Interim Resolution CM /ResDH(2007)75

concerning the judgments of the European Court of Human Rights in 44 cases against P oland (see Appendix II) relating to the excessive length of detention on remand

(Adopted by the Committee of Ministers on 6 June 2007, at the 997th meeting of the Ministers ' Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the P rotection of Human Rights and Fundamental Freedoms which provides that the Committee supervises the execution of the judgment of the European Court of Human Right (hereinafter “the Convention” and “the Court”),

Having regard to the great number of judgments of the Court finding P oland in violation of Article 5, paragraph 3, of the Convention on account of the unreasonable length of detention on remand (see Appendix II);

Recalling that the obligation of every state, under Article 46, paragraph 1, of the Convention, to abide by the judgments of the Court involves an obligation rapidly to adopt the individual measures necessary to erase the consequences of the violations found as well as general measures to prevent new, similar violations of the Convention;

Stressing the importance of rapid adoption of such measures in cases where judgments reveal structural problems which may give rise to a large number of new, similar violations of the Convention;

Having invited P oland to inform it of the measures adopted or being taken in consequence of the judgments concerning the excessive length of detention on remand and h aving examined the information provided by the P olish authorities in this respect (as it appears in the Appendix I);

Having noted the individual measures taken by the authorities to provide the applicants redress for the violations found ( restitutio in integrum ), in particular by bringing an end as far as possible to those detentions on remand still in force after the findings of violations by the Court ;

Taking note of the steps taken so far by the authorities to remedy the structural problems related to detention on remand in P oland , and in particular:

the legislative reforms (the Code of Criminal P rocedure of 1997 and subsequent amendments);

the judgment of the P olish Constitutional Court of 24 July 2006 finding that a provision of the Code of Criminal P rocedure relating to certain aspects of the extension of detention on remand was unconstitutional;

the further measures to make courts and prosecutors aware of the requirements stemming from the Convention and the European Court ' s case-law as regards the use of detention on remand;

Noting also the statistical data provided by the P olish authorities concerning (a) the number of detentions on remand ordered in a given year and (b) the number and length of detentions on remand not yet ended on 31 December of that year;

Noting further that, according to the statistics provided, the number of cases in which detention on remand lasts for more than 12 months still seems high, especially in cases pending before regional courts; noting, however, that these statistics do not give a full picture of the situation, as they only show the length of detentions that have not yet been terminated as of 31 December, and that they could be usefully supplemented by taking stock of the length of all detentions on remand ordered during a year;

Noting also with interest that following changes to P olish legislation in response to the judgment of the Constitutional Court of 24 July 2006 the general rule according to which detention on remand shall not exceed 2 years in cases pending for trial has been strengthened; noting however that under the amended legislation there might still be situations in which this time-limit may not be observed;

Noting also that, although some courts have begun to refer to the Convention and the European Court ' s case-law in rendering decisions on the use of detention on remand, this preventive measure still seems often to be ordered without taking into consideration the Convention ' s requirements;

Underlining that continued detention can be justified only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty;

Recalling that the persistence of reasonable suspicion that a person arrested has committed an offence, although a condition sine qua non for the lawfulness of the continued detention, may no longer suffice after a certain lapse of time and that consequently other relevant and sufficient grounds must be presented in order to extend such detention;

Noting that the number of cases in which the European Court has found similar violations is constantly increasing,

ENCOURAGES the P olish authorities, in view of the extent of the systemic problem concerning the excessive length of detention on remand:

- to continue to examine and adopt further measures to reduce the length of detention on remand, including possible legislative measures and the change of courts ' practice in this respect, to be in line with the requirements set out in the Convention and the European Court ' s case-law; and in particular

- to take appropriate awareness-raising measures with regard to the authorities involved in the use of detention on remand as a preventive measure, including judges of criminal courts and prosecutors;

- to encourage domestic courts and prosecutors to consider the use of other preventive measures provided in domestic legislation, such as release on bail, obligation to report to the police or prohibition on leaving the country;

- to establish a clear and efficient mechanism for evaluating the trend concerning the length of detention on remand;

EX P ECTS to receive further information on additional measures planned or already taken to comply with the judgments concerning the unreasonable length of detention on remand and,

DECIDES to resume consideration of the outstanding measures in these cases, within one year at the latest.

