter to the requirements of the Convention, in particular those formulated by the Court in its Lamy v. Belgium judgment of 30 March 1989 (Series A no. 151).

b) As regards access to the investigations case-file, the Government contend that the applicant and his lawyer had in principle access to the case-file. They emphasise that a hypothetical legal regulation which would be radically different from the solution adopted in Article 142 § 3 of the Code of Criminal Procedure would not ensure the interests of effective investigations, which often depend on keeping strictly secret certain circumstances of the case until it was established that there was a sufficient basis on which to bring the case before the criminal court. Under Polish law, in particular under Article 277 of the Code, there were no impediments to ensuring full access to the case-file from this moment on.

The Government further argue that initially the prosecuting authorities, by the decision of 29 April 1994, refused the applicant access to the expert report drawn by the certified accountant. However, later on this access was granted.

The Government submit that the applicant’s defence rights were not breached as regards access to the case-file. It is impossible to ensure full equality of arms during the investigations. There was no conflict in the present case between the applicant’s defence rights and the interests of effective investigations. The access to the case-file given to the applicant and to his lawyer was sufficient to safeguard his defence rights.

The applicant submits that the relevant rules of the Polish law of criminal procedure as they stood at the material time allowed the prosecuting authorities to prevent the suspect from taking cognisance of all the evidence until the investigations were completed.  It was true that when the applicant was arrested he was served with the statement of the charges against him. However, this statement was brief and did not refer to evidence. Therefore, in the ensuing proceedings concerning his detention on remand, he had to prepare his arguments only on the basis of that document, as he did not know the case-file. Given the voluminous financial evidence of his companies, relating to complex and extensive charges against him, which was by then gathered in the case-file, the basis on which he could found his submissions, was clearly insufficient for advancing sound defence arguments.  The courts, in their decisions concerning the applicant’s detention, referred to various pieces of evidence which were unknown to him and to his lawyer.

In the light of the parties’ submissions, the Court finds that this part of the application raises complex questions of fact and law, including the question of applicability of Article 5 § 4 of the Convention to the proceedings complained of, the determination of which should depend on an examination of the merits. Therefore, this complaint cannot be rejected as manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits,

( i ) the applicant’s complaint that the proceedings concerning review of the lawfulness of his detention on remand were not adversarial since neither he nor his counsel could attend court hearings concerning the prolongation of his detention on remand, whereas the prosecutor was able to do so;

(ii) the applicant’s complaint that in the proceedings concerning review of the lawfulness of his detention on remand, held until 24 October 1994,  neither he nor his counsel were granted access to the case-file of the investigation,

Declares inadmissible the remainder of the application.

Vincent Berger Georg Ress Registrar President

[Note1] To be checked.