FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34087/96

by Marek DÄ„BROWSKI

against Poland

The European Court of Human Rights ( Fourth Section) sitting on 6 July 1999 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 ,

with Mr V. Berger, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 16 October 1995 by Marek DĄBROWSKI  against Poland and registered on 10 December 1996 under file no. 34087;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Polish national, born in 1965 and living in Knurów , Poland.

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

A. Particular circumstances of the case

On 18 March 1995 the applicant was arrested by the police on suspicion of having committed burglary and assault of a so-called “hooligan character” ( o charakterze chuligańskim ).  On 19 March 1995 he was brought before T. Ż., a district prosecutor from the Gliwice District Prosecutor’s Office ( Prokuratura Rejonowa ), charged with one count of burglary and one count of assault of a “hooligan character” and detained on remand until 17 April 1995 on the grounds that there was a reasonable suspicion that he had committed the offences in question and that there was a reasonable risk that he might obstruct the proper course of the proceedings.  As regards the second of these grounds, the prosecutor stressed the fact that, before having been arrested, the applicant had already been sought by the police in connection with certain other, unspecified criminal proceedings in which charges were likely to be laid against him.

On 11 April 1995 the prosecutor T. Å». prolonged the applicant’s detention until 17 May 1995.  She relied on the grounds previously cited for his detention and the fact the investigation was not concluded since fresh evidence needed to be obtained (in particular, a report from experts in serology at the Faculty of Forensic Medicine of the Silesian Medical Academy and documentary evidence relating to the applicant’s previous criminal record).

On 21 April 1995, on the applicant’s appeal, the Gliwice District Court ( Sąd Rejonowy ) upheld the prosecutor’s decision, finding that there was a reasonable suspicion that the applicant had committed the offences with which he had been charged and that the risk that he might abscond or go into hiding was still justified because before having been detained he had been searched for.  The court also observed that the need to obtain evidence justified a certain prolongation of the investigation.

On 11 May 1995 the prosecutor T.Ż. prolonged the applicant’s detention until 17 June 1995 on the same grounds as those invoked in her decision of 11 April 1995.  On 24 May 1995, on the applicant’s appeal, the Gliwice District Court upheld the above-mentioned decision and the reasons given therefor.

On an unspecified date in June 1995 the Gliwice District Prosecutor ( Prokurator Rejonowy ) indicted the applicant in the Gliwice District Court.  In the course of the proceedings (both at first instance and on appeal) the applicant was not assisted by a lawyer.

Subsequently, on an unspecified date, the applicant requested the court to release him.  On 7 July 1995 a single judge, sitting as the Gliwice District Court, dismissed the applicant’s request, finding that he should still be maintained in detention in view of the reasonable suspicion that he had committed the offences with which he had been charged and the serious nature of these offences.  The applicant appealed against this decision.

On 26 July 1995 the Katowice Regional Court ( Sąd Wojewódzki ) upheld the contested decision, holding that, in the light of evidence obtained in the investigation, the charges laid against the applicant had sufficient bases and that both the serious nature of the offences in question and the fact that the applicant had a previous criminal record militated in favour of maintaining him in detention pending trial.

On 17 August 1995 the Gliwice District Court held the first hearing in the applicant’s case.

On an unspecified date in August 1995 the applicant lodged a subsequent application for release with the trial court.  In particular, he complained that his prolonged detention resulted in his being unable to pay rent due for his apartment and that, consequently, he should be released in order to settle his financial obligations towards a housing co-operative.

On 29 August 1995 the court dismissed the application, holding that the circumstances relied on by the applicant did not justify quashing the detention order.  The court moreover stressed that in view of the serious nature of the charges laid against him, his detention should be maintained pending trial.

On 13 September 1995, on the applicant’s appeal, the Katowice Regional Court upheld this decision and the reasons therefor.

On 26 September 1995 the Gliwice District Court dismissed a subsequent application for release, which had been lodged by the applicant on an unspecified date.  The court invoked the grounds for his detention stated in its previous decisions.  On 28 November 1995 the Katowice Regional Court upheld this decision and the reasons therefor.

