FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application No. 38816/97

by G. K.

against Poland [Note1]

The European Court of Human Rights ( Fourth Section) sitting on 8 December 1998 as a Chamber composed of

Mr M. Pellonpää , President ,

Mr A. Pastor Ridruejo ,

Mr J. Makarczyk ,

Mr V. Butkevych ,

Mr J. Hedigan ,

Mrs S. Botoucharova ,

Mr I. Cabral Barreto , Judges,

with Mr V. Berger, S ection 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 4 June 1997 by G. R. [Note2] against Poland and registered on 28 November 1997 under file No. 38816/97;

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 citizen born in 1967 and residing in Wrocław , Poland.  He is currently detained in Wrocław Detention Centre ( Areszt Śledczy ).

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

Particular circumstances of the case

a) Criminal proceedings against the applicant

On an unspecified date the Wrocław District Prosecutor ( Prokurator Rejonowy ) issued a warrant to search for the applicant by wanted notice on suspicion of fraud.

On 3 March 1995 the police arrested the applicant under the above-mentioned warrant.

On 10 March 1995 the applicant was brought before the Wrocław Stare Miasto District Prosecutor ( Prokurator Rejonowy ), charged with several counts of aggravated fraud committed with accomplices and detained on remand until 2 June 1995.  The prosecutor’s decision was based on Sections 210 § 1 and 217 § 1 (2) and (4) of the Code of Criminal Procedure.  The following reasons were given to justify the applicant’s detention: the reasonable suspicion that he had committed the offence with which he had been charged, the serious danger to society represented by the offence in question ( wysoki stopień społecznego niebezpieczeństwa czynu ) and the reasonable risk that the applicant might induce witnesses to give false testimony or obstruct the criminal proceedings against him by other unlawful means.

On 26 May 1995, at the request of the Wrocław District Prosecutor, the Wrocław-Śródmieście District Court (Sąd Rejonowy ) prolonged the applicant’s detention until 31 August 1995 in view of the reasonable suspicion that he had committed the offence with which he had been charged and the serious nature of the offence in question.  The court also found that in the light of the material collected in the investigation, there was a reasonable risk that the applicant, if released, would obstruct the course of the proceedings.  Finally, the court held that the interests of the investigation, such as the need to gather and secure further evidence, militated against releasing the applicant.

In the meantime, on an unspecified date, the Wrocław Regional Prosecutor ( Prokurator Wojewódzki ) took over the investigation from the Wrocław District Prosecutor.

On 24 August 1995 the Wrocław Regional Court (Sąd Wojewódzki ), at the request of the Wrocław Regional Prosecutor, prolonged the applicant’s detention until 30 November 1995, finding that such further prolongation was justified by the reasonable suspicion that the applicant had committed the serious offence with which he had been charged.  Further, the court found that the need to secure the due course of the proceedings militated against releasing the applicant since, at the current stage of the investigation, it was necessary to hear evidence from all the injured parties, to arrange confrontations between witnesses and defendants and to lay further charges of dealing in stolen goods against other persons who had not to date been involved in the proceedings.

On 24 November 1995, at the subsequent request of the Wrocław Regional Prosecutor, the Wrocław Regional Court prolonged the applicant’s detention until 31 December 1995, finding that, in view of the reasonable suspicion that the applicant had committed the serious offence with which he had been charged and the need to secure the due course of the proceedings (in particular, as the charges originally laid against the suspects needed to be supplemented), he should be maintained in detention.

On 27 December 1995 the Wrocław Regional Prosecutor completed the investigation and, on 30 December 1995, lodged a bill of indictment with the Wrocław Regional Court.  The applicant was indicted on several counts of aggravated fraud.  The bill of indictment comprised charges laid against thirteen co-defendants.  The prosecutor requested the court to hear evidence from nine expert witnesses and one hundred and four lay witnesses, and to consider four hundred pieces of documentary evidence.

On 15 April 1996 the applicant was brought before the trial court since the first hearing in his case was to be held.  However, the hearing was eventually cancelled because one of the applicant’s co-defendants, who had already been released under police supervision, had failed to appear before the court.

