FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 25196/94 by Krzysztof IWAŃCZUK against Poland

The European Court of Human Rights (Fourth Section) , sitting on 9 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, Mr V. Butkevych, Mrs N. Vajić, judges , and Mr V. Berger, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 26 April 1994 and registered on 19 September 1994,

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 regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Polish national, born in 1962 and living in Brzeg , Poland. He is represented before the Court by Mr Jacek Brydak , a lawyer practising in Warsaw, Poland.

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

A. Particular circumstances of the case

On 12 September 1991 the Wrocław-Krzyki District Prosecutor charged the applicant with falsification of documents and the use thereof.

On 14 May 1992 the Wrocław-Krzyki District Prosecutor issued a warrant of arrest against the applicant on suspicion of theft.  On 22 May 1992 the Wrocław Regional Court dismissed the applicant's appeal against the warrant of arrest.  On 29 May 1992 the Wrocław-Śródmieście Prosecutor refused to authorise the applicant to meet his counsel in the absence of a policeman.  The applicant's appeal against this decision was dismissed on 21 July 1992 by the Wrocław Regional Court.

On 22 July 1992 the Wrocław District Prosecutor refused to grant the applicant permission to get married in prison.  On 24 July 1992 the Wrocław Regional Court decided to prolong the applicant's detention until 15 November 1992.  On 21 August 1992 the Wrocław Court of Appeal dismissed the applicant's appeal.

On 21 September 1992 the applicant's lawyer appealed against a decision of the Wrocław-Śródmieście Prosecutor to open his letter to the applicant.

On 12 September 1992 the Prosecutor charged the applicant with fraud.  On 4 November 1992 the Wrocław-Śródmieście District Prosecutor allowed the applicant to meet his counsel in the presence of a policeman.  The applicant appealed against this decision.  On 6 November 1992 the Wrocław Regional Court prolonged the applicant's detention until 31 December 1992.  On 3 December 1992 the Wrocław Regional Court dismissed the appeal, concerning the contacts with the lawyer.  On 18 December 1992 the Wrocław Regional Prosecutor changed the charge into misappropriation.  On 23 December 1992 the Wrocław Regional Court prolonged the applicant's detention until 28 February 1993.

On 23 February 1993 the Wrocław Regional Court prolonged the applicant's detention until 15 April 1993.  On the same day the applicant requested a permission to be present during the hearing concerning his prolonged detention.  On 2 March 1993 the Wrocław Regional Court informed the applicant that the hearing had taken place on 23 February 1993 and that in any event he could not have participated in this hearing as there was no legal basis therefor.  On 17 March 1993 the Wrocław-Śródmieście Regional Prosecutor refused to permit the applicant's lawyer to make photocopies of any of the documents in the case-file.  On 18 March 1993 the Wrocław Court of Appeal dismissed the applicant's appeal against the decision of 23 February 1993.

On 7 April 1993 the applicant complained to the Wrocław Regional Prosecutor, inter alia , about the repeated refusals of access to the case file.  He also challenged the prosecutors who had been conducting the proceedings.  On 8 April 1993 the indictment was transmitted to the Wrocław Regional Court.  On 30 April 1993 the Wrocław Regional Court prolonged the applicant's detention for another three months.  On 5 May 1993 the Wrocław-Śródmieście Regional Prosecutor dismissed the applicant's challenge of the prosecutors.  On 12 May 1993 the applicant appealed against the decision of 30 April 1993, and on 25 May 1993 completed this appeal by a request to be present at the Court's hearing concerning a further prolongation of his detention.

On 1 July 1993 the applicant requested the Court to fix the date for a first hearing.  On the same day the Wrocław Court of Appeal dismissed the applicant's appeal against the prolongation of detention of 30 April 1993.

On 19 September 1993 at 9.30 p.m the applicant requested the prison authorities to allow him to vote in the parliamentary elections, as there were voting facilities for detainees in the WrocÅ‚aw prison.  The prison guard took him to the guards' room.  The applicant was then told by a group of four guards that in order to be allowed to vote he must get undressed and undergo a body search.  The applicant took off his clothes except his underwear, whereupon the prison guards allegedly ridiculed him, exchanged humiliating remarks about his body and abused him verbally.  The applicant was ordered to strip naked.  He refused to do so and repeatedly requested permission to vote without a body search.  As this was refused, the applicant was taken back to his cell without being allowed to vote.