On 31 October and 12 December 1995, and on 22 January 1996 the court held further hearings in the applicant’s case.

On 20 February 1996 the Gliwice District Court held a subsequent hearing and, on the same day, gave judgment.  It convicted the applicant of the offences with which he had been charged and sentenced him to sixteen months’ imprisonment.

Later, on an unspecified date the applicant filed an appeal with the Katowice Regional Court.  In his appeal, he contested the findings of fact made by the trial court and alleged that that court had incorrectly assessed evidence before it, in particular the evidence heard from certain lay witnesses and the victim of the assault.  He also contested the veracity of the victim’s testimony.  The applicant also maintained that the policeman, who had been involved in taking evidence from witnesses at the initial stage of the investigation, had made inaccurate records of the relevant testimonies.  Finally, he alleged that the trial court had violated the principle of the presumption of innocence and his defence rights.

On 21 May 1996 the Katowice Regional Court gave judgment dismissing the applicant’s appeal.  Relying on the fact that the applicant had been arrested close to the locus delicti and the stolen goods had been found on him, the court rejected his arguments concerning the assessment of evidence relating to the charge of burglary.  It also found that the testimony given by the victim of the assault had been consistent and accurate and that, therefore, there were no doubts as to the veracity of his statements.

On an unspecified date the applicant filed a notice of cassation appeal.  Later, on 21 June 1996, he requested the Katowice Regional Court to appoint a defence lawyer to assist him in the preparation of a cassation appeal to the Supreme Court ( S  d Najwy  szy ).  In that regard the applicant stressed that, according to the relevant provisions of the Code of Criminal Procedure, a cassation appeal had to be filed and signed by a lawyer, on pain of the appeal being rejected.  He maintained that he had no financial resources (especially as he was not employed in prison) and was unable to bear the necessary legal fees.

On 10 July 1996 the Katowice Regional Court hold a session in camera and dismissed the applicant’s request for free legal assistance.  The reasons for this decision read:

“ The applicant has failed to adduce any convincing arguments to demonstrate that he is unable to bear the costs of his defence.  It is true that he is detained in prison and that he is not employed; however, these mere facts do not prove [to the satisfaction of the court] that he cannot pay the legal fees of a lawyer appointed by him.”

B. Relevant domestic law and practice

1. Imposition of detention on remand

Over the period to which the facts of the present case relate, legal provisions governing detention on remand were contained in Chapter XXIV of the Code of Criminal Procedure of 19 April 1969, entitled “Preventive measures” ( Środki zapobiegawcze ).  At present, this Code is no longer in force as it was repealed and replaced by a so-called “New Code of Criminal Procedure” of 6 June 1997 which entered into force on 1 September 1998.

Section 209 of the Code of Criminal Procedure provided:

"Preventive measures may be imposed in order to ensure the due course of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence."

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) at the investigative stage of criminal proceedings detention on remand was imposed by a prosecutor.

Section 210 §§ 1 and 2 of the Code of Criminal Procedure stated:

"1. Preventive measures shall be imposed by the court; before a bill of indictment has been lodged with the competent court, the measures shall be imposed by the prosecutor.

2. A prosecutor may impose a preventive measure only with respect to a person who has been questioned in the case as a suspect.  Before ordering detention on remand or deciding on bail the prosecutor shall personally hear the suspect."

A detainee could, under Section 212 § 2 of the Code, appeal against an order for his detention made by a prosecutor to the court competent to deal with his case; however, he was not entitled to be brought before the court dealing with his appeal.

2. Prosecutor

At the material time the relations between the organs of the Polish State were set out in interim legislation, a so-called "Mini-Constitution" ( Mała Konstytucja ), i.e. the Constitutional Act of 17 October 1992.  Article 1 of the Act affirmed the principle of the separation of powers in the following terms:

"The legislative power of the State shall be vested in the Sejm and the Senate of the Republic of Poland; the executive power shall be vested in the President of Poland and the Council of Ministers; and judicial power shall be vested in the independent courts."

