FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34091/96 by M. B. against Poland

The European Court of Human Rights ( Fourth Section) , sitting on 8 March 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 19 July 1995 and registered on 10 December 1996,

Having deliberated, decides as follows:

THE FACTS

The applicant was a Polish national, born in 1967. He is represented before the Court by his father, Mr H. BanaÅ› .

A. The circumstances of the case

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

On 30 March 1995 the Białystok Regional Prosecutor imposed detention on remand on the applicant on suspicion of fraud committed in that he had obtained a loan of USD 380,000 at a State-owned bank, which had not been paid. It was further considered that the evidence rendered the charge against the applicant credible, whereas his attitude and the circumstances of the case indicated that he would jeopardise criminal proceedings. Moreover, the charges against him were of a serious character.

The applicant requested that detailed written grounds of this order be prepared.

He also lodged an appeal against the detention order, arguing that, first, his absence at the company where he was employed could lead to the company going bankrupt, and that his bad health was incompatible with this detention.

On 11 April 1995 the Białystok Regional Prosecutor stated that the charges against the applicant were rendered credible by evidence gathered in the case, and in particular by documents relating to the circumstances in which the applicant took the loan, the manner in which the monies were transferred, apparently to the applicant’s bank account, and to the links between the suspects. Moreover, testimony given by one of the accused J.K. further corroborated the charges against the applicant.

On 10 April 1995 the Warsaw Regional Court refused to grant the  appeal lodged against the detention order by the applicant. On 28 April 1995 the Warsaw Regional Court refused to allow the applicant’s appeal against a decision of 11 April 1995, indicating that the case was complex, that there were many suspects, and that the offences were of a very serious character.

On 28 April 1995 the Białystok Regional Prosecutor refused to release the applicant on the ground that the reasons for which detention had been ordered had not ceased to exist, and that no information was available in respect of the applicant’s allegedly bad health.

On 18 May 1995 the Białystok Appellate Prosecutor upheld the decision of 28 April 1995. It considered that the medical certificate confirmed that the applicant was suffering of Marfan syndrome, but he was under medical supervision of a prison doctor.  The grounds on which the applicant had been arrested still obtained, and the offence concerned had been of a serious character. The character of the offence and the method of its commission, as well as evidence gathered so far in the proceedings, militated for the applicant’s maintained detention. There were also grounds for believing that if released, the applicant would jeopardise the proper course of the proceedings.

On an unspecified later date the applicant was presented with charges against him. On 13 June 1995 these charges were supplemented by two further charges of fraud, committed in that he had obtained two bank loans on false pretences, as shown inter alia by various Polish and foreign documents, the testimony of witnesses and results of other measures, such as searches. 

On 26 June 1995 the Warsaw Regional Court prolonged the applicant’s detention for three months, until 29 September 1995. The court considered in particular that it was necessary that further evidence be taken, in particular an expert opinion in book-keeping and an opinion of a graphologist .

On 13 July 1995 the applicant requested to be released. On 17 July 1995 his request was refused by the Białystok Regional Prosecutor.

On 18 July 1995 the applicant requested release in order to undergo specialised ophtalmological examination, submitting that he suffered of Marfan syndrome which seriously affected his eyesight, and that his eyesight had seriously deteriorated as a result of his detention.

On 27 July 1995 the Warsaw Court of Appeal dismissed the applicant’s appeal against a decision of the Warsaw Regional Court of 26 June 1995, prolonging his detention for further three months.

On 11 August 1995 the Białystok Appellate Prosecutor upheld the decision of 17 July 1995, considering that the evidence against the applicant had rendered charges against him credible. The grounds on which the detention had been ordered had not ceased to exist. There were, moreover, grounds for believing that there was a risk of pressure to be brought on witnesses, and the charges against him were serious enough to justify his further detention. There were no indications that the grounds for release, provided for in Article 218 of the Code of Criminal Procedure, obtained in the case.

On 12 September 1995 the applicant’s further request for release was refused by the Białystok Regional Prosecutor. An identical decision was given on 15 September 1995, the prosecuting authorities considering that the evidence gathered so far in the proceedings supported the charges against the applicant, and that there were genuine grounds for believing that, if released, he would pressurise witnesses into giving false evidence.

