FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36258/97

by J. G.

against Poland

The European Court of Human Rights (Fourth Section) , sitting on 11 July 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 , Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 7 October 1996 and registered on 27 May 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Polish national, born in 1958 and living in OÅ‚awa , Poland.

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

A. The circumstances of the case

On 23 May 1994 the Wrocław Regional Prosecutor ( Prokurator Wojewódzki ) charged the applicant with drug smuggling.  On the same day the applicant was detained on remand in view of the reasonable suspicion that he had committed the offence in question, the grave nature of the offence and the risk that he might obstruct the proper conduct of the proceedings. Shortly afterwards, on an unspecified date, the applicant’s wife was charged with drug smuggling committed together with several other persons, and detained on remand.

Subsequently, on several occasions, the applicant requested the prosecutor to release him on bail, but all his applications were to no avail.

On 3 August 1994, on the Regional Prosecutor’s request, the Wrocław Regional Court ( Sąd Wojewódzki ) prolonged the applicant’s detention on remand until 31 December 1994.  The court held that there was a reasonable suspicion that the applicant had committed the offence with which he had been charged and stressed the grave nature of the offence.  Furthermore, it considered that the need to confront suspects with each other, to obtain evidence from abroad and expert evidence justified the prolongation of his detention in order to ensure the proper course of the proceedings.  The Wrocław Court of Appeal ( Sąd Apelacyjny ) upheld this decision and the reasons therefor on 25 August 1994.

On 22 December 1994, on the Regional Prosecutor’s request, the Wrocław Regional Court prolonged the applicant’s detention until 28 February 1995, repeating the reasons invoked in its decision of 3 August 1994.  The Wrocław Court of Appeal upheld this decision on 19 January 1995.

On 22 December 1994 the applicant filed an application for release on bail with the Wrocław Regional Prosecutor and offered a security in the form of his movable and immovable property.  The application was dismissed by the Wrocław Regional Prosecutor on 22 December 1994 and, on appeal, by the Wrocław Prosecutor of Appeal ( Prokurator Apelacyjny ) on 5 January 1995. In those decisions the prosecutors referred to the need to ensure the proper conduct of the proceedings and considered that the applicant’s detention should continue until at least the end of the investigation, especially as the applicant had not confessed.

In the meantime, on an unspecified date, the applicant’s wife was released from detention.

In February 1995, on an unspecified date, the Wrocław Regional Prosecutor lodged a bill of indictment with the Wrocław Regional Court.  The applicant was indicted on a charge of drug smuggling.  The bill of indictment comprised twenty-one charges against sixteen persons.

On 10 March 1995 the applicant requested the court for release on health grounds.  He complained about frequent headaches and states of unconsciousness, insomnia and heart-burning sensation.  He also referred to his difficult family situation and, in particular, to the bad health of his wife, who was suffering from depressive neurosis and chronic gastritis.  He produced the relevant medical certificates.  On 21 March 1995 the Wrocław Regional Court rejected his application.  The court considered that there was a sufficient likelihood that the applicant had committed the offence with which he had been charged and that his detention should continue in view of the need to ensure the proper conduct of the trial.  The court did not find that the situation of the applicant’s family was so serious as to justify his release on the grounds specified in section 218 of the Code of Criminal Procedure.

On 22 May 1995 the applicant filed a subsequent request for release.  He stressed that he had already spent nearly one year in detention.  He referred to his own and his wife’s state of health, maintaining that she urgently needed help and support from him.  He produced several medical and other certificates relating to his wife’s situation.  Later, on 7 and 17 August 1995, the applicant produced further documents.  The Wrocław Regional Court rejected the application on 22 August 1995.  It found that there was a sufficient likelihood that he had committed the offence in question and that the grave nature of the offence and the need to ensure the proper course of the trial justified his detention.  Referring to the applicant’s family situation, the court observed that the applicant was suffering only from neurosis, which in its view was not a serious disease, and that other members of their family could provide his wife with the necessary care and assistance.  The Wrocław Court of Appeal upheld this decision and the reasons therefor on 26 September 1995.

In the meantime, on 4 August 1995, the Wrocław Regional Court had rejected the applicant’s requests for release filed on 3 July and 1 August 1995.  This decision was then upheld on appeal on 31 August 1995.  The courts relied on two principal reasons, that is, on the reasonable suspicion that the applicant had committed the serious offence and the need to ensure the proper course of the proceedings.  As to the applicant’s family situation, the courts found that there were no grounds for releasing him under section 218 of the Code of Criminal Procedure.

On 13 October 1995 the court held the first hearing in the applicant’s case and heard evidence from defendants.  It held further hearings on 1 December 1995 and 19 January 1996.

On 25 January 1996, during the next hearing, the applicant unsuccessfully requested the court to release him on bail.  On 23 February 1996 the Wrocław Court of Appeal, ruling on his appeal, upheld the decision.  It found that the charge laid against the applicant had a sufficient basis in evidence heard by the trial court and that, given the nature of the offence, as well as the modus operandi , there was a risk that the applicant would obstruct the process of obtaining evidence.

