THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35489/97 by Marek SAŁAPA against Poland

The European Court of Human Rights ( Third Section) , sitting on 3 April 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr L. Loucaides ,

Mr J. Makarczyk , Mr P. Kūris , Mrs F. Tulkens , Mr K. Jungwiert , Sir Nicolas Bratza , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 23 July 1996 and registered on 1 April 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 1955. He is currently serving a prison sentence in GrudziÄ…dz prison.

1. The criminal proceedings against the applicant

On 26 February 1996 the Regional Prosecutor remanded the applicant in custody. Allegedly, the applicant’s appeal against this decision was mislaid by the administration of Strzelin prison. On 25 March 1996 and on an unknown later date the applicant’s requests for release were refused by the Regional Prosecutor.

On 2 and 22 April 1996 the applicant’s appeals against these decisions were dismissed by the Appellate Prosecutor.

On 16 May 1996 the Jelenia Góra Regional Court prolonged the applicant’s detention until 31 August 1996. This decision was later upheld on appeal by the Wrocław Court of Appeal on 5 June 1996. On 24 June 1996 the applicant’s request for release was refused by the Regional Prosecutor. On 26 August 1996 the Wrocław Court of Appeal prolonged the applicant’s detention until 30 September 1996. On 30 September 1996 the same court prolonged the detention until 30 December 1996, and on 19 December 1996, until 24 February 1996. On 10 February 1997 the Supreme Court upheld the latter decision, considering inter alia that applicable domestic law did not require that the evidence in support of his detention was such as to allow a conviction. It was sufficient that there were strong indications that the applicant committed the offence in question, as was to be found in the testimony of the co-accused.

On 25 March and 7 April 1997 the Regional Prosecutor refused the applicant’s further requests for release. On 2 and 22 April 1997 the Appellate Prosecutor upheld these decisions, relying, inter alia , on the findings of the investigations that the applicant had had a leading role in the organisation of a drug trafficking network, and to the fact that the evidence included a forged passport of the applicant. This revealed a risk of absconding if the applicant were to be released.

On 24 April 1997 the bill of indictment was submitted by the prosecuting authorities to the Jelenia Góra Regional Court.

The first hearing in the case was scheduled for 17 November 1997, but was adjourned for unknown reasons. Further hearings, to be held on 17 November 1997, 15 and 22 December 1997, and 5, 19 and 26 January 1998 were likewise adjourned.

A hearing was held on 9 March 1998. On the same day the applicant requested that the proceedings be stayed until one of the accused, a certain D.M. , be arrested.  He also requested his release, that his detention on remand be replaced by a more lenient preventive measure, that the case be remitted to the prosecution to complete the investigations, and that the judges sitting in his case step down. These motions were refused at the hearing held on the same day. The applicant also complained that he did not have sufficient access to the case-file.

On 20 March 1998 the applicant again requested that the proceedings be stayed. On 23 March 1998 he requested access to the case-file and submitted six other procedural motions. The next hearing was held on 30 March 1998 at which the applicant lodged five new procedural motions.

Early in April 1998 the applicant renewed a request that the case be conducted by another prosecutor. His request was refused. On 6 April 1998 the applicant complained that his access to the case-file was insufficient for him to prepare his defence adequately. On 7 April 1998 the Wrocław Court of Appeal upheld the refusal of 30 March 1998 to stay the proceedings.

On 16 April 1998 the Regional Prosecutor refused the applicant’s request to have another prosecutor assigned to the case.

On 11 May 1998 the applicant complained to the Regional Court about a lack of adequate access to the case-file and requested that the minutes of the hearings be served on him.

On 21 to 22 and 27 to 29 May 1998 the applicant had access to the case-file in the detention centre.

On 1 June 1998 a hearing was held. The applicant requested that the proceedings be stayed, that criminal proceedings against a certain D.M. be joined to his and that he be released. He complained that his procedural rights were not observed by the court, in particular that he did not have adequate access to the voluminous case-file or sufficient time assigned for his meetings with his counsel. His requests and complaints were rejected. On 17 July 1998 the Court of Appeal upheld the refusal to stay the proceedings of 1 June 1998.

On 30 July 1998 the Supreme Court prolonged the applicant’s detention until 31 December 1998.

On 30 November and 14 December 1998 the applicant unsuccessfully requested his release and that the preventive measure be replaced by a more lenient one.

On 6 January 1999 the Supreme Court prolonged the applicant’s detention until 30 April 1999.

On 8 February 1999 the applicant renewed his request to have access to the case-file, alleging that his access so far had been inadequate to prepare an appropriate defence. He stated that the case-file comprised 20 volumes, and that he never obtained all of them, as on each occasion the last ones were missing.

On 14 April 1999 the Jelenia Góra Regional Court decided to request the Supreme Court to prolong the applicant’s detention until 15 June 1999, having noted that in principle the proceedings were terminated but one witness, called on 22 March 1999, had to be questioned by the court. On 29 April 1999 the Supreme Court prolonged the applicant’s detention until 15 June 1999.

