FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35036/97 by Antony Gordon OATES against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 11 May 2000 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 10 February 1997 and registered on 24 February 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 an Australian national, born in 1942. H e is represented before the Court by Mrs Romana Orlikowska-Wrońska and Mr Andrzej Sandomierski , lawyers practising in Poland.

A. The circumstances of the case

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

On 22 October 1996 the applicant was detained by the police in Sopot , Poland where he had been living since an unspecified date.              On the same date the GdaÅ„sk Regional Prosecutor ( Prokurator Wojewódzki ) asked the GdaÅ„sk Regional Court ( SÄ…d Wojewódzki ) to detain the applicant with a view to proceeding with his extradition to Australia. The prosecutor referred to the requisition for the extradition of the applicant transmitted on 8 August 1996 to the Government of Poland by the Australian Government. It resulted from the warrant to apprehend the applicant as a person charged with indictable offences issued on 11 January 1995 by a Justice of the Peace for Western Australia. The charges included several counts of conspiracy to defraud, improper use of his position as a company director and failure to act honestly as a company director. Furthermore, the Regional Prosecutor stated that the requisition for the extradition was based on the Extradition Treaty between the Republic of Poland and Australia concluded on 11 January 1932.

On 23 October 1996 the Gdańsk Regional Court allowed the Regional Prosecutor’s request and detained the applicant until 22 January 1997. The court considered that the applicant’s extradition was governed by the provisions of the Extradition Treaty, which were lex specialis in relation to the relevant provisions of the Polish Code of Criminal Procedure. Moreover, it was of the view that the evidence submitted by the State requiring the extradition showed that the requisition complied with Articles 3 –7 and 9 of the Extradition Treaty. In addition, the charges against the applicant were included in paragraphs 18 and 19 of Article 3 and were not barred by the statute of limitations. The Regional Court also noted that the applicant was not a Polish national and had not been granted political asylum by the Polish authorities. The applicant had confirmed that the charges against him had not been of a political character and that he had not been persecuted by the Australian authorities. Furthermore, the court considered that, under the Polish legislation, the charges laid against the applicant would result in his detention on remand, had they concerned offences committed in Poland. The applicant’s detention was also necessary to prevent him from interfering with the course of criminal proceedings against him in Australia. The court considered that the possibility of such interference resulted from the fact that the applicant was aware of those proceedings and his Australian lawyers acted on his behalf before the Australian authorities. In addition, he had a valid Australian passport and had applied for a permanent resident status in Poland. The Regional Court concluded that the applicant’s detention complied with Article 10 of the Extradition Treaty.

On 30 October 1996 the applicant appealed against the Gdańsk Regional Court’s decision of 23 October 1996. He contested the grounds on which the court had based its decision and requested that his detention be replaced by bail, police supervision and the seizure of his passport. On 18 November 1996 the Gdańsk Regional Court transmitted the applicant’s appeal to the Gdańsk Court of Appeal ( Sąd Apelacyjny ).

On 11 December 1996 the Gdańsk Court of Appeal dismissed the applicant’s appeal. The court was satisfied that the charges against the applicant concerned offences listed in paragraphs 18-20 of Article 3 of the Extradition Treaty and that the evidence submitted by the State requiring the extradition showed that the acts charged complied with the requirement of double criminality provided by Article 9. Furthermore, with reference to Article 6 of the Extradition Treaty, the appellate court stated that the applicant had not acquired exemption from prosecution by lapse of time. In addition, the evidence gave rise to reasonable suspicion that the applicant had committed the offences with which he was charged and that he would interfere with the criminal proceedings against him.  The Gdańsk Court of Appeal also referred to the following grounds of the applicant’s detention: the scope and the seriousness of the charges, their possible financial consequences and the lack of the applicant’s consent to present himself in Australia. It concluded that they give rise to reasonable suspicion that the applicant would flee and therefore the preventive measures requested by him could not replace his detention.

On 18 December 1996 the applicant requested the Gdańsk Regional Court to release him on bail and to order his police supervision and the seizure of his passport.

On 7 January 1997 the Gdańsk Regional Court rejected the applicant’s request. The court referred to the grounds of the applicant’s detention listed in its decision to detain him. It also recalled that, according to Article 10 of the Extradition Treaty, the competent authorities of the State applied to should proceed to the arrest of the fugitive if the requisition for extradition be in accordance with the stipulations of the Treaty. In this connection, the court pointed out that its decision of 23 October 1996 showed that this condition was fulfilled in the present case. Furthermore, the Regional Court considered that the fact that the applicant suffered from asthma did not have to result in his release, as according to the medical certificate of 30 December 1996 issued by the Director of the Gdańsk Detention Center Surgery the applicant could receive adequate medical treatment from the prison medical service.