On 31 January 1996 the applicant again requested the court to release him.  He submitted that the health of his wife was worsening and that she was in hospital.  On 5 February 1996 the Wrocław Regional Court rejected his application referring, in particular, to the reasonable suspicion that the applicant had committed the offence in question and the gravity of the offence.  The court found that the bad health of the applicant’s wife was not a circumstance which could militate against his continued detention because she was receiving care and treatment in hospital.

On 5 March 1996 the court held a hearing.  The next hearings were listed for (and held on) 7 March, 10, 13 and 31 May, 26 June and 9 July 1996.

On 20 March 1996 the applicant filed another request for release.  He repeated his previous arguments and produced further documents describing the state of his wife.  He stressed that the total length of his detention was very considerable. The Wrocław Regional Court rejected his application on 9 July 1996.  On 29 July 1996 the Wrocław Court of Appeal, ruling on the applicant’s appeal, quashed the detention order and released him under the condition that he report weekly to the relevant police station and surrender his passport to the court.  In addition, the court put further restrictions on the applicant’s movement and ordered, inter alia , that he be prohibited from leaving the territory of Poland.  The Court of Appeal did not share the applicant’s opinion that he should be released in view of his family situation as it considered that detention inevitably entailed serious consequences for an individual’s family life.  It held, however, that the length of the applicant’s detention, which had at the time exceeded two years, militated in favour of his release. Moreover, as the trial had reached an advanced stage, the court saw no risk that the applicant might obstruct the process of obtaining evidence.

On 6 September 1996 the court held a hearing.  It held further hearings on 14 October, 22 November, 5 and 30 December 1996 and on 17 February, 14 March, 8 and 29 April, 15 and 21 May 1997.

On 23 May 1997 the WrocÅ‚aw Regional Court convicted the applicant as charged and sentenced him to three years’ imprisonment and a fine of 15,000 Polish zlotys .

B. Relevant domestic law and practice

At the material time the Polish Code of Criminal Procedure of 1969 listed as "preventive measures" ( środki zapobiegawcze ), inter alia , detention on remand, bail and police supervision.

Section 209 of the Code set out general grounds justifying imposition of preventive measures.  This provision (as it stood at the material time) provided:

“Preventive measures [including detention on remand] may be imposed in order to secure the proper course of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.”

Section 217 of the Code defined grounds justifying the imposition of detention on remand.  This provision, in the version applicable until 1 January 1996, provided, insofar as relevant:

"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 established 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 section 217 § 1 were repealed and the whole provision was redrafted.  From that date onwards the relevant subparagraphs of this provision 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 section 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 [laid down as] at least 8 years’ imprisonment, or if a court of first instance has sentenced him to at least 3 years’ imprisonment, the need to continue detention to secure the proper course of proceedings may be based upon the likelihood of a severe penalty to be imposed.”

The Code set out the margin of discretion as to maintaining a specific preventive measure.  Sections 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 or sufficient.

Section 213 § 1 provided:

"A preventive measure [including detention on remand] shall be immediately lifted or altered, if the basis therefor has ceased to exist or new circumstances have arisen which justify lifting or replacing a given measure with a more or less severe one."

Section 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 these measures, are considered adequate.”

The provisions of the Code providing for “mandatory detention” (for instance, detention pending an appeal against conviction at first instance) were repealed on 1 January 1996 by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes.

Finally, section 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.”

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 this provision.

2. Invoking Article 6 § 1 of the Convention, the applicant complains that his right to a “hearing within a reasonable time” was not respected.

THE LAW

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 this provision.

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

2. The applicant also complains under Article 6 § 1 of the Convention that his right to a “hearing within a reasonable time”, guaranteed by this provision, was not respected.

Article 6 § 1 states, insofar as relevant:

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

The Court reiterates 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 relevant authorities (see, among other authorities, the Slimane-Kaïd v. France judgment of 31 March 1998, Reports of Judgments and Decisions 1998-II, p. 662 § 97).

The proceedings in the instant case began on 23 May 1994, when the applicant was charged and, in the light of the material in the Court’s possession, ended on 23 May 1997, when he was convicted by the Wrocław Regional Court.  They lasted exactly three years.

During the investigation, which took some nine months, the authorities laid charges against sixteen persons and obtained evidence from witnesses, experts and from abroad.  The Court considers that the number of persons charged, the number and nature of the charges and the volume of evidence demonstrate that the authorities dealt with a complex case.

The trial started on 13 October 1995, that is to say, without any substantial delay on the part of the authorities.  The court proceeded with the determination of the case expeditiously and hearings were held at reasonable intervals.  From 13 October 1995 to 23 May 1997 the Wrocław Regional Court held 23 hearings in all.  On no occasion was the trial adjourned for more than two months.  In the circumstances, the Court finds no indication that the relevant authorities failed to act with all due diligence in handling the applicant’s case.

As regards the applicant, the Court observes that it does not appear from the case-file that his conduct caused any significant prolongation of the proceedings.

However, assessing the circumstances of the case as a whole and having regard to the total length of the proceedings and, more particularly, to the fact that the domestic authorities conducted the case with diligence required by Article 6 § 1, the Court considers that it cannot be said that the applicant’s right to a “hearing within a reasonable time” was violated.

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

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant ’s complaint that his detention on remand exceeded a “reasonable time”;

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger Georg Ress Registrar President