FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38186/97 by Stanisław KACZMAREK against Poland

The European Court of Human Rights ( Fourth Section) , sitting on 17 May 2001 as a Chamber composed of

Mr G. Ress , President , Mr A. Pastor Ridruejo , Mr L. Caflisch , Mr J. Makarczyk , Mr V. Butkevych , Mr J. Hedigan , Mrs S. Botoucharova , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 22 August 1996 and registered on 13 October 1997,

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

Having deliberated, decides as follows:

THE FACTS

The applicant is a Polish national, born in 1946.  He lives in Kalisz , Poland.

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

A. Particular circumstances of the case

On 10 December 1995 the applicant was arrested by the police on suspicion of having committed fraud.  On 11 December 1995 the WrocÅ‚aw Regional Prosecutor ( Prokurator Wojewódzki ) charged him with six counts of fraud, the continuing offence of receiving stolen goods, one count of unlawfully depriving a person of his liberty and the continuing offence of illegally possessing a fire-arm and ammunition.

On 12 December 1995 the applicant was brought before the Wroc ł aw Regional Prosecutor.  The prosecutor heard evidence from him and, on the same day, ordered that he be detained on remand until 9 March 1996.  The detention order was based on Articles 210 and 217 § 1 (2) and (4) of the Criminal Code.  The prosecutor relied, in particular, on a reasonable suspicion that the applicant had committed the offences with which he had been charged and their serious nature, as well as on a high risk that he might induce witnesses to give false testimony or otherwise obstruct the proper conduct of the investigation.

In the meantime, on an unknown date, the Lublin District Prosecutor ( Prokurator Rejonowy ) had instituted criminal proceedings against a certain S.M.  Those proceedings concerned charges of receiving stolen goods and, as it further emerged, closely related to the offence of a similar nature with which the applicant had already been charged on 11 December 1995.  In view of that, on 26 February 1996 the Wrocław Regional Prosecutor made an order whereby the charge of receiving stolen goods was severed from the investigation carried out by him and joined to the case concerning S.M.

On 21 March 1996, in the framework of the proceedings concerning the charges of receiving stolen goods against S.M. and the applicant, the Wroc ł aw Regional Prosecutor charged the applicant with obtaining public property by fraud and ordered that in those proceedings he be detained on remand until 2 June 1996.  The offence in question related to the same goods and the same victims as those concerned in the continuing offence of receiving stolen goods with which he had previously been charged.  The relevant order was based on Articles 210 1 and 217 § 1 (2) and (4) of the Code of Criminal Procedure.  It repeated the grounds already given for the applicant’s detention in the first set of criminal proceedings against him, namely, the reasonable suspicion that he had committed the offence with which he had been charged, the serious nature of that offence and the high risk that he might obstruct the investigation by inducing witnesses to give false testimony.

On an unknown date (apparently in June 1996), the WrocÅ‚aw Regional Prosecutor completed the investigation concerning the charges of fraud, unlawfully depriving a person of his liberty and illegally possessing a fire-arm and ammunition, and lodged a bill of indictment against the applicant with the Wroc Å‚ aw Regional Court ( SÄ…d Wojewódzki ). On 17 June 1996 the Lublin District Prosecutor terminated the investigation against the applicant and S.M. and, a few days later, lodged a bill of indictment with the Lublin Regional Court.

The trial before the Wroc ł aw Regional Court was scheduled for 23 September 1996 but subsequently cancelled and postponed to 16 December 1996.  Yet on that date it did not start and it was adjourned to a later unknown date.  In the light of the applicant’s submissions, it would appear that the trial began on 8 April 1997, all the previous hearings having been cancelled due to his co-defendants’ failure to appear before the court.  Later, two hearings were listed for 4 December 1997 and 2 February 1998 but then eventually cancelled.  A hearing was held on 10 March 1998.  On that day the trial was adjourned to 7 and 8 May 1998.  The next hearing date was set for 8 September 1998 but, for an unspecified reason, the trial was postponed to 10 October 1998.  On the latter date the hearing did not take place and the trial was adjourned to 20 December 1998.