Under Article 56 of the Act, “the Council of Ministers (i.e. the Government) shall be composed of the Prime Minister, Deputy Prime Ministers and Ministers”.

Polish legislation draws a distinction between "judicial" and " prosecutorial " authorities; this is demonstrated, inter alia , by the fact that there are separate laws governing the structure and functioning of the courts on the one hand and the prosecuting authorities on the other.

The Law of 20 June 1985 (as amended) on the Structure of Courts of Law ( Ustawa o ustroju sądów powszechnych ) in the version applicable at the material time provided, in Section 1:

"1. Courts of law shall dispense justice in the Republic of Poland.

2. Courts of law shall be courts of appeal, regional courts and district courts."

Section 9 of the Law provided:

"The Supreme Court shall exercise supervisory jurisdiction over [lower] courts of law."

The Law of 20 June 1985 (as amended) on Prosecutorial Authorities ( Ustawa o Prokuraturze ) sets out general principles concerning the structure, functions and organisation of prosecutorial authorities.

Section 1 of the Law, in the version applicable at the material time, provided:

"1. The prosecutorial authorities shall be the Prosecutor General, prosecutors and military prosecutors.  Prosecutors and military prosecutors shall be subordinate to the Prosecutor General.

2. The Prosecutor General shall be the highest prosecutorial authority; his functions shall be carried out by the Minister of Justice."

Section 2 of the Law, setting out the general duties of prosecutors, provided:

" The prosecutorial authorities shall ensure the observance of the rule of law and the prosecution of criminal offences."

Section 3 § 1 of the Law, setting out the detailed duties of prosecutors, provided, insofar as relevant:

"1. The Prosecutor General and prosecutors subordinate to him shall carry out the[ ir ] duties set out in Section 2 by [the following means]:

(1) carrying out and supervising the carrying out of criminal investigations and performing prosecutorial functions before the courts;

(2) submitting civil claims in criminal and civil cases and taking part in civil proceedings ... if the public interest [or the need to ensure the observance of] the rule of law or citizens' rights so require;

(3) taking [the appropriate] action provided by law in order to secure the correct and uniform application of the law in judicial, administrative ... or any other proceedings;

(4) supervising the enforcement of judgments given in criminal cases, decisions on detention on remand and other decisions on deprivation of liberty;

(5) carrying out research into crime, the prevention of crime and combating crime;

(6) appealing to a court against any administrative decision taken in breach of the law, and participating in proceedings relating to the lawfulness of such decisions;

(7) coordinating the crime-prevention activities of other State organs;

(8) cooperating with [other State organs] and non-governmental organisations in order to prevent crime and other breaches of the law;

(9) giving advisory opinions on draft legislation;

(10) taking [any other] action provided for by statute."

Section 7 of the Law provided:

"In carrying out his statutory duties, a prosecutor shall follow the principles of impartiality and of equal treatment of citizens."

Section 8  of the Law, insofar as relevant, provided:

"1. In carrying out his duties, a prosecutor shall be independent; the limits of his independence are set out in subsection 2 hereof.

2. A prosecutor shall abide by the instructions, guidelines and orders of his superiors.  However, if an order relates to the substance of any action to be taken in proceedings, a prosecutor may request [his superior] to issue the order concerned with reasons in writing, to alter the order, to relieve him from performing an act prescribed by that order, or to remove him from conducting the case in question. Requests to be removed from a case shall be decided by a hierarchical superior of the prosecutor who issued the order."

Section 11 of the Law, insofar as relevant, provided:

"Prosecutors of appeal, regional and district prosecutors shall be appointed by the Prosecutor General."                               

Chapter III of the Code of Criminal Procedure of 19 April 1969, entitled "Parties to proceedings, defence counsel, representatives of victims and representatives of society" described a prosecutor as a party to criminal proceedings.