Appendix I to Interim Resolution CM /ResDH(2007)75

Information provided by the Government of P oland during the examination of the cases

concerning the excessive length of detention on remand

by the Committee of Ministers

I. Individual measures

In the majority of these cases, the detention on remand impugned by the European Court has been ended.

II. General measures taken to reduce the length of detention on remand

1. Legislative measures as regards the length of detention on remand

A. Grounds for detention on remand (as set out in the Code of Criminal P rocedure of 1997)

T he grounds for remanding in custody were modified with the entry into force on 01/09/98 of the Code of Criminal P rocedure of 6 June 1997.

According to Article 257§1, detention on remand shall not be imposed if another preventive measure is sufficient. The provisions of the Code of Criminal P rocedure also set out other preventive measures, such as bail, police supervision, guarantee by a responsible person or a social entity, temporary ban on engaging in a given activity and prohibition to leave the country.

Detention on remand may be ordered if there is a strong probability that the accused has committed an offence and, cumulatively, if there is a risk of his or her absconding, obstructing the proceedings or, in certain cases, re-offending (Article 258§1). According to Article 258§2 of the Code of Criminal P rocedure, an accused may be detained remanded if he or she risks a long term of imprisonment (if the charges relate to offences punishable by at least 8 years of imprisonment or if a court of first instance sentenced the accused to a minimum of 3 years of imprisonment).

Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided:

“1. Imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months.

2. If, due to the particular circumstances of the case, an investigation cannot be terminated within the term referred to in paragraph 1, the court of first instance competent to deal with the case may – if need be and on the application made by the [relevant] prosecutor – prolong detention for a period [or periods] which as a whole may not exceed 12 months.

3. The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed 2 years.

4. Only the Supreme Court may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the P rosecutor General, 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 stay of the proceedings, a prolonged psychiatric observation of the accused, a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad, when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.”

On 20 July 2000, paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs 2 and 3 has been vested with the court of appeal within whose jurisdiction the offence in question has been committed.

C. Ruling of the Constitutional Court on paragraph 4 of Article 263 of the Criminal Code of P rocedure

In its judgment of 24 July 2006 (reference No. SK 58/03), the P olish Constitutional Court, having examined a constitutional complaint on the length of detention on remand, ruled that the provision of Article 263§4 of the Code of Criminal P rocedure, according to which such detention may be extended beyond the period of 2 years, if “other important obstacles whose removal has not been possible” exist, is in breach of Article 41, paragraph 1 in connection with Article 31 paragraphs 1 and 3 of the Constitution of the Republic of P oland . It should be noted that the Constitutional Court declared the unconstitutional character of this provision only as it relates to investigation stage.

This judgment was grounded on the fact that this provision curtailed the enjoyment of constitutional rights and freedoms in such an imprecise, arbitrary and broad way that it affected the very essence of constitutional freedoms. The lack of statutory time limitation for the extension of detention on remand only strengthened the finding of unconstitutionality of this provision.

The Constitutional Court also declared that this provision was to expire within 6 months after publication of the judgment in the Journal of Laws – Dziennik Ustaw . Therefore it lost its binding force on 8 February 2007.

D. Amendment of the Code of Criminal P rocedure following the Constitutional Court ' s ruling

Accordingly, Article 263, paragraph 4, of the Code of Criminal P rocedure was amended as follows:

“ P aragraph 4. The extension of applying detention on remand over the periods specified in paragraphs 2 and 3, may be made only by the court of appeal in whose jurisdiction the proceedings are conducted, on a motion from the court before which the case is pending, and at the investigation stage on a motion from the appellate prosecuting authorities. This can be done if deemed necessary in connection with a suspension of criminal proceedings, in connection with actions aiming at establishing or confirming the identity of the accused, prolonged psychiatric observation of the accused, prolonged preparation of an opinion of an expert, conducting evidentiary action in a particularly intricate case or conducting them abroad, or intentional protraction of proceedings by the accused.”