The applicant was held in detention pending trial until 13 July 1998.  From 10 December 1995 to 19 May 1997 he was detained in the proceedings concerning the charges of fraud. From 21 March 1996 to 13 July 1998 his detention continued on the basis of the decisions given in the proceedings relating to the charge of obtaining public property by fraud.  Consequently, from 21 March 1996 to 19 May 1997 he was simultaneously held in custody in both sets of proceedings.

From December 1995 to July 1998 the applicant made numerous, unsuccessful applications for release and appealed, likewise unsuccessfully, against each refusal.  He asked the authorities to release him on health grounds and stressed that his continued detention was putting a severe strain on himself and his family.  He also contested the grounds for his detention, submitting that the charges against him were to a large extent based on evidence heard from his co-defendant, evidence which in his view lacked credibility because the latter had frequently changed his statements.

The relevant courts gave a number of decisions.  For instance, on 15 November 1996, the Wrocław Regional Court (Sąd Wojewódzki ) dismissed the applicant’s request for release in view of the reasonable suspicion that he had committed the offences in question and the risk that he might obstruct the proper conduct of the trial.  On 23 December 1996, on an appeal by the applicant, the Wrocław Court of Appeal (Sąd Apelacyjny ) upheld that decision and the reasons therefor.  On the material before it, the Court of Appeal found that evidence so far obtained justified the suspicion that he had committed the offences with which he had been charged and the risk that he might obstruct the trial.  As to the consequences which the applicant’s detention entailed on his family, the court acknowledged that they might be serious, but considered that they did not go beyond the inevitable distress involved in detention.  It nevertheless observed that his detention had been excessive as it had already lasted over a year and, in that context, pointed out that the Regional Court “should increase to a maximum its efforts and list a hearing as soon as possible”.

On 23 January 1997 the WrocÅ‚aw Regional Court dismissed another request for release made by the applicant.  It made reference to its previous decision, considering that the applicant had not raised any new arguments.

On 4 February 1997 the Lublin Regional Court examined the applicant’s appeal against the detention order of 21 March 1996.  It found that evidence heard from the applicant’s co-defendant and witnesses sufficiently justified a suspicion that he had committed the offence with which he had been charged.  The court also considered that there was a risk that the applicant might induce witnesses to give false testimony or otherwise obstruct the trial.

On 6 May 1997 the applicant was transferred from Wrocław Remand Centre ( Areszt Śledczy ) to Lublin Remand Centre.

On 19 May 1997 the Wroc ł aw Regional Court lifted the applicant’s detention; however, he remained in custody because the detention order given in the second case was still in force.

On 3 June 1997 the Lublin Regional Court dismissed the applicant’s request for release in view of the likelihood of a severe sentence (up to ten years’ imprisonment) being imposed on him and the need to secure the proper conduct of the trial.  The court added that the applicant had not adduced any fresh arguments that would have militated in favour of his release.  On 15 July 1997, relying on similar grounds, the court dismissed the applicant’s further request for release.

On 1 September 1997 the applicant again asked the Lublin Regional Court to release him.  He argued that he had twice been detained in the same case and that his detention had exceeded the statutory time-limit of eighteen months laid down in Article 222 § 3 of the Code of Criminal Procedure.  On 4 November 1997 the court dismissed the application and decided that his detention would continue until 30 March 1998.  The court acknowledged that it would prima facie appear that his detention had exceeded the time-limit referred to in Article 222 § 3.  However, given that from 10 December 1995 to 19 May 1997 he had been detained in another case, in the instant case his detention had not been running.  The applicant appealed against that decision.

On 25 February 1998 the Lublin Court of Appeal dismissed the appeal.  It held that all the grounds for the applicant’s detention remained valid and that he had not adduced any new arguments which would justify lifting detention.  Relying on the Supreme Court’s ( Sąd Najwyższy ) interpretative resolution of 29 January 1998 (see below “Relevant domestic law and practice”), which was passed by the bench of seven judges in connection with the continued detention of the applicant’s co-defendant S.M., the court stressed that, for the purposes of Article 222 § 3 of the Code of Criminal Procedure, in the instant case his detention had not been running as long as until 19 May 1997, i.e. as long as he had been detained in the case concerning the charges of, inter alia , fraud.