According to all the relevant provisions of the Code read together, a prosecutor performed investigative and prosecuting functions in criminal proceedings.  In particular, after completing the investigation, he drew up a bill of indictment and represented the prosecuting authority before the court competent to deal with the case.

Under Section 3 of the Code of Criminal Procedure, as it stood at the material time, "... organs conducting criminal proceedings [including a prosecutor] shall examine and take into account exonerating as well as incriminating evidence".

There was no legal obstacle to prosecutors performing investigative and prosecutorial functions concurrently.  According to domestic practice - which, at the material time, was a very frequent one and which reflected the general principle of achieving a maximum of efficiency at the investigative stage - the same prosecutor made the decision as to whether a suspect should be detained, conducted the further investigation, drew up the bill of indictment and represented (or could be called upon to represent at any time) the prosecution before the trial court.

3. Legal assistance

According to Section 69 of the Code of Criminal Procedure, as it stood at the material time, a court appointed a lawyer for an accused who had proved that he could not afford legal assistance, i.e. that “the costs of such assistance would entail a substantial reduction in his and his family's standard of living”.

4. Cassation appeal

As from 1 January 1996, i.e. the date on which the relevant provisions of a new 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 include a number of procedural irregularities] or on the ground of another flagrant breach of law provided that the judicial decision in question was affected as a result of such breach. ..."

Section 464 of the Code of Criminal Procedure provided:

"1. Parties to criminal proceedings shall be entitled to lodge a cassation appeal.

2. A cassation appeal which has been lodged by a party other than a prosecutor shall be filed and signed by a lawyer.

3. A notice of cassation appeal must be lodged with the court which has given the [relevant] decision within seven days from the date on which such decision has been pronounced.  The appeal itself must be lodged within thirty days from the date on which the decision, together with the reasons therefor, has been served on the party concerned."

Under Section 467 § 2 of the Code of Criminal Procedure, the court which had dealt with the case on appeal was at a further stage competent to decide whether the formal requirements for a cassation appeal had been complied with.  If an accused's appeal was not filed and signed by a lawyer, it had to be rejected.  If an appeal complied with the formal requirements, the case was transferred to the Supreme Court.

COMPLAINTS

1. The applicant firstly complains under Article 5 § 3 of the Convention that, after being arrested, he was not “brought promptly before a judge” but before the prosecutor, who was a party to the proceedings and did not have attributes of a “judge” required by this provision.

2. He further complains under Article 5 §§ 3 and 4 and Article 8 of the Convention that his right to release pending trial was not respected, in particular as the Gliwice District Court failed to give sufficient reasons for his continued detention on remand.

3. Under Article 6 § 2 and § 3 (d) of the Convention the applicant contests the fairness of his trial, submitting that his conviction was wrong since the courts made erroneous findings of fact, failed to admit evidence proposed by him and incorrectly assessed evidence before them.

4. Lastly, invoking Article 6 § 3 (c) of the Convention, the applicant complains that the Katowice Regional Court arbitrarily refused to grant him free legal assistance for the preparation of a cassation appeal, even though such an appeal had to be filed and signed by a lawyer.

THE LAW

1. The applicant complains under Article 5 §§ 3 and 4 and Article 8 of the Convention that his right to release pending trial was not respected, in particular as the Gliwice District Court failed to give sufficient reasons for his continued detention on remand.

The Court considers that the present complaint falls to be examined solely under Article 5 § 3 of the Convention, which provides, 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.”

The Court recalls that, in order to assess whether the continued detention is justified, it falls in the first place to the national judicial authorities to examine all the circumstances arguing for or against of such a requirement and to set them out in their decisions on the applications for release.  Moreover, it is essentially on the basis of the reasons given in those decisions and of the undisputed facts stated by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 (see the Muller v. France judgment of 17 March 1997, Reports 1997-II, p. 388, § 35).