Moreover, a new provision was added in paragraph 4a of Article 263:

“ paragraph 4a. The court of appeal, in whose jurisdiction the proceedings are being conducted may also, on a motion from the court before which the case is pending, order the extension of the detention on remand for a fixed period, exceeding that specified in paragraph 3, because of other important obstacles whose removal has not been possible”.

This amendment was adopted on 12 January 2007 and entered into force on 16 February 2007.

According to the explanatory report on this amendment:

- the changes introduced in paragraph 4 of Article 263 of the Code of Criminal P rocedure eliminated the clause of “other important obstacles whose removal has not been possible” as a legal ground for extending detention on remand;

- furthermore, extension of detention on remand was also allowed in cases in which proceedings could not have been completed because of measures under way to establish or confirm the identity of the accused.

- however, the new paragraph 4a will enable courts conducting criminal proceedings to extend detention on remand beyond the period of 2 years because of ' other obstacles whose removal has not been possible ' , which would allow a more flexible use of this provision. This new regulation is not contrary to the Constitutional Court ' s judgment, which declared the clause of the said obstacles unconstitutional only in reference to the investigationl stage of the proceedings.

2. P ractice of criminal courts and statistical data

A. Recent practice of criminal courts

In March 2006 the P olish authorities provided information on the recent practice of criminal courts concerning the imposition and extension of detention on remand. In 26 cases the courts (in the jurisdiction of 6 out of the 11 appeal courts in the country) made express reference in their decisions to the case-law of the European Court and in some cases to the circular sent out by the Ministry of Justice. In most of these cases the courts decided to bring an end to the detention on remand and replace it by some alternative measure of constraint, such as the obligation to report to the police or prohibition on leaving the country. In two other appeal court districts, similar decisions have been handed down in three cases, but without reference to the case-law of the European Court .

B. Latest figures on the length of detention on remand in 2006:

According to the figures provided by the P olish Ministry of Justice the courts delivered 33 181 decisions on detentions on remand in the year 2006 compared with 34 830 in the year 2005.

The three tables and charts below (I, II and III) show the number of detentions on remand and their length as recorded on the last day of the reporting period, i.e. respectively on 31 December 2005 and 31 December 2006. The relevant data are presented separately for each category of courts.

Table and Chart I. - District courts

2005

2006Up to 3 months

2 528

2 358

3 – 6 months

2 035

2 263

6 – 12 months

1 963

1 899

12 months – 2 years

918

911Over 2 years

191

190In total

7 635

7 632

Table and Chart II. - Regional courts

2005

2006Up to 3 months

207

160

3 – 6 months

432

391

6 – 12 months

1 166

1 237

12 months – 2 years

1 165

1 326

Over 2 years

863

850In total

3 833

4 000

Table and Chart III - Courts of appeal

2005

2006Up to 3 months

0

72

3 – 6 months

8

48

6 – 12 months

5

27

12 months – 2 years

0

32Over 2 years

0

27In total

13

206As it transpires from the above tables, that, for obvious reasons, district courts were those which have ordered detention on remand in the highest number of cases.

Nonetheless detention on remand imposed by regional courts lasted longer: as recorded on the last day of the reporting period, these courts ordered the highest number of detentions on remand which lasted between 12 months and 2 years or more than 2 years. In 2006, such detentions accounted respectively for 33.15 per cent and 21.25 per cent of the total number of detentions on remand ordered by these courts (respectively 30 per cent and 23 per cent in 2005). It should be noted in this respect that these courts deal with very serious cases, including those of organised crime, in which detention on remand as the most severe measure appears to be indispensable.

According to the P olish authorities, the problem of excessively lengthy detentions on remand concerns mainly the detentions ordered by the regional courts. However, the number of detentions on remand lasting between 12 months and 2 years and more than 2 years, ordered by such courts does not indicate a general upward trend.

3. P ublication and dissemination

The European Court ' s judgments delivered in the cases of Chodecki and Olstowski have been translated into P olish and published on the Internet site of the Ministry of Justice www.ms.gov.pl .

On 4 June 2004 the Ministry of Justice wrote to all the P residents of Courts of Appeal with an analysis of the case-law of the European Court concerning the requirements relating to the reasons for placing and keeping a person in detention pending trial. It was underlined in particular that the reason evoked in paragraph 2 of Article 258 of the Code of Criminal P rocedure cannot justify keeping someone in detention for a long period of time.