A group of other prisoners who requested permission to go to the voting room at approximately 9 p.m. on that day, were also ordered to undergo the body search.

On 20 and 22 September 1993 the first hearing on the merits was held before the Wrocław Regional Court.

On 23 September 1993 the applicant brought an action before the Supreme Court, complaining that his right to vote had been breached in that he had been prevented from voting.  He submitted that the requirement to undergo a body search was unjustified as there had not been any indications in his behaviour during the entire period of his detention that he might threaten the safety of other voting prisoners or guards.  He complained of humiliation by the prison guards by vulgar comments and verbal abuse in the course of the events complained of.  He submitted that there were about ten further guards present in the voting room.  It was untenable to claim that he could present any danger to anyone when taken thereto, in particular as it had been ascertained that he could not have had any arms on him.

On 27 October 1993 the Supreme Court dismissed the applicant's action.  The Court referred to a note on a conversation between a principal guard and the president of the election committee, relating to the events, which had been prepared upon a request of the Wrocław Regional Court, following a relevant enquiry of the Supreme Court for assistance in establishing the facts.  The Supreme Court noted the prison guards' submissions that the applicant could have a razor hidden on him and threaten the members of the election committee therewith.  The Court considered that the prison guards had been acting in conformity with the rules of detention on remand, which provided that "if such a need arises, a detainee shall undergo a search" and with the 1974 unpublished Ordinance on Prison Security, concerning, inter alia , body search of detainees.  It was not certain, noted the court, whether at the material time this regulation had still remained in force, but it could not be held against the guards that they had acted according thereto. Thus it could not be established that on the part of the guards there had been an intent to commit an offence, or to abuse their position.  The events complained of did not violate the applicant's voting rights.

On 21 December 1993 the WrocÅ‚aw Regional Court decided to release the applicant on bail of 2 billion zlotys .  Upon the applicant's appeal, the WrocÅ‚aw Court of Appeal upheld the decision on 5 January 1994, considering that there was no impediment to the bail being deposited in bonds or as a mortgage.

On 18 January 1994 the WrocÅ‚aw Regional Court reduced the bail to 1,5 billion zlotys .  On 28 January 1994 the applicant requested that bail be accepted in the form of a mortgage on his property, and enclosed an estimate of his property made by an expert and an extract from the land register. 

On 17 February 1994 the applicant complained that the Court had failed to take any steps toward implementing its decision of 18 January 1994.  He submitted that his detention after this date was unlawful,  given that it should have been replaced by bail.  He pointed out that he had submitted relevant documents relating to his property.

On 23 February 1994 the Wrocław Regional Court ordered that the bail must be deposited in cash or in State obligations.  On 7 March 1994 the Wrocław Regional Court upheld this decision.  On 31 April 1994 the Wrocław Court of Appeal quashed the decision relating to the sum of bail.  On 19 April 1994 the Wrocław Regional Court lowered the sum of bail to 100 million zlotys in cash and mortgage of 750 million zlotys .  On 5 May 1994 the applicant was released.

Hearings fixed for 30 May 1994, 28 July, 15 September, 1 December 1994 and 22 February 1995 were adjourned for unknown reasons. On 15 and 16 March 1995 the accused were heard by the court.

Subsequently, hearings fixed for 6 April, 16 May, 29 June, 7 September and 25 October 1995 were adjourned, also for unknown reasons. Next hearing was held on 14 November 1995. The court completed the questioning of the accused. Next hearing, fixed for 5 December 1995, was also adjourned. On 16 and 17 January 1996 a hearing was held and certain witnesses were questioned. Hearing fixed for 2 February 1995 was adjourned. At the hearings on 22 February and 13 March 1996 the court questioned further witnesses. Subsequently, further hearings scheduled for 26 March, 11 and 25 April 1996 were adjourned. At the hearing on 20 May 1996 further witnesses were heard. Hearing fixed for 16 July 1996 was adjourned.

At the hearings held on 20 September, 24 October and 7 November 1996 further witnesses gave evidence.  Hearings scheduled for 28 November, 19 December 1996, 30 January and 20 February 1997 were adjourned. On 13 March 1997 the court took evidence from further witnesses. Hearing fixed for 3 April 1997 was adjourned.

In 1997 hearings were held on the following dates: 24 April, 15 May, 4 and 19 June, 15  July, 2 September.

In 1998 hearings were held on 17 March, 7 April, 6 May, 10 June, 3 September, 27 October, 24 November and 22 December.

