FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34097/96 by Zbigniew KREPS against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 23 March 2000 as a Chamber composed of

Mr M. Pellonpää , President , Mr G. Ress , Mr A. Pastor Ridruejo , Mr L. Caflisch , Mr J. Makarczyk , Mr I. Cabral Barreto , 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 13 February 1996 and registered on 10 December 1996,

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 applicants,

Having deliberated, decides as follows:

THE FACTS

The applicant, a Polish citizen born in 1957, is a locksmith by trade and resides in Warsaw, Poland.  He is currently detained in the Warsaw Remand Centre.

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

On 13 January 1993 the applicant was detained on suspicion of having committed the offences of armed robbery, burglary and assault occasioning bodily injuries.

On 13 April 1993 a bill of indictment was lodged with the Warsaw Regional Court ( Sąd Wojewódzki ).  The applicant was indicted on the charges of armed robbery, burglary and assault committed together with six other persons.  The court listed hearings for 4 and 5 May 1994.  Those hearings were subsequently cancelled because one of the applicant’s co-defendants had failed to appear.

On 6 and 7 September 1994 the court adjourned the next hearings because a court interpreter had failed to appear.

On 8 November 1994 the court held the first hearing on the merits.

On 17 January 1995 the court postponed a hearing until the next day because it appeared from a medical certificate that the applicant was ill.  On 18 January the court decided to proceed with the trial in the applicant’s absence as, on the basis of a subsequent medical certificate, it considered that the applicant had misinformed the authorities as to the state of his health.

On 17 May 1995 the court held a hearing and ordered that evidence be obtained from psychiatrists to establish whether tempore criminis the applicant and two of his co-defendants had acted in a state of diminished responsibility.  On 18 May the court cancelled a hearing because court experts had failed to appear.

On 22 May 1995 the court requested the Department of Forensic Psychiatry of the Warsaw- Mokotów Prison to place the applicant and his co-defendants under psychiatric observation.

From 3 October 1995 to 15 January 1996 the applicant was placed under psychiatric observation.

On 29 December 1995, 13 January, 13 and 29 February, 4 March and 16 April 1996, the applicant requested the Warsaw Regional Court to release him.  He submitted that his detention on remand had meanwhile exceeded two years and that it was putting a severe strain on his family, especially as his child was ill.

On 29 February 1996 and on an unspecified date in April 1996, the experts finished the psychiatric observation ordered with respect to the applicant's co-defendants.  The experts' report was submitted to the court on 8 May 1996.

On 29 April 1996 the Warsaw Regional Court dismissed the applicant's requests for release, which had been lodged between 29 December 1995 and 16 April 1996.  The court held that the applicant's detention should be continued on the ground that there was a reasonable suspicion that he had committed the offences with which he had been charged.  There was also the need to secure the proper course of the proceedings.  The court considered that the length of the applicant's detention could not in itself be a decisive factor militating in favour of his release.  It also considered that there were no grounds for releasing the applicant under section 218 of the Code of Criminal Procedure.

Subsequently, the applicant appealed against that decision, submitting that his detention on remand had meanwhile exceeded three years but his trial had only just commenced.

On 23 May 1996 the Warsaw Court of Appeal ( SÄ…d Apelacyjny ) dismissed the appeal in view of the serious nature of the offences with which the applicant had been charged and the need to secure the proper course of the proceedings.

In May 1996, on an unspecified date, the court scheduled the next hearings for 5 and 6 August 1996.  It emerges from a subsequent decision of the Supreme Court of 13 February 1997 that those hearings were cancelled because the applicant’s co-defendants “disorganised the trial”.

In the meantime, on an unspecified date, the applicant requested the court to release him.  On 19 September 1996 the Warsaw Regional Court dismissed the request.  This decision was upheld on appeal, equally on an unspecified date.

On 28 September 1996 the applicant submitted a medical certificate stating that he suffered from gastric ulcers.

On 8 November 1996 the court held a hearing.  However, the composition of the panel of the court had to be changed because one of the judges had withdrawn from the case.  As a result, the newly-composed trial court had to re-hear evidence.