Moreover, the Ministry of Justice has sent out circulars, drawing the attention of courts and public prosecutors to the reasoning required for decisions prolonging detention on remand.

III. Conclusions of the respondent state

The government believes that the measures set out above demonstrate its determination and the sustained efforts that it has already made to reduce the length of detention on remand. The government will continue to take all necessary measures to that effect and will keep the Committee of Ministers informed of all new developments, and in particular of the practical implications of the measures adopted.

* * *

Appendix II to Interim Resolution CM /ResDH(2007)75

List of cases

- 44 cases of length of detention on remand

25792/94 Trzaska, judgment of 11/07/00

23042/02 Cabała, judgment of 08/08/2006, final on 08/11/2006

3489/03 Cegłowski, judgment of 08/08/2006, final on 08/11/2006

17584/04 Celejewski, judgment of 04/05/2006, final on 04/08/2006

49929/99 Chodecki, judgment of 26/04/2005, final on 26/07/2005

75112/01 Czarnecki, judgment of 28/07/2005, final on 28/10/2005

5270/04 Drabek, judgment of 20/06/2006, final on 20/09/2006

77832/01 Dzyruk, judgment of 04/07/2006, final on 04/10/2006

7677/02 GÄ…siorowski, judgment of 17/10/2006, final on 17/01/2007

31330/02 Gołek, judgment of 25/04/2006, final on 25/07/2006

38654/97 Goral, judgment of 30/10/03, final on 30/01/04

28904/02 Górski, judgment of 04/10/2005, final on 15/02/2006

38227/02 Harazin, judgment of 10/01/2006, final on 10/04/2006

27504/95 IÅ‚owiecki, judgment of 04/10/01, final on 04/01/02

36258/97 J.G., judgment of 06/04/2004, final on 06/07/2004

33492/96 Jabłoński, judgment of 21/12/00

15479/02 Jarzyński, judgment of 04/10/2005, final on 04/01/2006

25715/02 Jaworski, judgment of 28/03/2006, final on 28/06/2006

10268/03 Kankowski, judgment of 04/10/2005, final on 04/01/2006

25501/02 Kozik, judgment of 18/07/2006, final on 18/10/2006

31575/03 Kozłowski, judgment of 13/12/2005, final on 13/03/2006

17732/03 Krawczak, judgment of 04/10/2005, final on 04/01/2006

34097/96 Kreps, judgment of 26/07/01, final on 26/10/01

16535/02 Kubicz, judgment of 28/03/2006, final on 28/06/2006

44722/98 Łatasiewicz, judgment of 23/06/2005, final on 23/09/2005

36576/03 Leszczak, judgment of 07/03/2006, final on 07/06/2006

57477/00 Malik, judgment of 04/04/2006, final on 04/07/2006

13425/02 Michta, judgment of 04/05/2006, final on 04/08/2006

39437/03 Miszkurka, judgment of 04/05/2006, final on 04/08/2006

34052/96 Olstowski, judgment of 15/11/01, final on 15/02/02

6356/04 P asiński, judgment of 20/06/2006, final on 23/10/2006

42643/98 P aszkowski, judgment of 28/10/2004, final on 28/01/2005

44165/98 Skrobol, judgment of 13/09/2005, final on 13/12/2005

29386/03 Stankiewicz, judgment of 17/10/2006, final on 17/01/2007

30019/03 Stemplewski, judgment of 24/10/2006, final on 24/01/2007

3675/03 Stenka, judgment of 31/10/2006, final on 31/01/2007

9013/02 Åšwierzko, judgment of 10/01/2006, final on 10/04/2006

33079/96 Szeloch, judgment of 22/02/01, final on 22/05/01

56552/00 Telecki, judgment of 06/07/2006, final on 06/10/2006

29687/96 Wesołowski, judgment of 22/06/2004, final on 22/09/2004

31999/03 Żak, judgment of 24/10/2006, final on 24/01/2007

25301/02 Zasłona, judgment of 10/10/2006, final on 10/01/2007

13532/03 Zborowski, judgment of 31/10/2006, final on 31/01/2007

28730/02 Zych, judgment of 24/10/2006, final on 24/01/2007