Subsequently, from an unspecified date between 15 April 1996 and 28 August 1997 the Wrocław Regional Court cancelled all of the further eleven or twelve hearings which were to be held in the proceedings, because several of the applicant’s co-defendants released under police supervision had repeatedly failed to appear before the court.  Apparently, they had submitted medical certificates to the effect that they could not participate in the trial in view of the state of their health and requested the court to cancel those hearings

During this time the applicant, on numerous occasions, unsuccessfully requested the Wrocław Regional Court to release him on bail or under police supervision, submitting that his detention pending trial had exceeded any reasonable limit but no single hearing on the merits had to date been held by the trial court.  It appears that the applicant also requested the court to order (under Section 24 § 3 of the Code of Criminal Procedure) that the charges laid against the released co-defendants be severed from the case and that, those co-defendants be tried separately, so as to ensure that his trial proceeded without impediment.

In the meantime, on 31 December 1996, the Wrocław Regional Court had released A.A. , one of the thirteen co-defendants, under police supervision.  From this point onwards, only three of the co-defendants, including the applicant, were still in detention pending trial.

On the same day the court filed a request to the Supreme Court (Sąd Najwyższy ), under Section 222 § 4 of the Code of Criminal Procedure, submitting that the applicant and other two co-accused should be maintained in detention on remand for a further six months.  The reasons for this request, insofar as relevant, read:

“[In respect of the applicant and two other co-accused] the [maximum] time-limits for detention on remand laid down in Section 222 § 3 of the Code of Criminal Procedure have expired and 31 December 1996 is the deadline for lodging a request for further prolongation of their detention on remand.

Over a period following the date on which the bill of indictment was lodged with this court, it scheduled numerous hearings; however, the trial has not yet commenced as this court, for valid reasons [,such as the fact that the defendants, one after another, had failed to appear before us,] could not proceed with the trial.  In this connection, this court has, in accordance with the suggestion of the Wrocław Court of Appeal, considered whether [or not] it would be sensible to sever the charges laid against [the relevant] co-accused pursuant to Section 24 § 3 of the Code of Criminal Procedure.  Yet, as all the charges [to be determined in the present case] are interrelated, this court finds that there would be no justification for proceeding in this way.

The detained accused have repeatedly requested this court to quash or alter the preventive measure imposed on them.  This court has dismissed [all] their requests and in doing so has had [particular] regard to the gravity of [the offences in question], the likelihood that a severe penalty would be imposed and, even more, to the conduct of the accused during the investigation, that is to say [the fact that they had had to be] searched for and that there had been problems during their arrest [which had justified the fear that] they might go into hiding.  [Furthermore], the [ Wrocław ] Court of Appeal, while dealing with the accused’s appeals [against decisions refusing to release them], expressed the same opinion.

That being so, and there being other serious obstacles [to the proper course of the trial] the present request for the accused’s detention to be prolonged [beyond the statutory time-limits] has had to be lodged with the Supreme Court.”

This request was posted to the Supreme Court on 13 January 1997.

On 24 January 1997, a panel of three judges, sitting in camera as the Criminal Chamber of the Supreme Court, after obtaining oral comments from the State Prosecutor ( Prokurator Krajowy ), who represented the prosecution, granted the above request and prolonged the detention of the applicant and two of his co-defendant “from 24 January 1997 to 24 July 1997”.  The defendants were not represented since, under Polish law as it stood at this time, they were not entitled to participate in court sessions, in particular those held in camera.

The above decision contains exhaustive reasons, the relevant part of which may be summarised as follows:

The Supreme Court, noting that the request in question was filed on 31 December 1996 but sent to it as late as 13 January 1997, first considered what was the proper date of “lodging” such a request for the purposes of Section 222 § 4 of the Code of Criminal Procedure.

Secondly, the Supreme Court observed that, depending on the answer to this question, it had to determine the legal consequences of a potential failure on the part of the Wrocław Regional Court to respect the rule laid down in Section 10 (a) § 2 of the Interim Law of 1 December 1995, which stated that in cases where no request for a further prolongation of detention on remand had been “lodged”, the detention on remand had to be quashed no later than on 1 January 1997.

Finally, the Supreme Court examined the question of whether it was competent to deal with such a request if it had been “lodged” after the expiry of the term referred to in Section 10 (a) of the Interim Law of 1 December 1995, i.e. after 1 January 1997.