The next hearing was held on 12 January 1999.

During the hearings held in 1997 and 1998 the court heard eleven witnesses.

On 17 November 1999, at the 71 st hearing held during the proceedings, the composition of the court changed, and, consequently, hearings in the case had to be recommenced. On 22 December 1999 and 16 February 2000 the court read out the bill of indictment. The date of the next hearing was fixed for 20 March 2000.

B. Relevant domestic law

1. Provisions pertaining to body search of detained persons

Pursuant to Section 11 of Rules of Detention on Remand of 1989, in force at the material time, body search of detained persons could be ordered at any time if such a need arose. Their clothes, underwear and shoes, as well as their cells, could be searched. This provision allowed for body search in particular when detainees left their cell and upon their return thereto, in particular during the night.

This issue was further governed by provisions of the unpublished Ordinance of the Minister of Justice of 6 March 1974 on Prison Security which provided in its Section 59 that detainees were subject to body search when they left their ward and upon their return.

2. Correspondence of persons detained on remand

At the relevant time the situation of persons detained on remand was governed by the Code of Execution of Criminal Sentences of 19 April 1969. Under Article 89 of that Code, all correspondence of a person detained on remand was subject to censorship, unless a prosecutor or a court decided otherwise. No provision of the Code provided for any remedy to contest the manner or scope of the censorship of a detainee’s correspondence.

The rights of persons detained on remand as regards their correspondence were further set out in Rule 33 of the Rules of Detention on Remand, adopted in 1989. They provided that the correspondence of persons detained on remand was subject to censorship by the authority conducting the criminal proceedings, i.e. either a public prosecutor or a court, depending on the stage reached in the proceedings.

3. Preventive measures in criminal proceedings

At the relevant time, the authorities competent to decide on detention on remand were set by 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...."

Article 225 of the Code of Criminal Procedure provided that detention on remand should be imposed only when it was mandatory; this measure should not be imposed if bail or police supervision, or both of these measures, were considered adequate.

Pursuant to Article 226 of the Code, bail, in form of cash, securities or mortgage, could be deposited by the accused, or by another person. Determination of the sum, form and all relevant modalities of the bail should be made, regard being had to the financial situation of the accused and, as the case may be, another person depositing bail, as well as to the assessed damage which could have been caused by the offence concerned and to the character of the offence.

At the relevant time the presence of the parties at court sessions other than hearings, including sessions held in the proceedings concerning preventive measures in criminal proceedings, was regulated by 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."

There was no regulation providing for the presence of the accused or of his or her lawyer to be present before the court in the proceedings concerning detention on remand.

4. Relevant provisions of the Code of Enforcement of Criminal Sentences of 1969

The interpretation of enforceable decisions given in criminal proceedings was at the relevant time governed by the provisions of the Code of Execution of Criminal Sentences of 1969. Section 14 of that code provided:

“1. The authority executing a decision, as well as everyone whom such a decision concerns, may request the court which has dealt with the case to rule on any doubts concerning the execution of that decision or the calculation of the penalty imposed.

2. Everyone whom the decision on interpretation referred to in paragraph 1 concerns may appeal against such a decision.”

Pursuant to Article 205 of the Code of Enforcement of Criminal Sentences, provisions of the code referring to a “convicted person” applied by analogy to a “detainee”.

COMPLAINTS

The applicant complains under Article 3 of the Convention about his degrading treatment by prison guards who ordered him to strip naked to undergo a body search as a condition for voting in the Wrocław prison.  He submits that the prison guards ridiculed him and made humiliating remarks about his body.

The applicant complains under Article 13 of the Convention that he did not have an effective remedy to complain about degrading treatment as such.   Given that the events at issue were related to the elections, he could only complain to the Supreme Court against a breach of his right to vote and the treatment suffered only in connection therewith.

The applicant complains under Article 5 § 4 of the Convention that he was brought before the judge at the first hearing on the merits only after sixteen months of detention.  He submits that neither he nor his lawyer were entitled to be present in the court proceedings in review of lawfulness of his detention.  His requests to this effect were refused.

The applicant complains under Article 5 § 3 that his detention, which lasted two years and three weeks, was unjustified and arbitrarily prolonged.

The applicant complains about the length of the criminal proceedings which have already lasted over three years.

Under Article 8 of the Convention the applicant complains that his mail to and from his lawyer was routinely stopped and read by the Prosecutor.