On 20 January 1997 the Gdańsk Regional Court extended the applicant’s detention until 22 April 1997. The court referred to the grounds of detention listed in its decision of 23 October 1996. In addition, it pointed out that, as a result of the requests for release lodged by the applicant, no hearing on the merits of the extradition request had been held. On 22 January 1997 the applicant appealed against that decision.

On 29 January 1997 the Gdańsk Court of Appeal dismissed the applicant’s appeal. The court referred to its decision of 11 December 1996. It rejected the applicant’s claim that his prosecution was barred by the statute of limitations. The appellate court also instructed the Regional Court to consider in the future proceedings preventive measures other than detention. At the same time, the appellate court considered that the applicant should remain in detention and pointed out that he had not visited Australia since March 1991. Finally, it instructed the Regional Court to expedite the proceedings.

On 27 February 1997 the applicant requested the Gdańsk Regional Court to release him from detention. He also asked the court to order the following preventive measures: bail in the amount of USD 100 000, a mortgage on his real estate, an injunction prohibiting him from leaving Poland and police supervision. In addition, the applicant submitted that his state of health had deteriorated since he had been placed in custody.

On 6 March 1997 the Gdańsk Regional Court dismissed the applicant’s request. It considered that the applicant’s claim about deterioration of his health was unsubstantiated. The court referred to a medical certificate of 5 March 1997, which had been issued after several examinations and which confirmed that “the applicant’s state of health was in general satisfactory”. Moreover, the court was of the view that the applicant’s ailments could be treated by the prison medical service. It further considered that the applicant’s case did not disclose unreasonable delay as a hearing had been fixed for 25 March 1997. Finally, the Regional Court stated that the Extradition Treaty prevailed over domestic legislation. In this connection, it referred to Articles 10 and 11 of the Treaty and concluded that they provide for detention, as the only preventive measure which could be applied to the applicant.

On 8 April 1997 the Gdańsk Regional Court requested the Australian prosecuting authorities to submit additional evidence.

On 10 April 1997 the applicant’s lawyers asked the Gdańsk Court of Appeal to allow them to be present at a hearing during which it would decide whether to prolong the applicant’s detention.

On 11 April 1997 the Gdańsk Regional Prosecutor asked the Gdańsk Court of Appeal to prolong the applicant’s detention.

On 17 April 1997 the applicant’s lawyers again asked the Gdańsk Court of Appeal to allow them to be present at a hearing during which it would decide whether to prolong the applicant’s detention. On the same date the Gdańsk Court of Appeal rejected their requests and held a hearing during which the Gdańsk Prosecutor of Appeal ( Prokurator Prokuratury Apelacyjnej ) was present. The court decided to extend the applicant’s detention until 22 July 1997. It referred to the grounds of detention listed in its decisions of 11 December 1996 and 29 January 1997. The court also noted that the complexity of the case and the change of the composition of a bench had contributed to the delay in deciding the extradition request. In addition, the court pointed out that it had been necessary to request the Australian authorities to submit additional evidence. Such a request had been made with a certain delay on 8 April 1997. The delay resulted, inter alia , from the applicant’s requests for release, which could be decided only after he had undergone medical examinations. Furthermore, the court was of the view that Article 15 of the Extradition Treaty allowed for continued detention after the expiry of the initial period of 2 months. Finally, the court stated that the seriousness of the charges, which alleged the loss of hundreds of millions of dollars, could prompt the applicant to go into hiding or to leave Poland.

On 28 April 1997 the applicant lodged with the Supreme Court ( Sąd Najwyższy ) an appeal against the Gdańsk Court of Appeal’s decision of 17 April 1997. On 30 April 1997 the lawyers representing the applicant asked the Supreme Court to allow them to attend a hearing during which the applicant’s appeal would be decided. They relied on the principle of equality of arms established in the case-law of the European Court of Human Rights.

On 22 May 1997 a hearing was held before the Supreme Court at which the applicant’s counsel and the State Prosecutor ( Prokurator Prokuratury Krajowej ) were present. The court allowed the applicant’s appeal, quashed the impugned decision and ordered that he be released from detention. At the same time, the court decided that the applicant should be subjected to police supervision and ordered him to report once a week to a police station. The Supreme Court also ordered the applicant to remain in Poland.

The Supreme Court stated, inter alia , that:

“The detention of an individual with a view to his extradition is based on Article 535 of the Code of Criminal Procedure. However, it follows from Article 541 § 1 of the Code of Criminal Procedure that the application of that provision requires that account should be taken of the bilateral treaty between the Republic of Poland and Australia. Articles 10, 11 and 15 of the Treaty of 11 January 1932 concluded by the President of the Republic of Poland and His Majesty the King of Great Britain, Ireland and the British Dominions beyond the Seas, Emperor of India (…) regulate the question of detention. According to Article 15 of the Treaty, if sufficient evidence for the extradition be not produced within two months from the date of the apprehension of the fugitive, or within such further time as the State applied to, or the proper tribunal thereof, shall direct, the fugitive shall be set at liberty. As this provision is different from Article 535 § 4 of the Code of Criminal Procedure, the application of that Article is excluded under Article 541 § 1 of the Code of Criminal Procedure.