On 31 December 1996 the Warsaw Regional Court requested the Supreme Court ( Sąd Najwyższy ) to prolong the applicant's and his five co-defendants’ detention on remand until 30 May 1997, i.e. beyond the statutory time-limit set in such cases.  The application was submitted under section 222 § 4 of the Code of Criminal Procedure.  The court considered that the prolonged psychiatric observation of three of the co-defendants, the need to take evidence and the fact that one co-defendant had gone on a hunger strike and had inflicted injuries on himself, taken together, justified the opinion that the defendants had deliberately obstructed the termination of the proceedings within the statutory time-limit.  In respect of the applicant, the court held that he had, by his conduct, obstructed the termination of the proceedings.  It did not specify how the applicant prevented completion of the trial.

In January 1997, on an unspecified date, the court scheduled the next hearings for 21 January and 4 and 6 February 1997.

On 21 January 1997, during the hearing, the applicant requested the court to release him.  On 6 February 1997 he lodged another application for release.

On 13 February 1997 the Supreme Court partly granted the request of the Warsaw Regional Court of 31 December 1996 and prolonged the applicant's detention on remand until 30 April 1997.

On 3 March 1997 the Warsaw Regional Court dismissed the applicant's requests for release of 21 January and 6 February 1997.  It held that there were no grounds for releasing him under section 218 of the Code of Criminal Procedure.

On 7 March 1997 the court cancelled the hearing which was to be held on that date.

On 21 March 1997 the applicant challenged the impartiality of the trial court and requested that all the judges be disqualified.  The challenge was dismissed on 27 March.

On 18 April 1997 the court terminated the trial and gave judgment.  The applicant was convicted as charged and sentenced to eleven years’ imprisonment and a fine of 3,000 Polish zlotys .

On an unspecified date the applicant appealed against the first-instance judgment.  The Warsaw Court of Appeal dismissed his appeal on 2 December 1997.  The applicant did not lodge a cassation appeal with the Supreme Court.

1. Preventive measures, in particular, detention on remand

At the material time the domestic provisions governing detention on remand were contained in the Code of Criminal Procedure of 1969, which is no longer in force as it was repealed and replaced by the Code of Criminal Procedure of 6 June 1997 (currently referred to as the “New Code of Criminal Procedure”).

The Code of Criminal Procedure of 1969 listed detention among the so-called “preventive measures” (those measures were, inter alia , detention on remand, bail and police supervision).

Section 209 of the Code of Criminal Procedure (in the version applicable at the material time) provided:

"Preventive measures 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."

The Code set out the margin of discretion as to continuing the specific preventive measure.  Since detention on remand was regarded as the most extreme among the preventive measures, the domestic law laid down that in principle it should not be imposed if more lenient measures were adequate or sufficient.

Section 213 of the Code of Criminal Procedure stipulated, insofar as relevant:

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

Section 225 provided:

"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 relevant provisions of the Code which provided for "mandatory detention" were repealed by virtue of a new Law of 29 June 1995 on Amendments of the Code of Criminal Procedure and Other Criminal Statutes.

Within the above margin of discretion the Code of Criminal Procedure set out a list of particular instances in which detention on remand might be imposed.

Section 217 of the Code of Criminal Procedure stated, insofar as relevant:

"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 his identity cannot be established or he has no permanent domicile [in Poland], or

2. there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or will obstruct the due course of proceedings by any other unlawful means, or

3. an accused has been charged with a serious offence [i.e. an offence punishable by a minimum of three years' imprisonment], or

4. an accused has been charged with an offence which creates a serious danger to society

..."

Finally, section 218 of the Code referred to particular situations in which detention on remand should not, in principle, be imposed.  That section provided:

"If there are no special reasons to the contrary, detention on remand should be quashed, in particular when:

(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."

2. 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 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes entered into force, there were no statutory time-limits put on detention on remand continuing in court 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 …”

Pursuant to Section 1 of the so-called “Interim Law” of 1 December 1995, if detention on remand exceeded the above-mentioned time-limits before 4 August 1996, it could not be continued longer than until 1 January 1997.  After this date, a further prolongation could be ordered only in the specific circumstances mentioned in Section 222 § 4 of the Code.