On 31 May 1999 the Regional Court gave a judgment on the merits of the case. The applicant was convicted of drug trafficking and sentenced to ten years’ imprisonment and a fine of 250,000 PLN.  The applicant appealed, complaining inter alia that his defence rights had been breached in that he had not had adequate access to the case-file in its entirety.

On 16 February 2000 the Wrocław Court of Appeal in part amended and in part upheld the judgment. The applicant then lodged a cassation appeal, complaining that the appellate court had failed to rectify errors of law committed by the first-instance court. The first-instance court had in particular failed to address correctly the complaints relating to certain refusals to take evidence and to the fact that certain evidence was not taken in an adversarial manner as the court had only decided to admit it to the case-file. The applicant had thus been deprived of the possibility of questioning certain witnesses.

2. The applicant’s correspondence with the organs of the European Convention of Human Rights

The letters from the applicant to the Secretariat of the European Commission of Human Rights, dated 29 April 1997, 13 May 1997, 14 May 1997 (2 letters) and 17 June 1997, were intercepted by prison guards, who opened and apparently forwarded them to the prosecuting authorities, who in turn later read and forwarded them to the addressee. This is shown by the stamps of the Wrocław Detention Centre on the envelopes, together with the stamp “censored” (“ ocenzurowano ”).

COMPLAINTS

1. The applicant complains that his detention on remand amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention.

2. The applicant also complains under Article 5 § 3 of the Convention that his detention on remand was too long and therefore had a punitive character. He further invokes Articles 6 § 2 and 7 of the Convention in this respect.

3. The applicant complains under Article 5 § 3 of the Convention that he was deprived of liberty by a decision of the public prosecutor who was not a “judge or other officer authorised by law to exercise judicial power”.

4. The applicant next complains, relying on Articles 5 § 4 and 6 § 3 (c) of the Convention, that the proceedings concerning the review of his detention on remand were not adversarial, as required by this provision, because he was never brought before the competent judge, whereas the prosecutor could at any time attend the court sessions. Therefore he was not aware of the prosecutor’s submissions relating to his continued detention.

5. Moreover, the applicant complains that the criminal proceedings in his case exceeded a reasonable time.

6. Finally, the applicant complains under Article 6 § 3 c) of the Convention that his defence rights were breached in that he did not have adequate access to the case-file throughout the proceedings.

THE LAW

1. The applicant complains that his detention on remand amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention.

Article 3 of the Convention in its relevant part reads:

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

The Court recalls that, according to the Convention organs’ case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum is, in the nature of things, relative. It depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects, and, in some cases, the sex, age and state of health of the victim (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, § 162).

The Court notes that the applicant was remanded in custody in various detention centres. However, he has failed to submit any details which might indicate that the conditions of detention were particularly difficult or that they caused him any hardship other than that inherent to detention. In conclusion, the Court considers that the circumstances under which the applicant was detained do not disclose any appearance of a breach of Article 3 of the Convention. It follows that this complaint must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

2. The applicant also complains under Article 6 § 3 c) of the Convention that his defence rights were breached in that he did not have adequate access to the case-file throughout the proceedings.

Under Article 35 § 1 of the Convention, the Court “may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law”.

The Court notes that the applicant has not shown that he raised the complaints he now submits to the Court in the domestic procedure in the form provided for by domestic law at the appropriate stage of the criminal proceedings against him. It is true that he raised this complaint in his appeal against the first-instance judgment. However, he could have put it again in his cassation appeal to the Supreme Court, but he failed to do so. In any event, the applicant has not shown that a final judgment has been given by that court in the cassation proceedings, following his appeal against the second-instance judgment of 16 February 2000. As the relevant proceedings are pending, this complaint is therefore premature.

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

3. The Court refers to the applicant’s  remaining complaints about the prosecutors’ role in ordering his detention on remand (Article 5 § 3 of the Convention), the length of that detention (which the Court will examine under Article 5 § 3 of the Convention alone), the length of the proceedings as a whole (Article 6 § 1 of the Convention), and the adequacy of the review of the lawfulness of his detention on remand (which the Court will consider under Article 5 § 4 of the Convention alone). However, it considers that it cannot, on the basis of the present state of the case-file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

4. Finally, the Court notes that the applicant’s correspondence to the Convention organs was censored by the prison authorities. It considers that this raises an issue under Article 8 of the Convention which should also be notified to the respondent Government, in accordance with Rule 54 § 3 (b) of the Rules of Court.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints about the prosecutors’ role in ordering his detention on remand, the length of that detention and the length of the proceedings as a whole, and the adequacy of the review of the lawfulness of his detention on remand, as well as the fact of the screening of the applicant’s correspondence to the Convention organs;

Declares inadmissible the remainder of the application.

S. Dollé J.-P. Costa Registrar President