FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36246/97 by Edmund RUSIECKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 15 March 2001 as a Chamber composed of

Mr G. Ress , President , Mr A. Pastor Ridruejo , Mr L. Caflisch , Mr J. Makarczyk ,

Mr V. Butkevych ,

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 1 September 1994 and registered on 26 May 1997,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Polish national, born in 1946 and living in Łódź .

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

On 29 April 1994 the applicant was arrested on charges of three counts of assault and fraud under a detention order of the Łódź District Prosecutor. The prosecuting authorities referred to three concrete occurrences on precise dates and relied on evidence gathered in the course of investigations, which sufficiently supported the suspicion against the applicant. On 13 May 1994 the Łódź Regional Court dismissed the applicant’s appeal against the detention order, having regard to the evidence in the case-file and to the serious character of the charges.

Later on, as new charges against the applicant and other co-suspects emerged, the case was taken over by the Regional Prosecutor.

On 26 September 1994 the applicant was admitted to a psychiatric ward of the prison hospital in Łódź prison for observation in order to establish whether he could be held criminally responsible.

On 10 November 1994 the Łódź Regional Court prolonged the applicant’s detention for three months.

On 24 January 1994 the Łódź Regional Prosecutor refused to release the applicant.  On 3 February 1995 the applicant’s appeal was dismissed.

On an unspecified later date the applicant was released.

On 15 January 1996 the Łódź Regional Prosecutor ordered that the identity of ten witnesses, questioned during the on-going investigations against the applicant and other accused, and subsequently referred to as witnesses incognito from 1 to 10, was to be kept secret. Moreover, various documents contained in the investigation’s case-file, containing testimony of these witnesses, were to be removed from the case-file and further stored in the manner set out in the provisions concerning official secrecy. Copies of these documents were to be made in such a manner as to make it impossible to make out identity of these witnesses and to be included in the case-file. The prosecutor considered that the investigations were conducted concerning activities of an organised group of a criminal character, relating to, inter alia , charges of murder and other violent crimes, involving the use of firearms. The nature of the offences and the reckless character of the acts the suspects had been charged with justified the opinion that there was a genuine threat to life and limb of all direct witnesses.

On 16 January 1996 the applicant was re-arrested.

On 18 January 1996 the Łódź Regional Prosecutor imposed detention on remand on him and three other suspects on charges of acting in an organised criminal group and several counts of aggravated assault. The prosecutor considered that the evidence gathered in the investigations so far had rendered the charges against the applicant plausible, and that other members of the group had not been arrested yet. There was therefore a serious risk of collusion.

On 22 January 1996 the prosecutor presented charges against the applicant in writing. This one-page document referred to investigations concerning the attempted manslaughter of L.T. on 4 December 1995.  Evidence gathered in these investigations had given rise to a suspicion that this attempt had been made by an organised group of a criminal character, practising assaults and racket. Evidence given by witnesses nos. 2 and 3, who were to remain anonymous under the decisions of 15 January 1996 pursuant to Article 164 (a) of the Code of Criminal Procedure, unequivocally showed that this group included, inter alia , the applicant.  Thus, he had been presented with charges of 276 § 1 of the Criminal Code.

On 23 January 1996 the Łódź regional prosecutor refused the applicant’s lawyer and the applicant access to the case-file of the investigations, considering that this would jeopardise the purpose of the investigations.

On 2 February 1996 the Łódź Regional Court upheld the detention order of 18 January 1996. The court noted that the evidence gathered so far sufficiently supported charges against the applicant in that it indicated that he had been a member of an organised criminal group, committing aggravated assaults with use of firearms. The testimony of incognito witness No. 2, in particular in the light of the testimony of the other incognito witnesses, and regard being had to other evidence, i.e. the testimony of other witnesses, documents and results of the inspection of a car, rendered the charges against the applicant plausible. The character of these charges, involving violent crimes, were arguments for imposing and maintaining detention, the more so as other members of the group still remained at liberty. Release of the applicant would endanger the purpose of the on-going investigations.

On the same day the Łódź Regional Court examined the applicant’s appeals against the decisions of the prosecutor of 15 January 1996, concerning anonymous witnesses, and upheld these decisions. The court considered that the decisions were well-founded. The evidence gathered allowed for a conclusion that the witnesses in the case were under a genuine threat to life, limb or property, given the violent character of the acts with which the applicant and other accused were charged. The court had also regard to the fact that certain members of the group remained at liberty. It was their anonymity which gave the witnesses a guarantee of safety. It was up to the court competent to deal with the merits of the case to see to it that the procedural rights of the accused be safeguarded. The fact that the witnesses were to remain anonymous did not as such amount to a breach of these rights. In any event, these rights would later be implemented by the possibility of putting questions to the witnesses through the intermediary of the court competent to examine the case on its merits.

On 2 March 1996 the Łódź Regional Prosecutor refused the applicant’s application for release.

On 12 April 1996 the Łódź Regional Court prolonged the applicant’s detention until 28 June 1996, having regard in particular to evidence given by witnesses incognito Nos. 1 to 8. It observed that new developments were to be expected regarding new offences, including a crime of manslaughter which appeared to have been committed. Moreover, new witnesses were to be questioned and further expert evidence had to be gathered, following 16 expert reports, which had been prepared so far.