3. Cassation appeal

As from 1 January 1996, i.e. the date on which the relevant provisions of the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes entered into force, a party to criminal proceedings could lodge a cassation appeal with the Supreme Court against any final decision of an appellate court which had terminated the criminal proceedings.

Section 463a § 1 of the Code of Criminal Procedure provided, insofar as relevant:

" A cassation appeal may be lodged only on the grounds referred to in section 388 [these included a number of procedural irregularities] or on the ground of another flagrant breach of law provided that the judicial decision in question was affected by such breach. ..."

As regards the substantive grounds for a cassation appeal, an appellant could invoke any breach of the substantive or procedural provisions of criminal law.  This included a breach of defence rights, guaranteed by section 9 of the Code in the following terms:

" An accused has a right to defend himself and to be assisted by a defence lawyer.”

An appellant who claimed that failure to examine witnesses had affected the outcome of his trial or that the rules concerning the admissibility of evidence had been violated, or that the manner in which evidence had been taken or refused was contrary to procedural provisions could, in his appeal, invoke a breach of the relevant provisions (section 152 et seq.) of the Code relating to the admissibility of evidence.

COMPLAINTS

1. The applicant complains under Article 5 § 3 of the Convention about the length of his detention on remand.

2. Relying on Article 6 § 1 of the Convention, the applicant complains that the length of the criminal proceedings against him exceeded a reasonable time.

3. Under Article 6 § 1 of the Convention, the applicant also submits that he did not have a fair trial since the trial court dismissed his requests to take evidence.  He also complains that his defence rights were not respected.

PROCEDURE

The application was introduced on 13 February 1996 before the European Commission of Human Rights and registered on 10 December 1996.

On 21 May 1997 the Commission decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 4 August 1997, after a second extension of the time-limit fixed for that purpose. The applicant replied on 23 September 1997.  The Government submitted their supplementary observations on 4 December 1997.  The applicant submitted further observations in reply on 10 December 1997 and 30 November 1998.

On 28 October 1997 the Commission granted the applicant legal aid.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

1. The applicant complains under Article 5 § 3 of the Convention about the length of his detention on remand.

Article 5 § 3 states, insofar as relevant:

“ Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this article … shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

Referring to the Court’s competence ratione temporis , the Government submit that the length of the applicant’s detention on remand has to be calculated from 1 May 1993 (the date on which Poland’s declaration recognising the right of individual petition for the purposes of Article 34 of the Convention took effect) to 18 April 1997 (the date of his first-instance conviction).

In respect of the substance of the complaint, the Government maintain that, given that there were valid reasons justifying the applicant’s detention, it cannot be said that its length exceeded a “reasonable time” within the meaning of Article 5 § 3.  To begin with, they stress that there was a well-founded suspicion that the applicant had committed three serious offences, which meant that he could have been liable to sentence ranging from five years’ imprisonment to the death penalty.  Furthermore, the applicant’s continued detention was necessary to ensure the proper course of the proceedings, especially as he obstructed the course of his trial.  On this point, the Government assert that on 7 February 1995 the applicant simulated gastrorrhagia and then, on 18 January 1996, he misinformed the court as to the state of his health, trying to absent himself from a hearing.

The Government further submit that the authorities diligently and expeditiously handled the applicant’s case.  They carefully examined his applications for release, considering grounds militating in favour of and against his continued detention.  They obtained voluminous evidence and, when doubts arose as the applicant’s criminal responsibility, ordered that he undergo psychiatric observation.

Finally, emphasising the complexity of the case, the Government conclude that Article 5 § 3 of the Convention has not been violated in the present case.

The applicant accepts that, for the purposes of the Court’s competence ratione temporis , his pre-trial detention lasted from 1 May 1993 to 18 April 1997, that is, approximately four years.  In his view, such a long period of detention of a person presumed to be innocent is in itself incompatible with the “reasonable time” requirement laid down in paragraph 3 of Article 5. He submits that his detention in fact amounted to serving a prison sentence.

Making reference to the reasons for his detention relied on by the authorities, the applicant points out that a suspicion that he had committed the offences in question could suffice only at an early stage of the proceedings.  Later, the authorities should have considered other guarantees that he would appear for trial, for instance bail or police supervision.