Under Article 8 of the Convention read together with Article 12 of the Convention the applicant complains about interference with his right for respect to his private life in that the Prosecutor's refused him a permission to be married in prison.

THE LAW

1. The Government first submit that the application, insofar as it relates to events prior to the date of recognition of the right of individual petition by Poland, is outside the competence ratione temporis of the Convention organs.

The Court recalls that Poland has recognised the competence of the Convention organs to receive individual applications "from any person, non-governmental organisation or group of individuals claiming to be a victim of a violation of the rights recognised in the Convention through any act, decision or event occurring after 30 April 1993".  According to Article 6 of Protocol No. 11 this limitation shall remain valid for the jurisdiction of the Court under that Protocol. It follows that the Court is not competent to examine complaints relating to alleged violations of the Convention by acts, decisions or events that have occurred prior to this date.

2. The applicant complains under Article 3 of the Convention about his degrading treatment by prison guards during the incident which took place on 19 September 1993.

Article 3, insofar as relevant, reads:

"No one shall be subjected to … degrading treatment or punishment."

a) The Government first submit that the applicant had at his disposal two effective remedies of which he used only one, i.e. the complaint to the Supreme Court about the alleged infringement of his voting rights.  However, he did not complain to the Court of Enforcement of Sentences about the decision of the prison guards, as provided for in Article 14 of the Code of Enforcement of Sentences of 1969.  This remedy could be used against any decision of the prison authorities, which the imprisoned person considered unlawful.  It is true that the order to strip naked was not given in writing. However, the applicant should have requested that the prison guards issue a written decision.  Had he done so, he could have lodged an appeal with the court against such a decision, pursuant to Article 14 of the Code of Execution of Sentences. As he did not do so, he failed to exhaust all relevant remedies concerning his complaint.

The applicant submits that the conduct of a group of prison guards, who ordered him to strip naked and insulted him verbally in a degrading manner, had a factual character and did not constitute a "decision" against which an appeal to the court would be available.  Therefore the remedy on which the Government rely could not reasonably have been employed in the present case.  The degrading treatment complained of was intrinsically related to the breach of the applicant's right to vote.  Accordingly, he lodged a relevant application with the Supreme Court, in which he complained about the degrading treatment. 

The Court observes that the remedy available under the provisions of the Code of Enforcement of Sentences of 1969, referred to by the Government, consisted in an appeal to the court against any decision of prison administration. The Court notes that the applicant’s complaint under Article 3 relates to the order to strip naked and also to the verbal abuse and insults proffered by the guards, thus to the factual aspects of the applicant's situation.  In the present case the treatment complained of did not amount to a formal "decision" of prison authorities which could be subject to an appeal. Therefore in the circumstances of the case the judicial remedy referred to by the Government cannot be deemed to be relevant. 

The Court finds that the applicant, by lodging an action with the Supreme Court and complaining that his right to vote had been breached as a result of the incident which prevented him from voting in the parliamentary elections, availed himself of the remedy which, in the circumstances of the case, was effective and sufficient.  Accordingly, this part of the application cannot be declared inadmissible for non-exhaustion of domestic remedies.

b) As regards the substance of the complaint, the Government submit that, in the circumstances of the case, the measures taken against the applicant were lawful. They refer to Section 11 of the Rules of Detention on Remand of 1989, which, if such a need arose, allowed ordering body search of a detained person. It also provided for body searches at each occasion when a detained person left the cell and upon his or her return thereto, in particular during the night.

They further refer to Section 59 of the Minister of Justice’s Ordinance on Prison Security of 1974.

The Government further argue that the order to strip naked was justified.  Given that necessary arrangements had been made in order for the prisoners to vote in prison, the prison guards were obliged to take safety measures, provided for by the Rules of Detention on Remand and by the Minister of Justice's Ordinance on Prison Security of 1974.  Even assuming that this Ordinance had de facto ceased to be in force, as indicated by the Supreme Court’s decision of 27 October 1993, the order to strip naked was lawful as the Rules of Detention on Remand of 1989 expressly provided that such a measure could be made in respect of a person detained on remand.

The Government acknowledge that body search was not a regular precondition for a detainee to be allowed to vote in parliamentary elections. However, considering that for casting a vote it was necessary to leave the cell, body search could be applied under the aforementioned rules.

