FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35476/97 by Thomas KONRAD against Poland

The European Court of Human Rights ( Fourth Section) , sitting on 16 November 2000 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 29 July 1996 and registered on 27 March 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 on 16 November 2000, decides as follows:

THE FACTS

The applicant is a German national, born in 1964 and living in Berlin, Germany.

A. The circumstances of the case

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

On 25 December 1994 the applicant was brought before the Gdańsk District Prosecutor ( Prokurator Rejonowy ), charged with two counts of assault with intent to rob, entering Poland without leave to enter and forgery, and detained on remand. The applicant submits that he appealed against the detention order. During the investigation he made numerous unsuccessful applications for release and appealed – likewise unsuccessfully - against decisions refusing to release him.

On an unspecified date in 1995 the Gdansk District Prosecutor lodged a bill of indictment with the Gdańsk Regional Court (Sąd Wojewódzki ).

In his applications for release made in the court proceedings the applicant contested the grounds for his detention, maintaining that evidence in support of his alibi had already been obtained at the investigation stage and that there was no convincing evidence in rebuttal. He also asked the court to release him on bail and submitted that his prolonged detention was putting a severe strain on his family. He further complained that he suffered from various ailments and asked the court to release him on health grounds.

The Regional Court dismissed all his applications. In a decision of 4 April 1996, the court, relying on Article 217 § (2) and (4) of the Code of Criminal Procedure, held:

“[The application for release] cannot be granted because this Court is of the opinion that, given the nature of the charges laid against the applicant, there are particular circumstances militating against releasing him – even assuming that his health and his family situation are not very good. In view of that and, more particularly, of the fact that there are no circumstances referred to in Article 218 of the Code of Criminal Procedure, the Court holds as above. It should also be emphasised that the grounds previously given by this Court in its decisions rejecting his applications for release are still valid.”

In further decisions refusing to release the applicant (which were made, inter alia , on 3 and 10 December 1996), the Regional Court relied on similar reasons.

On 23 December 1996, ruling on an appeal by the applicant, the Gdańsk Court of Appeal (Sąd Apelacyjny ) upheld the decisions of 3 and 10 December 1996, holding:

“The Court of Appeal has on many occasions expressed its opinion that it has been necessary to impose on the [applicant] the most severe preventive measure. The basis for that has been an assessment of the nature of the offences with which he was charged and their modus operandi, … their number and ruthlessness. There are no grounds to change that previous opinion; there is a sufficient likelihood that the accused committed the offences in question which means that Article 209 of the Code of Criminal Procedure applies.

It is true that in the present case arises a problem of lengthy detention … lasting since 25 December 1994. Yet, in the light of information received from the Regional Court, that question will be resolved by the Supreme Court (Sąd Najwyższy ) to which the former court will submit an application under Article 222 § 4 of the Code of Criminal Procedure. For the time being, in the Court of Appeal’s opinion, the preventive measure in question should be maintained. That being so, the Court holds as in the operative part of the decision.”

In the meantime, on an unknown date in 1996, the applicant had asked the trial court to make a severance order. The court, however, found no grounds to try the applicant separately and dismissed his application on 26 March 1996.

On a later unknown date, probably in December 1996, the Gdańsk Regional Court made an application to the Supreme Court, asking it to prolong the applicant’s detention beyond the statutory time-limit, pursuant to Article 222 § 4 of the Code of Criminal Procedure. The Supreme Court granted that application and prolonged his detention until 30 June 1997. The applicant submits that the relevant decision has not so far been served on him and that the trial court “verbally informed him of the prolongation”.

In June 1997, on a date which he has failed to specify, the applicant was released from custody. Shortly afterwards, he left for Germany.

Subsequently, the Gdańsk Regional Court made a severance order and since then the applicant has been tried in absentia. The proceedings are still pending in the court of first instance.

B. Relevant domestic law and practice

1. Amendments to criminal legislation

Over the period to which the facts of the present case relate, Polish criminal legislation was amended on several occasions.

Insofar as the present case is concerned, there were three relevant amendments to the Code of Criminal Procedure of 1969 (a law which is no longer in force as it was repealed and replaced by the so-called “New Code of Criminal Procedure” of 6 June 1997 which entered into force on 1 September 1998).

The first such amendment was made by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes which entered into force 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 1 December 1995 on Amendments to the Law of 29 June 1995 (commonly called “the Interim Law of 1 December 1995” and so referred to below), came into force on 1 January 1996. Article 10 (a) of the Law introduced special interim rules governing the prolongation of detention on remand beyond the statutory time-limits laid down in Article 222 §§ 2 and 3 of the Code of Criminal Procedure in cases where detention had started prior to 4 August 1996 (see below, 2 c) “Statutory time-limits for detention on remand”).

The third amendment, brought about by the Law of 6 December 1996 on Amendments to the Code of Criminal Procedure, took effect on 28 December 1996. On this 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" ( środki zapobiegawcze ), 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 competent court, the measures shall be imposed by the prosecutor."

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 request, for a period not exceeding one year;

(2) the Supreme Court, on the Prosecutor General’s request, 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 course 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. Article 222, in the version applicable after that date 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 December1996, 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…”

COMPLAINTS

1. The applicant complains under Article 5 § 3 of the Convention that the length of his detention on remand exceeded a “reasonable time” within the meaning of that provision.

2. Invoking Article 6 § 1 of the Convention, the applicant submits the following complaints:

that the criminal charges against him have not been determined within a “reasonable time”, and

that the trial court lacks impartiality and that it has conducted the proceedings against him in an unfair manner.

THE LAW

1. The applicant complains under Article 5 § 3 of the Convention that his detention exceeded a “reasonable time” within the meaning of that provision. He also submits that the criminal charges against him have not been determined within a “reasonable time”, as required by Article 6 § 1 of the Convention.

The Court considers that it cannot, on the basis of the 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 these complaints to the respondent Government.

2. Invoking Article 6 § 1 of the Convention, the applicant further submits that the trial court lacks impartiality and that it has conducted the proceedings against him in an unfair manner.

However, the Court observes that the proceedings are still pending. It does not consider that it can speculate on how the applicant’s trial would proceed, in particular, whether he would be acquitted or convicted. Consequently, the Court concludes that it is premature to determine whether or not there has been the alleged breach of the right to a “fair … hearing … by an … impartial tribunal” in the present case.

It follows that the remainder of the application is 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 the length of his detention on remand was excessive and that his right to a hearing within a “reasonable time” has not been respected;

Declares inadmissible the remainder of the application.

Vincent Berger Georg Ress

Registrar President