In view of [Article 15] of the Treaty of 11 January 1932, detention should be discontinued after 2 months, unless the Polish authorities prolong detention, which however is allowed only if they have sufficient evidence to proceed with the extradition of a fugitive, or if they fix a further time-limit for the State requesting the extradition, when they do not have sufficient evidence. With regard to the circumstances of the instant case, it should be noted that the 2 months’ time-limit provided by Article 15 of the Treaty expired on 22 December 1996.  Before that date the Australian authorities had not submitted sufficient evidence to decide the requisition for extradition.

This fact was ascertained by the Gdańsk Regional Court only on 8 April 1997, when it requested the Australian Minister of Justice to submit without delay additional evidence concerning the requisition for the extradition of Antony Gordon Oates . In those circumstances, it is obvious that on 22 December 1996, i.e. when the 2 months’ time-limit for detention had expired, the available evidence had not been sufficient to decide the extradition request. Therefore, the detention should have ended at the latest on that date.

This situation leads to a question whether the Gdańsk Regional Court, by requesting on 8 April 199[7] the additional evidence, validated the lack of grounds for prolonging the detention of Antony Gordon Oates . The answer to this question is negative because the request did not fix a time-limit for the Australian authorities to submit the additional evidence. [If such a time-limit had been fixed], the detention would have been validated only as from 8 April 1997. Therefore, a request to submit additional evidence within a fixed time-limit should have been made before the expiry of the 2 months’ time-limit and that would have allowed for continued detention. In this connection, it should be pointed out that - before sufficient evidence is submitted by the requesting State - detention under Article 535 § 1 of the Code of Criminal procedure read together with Articles 10 and 15 of the Treaty of 11 January 1932, has a time-limit. The date of the release of a fugitive falls either on a date on which the 2 months’ time-limit expires, or on a date fixed in a decision prolonging detention, which cannot be after a deadline fixed for the submission of additional evidence. Only after such additional evidence has been submitted, time-limits for detention can be calculated on the basis of Article 222 of the Code of Criminal Procedure (...).

In conclusion, (…) there did not exist legal grounds for prolonging the detention beyond 22 December 1996.”

The Supreme Court considered that the applicant should be subjected to police supervision and ordered to remain in Poland, as evidence gave rise to reasonable suspicion that he had committed the alleged offences. The court also observed that that there was no need to seize the applicant’s passport, as it had been already annulled by the Australian Embassy in Warsaw. Finally, the Supreme Court stated that its decision to subject the applicant to police supervision and to prohibit him from leaving Poland did not have any bearing on the question whether he should be extradited, which should be decided by a competent court on the basis of evidence submitted by the Australian authorities.

It appears that the applicant was subsequently released from detention. However, he has not provided information about the outcome of extradition proceedings.

Section 222 of the Code of Criminal Procedure in the version applicable after 4 August 1996, insofar as relevant provided:

"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 this period may not exceed two years.

4. In particularly justified cases the Supreme Court may, on the request of the court competent to deal with the case, ... prolong detention on remand for a further fixed period exceeding the periods referred to 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 December 1996, by virtue of the Law of 6 December 1996 on Amendments to the Code of Criminal Procedure, paragraph 4 of Section 222 was amended and the grounds for prolonging detention included also:

“… other significant obstacles, which could not be overcome by the organs conducting the proceedings …”

Section 535, as applicable at the material time, provided insofar as relevant:

“1. If the extradition request relates to an offence, whose perpetrator is subject to extradition, the court can decide to detain the fugitive; Section 222 shall apply accordingly. (…)

4. If evidence submitted together with the request for extradition is not sufficient and either the court or the prosecutor requested additional evidence but the requesting State has failed to submit (…) necessary documents or information within one month after receiving [the aforesaid] request, detention on remand shall be discontinued. (…)”

Section 541 § 1 of the Code of Criminal Procedure was at the material time included in Chapter XII “Procedure in Criminal Cases in International Relations” and provided as follows:

“The provisions of this chapter shall not be applicable if an international treaty, to which the Republic of Poland is a party, provides otherwise.”

2. The 1932 Extradition Treaty

The relevant provisions of the 1932 Extradition Treaty provide as follows:

Article 3

“Extradition shall be reciprocally granted for the following crimes or offences when they are punishable in accordance with the laws of both the High Contracting Parties (...)