The Government further contend that there were special reasons to order the body search of the applicant, namely the late hour at which he had requested to be allowed to vote and the fact that on an unspecified date certain prohibited belongings, including a knife, had been found in his cell.  The suspicions as to the potential danger, which he might have represented were strengthened by the fact that the applicant refused to undress. Following the internal enquiry held within the framework of the proceedings instituted by the applicant’s complaint to the Supreme Court about the alleged breach of his voting rights, the complaints as to the verbal insults of the prison guards proved untrue as the prison guards denied the applicant’s allegations. The Government conclude that this complaint is manifestly ill-founded.

The applicant reaffirms that the prison guards first ordered him to strip naked and then verbally insulted and ridiculed him.

He acknowledges that at the material time the 1989 Rules of Detention on Remand were applicable to the applicant’s situation as a detainee. However, the 1974 Ordinance on Prison Security, on which the Government rely, cannot be validly invoked as a legal basis for the guards’ actions. He refers in particular to the Supreme Court’s statement in its decision of 27 October 1993 that “it was not certain whether at the material time this regulation was still in force”.  He emphasises that this Ordinance had never been properly published and therefore could not be considered “law” as it was not accessible. He further submits that, pursuant to the principle lex posterior derogat legi priori , this Ordinance had de facto been derogated by the entry into force of the 1989 Rules which governed the same subject.  It is also stressed that it is for the State to ensure that its agents, including prison guards, are aware of and apply legal provisions, which are indeed in force.

The applicant stresses that the Government’s argument does not provide a sufficient basis for a finding that body search was ordered in respect of every and each occasion when a detainee left his cell or returned to it, even during the night. Contrary to the Government’s submissions, under Section 11 of the Rules of Detention, body search was to be ordered “if a need arose”, but clearly not automatically if an inmate left the cell during the night, or during the elections organised in prison. This Section provided for search of inmate’s clothes, underwear, shoes and his cell, but not for the search of his body. Normally in prisons metal detectors are in use, and if the prison guards had justified grounds on which to order the applicant’s body search, they could have ordered that such detector be used.  Moreover, after the applicant refused to strip naked, he was allowed to return to his cell. It begs a question why the guards allowed him to return if they had, as the Government contend, serious grounds for a suspicion that he was carrying dangerous devices on him. It also indicates that the order to strip was meant as an abuse and was not dictated by any justified fears.

Thus the humiliating treatment complained of lacked any legal basis and, first and foremost, was not justified by the applicant’s behaviour. It must therefore be deemed to constitute an abuse, which amounted to a breach of Article 3 of the Convention.

The Court considers that the applicant's above complaint raises serious issues of fact and law under the Convention the determination of which should depend on an examination of the merits.  It follows that this part of the application cannot be dismissed as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3. The applicant complains under Article 5 § 4 of the Convention that he was brought before the judge at the first hearing on the merits only after sixteen months of detention.

Article 5 § 4 provides:

" Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

The Government submit that, under the laws applicable at the relevant time, decisions to impose detention on remand and on its extension could be appealed before a court.  These appeals were examined at court sessions held in camera .  The law did not provide for the presence of the accused or his lawyer before the court in the proceedings concerning review of detention on remand.  Thus, it is true that not all the guarantees of a fair hearing were applicable in those proceedings.  However, the courts had an opportunity to examine whether the decisions concerned were lawful and justified.  The accused could submit his arguments to the court in writing, as he did in the present case. The prosecutor in such proceedings not only represented the prosecution, but also acted as a guardian of the public interest.

The Government conclude that the applicant's procedural rights guaranteed by Article 5 § 4 of the Convention were not breached in the proceedings concerning his detention on remand.

The applicant submits that the court decided on the imposition and continuation of detention on remand in the absence of the applicant and his lawyer who, under Polish law as it stood at the material time, were not entitled to attend the relevant court session.  In the proceedings concerning the prosecutor's request to prolong the detention, this request was not communicated to the accused or to his lawyer, so he was not aware of the arguments advanced by the prosecuting authorities.  The role of the prosecutor in such proceedings could be regarded as that of safeguarding the public interest as he pleaded in favour of the decisions to continue the applicant's detention.  This complaint should be further examined against the general background of the case as regards the applicant's defence rights. In particular, regard must be had to the repeated refusals of the prosecutor to allow the applicant to consult his lawyer in the absence of a policeman, and to the limited access which the applicant had to the case-file at the material time.