On 13 March 1998 the Lublin Regional Court prolonged the applicant’s detention until 19 August 1998.  It considered that all the grounds originally given for his detention were still valid (in particular, there was still a need to secure the proper course of his trial) and that there were no circumstances militating in favour of releasing him.

On 20 April 1998 the applicant again asked the court to release him. He argued that there was no danger of his absconding or obstructing the trial because he had a permanent address, was self-employed at his agricultural property and that, given that evidence heard from him had significantly contributed to the completion of the investigation in his case, he had shown that he would co-operate with the authorities.  He also stressed the fact that his excessively long detention was putting a severe strain on his family because his wife suffered from uterus tumour and his son was ill.  Moreover, his wife’s income was not sufficient to secure the minimum standard of living for the family.

On 28 April 1998 the Lublin Regional Court dismissed his request.  The court reiterated its own decision of 13 March 1998 and that given by the Court of Appeal on 25 March 1998 and held that the applicant had not adduced any new arguments which would justify altering the previous rulings.

Meanwhile, on 21 April 1998, the Lublin Regional Court had made an application to the Lublin Court of Appeal, asking it to transfer the applicant’s case to the Wrocław Regional Court in view of the fact that the majority of the witnesses involved in the case lived either in Wroc ł aw or in surrounding districts.  On 13 May 1998 the Court of Appeal transferred the case to the Wrocław Regional Court.

From June 1996 to November 1998 the applicant sent numerous petitions to various authorities, complaining that his trial before the Lublin Regional Court trial had not even started and asking them to accelerate the proceedings.  From a reply that he received from the Ombudsman ( Rzecznik Praw Obywatelskich ), it would appear that in those proceedings, despite the fact that the case had been transferred to the Wroc ł aw Regional Court, no hearing had been scheduled until at least the end of 1998.

On 13 July 1998 the WrocÅ‚aw Regional Court released the applicant in view of the fact that “the grounds given for his detention no longer existed”.

It appears that both cases are still pending in the Wrocław Regional Court.

B. Relevant domestic law and practice

1. Amendments to criminal legislation

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 ) – 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.

Over the period to which the facts of the present case relate, the Code of Criminal Procedure of 1969 was amended on several occasions.

In so far as the present case is concerned, there were two relevant amendments.  The first was made by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes.  It took effect on 1 January 1996, except the amendments relating to the imposition of detention on remand (in particular, those stating that only a judge was empowered to detain a suspect on remand); the entry into force of the latter amendments being postponed until 4 August 1996 (see below).

The second amendment, effected by the Law of 6 December 1996 on Amendments to the Code of Criminal Procedure, entered into force on 28 December 1996.  On that occasion, paragraph 4 of Article 222 of the Code was reformulated and an additional ground for prolonging detention beyond the statutory time-limits was added (see below).

2. Preventive measures, in particular detention on remand

The Code of Criminal Procedure of 1969 listed as “preventive measures”, inter alia , detention on remand, bail and police supervision.

a) Imposition of detention on remand

Article 210 § 1 stated (in the version applicable until 4 August 1996):

“Preventive measures shall be imposed by the court; before a bill of indictment has been lodged with the court competent to deal with the case, the measures shall be imposed by the prosecutor.”

From 4 August 1996 that provision read, in so far as relevant:

“1. Preventive measures shall be imposed by the court [but] before a bill of indictment has been lodged – by the prosecutor.

…

3. Detention on remand shall be imposed only by the court.”

Article 222 (in the version applicable until 4 August 1996) stated, insofar as relevant:

“1. The prosecutor may order detention on remand for a period not exceeding three months.

2. When, in view of the particular circumstances of the case, the investigation cannot be terminated within the period referred to in § 1, detention on remand may, if necessary, be prolonged by:

(1) the court competent to deal with the case, on the prosecutor’s application, for a period not exceeding one year;

(2) the Supreme Court, on the Prosecutor General’s application, for a further fixed term required to terminate the investigation.”