On 18 September 1995 the applicant’s detention was prolonged until 29 November 1995, the Warsaw Regional Court considering that further measures had to be taken in order to complete the investigations.

On 21 November 1995 the Białystok Regional Prosecutor again refused to release the applicant. On the same date the applicant requested the Białystok Appellate Prosecutor to set this decision aside. He argued that the investigations had been practically closed, all relevant evidence had been gathered and there was no risk either of absconding as the applicant had a permanent address in Warsaw, or of attempts of exerting pressure on witnesses.

On 23 November 1995 the Warsaw Court of Appeal prolonged the applicant’s detention until 29 November 1995.

On 26 November 1995 the Warsaw Court of Appeal upheld the decision of the Warsaw Regional Court of 26 October 1995 to prolong the applicant’s detention.

On 14 December 1995 the Warsaw Court of Appeal dismissed the applicant’s appeal against the decision of 23 November 1995.

On 21 December 1995 the Białystok Regional Court closed the investigations, considering that the case-file contained material sufficient for an indictment to be lodged with a court.

On the same date the Białystok Appellate Prosecutor refused to allow the applicant’s appeal of 21 November 1995, considering that whereas it was true that the investigations had been completed, his detention was designed not only to ensure the proper course of investigations, but also of the judicial proceedings. It was for the prosecutor to decide whether the grounds for detention provided for by law obtained in the case. In the applicant’s case it was the seriousness of the offence concerned which militated for maintaining him in custody.

On 19 January 1996 the applicant requested access to the case-file, submitting that he had not been shown items Nos. 85, 86 and 87.

On 25 January 1996 the Warsaw Regional Court dismissed the applicant’s request to have his detention replaced by other preventive measure, considering that the evidence supported the charges against him, whereas there were no grounds for believing that the applicant’s continued detention entailed an undue hardship for him within the meaning of Article 218 of the Code of Criminal Procedure. The sum of bail proposed by the applicant was too small to ensure a proper course of the proceedings.

This decision was upheld by the Warsaw Court of Appeal on 13 February 1996, which considered that the applicant’s appeal failed to advance any arguments capable of casting doubt on the soundness of the decision under appeal.

On 7 March 1996 the applicant was released after sum for bail had been paid.

On 26 July 1998 the applicant died of Marfan syndrome. On 20 August 1998 the Warsaw Regional Court discontinued the criminal proceedings against him.

B. Relevant domestic law

1. Preventive measures in criminal proceedings

At the relevant time, the authorities competent to decide on detention on remand were provided for in Articles 210 and 212 of the Code of Criminal Procedure of 1969, which read as follows:

Article 210

"1. Preventive measures [i.e. detention on remand, bail and police supervision] shall be imposed by the court; before a bill of indictment is lodged with the court, they shall be ordered by the prosecutor (...)."

Article 212

"1. A decision concerning preventive measures may be appealed [to a higher court] ....

2. A prosecutor’s order on detention on remand may be appealed to the court competent to deal with the merits of the case...."

These provisions were amended on 29 June 1995 by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes, which entered into force on 4 August 1996. Pursuant to this amendment, detention on remand could be imposed only by a court order.

A new Code of Criminal Procedure was enacted by the Sejm (Parliament) on 6 June 1997. Its Article 250, in its relevant part, reads:

“1. Detention on remand shall be imposed by a court order.

2. In the investigative stage of proceedings, detention on remand shall be imposed, on a prosecutor’s request, by a district court in the jurisdiction of which investigations are being conducted. After a bill of indictment is lodged with a court, a decision to impose detention on remand shall be given by a court competent to deal with the merits of the case.

3. The prosecutor, when submitting to a court a request referred to in § 2, shall at the same time order that the suspect be brought before a court."

At the relevant time the presence of the parties at court sessions other than hearings was regulated in Articles 87 and 88 of the Code of Criminal Procedure of 1969, 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."