In respect of the first question, the Supreme Court held that the proper date of “lodging” a request under Section 222 § 4 of the Code of Criminal Procedure had to be deemed either the date of posting the request or the date of submitting it to the registry of the Supreme Court since to hold otherwise would have meant leaving a detainee without any guarantee that the Supreme Court was properly supervising his detention.  Moreover, if the requesting court was not bound by any time-limits for submitting its request, detention, the most severe among the preventive measures, might continue for an unspecified time outside the Supreme Court’s supervision.  As a result, a request under Section 222 § 4 of the Code of Criminal Procedure, a mere “postulate” to continued detention, would, for all practical purposes, have been transformed into a basis of continuing detention, which had clearly not been the intention of the legislator.

Since in the applicant’s case no request for a further prolongation of his detention had been lodged before 1 January 1997, the applicant’s (and his co-defendants’) detention from that date to the date on which the Supreme Court was giving the present decision lacked any legal basis and was, consequently, unlawful.

The Supreme Court went on to find that it was, nevertheless, still competent to deal with the request.  A court’s obligation to release a detainee in case of its failure to properly lodge a request under Section 222 § 4 of the Code of Criminal Procedure was one thing, its right to lodge such a request at any time was another.  In the Supreme Court’s opinion, the request in question should be deemed “a fresh request” and was examined as such.

In this last respect the Supreme Court, essentially repeating the reasons given by the Wrocław Regional Court to justify its request and stressing the complexity of the case, found that further prolongation of the applicant’s detention was necessary.

On 9 July 1997 the Wrocław Regional Court made a fresh request under Section 222 § 4 of the Code of Criminal Procedure to the Supreme Court, submitting that, regardless of its consistent efforts to proceed with the applicant’s trial, it was unable to commence the main hearing as several released co-accused had repeatedly failed to appear at hearings.  Yet there was still a risk that the applicant and his two co-accused might go into hiding because at the initial stage of the proceedings they had had to be searched for and had obstructed their arrest.  Finally, the court, relying on the complex nature of the case and the fact that the evidence gathered in the investigation sufficiently justified the charges laid against the accused, requested the Supreme Court to prolong the applicant’s and two of his co-defendants’ detention until 31 December 1997.

In the meantime, on several occasions in July and August 1997, the applicant complained to the Wrocław Regional Prosecutor, the Wrocław Regional Court, the Supreme Court, the Minister of Justice and the Ombudsman that, from 1 to 24 January 1997, he had been detained unlawfully.  He requested all the authorities concerned to institute criminal proceedings on the suspicion that an offence outlawed by Section 165 of the Criminal Code had been committed, i.e. that he had been unlawfully deprived of his liberty by third parties.  He also requested to be released.

On 28 August 1997 a panel of three judges, sitting in camera as the Criminal Chamber of the Supreme Court, after obtaining oral comments from the State Prosecutor, prolonged the applicant’s detention pending trial until 31 December 1997, upholding in full the reasons invoked by the Wrocław Regional Court in its request of 9 July 1997.  However, it expressed the opinion that, for the sake of the proper conduct of the trial, the charges against the released co-defendants should be severed from the proceedings.

On 8 September 1997 the Wrocław Regional Court held a hearing in the applicant’s case.  During the hearing the applicant requested the court to release him. The court dismissed his request, holding that:

“[The applicant’s] arguments should be dismissed.  The reasons justifying [his] continuing detention, as set out in the Supreme Court’s decision [of 28 August 1997], are still valid.”

Later during the same hearing, the court ordered that the charges laid against three of the released co-defendants be severed from the case and adjourned the trial until 13 October 1997.

In August, September and October 1997 the applicant sent numerous petitions, letters and applications to, inter alia , the Minister of Justice, the Supreme Court, the Ombudsman, the Wrocław Regional Court, the Wrocław Regional Prosecutor and the Wrocław District Prosecutor, complaining about the unlawfulness and length of his detention, and the slow conduct of his trial and requesting the authorities concerned to release him and to institute criminal proceedings against the persons who had kept him in detention unlawfully.  He also invoked Article 5 § 4 of the Convention, submitting that he had no remedy whereby he could challenge the lawfulness of his detention from 1 to 24 January 1997 and obtain release.  He relied on Article 5 § 3 of the Convention, maintaining that his right to a trial within a reasonable time or to release pending trial had not been respected.