Article 209 set out general grounds justifying imposition of the preventive measures.  This provision (as it stood at the material time) read:

“Preventive measures [including detention on remand] 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 of the Code defined grounds for detention on remand.  The relevant part of this provision, in the version applicable until 1 January 1996, read:

“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 subparagraphs (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 stipulated:

“If an accused has been charged with a serious offence or 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 course 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 referred to above.

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.”

b) Statutory time-limits for detention on remand

Until 4 August 1996, i.e. the date on which the relevant provisions of the Law of 29 June 1995 (see also “Amendments to criminal legislation” above) entered into force, there were no time-limits for detention on remand in the court proceedings.  From that date on, Article 222 of the Code of Criminal Procedure laid down such time-limits.  It read, in so far as relevant:

”3. The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed one year and six months in cases concerning offences.  In cases concerning serious offences [offences for the commission of which a person is liable to a sentence of a statutory minimum of at least three years’ imprisonment] this period may not exceed two years.

4. In particularly justified cases the Supreme Court may, on the application made by the court competent to deal with the case, … prolong detention on remand for a further fixed period exceeding the time-limits set out in paragraphs 2 and 3, when it is necessary in connection with a suspension of the proceedings, a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in paragraph 3.”

On 28 December 1996, by virtue of the Law of 6 December 1996 (see also “Amendments to criminal legislation” above), paragraph 4 of Article 222 was amended and the grounds for prolonging detention beyond the statutory time-limits included also:

“ … other significant obstacles, which could not be overcome by the authorities conducting the proceedings…”

c) The Supreme Court’s interpretative resolution concerning Article 222

Pursuant to Article 390 of the Code of Criminal Procedure of 1969, if in appellate proceedings (also those concerning an appeal against a detention order) a legal issue emerged that would require a fundamental interpretation of a statute, a regional court or court of appeal could refer that issue to the Supreme Court.  Ruling on the matter, the Supreme Court could sit as a panel of three judges or, if it considered that a case was complex, refer it to a bench of seven judges.  The interpretation made by the Supreme Court was binding in a given case.  It was, however; usually used in court practice as a guiding rule.

On 29 January 1998 the Supreme Court, sitting as a bench composed of seven judges, dealt with the question of what was the meaning of the term “whole period of detention” for the purposes of Article 222 of the Code of Criminal Procedure and, more particularly, whether a period spent by an accused in pre-trial detention in one set of proceedings should be taken into account in determining the “whole period of detention” in another set of proceedings in which his detention started later and was pending concurrently.  That question was put to the Supreme Court by the Lublin Court of Appeal and concerned the situation of the applicant’s co-defendant S.M., who – likewise the applicant – in his appeal against a decision prolonging his detention had raised the issue of his having simultaneously been remanded in custody in two proceedings – which resulted in the total period of his pre-trial detention having exceeded the relevant statutory maximum (see also above “Particular circumstances of the case”).

The Supreme Court replied to the above question in the following way:

“The term “whole period of detention on remand” referred to in Article 222 §§ 2 and 3 of the Code of Criminal Procedure means only the period of factual deprivation of liberty on the basis of a detention order issued in a given case.  It thus follows that if, in respect of a given person, detention orders have been issued in two or more sets of proceedings, the time for which he has been detained in one set of proceedings shall not be added to his “whole period of detention” within the meaning of Article 222 §§ 2 and 3 in another set of proceedings.”

COMPLAINTS

1. The applicant complains under Article 5 § 1 of the Convention that his detention on remand extended beyond the statutory time-limit of 18 months set out in Article 222 § 3 of the Code of Criminal Procedure of 1969 and was consequently unlawful.  He submits that from 10 June 1996, by which time he had been detained for 18 months, his detention could have been prolonged only by the Supreme Court and only in the strictly-defined circumstances listed in paragraph 4 of Article 222.  Since no such a ruling was given in his case, his detention lacked a legal basis in the form of a decision issued by the appropriate authority and was no longer “lawful” within the meaning of Article 5 § 1.

2. Under Article 5 § 3 of the Convention the applicant complains that:

a) after being arrested he was not promptly brought before a “judge or other officer authorised by law to exercise judicial power”; and

b) his detention on remand exceeded a “reasonable time” within the meaning of this provision.