Pursuant to Article 249 of the new Code of Criminal Procedure, before deciding on the application of the preventive measures, the court shall hear the person charged with offence. The lawyer of the detainee should be allowed to attend in the court session, if he or she is present. It is not mandatory to inform the lawyer of the date and time of the court session, unless the suspect so requests and if it will not hinder the proceedings.

The court shall inform the lawyer of a detained person of the date and time of court sessions at which a decision is to be taken concerning prolongation of detention on remand, or an appeal against a decision to impose or to prolong detention on remand is to be considered.

2. Position of prosecutors under Polish law

At the material time the relations between the organs of the Polish State were set out in interim legislation, i.e. the Constitutional Act of 17 October 1992 ( Mała Konstytucja ). Article 1 of the Act laid down the principle of the separation of powers in the following terms:

"The legislative power of the State shall be vested in the Sejm and the Senate of the Republic of Poland; the executive power shall be vested in the President of Poland and the Council of Ministers; and judicial power shall be vested in the independent courts."

Under Article 56 of the Act, the Council of Ministers ( Rada Ministrów ) shall be composed of the Prime Minister, Deputy Prime Ministers and Ministers.

In pursuance of Article 1 of the Act of 20 June 1985 ( Ustawa o sÄ…dach powszechnych ), the courts are entrusted with administration of justice in the Republic of Poland. The courts are courts of appeal, regional courts and district courts. Under Article 9 of the Law, the Supreme Court exercises supervisory jurisdiction over lower courts.

Article 1 of the Act of 20 June 1985 on Prosecuting Authorities ( Ustawa o Prokuraturze ) which determines general principles concerning the structure, functions and organisation of prosecuting authorities, at the material time read as follows:

"1. The prosecuting authorities shall be the Prosecutor General, prosecutors and military prosecutors. Prosecutors and military prosecutors shall be subordinate to the Prosecutor General.

2. The Prosecutor General shall be the highest prosecuting authority; his functions shall be carried out by the Minister of Justice."

Article 2 of the Act reads:

"The prosecuting authorities shall ensure the observance of the rule of law and the prosecution of criminal offences."

Under Article 7 of the Act, in carrying out his statutory duties, a prosecutor shall abide by the principles of impartiality and equality of citizens before the law. Pursuant to Article 8 of the Act, a prosecutor is independent in carrying out his or her duties, within the limits set out in this Article. A prosecutor shall abide by the instructions, guidelines and orders of his superiors. However, if an order relates to the substance of any action to be taken in proceedings, a prosecutor may request [his superior] to issue the order concerned with reasons in writing, to alter the order, to relieve him from performing an act prescribed by that order, or to remove him from conducting the case in question. The requests to be removed from a case shall be decided by a hierarchical superior of the prosecutor who issued the order."

Chapter III of the Code of Criminal Procedure of 1969, applicable at the material time, entitled "Parties to proceedings, defence counsel, representatives of victims and representatives of society", described a prosecutor as a party to criminal proceedings. According to all the relevant provisions of the Code read together, a prosecutor performed investigative and prosecuting functions in the course of criminal proceedings. In particular, after completing the investigation, he drew up a bill of indictment and represented the prosecuting authority before the court competent to deal with the case.

Under Article 3 of the Code of Criminal Procedure of 1969 ”organs conducting criminal proceedings [including a prosecutor] shall examine and take into account evidence in favour of as well as against the accused.”

COMPLAINTS

1. The applicant complained under Article 5 § 1 of the Convention that his detention was unjustified and, as such, in breach of this provision, since he was detained on inadequate evidence.

2. The applicant complained under Article 5 § 3 of the Convention that he was deprived of his liberty by a decision of the Public 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 to represent prosecution later in the judicial proceedings. He submitted that the prosecutor was a representative of the executive.

3. The applicant further complained under Article 5 § 4 of the Convention that in the proceedings concerning his detention he was never brought before a judge and that he did not have any access to the case-file in any proceedings in which his detention was examined. Thus he did not have any possibility of effectively arguing any points relied on by the prosecution in support of his detention.