On 15 September 1997 the applicant requested the Wrocław Regional Court to release him.  He stressed that there was no risk of his going into hiding.  It was true that, nearly three years previously, before he had been detained, he had used a false identity card.  However this single fact could not be deemed a reason justifying such a period of detention on remand, exceeding, at that point, thirty months.  Further, the applicant complained that there had been an exceptional delay in the proceedings which, in his opinion, had resulted from the fact that the court of first instance had failed to take any steps to ensure the presence of the released co-defendants at the trial.  He also maintained that, following his arrest, there had been no single attempt on his part to obstruct the proper course of the proceedings.  In his view the court had no evidence demonstrating that, had he been released, he would have evaded justice or any sentence which might be imposed.  In any event and if he had done so, the court might have redetained him at any time

Meanwhile, the Wrocław Regional Prosecutor and the Wrocław District Prosecutor were dealing with the applicant’s two parallel requests for criminal proceedings to be instituted against the persons who had unlawfully detained him from 1 to 24 January 1997.  The final decisions on the requests were eventually rendered on the following dates: the Wrocław Regional Prosecutor dismissed the request on 18 September 1997, finding that no offence had been committed; the Wrocław District Prosecutor dismissed the applicant’s request on 6 December 1997 on the same grounds.  The latter decision was upheld on appeal by the Wrocław Regional Prosecutor on 21 January 1998.

In the interim, on 6 October 1997 the applicant, relying on the Supreme Court’s decision of 24 January 1997 and, in particular, that court’s finding that his detention from 1 to 24 January 1997 had been unlawful, filed a request under Section 487 of the Code of Criminal Procedure to the Wrocław Regional Court, seeking compensation for his unjustified detention.  The proceedings relating to his request are apparently pending.

On 9 October 1997 the Wrocław Regional Court dismissed the applicant’s request for release filed on 15 September 1997, holding that the reasons previously given to justify his detention had not ceased to exist and that his detention should continue in view of the need to ensure the due course of the proceedings.  Moreover, in the court’s opinion, the applicant had failed to adduce any arguments militating in favour of his release.

On 13 October 1997 the court cancelled the hearing since one of the released co-defendants had failed to appear before the court, submitting a medical certificate stating that he was ill.

On 28 October 1997 the Wrocław Regional Court held the first hearing on the merits in the applicant’s case.  Since some of his co-defendants decided not to give any oral evidence at the trial stage, the court had the record of the evidence taken from five of them during the investigation read out.

The next hearing was to be held on 18 November 1997 but was eventually cancelled as one of the released co-defendants had submitted a medical certificate stating that he was ill.

On 25 November 1997 the court held a hearing and had the record of the evidence taken from other five co-defendants during the investigation read out.  The court then commenced the process of hearing evidence from lay witnesses.  After taking evidence from two of them, it adjourned the trial in order to hear evidence from another six witnesses.

In the meantime, in November 1997, the applicant again filed several petitions with, inter alia , the Ombudsman, the Minister of Justice and the Division of Judicial Supervision ( Wydział Wizytacyjny ) of the Wrocław Regional Court.  He complained that the overall period of his detention had meanwhile amounted to nearly thirty-three months, yet the charges against him were far from being determined.  He requested the authorities concerned to react, in an appropriate manner, to the fact that he had been unlawfully detained in January 1997, stressing that the highest national court had already established this fact.  In that respect, the applicant complained that there had been no response to any of his numerous requests for criminal proceedings to be instituted against the persons who, in a manifest failure to respect Polish law, had unlawfully kept him in prison.

On 11 December 1997 the Wrocław Regional Court dismissed a further request for release which had been filed by the applicant on an unspecified date.  The court held that none of the “legal and factual grounds“ previously cited for the applicant’s detention ceased to exist.  Moreover, as none of the circumstances listed in Section 218 of the Code of Criminal Procedure as justifying release applied, his detention should continue in view of the need to ensure the due course of the proceedings.

On 19 December 1997 the court held a hearing.  It heard evidence from three lay witnesses and adjourned the trial until 30 January 1998 as three other witnesses had failed to appear before the court.