The Court further reiterates that the persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices.  It is, therefore, necessary to establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty.  Where such grounds were “relevant” and “sufficient”, it is also necessary to ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (the Muller v. France judgment, loc. cit.).

In the present case the Court observes that the applicant’s detention started on 18 March 1995, when he was arrested, and came to an end on 20 February 1996, the date of his first-instance conviction.  Accordingly, the period of his detention to be considered under Article 5 § 3 is a little more than eleven months.

As regards the reasons invoked for the applicant’s detention, the Court observes that the Polish authorities, in their initial decisions, relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged.  Since, before being arrested, the applicant had been sought by the police in connection with other criminal proceedings against him, they also concluded that there might be a danger of his absconding or going into hiding.

As the proceedings continued, the authorities held that the applicant’s detention should be maintained in order to ensure the proper course of the proceedings, in particular as, at the same time, expert and documentary evidence needed to be obtained.  Finally, they also attached importance to the serious nature of the charges laid against the applicant.

Assessing the reasons invoked by the Polish authorities as a whole and having regard to the overall length of his detention, the Court accepts that the Polish authorities did not fail to give sufficient and relevant justification for the applicant’s continued detention.

The Court must next ascertain whether the authorities did, in addition, display “special diligence” in dealing with the applicant’s case.

In that respect the Court observes that the investigative phase of the proceedings lasted about three months.  This period cannot be considered excessive.  The court proceedings lasted some further eight months; however, during this time the trial court held five hearings in all.  Furthermore, all those hearings were held at reasonable intervals of about one and a half months or two months.

The Court concludes from this that the Polish authorities did not fail to act with all due diligence in handling the applicant’s case, the more so as over the entire period of his detention there was no delay in the proceedings.

Accordingly, the Court considers that it cannot be said that the applicant’s right to “trial within a reasonable time or to release pending trial” was not respected.

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

2. Under Article 6 § 2 and § 3 (d) of the Convention the applicant contests the fairness of his trial, submitting that his conviction was wrong since the courts made erroneous findings of fact, failed to admit evidence proposed by him and incorrectly assessed evidence before them.

The Court considers that this complaint, by its nature itself, falls to be examined under Article 6 § 1 of the Convention.  The relevant part of this provision provides:

“ In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by … [a] tribunal established by law. …”

The Court notes that the applicant failed to file a cassation appeal against the final judgment in his case because he was refused legal assistance for the preparation of such an appeal.  However, the Court does not find it necessary to rule on the question of whether or not this fact has a bearing on the compliance with the requirements laid down in Article 35 § 1 of the Convention, since this part of the application is in any event inadmissible for the reasons set out below.

The Court observes at the outset that the applicant’s submissions essentially amount to a general challenge to the manner in which the courts acted with respect to the admissibility and evaluation of evidence and to a - similarly imprecise - objection to the findings of fact made by those courts.

In that regard, the Court recalls that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the States Parties to the Convention.  In particular, it is not its function to deal with errors of fact and law allegedly committed by a national court, unless and in so far as they may have infringed rights and freedoms protected by the Convention (see the Garcia Ruiz v. Spain judgment of 21 January 1999, to be published in Reports 1999, … § 28).

The Court further recalls that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them.  In that respect those courts enjoy a wide margin of appreciation.  Moreover, the Court’s task under the Convention is not to give a ruling as to whether evidence was properly admitted or evaluated, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see, for example, the Teixeira de Castro v. Portugal judgment of 9 June 1998, Reports 1998-IV, p. 1462, § 34).

Applying the above principles to the present case, the Court finds no elements to indicate that the courts dealing with the applicant’s case went beyond their discretion to admit or to refuse to consider evidence.  Nor does the Court find any indication that those courts acted unfairly or arbitrarily with respect to the presentation or assessment of evidence, or that the proceedings were otherwise unfair.

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

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

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant’s complaints that after being arrested he was not brought promptly before a judge and that he was refused legal assistance for the preparation of a cassation appeal;

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger Matti Pellonpää Registrar President