18. Larceny or embezzlement.

19. Fraud by a bailee , banker, agent, factor, trustee, director, member, or public officer of any company, or fraudulent conversion. (...)“

Article 4

“Each Party reserves the right to refuse or grant the surrender of its own subjects or citizens to the other Party.“

Article 5

“The extradition shall not take place if the person claimed has already been tried and discharged or punished, or is still under trial in the State applied to, for the crime or offence for which his extradition is demanded: provided that the discharge of the accused on the ground that the crime or offence was committed abroad shall constitute no hindrance to his subsequent extradition.

If the person claimed should be under examination or under punishment in the State applied to for any other crime or offence, his extradition shall be deferred until the conclusion of the trail and the full execution of any punishment awarded to him.“

Article 6

“Extradition shall not be granted if the accused has by lapse of time, in accordance with the laws of that part of the territories of the High Contracting Parties in which he is found, acquired exemption from prosecution or punishment with respect to the crime or offence for which his surrender is claimed.“

Article 7

“A fugitive criminal shall not be surrendered if the crime or offence in respect of which his surrender is demanded is one of a political character, or if he proves that the requisition for his surrender has, in fact, been made with a view to try or punish him for a crime or offence of a political character.“

Article 9

“Subject to the provisions of Articles 19 and 20, the requisition for extradition shall be presented by the diplomatic agent of the High Contracting Party requiring the extradition to the Secretary of State or Minister for Foreign Affairs of the High Contracting Party applied to.

The requisition for the extradition of an accused person must be accompanied by a warrant of arrest issued by the competent authority of the State requiring the extradition, and by such evidence as, according to the laws of the place where the accused is found, would justify his arrest if the crime or offence had been committed there.

If the requisition relates to a person already convicted, it must be accompanied by the sentence of condemnation passed against the convicted person by the competent court of the State that makes the requisition for extradition.“

A sentence passed in contumaciam is not to be deemed a conviction, but a person so sentenced may be dealt with as an accused person.“

Article 10

“If the requisition for extradition be in accordance with the foregoing stipulations, the competent authorities of the State applied to shall proceed to the arrest of the fugitive.“

Article 15

“If sufficient evidence for the extradition be not produced within two months from the date of the apprehension of the fugitive, or within such further time as the State applied to, or the proper tribunal thereof, shall direct, the fugitive shall be set at liberty.“

Article 19

“His Britannic Majesty may accede to the present Treaty on behalf of any of His Dominions hereafter named - that is to say, the Dominion of Canada, the Commonwealth of Australia (including for this purpose Papua and Norfolk Island), the Dominion of New Zealand, the Union of South Africa, the Irish Free State, and Newfoundland - and India. (…)“

COMPLAINTS

The applicant complains under Article 5 § 1 (f) of the Convention that his detention was unlawful.

He also complains under Article 6 § 1 of the Convention that the refusal to allow his counsel to attend a court hearing held on 17 April 1997 was in breach of the principle of equality of arms.

Finally, the applicant alleges that Article 18 was breached in his case, as he was detained for political reasons.

THE LAW

1 . The applicant complains under Article 6 § 1 of the Convention that the refusal to allow his counsel to attend a court hearing held on 17 April 1997 was in breach of the principle of equality of arms.

The Court notes that during the impugned hearing, which concerned the extradition proceedings against the applicant, the Gdańsk Court of Appeal allowed the request of the prosecuting authorities and decided to prolong the applicant’s detention. Accordingly, it will consider this complaint under Article 5 § 4 of the Convention, which 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 Court observes that the Gdańsk Prosecutor of Appeal attended the hearing, whereas neither the applicant nor his counsel was present. However, the applicant appealed the decision prolonging his detention made by the Gdańsk Court of Appeal during the impugned hearing. On 22 May 1997 the Supreme Court held a hearing, attended by the applicant’s counsel, during which it allowed his appeal and ordered his release. Therefore, the shortcoming of the impugned hearing was remedied on appeal. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

2. The applicant alleges that Article 18 of the Convention was breached in his case, as he was detained for political reasons.

Article 18 provides:

“The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”

The Court firstly recalls that Article 18 of the Convention does not have an autonomous role. It can only be applied in conjunction with other Articles of the Convention. There may be a violation of Article 18 in connection with another Article, although there is no violation of that Article taken alone (see Kamma v. the Netherlands, Eur. Comm. HR, Rep. 14.7.1974, 1 D.R. p. 4).  However, after examining the applicant’s submissions, the Court considers that he has not submitted any prima facie evidence pointing towards the violation of that provision. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

3. The applicant complains under Article 5 § 1 (f) of the Convention that his detention was unlawful.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant ’s complaint under Article 5 § 1 (f) that his detention was unlawful;

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger Georg Ress Registrar President