On the same day the court made a fresh request under Section 222 § 4 of the Code of Criminal Procedure to the Supreme Court, submitting that the detention pending trial of the applicant and his two co-defendants should be prolonged until 31 March 1998.  The court stated that it had now been able to commence the trial and was, moreover, efficiently proceeding with the case, for instance, by taking evidence from all the co-defendants.  The process of taking evidence had not, however, come to an end; this had not been due to any fault on the part of the trial court but had arisen out of other factors.  In sum, there were still valid reasons justifying the defendants’ continuing detention, such as the well-founded suspicion that they had committed the offences with which they had been charged and the risk that they might abscond or go into hiding; the latter being the reason already invoked by the Supreme Court itself.

From 19 December 1997 to the beginning of January 1998 the applicant filed numerous petitions with the Minister of Justice, the Supreme Court and the Wrocław Regional Court, submitting that his constitutional right to personal liberty, as well as his rights guaranteed by Article 5 §§ 3 and 4 of the Convention, had been seriously violated.  He maintained that he had spent nearly three years in detention because the trial court had arbitrarily assumed that there was a risk of his absconding even though, after his arrest, his conduct had never given grounds for such a finding.  Whatever his arguments, the court had never believed in his sincerity and had never given him a chance to prove that his release would not have obstructed the course of the trial; in fact, its course had been constantly impeded by his seven released co-defendants.  He asked the authorities to subject him to a lie-detector examination.

On 15 January 1998 a panel of three judges, sitting in camera as the Criminal Chamber of the Supreme Court, after obtaining oral comments from the State Prosecutor, prolonged the applicant’s and his two co-defendants’ detention until 31 March 1998.  The court fully accepted the grounds given by the Wrocław Regional Court to justify its request.  It also found that, since the point at which that court had ordered that the proceedings in respect of some released co-defendants be severed, the trial had been proceeding expeditiously.

On 30 January 1998 the Wrocław Regional Court held a hearing but the trial was again adjourned since, in the applicant’s words, “one of the defence counsel left the courtroom”.

The proceedings are pending before the Wrocław Regional Court.

b) The applicant’s correspondence with the Commission

On 4 June 1997 the applicant sent a letter to the European Commission of Human Rights.  In this letter he complained about the length of his detention on remand and the length of the criminal proceedings against him.  He also complained about the fact that his detention on remand from 1 to 24 January 1997 was unlawful.  He relied on Article 5 §§ 1 - 5; Article 6 §§ 1, 2 and 3 (b), (c) and (d); and Articles 7 § 1; 8 and 13 of the Convention.

In one of his subsequent letters, dated 27 July 1997, the applicant complained that, after 31 December 1996, there were no legal grounds, as defined by Section 222 § 4 of the Polish Code of Criminal Procedure, to prolong his detention beyond the statutory time-limits.  Moreover, no Polish authority had reacted properly to the fact that his detention from 1 to 24 January 1997 had been unlawful.

On 14 October 1997 the Secretariat of the Commission sent an application form to the applicant.

The applicant filed his application on 3 November 1997.  In essence, he repeated his previous complaints and stated that, on 10 March 1995, he had been detained on remand by the prosecutor, who had none of the attributes of a “judge” within the meaning of Article 5 § 3 of the Convention.  He also complained under Article 13 of the Convention that he had had no remedy whereby he could have contested the lawfulness of his detention from 1 to 24 January 1997 and obtained release.

Relevant domestic law and practice

1. Amendments to Polish criminal legislation

Over the period to which the facts of the present case relate, i.e. from March 1995 to the beginning of 1998, Polish criminal legislation was amended on several occasions.

So far as the present case is concerned, there were two relevant amendments to the Code of Criminal Procedure (a law which 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).

The first such amendment was made by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes which entered into force on 1 January 1996, except the amendments relating to the imposition of detention on remand (in particular, those stating that only a judge was empowered to detain a suspect on remand); the entry into force of the latter amendments being postponed until 4 August 1996 (see below).

The second amendment, effected by the Law of 1 December 1995 on Amendments to the Law of 29 June 1995 (commonly called “the Interim Law of 1 December 1995” and so referred to below) came into force on 1 January 1996.  Section 10 (a) of the Law introduced special interim rules governing the prolongation of detention on remand beyond the statutory time-limits laid down in Section 222 §§ 2 and 3 of the Code of Criminal Procedure in cases where such detention had been imposed before 4 August 1996 (see below, 2 c) “Statutory time-limits for detention on remand”).