3. Lastly, the applicant complains that both sets of criminal proceedings against him have been inordinately excessive, in breach of Article 6 § 1 of the Convention.

THE LAW

1. The applicant complains under Article 5 § 3 of the Convention that, after being arrested, he was not brought promptly before a judge, as required under that provision, and that his pre-trial detention was excessive.  Invoking Article 6 § 1 of the Convention, he further submits that in both sets of criminal proceedings against him his right to a “hearing within a reasonable time” has not been respected.

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

2. The applicant also complains under Article 5 § 1 of the Convention that his detention on remand extended beyond the statutory time-limit fixed by Polish law and that it was no longer “lawful” within the meaning of that Article because it lacked a legal basis in the form of a decision issued by the appropriate authority, namely, the Supreme Court.

Article 5 § 1, in its relevant part, provides:

“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;”

The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof.  However, “lawfulness” of detention under domestic law is the primary but not always a decisive element.  Domestic law must itself be in conformity with the Convention, including the general principles expressed or implied therein.  That emerges from the concept underlying the terms “lawful” and “in accordance with a procedure prescribed by law” – which is one of fair and proper procedure, namely that any measure depriving a person of his liberty should issue from and be executed by an appropriate authority and should not be arbitrary (see, among other authorities, Baranowski v. Poland no. 28358/95, §§ 50-57, ECHR 2000-III; and the Winterwerp v. the Netherlands judgment of 24 October 1979, Series A no. 33, pp. 19-20,§§ 45 et seq.).

The Court has also stressed that where deprivation of liberty is concerned it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application (see the Baranowski v. Poland judgment cited above, ibid.).

Turning to the circumstances of the present case, the Court observes that the applicant in effect relies on two arguments: first, that his detention continued beyond the term fixed by law and, second, that the Polish courts, when prolonging his detention after 10 June 1997, did not follow the procedure prescribed by law because, in his view, the only authority which had the power to extend his detention was the Supreme Court.

Yet in that context the Court cannot but notice that the decisions prolonging the applicant’s detention after 10 June 1997 were based on Article 222 §§ 3 and 4 of the Code of Criminal Procedure and, more particularly, on the interpretation of that provision made by the trial court and the Court of Appeal, an interpretation which was subsequently fully upheld by the Supreme Court in its resolution of 29 January 1998.

It is true that even though it is normally in the first place for the national authorities, notably the courts, to interpret and apply domestic law, under Article 5 § 1 the Court has a certain power to review whether national law has been observed (cf. the Baranowski v. Poland judgment cited above ibid.).

However, the scope of the Court’s scrutiny is, by the nature of things and the logic of the Convention, limited.  It is not for that Court to determine, let alone to dictate, how provisions of national law should be construed or whether or not a domestic court correctly interpreted a statute.  Its principal task is to ascertain – in the light of the aforementioned principles deriving from its case-law – whether the consequences of the impugned domestic decisions were compatible with Article 5.

In the present case, the Court is satisfied that the procedure for the prolongation of the applicant’s detention after 10 June 1997 complied with the requirements of “fair and proper procedure” for the purposes of Article 5 § 1.  Furthermore, the Court does not see any appearance of arbitrariness on the part of the relevant judicial authorities in the process of making decisions on the applicant’s continued detention.  Nor can the Court ascertain any element that would suggest that the legal basis for his detention was not clearly defined and, therefore, lacked the necessary foreseeability required under the Convention, the more so as the terms of Article 222 § 3 of the Code of Criminal Procedure were clarified in the Supreme Court’s interpretative resolution.  That resolution also answered the second issue raised by the applicant, namely, the question as to which national authority had jurisdiction to prolong his detention after 10 June 1997.

Against that background, the Court considers that the applicant’s detention was “lawful” within the meaning of Article 5 § 1 of the Convention.

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 paragraph 4 of that Article.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant’s complaints that, after being arrested, he was not brought promptly before a judge, that the length of his detention exceeded a reasonable time and that his right to have a “hearing within a reasonable time” has not been respected;

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger Georg Ress Registrar President