The Court first recalls that, according to the established case-law of the Convention organs, where no domestic remedy is available the six-month period runs from the act alleged to constitute a violation of the Convention; however, where it concerns a continuing situation, it runs from the end of the situation concerned (see, e.g. Eur. Comm. HR, 14807/89, Dec. 12.2.92, D.R. 72, p. 148; 19601/92, Dec. 19.1.95, D.R. 80-B, p. 46, 3222/96, op. cit.)

The Court notes that the applicant’s complaint resulted from the application of domestic legislative provisions, which, at the material time, explicitly excluded the possibility of a person detained on remand being brought before a court in the proceedings concerning review of lawfulness of his detention, or of his lawyer being heard by a court in such proceedings, whereas the prosecutor could be present before the court at any time. The existence of these provisions created a continuing situation in which an individual could be deprived of his right to have his detention reviewed in a truly adversarial judicial procedure (see Trzaska v. Poland, no. 25792/94, § 78).

It is not in dispute in the present case that under domestic law, as it stood at the relevant time, it was open for the accused person detained on remand to submit a request for release to the court conducting the criminal proceedings at a hearing on the merits of the case. The court would then hear the arguments of the accused and his counsel and of the prosecutor, and decide whether in the light of their submissions the continued detention remained lawful and justified. In the instant case the applicant was brought before a court on 20 September 1993, at the first hearing on the merits. This was the first occasion on which he and his lawyer were present before a judicial authority to whom they could put forward their arguments concerning the maintaining of his detention on remand. This was the point at which the applicant could benefit, had he wished, from a possibility to present his argument to the court within the context of adversarial procedure, and, consequently, the point at which the running of the six-month period in respect of the present complaint started for the purposes of Article 35 § 1 of the Convention (see, mutatis mutandis , 38816/97, Dec. 8.12.1998, unpublished). The Court notes that t he applicant lodged his application on 26 April 1994, out of the six-month time-limit provided by Article 35 § 1 of the Convention.

It follows that this part of the application must be rejected as being inadmissible within the meaning of Article 35 §§ 1 and 4 of the Convention.

4. The applicant complains under Article 5 § 3 of the Convention that his detention on remand, which lasted two years and three weeks, was unjustified and arbitrarily prolonged.

Article 5 § 3 reads:

"Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial.  Release may be conditioned by guarantees to appear for trial."

a) The Government first submit that the period from the applicant's arrest until 1 May 1993, i.e. the date on which the competence ratione temporis of the Convention organs with regard to individual petitions became effective, cannot be taken into consideration.

The Court recalls its case-law, according to which, in examining the length of detention on remand undergone subsequent to the date of recognition of the right of individual petition, the Court takes account of the stage which the proceedings had reached at that time. To that extent, therefore, it has regard to the previous detention ( the Yagci and Sargin v. Turkey judgment of 8 June 1995, Series A no. 319-A, p. 18, § 49; Trzaska v. Poland, loc. cit , § 54).

It follows that the Court is competent ratione temporis to examine this complaint insofar as it relates to the period after 30 April 1993. However, the Court can take into account the stage reached at that date.

b) The Government further submit that in the investigations stage, i.e. until the bill of indictment was submitted to the court, it was open to the applicant to request at any time the prosecutor to release him.  He did not avail himself of this remedy. They acknowledge that, according to the established case-law of the Convention organs, to comply with the requirement of exhaustion of domestic remedies, it is sufficient to invoke "in substance" before the highest competent authority the complaint submitted to the Convention organs (Eur. Comm. HR, 7357/76, Dec. 10.3.77, D.R. 8, p. 185) and that it is therefore not necessary to examine whether the applicant disposed of other legal remedies to prevent the breach of which he complains (9186/80, Dec. 9.3.82, D.R. 28, p. 172).  However, the Government argue that such remedies must be exhausted, which are effective and sufficient in the circumstances of the case and offer a possibility of redress of the situation complained of.

The Government further argue that the remedy concerned should be regarded as available, effective and sufficient and that its nature and objective differ considerably from judicial remedies available as regards detention on remand.  First, it can be submitted at any time during the pre-trial stage of the proceedings and should be examined within three days.  Thus, this remedy is a flexible one.  The judicial remedies against the decisions to remand in custody or to prolong the detention are less so, as they can be lodged only against decisions, which have already been taken, but not at any time. The applicant should have had recourse to this remedy and should have relied therein on his bad health, this remedy being best suited to ensure adequate reaction of the authorities to such grounds for termination of detention on remand.