2. Preventive measures, in particular detention on remand

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

a) Imposition of detention on remand

Section 210 § 1 of the Code of Criminal Procedure stated (in the version applicable until 4 August 1996):

"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."

Section 222 of the Code of Criminal Procedure (in the version applicable until 4 August 1996), insofar as relevant, stated:

"1. The prosecutor may order detention on remand for a period not exceeding three months.

2. When, in view of the particular circumstances of the case, the investigations cannot be terminated within the period referred to in § 1, the detention on remand may, if necessary, be prolonged by:

(1) the court competent to deal with the case, upon the prosecutor's request, for a period not exceeding one year;

(2) the Supreme Court, upon request of the Prosecutor General, for a further fixed term required to terminate the investigations."

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

Section 209 of the Code of Criminal Procedure 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 due 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 (insofar as relevant) provided:

"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 due 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 §§ (3) and (4) were repealed.  From that date onwards 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 domicile [in Poland]; or

(2) [as it stood before 1 January 1996]”

The Code of Criminal Procedure set out the margin of discretion as to maintaining a specific preventive measure.  Detention on remand was (and still is) regarded as the most extreme among the preventive measures and the domestic law laid down that in principle it should not be imposed if more lenient measures were adequate or sufficient.  This was demonstrated, in particular, by Sections 213 § 1, 218 and 225 of the Code (as they stood at the material time):

Section 213 § 1 of the Code of Criminal Procedure provided:

"A preventive measure [including detention on remand] shall be immediately 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 of the Code 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, pending an appeal against conviction at first instance) were repealed on 1 January 1996 by the Law of 29 June 1995 referred to above.

Finally, Section 218 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.”

b) Domestic remedies relating to the lawfulness and length of detention on remand.

At the material time, there were three different legal avenues whereby a detainee could challenge the lawfulness of his detention and potentially obtain release.  Under Section 212 § 2 of the Code of Criminal Procedure he could appeal to a court against a detention order made by a prosecutor.  Under Section 222 § 3 a detainee could appeal against a further decision by the court competent to deal with his case prolonging his detention on a prosecutor's request.  Finally, Section 214 stated that an accused could at any time apply to the competent authority to have a preventive measure quashed or altered.  Such an application had to be decided by the prosecutor or, after the bill of indictment had been lodged, by the court competent to deal with the case, within a period not exceeding three days.

c) 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, the national law did not set out any time-limits concerning detention on remand in court proceedings; it did so only in respect of the investigative stage (see above, 2a) Imposition of detention on remand; Section 222 in the version applicable until 4 August 1996).

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, upon 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 §§ 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 § 3."

However, as already mentioned (see above 1. “Amendments to Polish criminal legislation”) under Section 10 (a) of the Interim Law of 1 December 1995 different rules applied in respect of persons whose detention on remand started prior to 4 August 1996.  This section provided:

“1. In cases where the total period of detention on remand which started prior to 1 August 1996 exceeds the [maximum] time-limits referred to in Section 222 §§ ... and 3 of the Code of Criminal Procedure [as amended by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes], the accused shall be maintained in detention until the Supreme Court gives a decision on a request for prolongation of such detention under Section 222 § 4 of the Code of Criminal Procedure.

2. In cases referred to in § 1, if no [such] request has been lodged, detention shall be quashed not later than 1 January 1997.”

A ”request” within the meaning of Section 222 § 4 of the Code of Criminal Procedure took the form of a “decision” ( postanowienie ) by the court concerned.

Under all the relevant provisions of the Code of Criminal Procedure read together, a detainee was entitled to appeal against any decision prolonging his detention on remand, regardless of whether it had been made at the investigative or judicial stage of proceedings.  However, no appeal lay in law either against a decision containing a request under Section 222 § 4, or against a decision of the Supreme Court granting such a request.

3. Severance of charges

Section 24 § 1 of the Code of Criminal Procedure (in the version applicable at the material time), insofar as relevant, provided:

“1. The court competent to deal with the charges laid against a principal offender shall be competent to determine the charges laid against all his accessories and/or other persons, if the offence[s] committed by the latter are closely related to that [or those] committed by a principal offender [and] if the criminal proceedings against [all of them] are pending simultaneously.