4. The applicant complained under Article 6 § 1 of the Convention that the criminal proceedings against him lasted for an unreasonable time.

5. The applicant further complained under Article 6 § 2 that the case was conducted by the prosecuting authorities in a manner showing that he was regarded as guilty before the competent court gave its judgment in the criminal proceedings.

6. The applicant finally complained under Article 7 of the Convention that the charges against him were based on facts which amounted to normal business practices and could not, in the market economy, be interpreted as criminal offences.

THE LAW

1. The Court first notes that the applicant died on 26 July 1998 and that his father requests that the proceedings be continued.

The Court recalls that when an applicant dies during the proceedings, the heirs or next of a kin of the applicant may in principle pursue the application on the applicant’s behalf provided that they are shown to have a legitimate interest to justify the continuation of the examination of the case (the Ahmet Sadik v. Greece judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, pp. 1651-1652, §§ 24-26; Krempovskij v. Lithuania (dec.), no. 37193/97, 20 April 1999). In the light of this case-law there is no prima facie obstacle to the case being pursued by the applicant’s father.

2. The applicant complained under Article 5 § 1 of the Convention that his detention was unjustified and, as such, in breach of this provision, since he was detained on inadequate evidence.

Article 5 § 1 (c) 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, the 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 relevant decisions referred to evidence gathered in the course of the proceedings. 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 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.

3. The applicant complains under Article 6 § 1 of the Convention that the criminal proceedings against him lasted for an unreasonable time.

Article 6 § 1, insofar as relevant, reads:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Court recalls that the reasonableness of the length of proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the applicant’s conduct and that of the competent authorities, which in this instance call for an overall assessment (see, among many other authorities, 27785/95 WÅ‚och v. Poland , 19.10. 2000).

The Court observes that the proceedings against the applicant commenced on 30 March 1995 at the latest. The investigations were completed within eight months and twenty-one days as on  21 December 1995 the prosecutor gave a relevant decision. They were ultimately discontinued by way of a decision given on 20 August 1998. They lasted therefore three years, four months and twenty days.

The Court observes that there is no indication of any periods of inactivity on the part of the authorities. On the whole, the Court does not consider that the proceedings in the case exceeded a reasonable time within the meaning of Article 6 § 1 of the Convention.

It follows that this complaint is inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

4. The applicant further complains under Article 6 § 2 that the investigations were conducted in a manner showing that he was regarded as guilty before the competent court gave its judgment in the criminal proceedings.

Article 6 § 2 of the Convention reads:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The Court observes that the applicant does not refer to any concrete occurrences in support of his complaint. He seems to complain about the fact that he was suspected of and later charged with criminal offences. This is not sufficient for a finding that his right to be presumed innocent until found guilty by a competent court was infringed.

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.

5. The applicant finally complained under Article 7 of the Convention that the charges against him were based on facts which amounted to normal business practices and could not, in the market economy, be interpreted as criminal offences.

Article 7 reads:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

The Court observes that the proceedings against the applicant were discontinued by way of a decision of the Warsaw Regional Court, given on 20 August 1998. The Court considers that just as an acquitted defendant may not claim to be a victim of violations of the Convention which allegedly took place in the course of proceedings which led to the acquittal, the applicant cannot claim to be a victim in respect of violation of Article 7, given that the proceedings against him were discontinued and no judgment on the merits of the case has been given.

6. The applicant complains under Article 5 § 3 of the Convention that he was deprived of his liberty by a decision of the Public 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 to represent prosecution later in the judicial proceedings. He submits that the prosecutor was a representative of the executive.

The applicant further complains under Article 5 § 4 of the Convention that in the proceedings concerning his detention he was never brought before a judge and that he did not have any access to the case-file in any proceedings in which his detention was examined. Thus he did not have any possibility of effectively arguing any points relied on by the prosecution in support of his detention.

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

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints that he was arrested by a public prosecutor who was not a “judge or an officer authorised by law to exercise judicial power”, and that the proceedings concerning his detention on remand were not truly adversarial;

Declares inadmissible the remainder of the application.

Vincent Berger Georg Ress Registrar                                                                                  President