On an unspecified later date in June the applicant’s detention was further prolonged.

Subsequently, on 24 September 1996 and on 26 November 1996 the Łódź Court of Appeal prolonged the applicant’s detention on remand until 29 December 1996 and 17 January 1996, respectively. In the latter decision the court observed that the investigations were approaching an end and the prosecuting authorities had begun to acquaint the suspects with the investigation file. However, it seemed that the suspects, while availing themselves of their procedural rights in this respect, were at the same time trying to prolong the proceedings by delaying tactics. Thus, it was also necessary to prolong their detention.

On 20 December 1996 the bill of indictment was lodged with the Łódź Regional Court.

On 17 January 1997 the Supreme Court refused to entertain the applicant’s appeal against the decision of 26 November 1996, considering that in any event the time-limits for detention on remand as specified in Article 222 of the Code of Criminal Procedure had ceased to apply after the bill of indictment had been lodged with the court.

On an unspecified later date the applicant was convicted of unspecified crimes and sentenced to imprisonment.

COMPLAINTS

In his letter of 1 September 1994 the applicant complained that his detention on remand in 1994 was unjustified, arbitrary and based on insufficient evidence, and thus in breach of Article 5 of the Convention.

In his later letter of 5 February 1997 and in the application form of 26 March 1997 he submitted the same complaints in relation to his detention on remand imposed by the order of 18 January 1996.

In a letter dated 23 August 2000 the applicant complained under Article 5 § 3 of the Convention that he was deprived of his liberty by a decision of the prosecutor and not of a judge or other officer authorised by law to exercise judicial power as required by this provision. The prosecutor, under Polish law as it stood at that time, was also investigating the case and was later to represent prosecution in the judicial proceedings.

In the application form of 26 March 1997 the applicant complained that his defence rights in the proceedings concerning his detention were breached in that the prosecuting authorities had decided that evidence given by ten persons remain inaccessible to the suspects, and that he and his lawyer were denied access to the case-file.

The applicant also complains that his detention lasted too long.

In the application form of 26 March 1997 the applicant further complained that the investigations in the case concerning assault charges were in breach of Article 6 of the Convention in that he was deprived of a possibility to put forward his arguments in support of his innocence, as he was refused confrontation with the alleged victims, because the prosecutor lacked impartiality. He argues that the roles that the prosecuting authorities and courts should play in the investigations were distorted as the courts dealing with his detention on remand upheld the arguments put forward by the prosecuting authorities.

THE LAW

1. In his letter of 1 September 1994 the applicant complained that his detention on remand in 1994 was unjustified and based on insufficient evidence, and thus in breach of Article 5 of the Convention.

Article 5, 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;”

The Court recalls 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 § 3(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 § 3(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. The Court 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. As regards the alleged lack of reasonable suspicion, the Court notes that in fact the detention order of 29 April 1994 referred to evidence gathered in the course of the investigation. This order was later reviewed by the court competent to deal with the appeal against the prosecutor’s decision. 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.

2. In his letter of 5 February 1997 and in the application form of 26 March 1997, the applicant complained that his detention on remand imposed by the decision of 18 January 1996 was unjustified and arbitrary. In a letter dated 23 August 2000 the applicant complained under Article 5 § 3 of the Convention that he was deprived of his liberty by a decision of the prosecutor and not of a judge or other officer authorised by law to exercise judicial power as required by this provision. In the application form of 26 March 1997 the applicant complained that the proceedings concerning his detention were not adversarial as required by Article 5 § 4 of the Convention.

Under Article 35 § 1 of the Convention the Court may only deal with the matter within a period of six months from the date on which the final decision was taken.

The Court notes that insofar as the applicant complains about his detention on remand, imposed by the order of 18 January 1996 which was later upheld on 2 February 1996, that he submitted this complaint on 5 February 1997. Likewise, the complaint that the applicant was remanded in custody by a prosecutor was submitted on 23 August 2000, whereas he was arrested for the first time on 29 April 1994, and for the second time on 18 January 1996.

In the application form of 26 March 1997 the applicant complains that the proceedings concerning his detention were not adversarial as required by Article 5 § 4 of the Convention.

The Court considers that it cannot, on the basis of the case-file, determine the admissibility of this complaint 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.

3. In the application form of 26 March 1997 the applicant further complains that the investigations in the case were in breach of Article 6 of the Convention in that he was deprived of a possibility to put forward his arguments in support of his innocence, as he was refused confrontation with the alleged victims and as the prosecutor lacked impartiality.

Under Article 35 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 first notes that the applicant has not shown that he raised the complaints he now submits to the Court in the domestic procedure in a form provided for by domestic law at the appropriate stage of the criminal proceedings against him. The applicant has not shown, therefore, that he exhausted relevant domestic remedies and this part of the application must be declared inadmissible pursuant to Article 35  § 4 of the Convention.

4. The applicant finally complains that his detention on remand lasted too long.

The Court considers that it cannot, on the basis of the case-file, determine the admissibility of this complaint 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.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints about [Note1] the length of detention and that the proceedings concerning review of the lawfulness of his detention on remand were not adversarial;

Declares inadmissible the remainder of the application.

Vincent Berger Georg Ress                           Registrar                                                                                  President

[Note1] Summarise the complaints without necessarily citing the invoked Convention Articles.