2. The cases of persons referred to in § 1 shall be joined in the same proceedings;

3. In cases where circumstances have rendered a joint determination of all the charges referred to in §§ 1 and 2 difficult [the court] may sever a specified charge [or charges] from the case ... .”

A court of first instance could order that charges be severed from a given case at any time; either ex officio or on a request from any of the parties.

4. Request for compensation for unjustified detention.

Chapter 50 of the Polish Code of Criminal Procedure, entitled "Compensation for unjustified conviction, detention on remand or arrest", provides that the State is liable for wrongful convictions or for unjustifiedly depriving an individual of his liberty in the course of criminal proceedings against him.

Section 487 of the Code of Criminal Procedure (as amended) provides, insofar as relevant:

"1. An accused who, as a result of the reopening of the criminal proceedings against him or of lodging a cassation appeal, has been acquitted or resentenced under a more lenient substantive provision, shall be entitled to compensation from the State Treasury for the damage which he has suffered in consequence of having served the whole or a part of the sentence imposed on him.

...

4. The provisions of the present chapter shall be applied by analogy to manifestly unjustified arrest or detention on remand."

According to Section 489 of the Code, a request for compensation for manifestly unjustified detention on remand must be lodged within one year from the date on which the final decision terminating the criminal proceedings in question has become final and valid in law.

Proceedings relating to a request under Section 487 of the Code of Criminal Procedure are subsequent to and independent of the original criminal proceedings in which the detention was imposed.  They are not designed to secure release from detention but financial reparation for damage arising from the execution of unjustified detention on remand.  The person concerned, by instituting such proceedings, can

retrospectively seek a ruling as to whether his detention was justified.  He cannot, however, test the lawfulness of his continuing detention on remand and obtain his release.

5. Offence of aggravated fraud

This offence, until 1 September 1998, was outlawed by Section 205 § 2 (1) of the Criminal Code, which provided: “Anyone who has committed aggravated fraud shall be liable to a sentence ranging from one to ten years’ imprisonment.”

On 1 September 1998 the Criminal Code was repealed by the so-called “New Criminal Code” of 6 June 1997 and, from that date onwards, the offence of aggravated fraud has been defined by Section 294 § 1 read together with Section 286 § 1 of the New Criminal Code; the potential sentence still ranging from one to ten years’ imprisonment.

1. The applicant complains under Articles 5 § 1 and 6 § 2 of the Convention that his detention from 1 to 24 January 1997 was unlawful.  He also submits that, after 31 December 1996, there was no legal basis for further prolonging of his detention within the meaning of Section 222 § 4 of the Polish Code of Criminal Procedure.

2. Under Article 5 § 3 the applicant submitted the following complaints:

a) that, when detained, he was not brought promptly before a judge or other officer authorised by law to exercise judicial power but before the prosecutor, who did not have the attributes of a “judge” required under this provision; and

b) that the length of his detention on remand exceeded a “reasonable time”.

3. The applicant further complains that the Wrocław Regional Court has failed to determine the charge laid against him “within a reasonable time”.  In support of this complaint, the applicant does not invoke any specific provision of the Convention.

4. Lastly, the applicant complains under Article 13 of the Convention that, in respect of his detention from 1 to 24 January 1997, he was unable to take any proceedings whereby he could have contested the lawfulness of his detention and obtained release.

1. The applicant complains under Article 5 § 3 of the Convention that, when detained, he was not brought promptly before “a judge or other officer authorised by law to exercise judicial power” but before the prosecutor, who did not have the attributes of a “judge” required under this provision.

Under Article 35 § 1 of the Convention, “the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken”.

In this respect the Court firstly recalls that the rule of exhaustion of domestic remedies referred to in that provision of the Convention obliges persons seeking to bring their case against the State before an international judicial organ to use, first of all, the remedies provided by the national legal system.  Article 35 of the Convention does not, however, oblige those persons to have recourse to remedies which are inadequate or ineffective (see Eur. Court of HR, Selçuk and Asker v. Turkey judgment of 24 April 1998, to be published in Reports of Judgments and Decisions 1998, ... § 65).