The applicant submits that the remedy referred to by the Government would have been bound to fail as detained persons were virtually never released as a result of this remedy, since the higher prosecutors normally confirmed the decisions of the first-instance prosecutors.  He further submits that in fact he  submitted such requests and they were refused.

The Court first notes that the applicant lodged an appeal against his detention order of 14 May 1992 with the Wrocław Regional Court. Further, in the pre-trial stage of the proceedings, he submitted six requests for release to the District Prosecutor and appealed to the Regional Prosecutor against the refusals of the former to release him, thereby obtaining his decisions of 10 July 1992, 10 January, 9 and 18 February and 3 March 1993. On three occasions the applicant filed appeals with the Wrocław Regional Court against the decisions to prolong his detention on remand, which were dismissed on 21 August 1992, 18 March 1993 and 1 July 1993.  The Court considers that all three remedies concerned, i.e. an appeal against the detention order, a request for release, whether submitted to the prosecutor or to the court, depending on the stage of the proceedings, and also an appeal against a decision to prolong detention on remand, serve the same purpose under Polish law. Their objective is to secure a review of the lawfulness of detention at any given time of the proceedings, both in their pre-trial and trial stage, and to obtain release if the circumstances of the case no longer justify continued detention.  The applicant availed himself of all those remedies.

It follows that this complaint cannot be declared inadmissible for non-exhaustion of domestic remedies.

c) As regards the substance of the complaint, the Government submit that the applicant's detention on remand satisfied the relevant requirements under domestic law.  The decisions on his detention were aimed at safeguarding the proper conduct of the proceedings. The evidence gathered in the course of the proceedings justified the suspicion that he had committed the offences concerned. The courts in their decisions examined the complaint about the alleged length of the proceedings, acting ex officio and also upon the applicant's complaints raised in his appeals against the decisions to prolong the detention. The courts carefully considered the following factors: the character and  seriousness of the offences concerned, a possibility of collusion as the applicant had tried, even when detained, to exert pressure on witnesses, and the fact that the suspicion against him was well-founded and supported by the evidence.  Moreover, as the case was very complex, a great number of factual circumstances had to be established by the prosecuting authorities.

In conclusion, the Government state that the applicant's detention of one year and four days from 1 May 1993 to 5 May 1994 did not exceed a reasonable time and that it was in accordance with Article 5 § 3 of the Convention.

The applicant submits that the arbitrariness of his detention was shown by the fact that other suspects in the same case were not detained at all or were released on bail after a few months. He further refers to a bail condition put to them by the prosecuting authorities, which involved ten times less security than that proposed by the applicant. The applicant further submits that the proceedings before the Regional Court concerning the bail cannot be considered lawful. The court decided to release the applicant on bail on condition of two billion zlotys and on condition of police surveillance.  The amount of the bail was forty times higher than that decided in relation to the other accused and was not in any reasonable relation to the applicant's financial situation, regard being had in particular to the fact that on 2 December 1993 the applicant had been declared bankrupt.  Despite the fact that the decision concerning the bail was subsequently changed and the amount of bail reduced, the applicant remained in detention until 5 May 1994 as the Regional Court breached Article 226 of the Code of Criminal Procedure and ordered that the bail should be deposited in cash.

The applicant concludes that his detention was arbitrarily imposed and prolonged, contrary to Article 5 § 3 of the Convention.

The Court considers that this part of the application raises serious issues of fact and law under the Convention the determination of which should depend on an examination of the merits.  It follows that this part of the application cannot be dismissed as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.  No other ground for declaring it inadmissible has been established.

5. The applicant complains under Article 6 of the Convention about the length of the criminal proceedings.

Article 6, insofar as relevant, provides:

"1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal ..."

a) Under Article 35 of the Convention, the Court may only deal with a matter after all domestic remedies have been exhausted.

The Government first submit that there is no specific remedy under Polish law to complain about the length of criminal proceedings.  However, they submit that the judicial remedies, i.e. appeals against the procedural decisions, could be employed in this respect. In particular, the complaint about the allegedly excessive length of the proceedings can be raised in the requests for release from detention on remand.  These remedies should be regarded as effective.

The applicant contests this. He submits that under Polish law there is no remedy by which an accused could request and obtain acceleration of the proceedings.  The accused can only request that the prosecutor or the court take measures to speed up the proceedings, but the authorities are not obliged to react or to comply.