The applicant denies that he simulated gastrorrhagia or any other ailments or otherwise obstructed the proper course of his trial.  It is true that, on two occasions, he informed the authorities that he was unable to take part in the hearings but it was due to the fact that he suffers from gastric ulcers; this fact was subsequently confirmed by the medical certificate of 28 September 1996.  In any event, during the four years of his trial he was only twice absent from the hearings and these absences can hardly be considered as significant obstacles to the progress of the proceedings.

In the applicant’s view, the authorities failed to act with due diligence and their conduct resulted in the proceedings being substantially prolonged.  In that context, the applicant points out that there were two considerable periods of inactivity on the part of the courts.  The first hearing on the merits was held as late as 8 November 1994, i.e. after about one year and a half after he had been indicted.  Later, the trial court held no hearing from May 1995 to November 1996, that is, for yet another year and a half.  These periods of inertia amounted in total to three years and, if compared with the overall length of his trial, must be considered as serious delays.

As regards the nature of his case, the applicant maintains that it did not differ from many similar cases dealt with by regional courts and that it was of not more than an average complexity.

In conclusion, referring to the criteria for the “reasonableness of the length of detention” laid down in the Court’s case-law, the applicant contends that his right to a “trial within a reasonable time or to release pending trial” was not respected.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of law and fact under the Convention, the determination of which should depend on an examination of its merits.  The Court considers therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.  No other grounds for declaring it inadmissible have been established.

2. Relying on Article 6 § 1 of the Convention, the applicant complains that the length of the criminal proceedings against him exceeded a reasonable time.

Article 6 § 1 stipulates, 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 Government contend that, in the light of the criteria established by the Court in respect of the “reasonable time” requirement set out in Article 6 § 1, the proceedings in question cannot be considered as excessively long.

In the Government’s view, the case was a complex one.  It involved the determination of serious charges against seven co-defendants.  One of the co-defendants was a Lithuanian and this fact had a bearing on the length of the proceedings because the court had to provide him with the assistance of an interpreter.  During the proceedings evidence from psychiatrists had to be obtained and there was a need to place four of the co-defendants under psychiatric observation.  According to the Government, the process of obtaining evidence from psychiatrists lasted nearly eleven months.

Moreover, the co-defendants obstructed the proper course of the trial.  They were absent at the hearings or disorganised the course of the trial.  The applicant himself gave new testimony by the end of the trial and, in consequence, the court had to confront him with other persons.  Also, one of the judges withdrew from the case; this resulted in a new panel of the court being composed and the proceedings being delayed because the court had to re-hear evidence.

In respect to the conduct of the authorities, the Government maintain that they acted diligently and that there were no periods of inactivity on their part.

The applicant disagrees.  Referring to his arguments adduced in respect of his complaint about the length of detention, he stresses that the periods of inactivity on the part of the authorities amounted to three years, whereas the overall length of the proceedings was four years and eight months.

That period was excessively long and, therefore, violated the applicant’s right to a “hearing within a reasonable time” guaranteed by Article 6 § 1 of the Convention.

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

3. Under Article 6 § 1 of the Convention, the applicant submits that he did not have a fair trial since the trial court dismissed his requests to take evidence.  He also complains that his defence rights were not respected.  The applicant does not refer to concrete dates or decisions.

However, under Article 35 § 1 of the Convention, the Court “may only deal with the matter after all domestic remedies have been exhausted”.

In that context, the Court notes that that the applicant failed to lodge a cassation appeal against the final judgment given in his case by the Warsaw Court of Appeal on 2 December 1997.

The Court further observes that, according to Polish law applicable at the material time, a party to criminal proceedings could lodge a cassation appeal on the ground of a flagrant breach of any substantive or procedural provision of criminal law.  The grounds for a cassation appeal included breaches of the rules concerning the admissibility of evidence and the manner in which evidence was taken or refused.  They also included the breach of defence rights.

Therefore, the Court finds that a cassation appeal would have been a remedy whereby the applicant could have effectively submitted the substance of his complaint under the present heading to the domestic courts.

It follows that the remainder of the application must be declared inadmissible for non-exhaustion of domestic remedies, pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE , without prejudging the merits, the applicant’s complaints about the length of his detention on remand and the length of the criminal proceedings against him;

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger Matti Pellonpää Registrar President