Turning to the facts of the instant case, the Court observes that, under Polish law applicable at the material time, a suspect detained by a prosecutor at the investigative stage of proceedings could, under Section 212 § 2 of the Code of Criminal Procedure, appeal to the court competent to deal with his case against a detention order made by that prosecutor.

In the present case, however, the applicant has failed to provide the Court with information as to whether or not he availed himself of this remedy and did, in fact, appeal against the detention order made by the Wrocław District Prosecutor on 10 March 1995.

In that regard the Court notes that the applicant could, by lodging such an appeal, have contested the lawfulness of his detention. He could not, however, on the domestic level, have challenged the power of the prosecutor to order his detention because, under Section 210 § 1 of the Polish Code of Criminal Procedure, a prosecutor alone was competent to detain a suspect on remand at the investigative stage of the proceedings.  Furthermore, under the national law, the applicant was not entitled to be brought before a judge dealing with his appeal against the prosecutor’s order of 10 March 1995.

The Court therefore concludes that an appeal under Section 212 § 2 of the Code of Criminal Procedure cannot be considered a remedy whereby the applicant could have been “promptly brought before a judge” (see also Eur. Comm. HR, No. 32220/96, Chojak v. Poland, Dec. 23.4.98, unpublished).

This finding also leads the Court to the opinion that under Polish criminal legislation, as it stood at the material time, the applicant had no adequate and effective remedy against the breach of the Convention of which he complains.

In the light of this conclusion, the Court must further determine whether the applicant has lodged the present complaint within with the time-limit of six-months referred to in Article 35 § 1 of the Convention.

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

The Court has already found that the applicant’s complaint arose out of domestic legislative provisions, i.e. Sections 210 § 1 and 222 § 1 of the Code of Criminal Procedure, which, at the material time, explicitly excluded the possibility of a person detained at the investigative stage being brought before anyone other than a prosecutor.  The existence of such provisions created a form of continuing situation in which an individual could - for a long time - be deprived of his right to be brought before an authority which the Court might deem, without prejudging the merits, a “judge or other officer authorised by law to exercise judicial power” within the meaning of Article 5 § 3 of the Convention (see No. 32220/96, op. cit ).

In the instant case the applicant was brought before a trial judge on 15 April 1996, when the first hearing in his case was to take place.  This was the first occasion on which he was personally present before a person clearly acting in a judicial capacity since his detention had been ordered by the prosecutor on 10 March 1995.  This was the point at which the applicant was, without a doubt, “brought before a judge” and, consequently, the point at which the running of the six-month period in respect of the present complaint started for the purposes of Article 35 § 1 of the Convention.

However, this period came to an end on 15 October 1996, whereas the applicant raised the present complaint before the Convention organs for the first time on 3 November 1997 (i.e. when he filed the application form addressed to the Commission).  Accordingly, he failed to comply with the requirements of Article 35 § 1 of the Convention in respect of the six-month time-limit laid down in this provision.

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

2. The applicant also complains under Article 5 § 1 of the Convention that his detention from 1 to 24 January 1997 was unlawful and that, after 31 December 1996, there was no legal basis for further prolonging of his detention within the meaning of Section 222 § 4 of the Polish Code of Criminal Procedure.  He invokes Article 5 § 3 of the Convention, maintaining that the length of his detention on remand exceeded a “reasonable time”.  He further submits that the Wrocław Regional Court failed to determine the charges laid against him “within a reasonable time” and, lastly, asserts that, in respect of his detention from 1 to 24 January 1997, he was unable to take any proceedings to contest the lawfulness of his detention and obtain release.

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 his detention from 1 to 24 January 1997 was unlawful and that, after 31 December 1996, there was no legal basis for further prolonging of his detention; that the length of his detention on remand exceeded a “reasonable time”; that, in respect of his detention from 1 to 24 January 1997, he was unable to take any proceedings to contest the lawfulness of his detention and obtain release; and that the Wrocław Regional Court failed to determine the charges laid against him “within a reasonable time”;

Unanimously,

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger Matti Pellonpää Registrar President [Note3]

[Note1] First letter in capital letters plus the article according to normal speech.

[Note2] In small letters.

[Note3] “President” is also put if the Chamber is not presided over by the Section President (Section Vice President or other judge according to seniority).