The Court recalls the Convention organs' case-law, according to which the decisive question in assessing the effectiveness of a remedy concerning a complaint about the length of proceedings is whether the applicant can raise this complaint before domestic courts by claiming specific redress; in other words, whether a remedy exists that could answer his complaints by providing a direct and speedy, and not merely indirect, protection of the rights guaranteed in Article 6 of the Convention (the Deweer judgment of 27 February 1980, Series A no. 35, p. 16, § 29; Eur. Comm. HR, no. 8890/80, Dec. 6.7.1992, D.R. 29, p. 129). When the complaint is one of the length of criminal proceedings an application by the accused to accelerate the proceedings cannot be regarded as an effective remedy.  Such an application would not have afforded redress for the violation complained of which concerned the allegedly excessive length of the proceedings (Eur. Comm. HR, no. 8435/78, Dec. 6.3.82, D.R. 26, p. 18).

The Court further recalls that requests for release from detention on remand provided for by Polish law do not constitute effective remedies to complain about the excessive length of criminal proceedings (Eur. Comm HR, no. 28346/95, Dec. 14.01.1998).

The Court considers that the judicial remedy referred to by the Government, i.e. an appeal against procedural decisions pronounced in the proceedings, cannot be regarded as being effective.  The applicant seeks a finding that there was a violation of his right under Article 6 § 1 of the Convention to a hearing within a reasonable time.  The judicial remedy relied on by the Government does not constitute a redress for the breach complained of as its purpose is to have decisions taken in the course of the proceedings set aside or amended.  As regards the complaint about the allegedly excessive length of the proceedings, raised in the requests for release from the detention on remand, its purpose is to obtain the release of the accused.

The Court finds that it has not been established that the applicant had any effective remedy at his disposal which would have enabled him to submit his complaints under Article 6 § 1 of the Convention to the domestic authorities and would have contributed to a reduction of the length of the criminal proceedings.

Accordingly, this complaint cannot be declared inadmissible for non-exhaustion of domestic remedies.

b) As to the substance of the length of proceedings complaint, the Government submit that the proceedings in review of the applicant's detention on remand were conducted within the time-limits provided for by law.  They further contend that the case should be regarded as very complex, given that the applicant was charged with three counts of a large-scale fraud, that there were ten accused in the case, that one hundred and twenty-five witnesses were to be questioned and that evidence was to be taken from seven experts. There were no delays in the conduct of the proceedings other than those caused by objective circumstances. The applicant contributed to the prolongation of the proceedings.  On the whole, the length of the proceedings after 30 April 1993 was reasonable.

The applicant contests this and submits that the overall length of the proceedings exceeded a reasonable time.

The Court recalls that where it, by reason of its competence ratione temporis , can only examine part of the proceedings, it can take into account, in order to assess the length, the stage reached in the proceedings at the beginning of the period under consideration (see, among other authorities, the Proszak v. Poland judgment of 16 December 1997, Reports of Judgments and Decisions 1997-VIII, p. 2772, § 31, mutatis mutandis ).

It follows that the Court is competent ratione temporis to examine the applicant's complaints insofar as they relate to the proceedings after 30 April 1993 and that it can take into account the stage of the proceedings at this date.

The Court considers, in the light of the criteria established by the case-law of the Convention organs on the question of "reasonable time", and having regard to all the information in its possession, that an examination of the merits of the complaint is required.

6. Under Article 8 of the Convention the applicant complains that his mail to and from his lawyer was routinely stopped and read by the prosecutor.

Article 8 in its relevant part reads as follows:

"1. Everyone has the right to respect for his ... correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well ‑ being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

The Government submit that the censorship of the applicant's mail was necessary to ensure the proper conduct of the proceedings.

The applicant submit that the correspondence between the applicant and his counsel was intercepted and that this amounted to a violation of his defence rights.

The Court observes that the applicant's lawyer appealed against a decision of the prosecutor to open his letter to the applicant on 21 September 1992.

It follows that this complaint is outside the competence ratione temporis of the Court and therefore incompatible with the provisions of the Convention within the meaning of Article 27 § 2.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE , without prejudging the merits, the applicant's complaints that during the incident of 19 September 1993 he was subjected to humiliating treatment by the prison guards; that the courts did not act with expediency in the proceedings in which the conditions of the bail were determined and, consequently, his detention after the decision of 21 December 1993 to release him was arbitrarily prolonged, and that the criminal proceedings in his case exceeded a reasonable time;

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger Georg Ress

  Registrar   President