FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 10816/02 
by Piotr KOZIMOR 
against Poland

The European Court of Human Rights (Fourth Section), sitting on 6 September 2005 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr G. Bonello
 Mr K. Traja
 Mr S. Pavlovschi
 Mr L. Garlicki
 Ms L. Mijović, 
 Mr J. Šikuta, judges
and Mrs F. Elens-Passos, Deputy Section Registrar,

Having regard to the above application lodged on 22 December 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Piotr Kozimor, is a Polish national who was born in 1971 and lives in Przemyśl.

A.  The circumstances of the case

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

1.  The criminal proceedings

On 15 August 1997 the Przemyśl District Court decided to detain the applicant on remand in view of the reasonable suspicion that he had committed a homicide.

Subsequently, the applicant’s pre-trial detention was prolonged on several occasions.

On 21 December 1998 the Przemyśl Regional Court (Sąd Wojewódzki) convicted the applicant of homicide and sentenced him to 25 years’ imprisonment.

On 29 April 1999 the Court of Appeal quashed the impugned judgment and remitted the case.

On 2 June 1999 the Przemyśl Regional Court (Sąd Okręgowy) decided to prolong the applicant’s pre-trial detention. The court gave following reasons:

“Prolongation of the applicant’s detention on remand is justified by the fact that the applicant has been accused of homicide”.

On 24 February 2000 the Przemyśl Regional Court dismissed the applicant’s request for release. The reasons of the decision are as follows:

“[The applicant] has been accused of having committed [a homicide] and the original reasons for keeping him in the detention did not cease to exist.”

On 3 March 2000 the Przemyśl Regional Court further prolonged the applicant’s pre-trial detention. The court found that keeping the applicant in detention was necessary because he had been charged with homicide and the trial court had started the process of obtaining expert evidence.

On 12 April 2000 the trial court held the first hearings. Subsequently, ten hearings were held.

On 2 June and 29 August 2000 the applicant’s pre-trial detention was prolonged as the courts considered that the necessity to secure the proper conduct of the proceedings and the severity of the anticipated penalty justified keeping him the custody.

On 14 September 2000 the Rzeszów Court of Appeal dismissed the applicant’s appeal against the decision of 29 August 2000.

The applicant submits that neither he nor his lawyer was informed about the majority of scheduled court sessions at which his detention on remand was prolonged and that he was not allowed to attend any of these sessions.

On 28 December 2000 the Rzeszów Regional Court gave judgment. The court convicted the applicant and sentenced him to twenty-five years of imprisonment. The applicant appealed.

On 17 May 2001 the Rzeszów Court of Appeal (Sąd Apelacyjny) amended the impugned judgment. The court sentenced the applicant to fifteen years’ imprisonment. The applicant lodged a cassation appeal with the Supreme Court (Sąd Najwyższy).

On 28 February 2002 the Supreme Court dismissed his cassation appeal as manifestly ill-founded.

2.  The monitoring of the applicant’s correspondence

On 28 February 2001 the Registry sent to the applicant, who at that time had been detained on remand in the Przemyśl Detention Centre, an application form and accompanying documents in reply to his letter in which he had notified his intention to lodge a complaint with the Court. The Court’s envelope delivered to the applicant bears the stamp: Rzeszów Regional Court (Sąd Okręgowy w Rzeszowie...) and a hand-written note: censo. (sic), 21.03.2001 (cenzu. 21.03.01).

A letter from the Chancellery of the Senate of the Republic of Poland of 30 January 2001 was delivered to the applicant in an envelope that bears the same as above stamp of the Rzeszow Regional Court and a hand-written note: censored, 1 [February 20]01 (cenzurowano, 7.02.01) and an illegible signature.

The applicant also submits that his correspondence with his court-appointed lawyer was censored by the authorities. He provided an envelope addressed to his lawyer which bears the following stamps: the Rzeszów Regional Court (Sąd Okręgowy w Rzeszowie), a hand-written note: censored, 19 [July 20]00 (cenzurowano, 19.07.2000) and an illegible signature. The envelope was posted on 19 July 2000. The second envelope, also addressed to his lawyer, bears the same stamp of the Regional Court, a date: 1.02.2001 and an illegible signature. Both envelopes were sent by the applicant from the Przemyśl Detention Centre. The third envelope was addressed to the applicant from his lawyer. The envelope, posted on 26 January 2001, bears the following stamps: Przemyśl Prison, (Zakład Karny w Przemyślu) and a date: 29.01.2001 and Rzeszów Regional Court (Sąd Okręgowy w Rzeszowie), an illegible signature and a date: 1.02.2001.

B.  Relevant domestic law and practice1

1.  Preventive measures, including detention on remand

A.  The Code of Criminal Procedure 1969

The Code of Criminal Procedure 1969, which remained in force until 1 September 1998, listed as preventive measures, inter alia, detention on remand, bail and police supervision. Article 209 of the Code, which set out general grounds justifying the imposition of preventive measures, provided as follows:

“Preventive measures may be imposed in order to secure the proper course of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.”

Furthermore, the Code of Criminal Procedure allowed authorities a margin of discretion as to whether to continue the enforcement of preventive measures. Detention on remand was regarded as the most severe preventive measure. Article 213 of the Code provided as follows:

“A preventive measure shall be immediately quashed or changed if the grounds therefor have ceased to exist or if new circumstances have arisen, which justify quashing a given measure or replacing it with one that is either more or less severe.”

Article 225 of the Code provided:

“Detention on remand shall be imposed only when it is mandatory; this measure shall not be imposed if bail or police supervision, or both of these measures, are considered adequate.”

Article 217 § 1 of the Code, in the version after 1 January 1996, provided insofar as relevant:

“Detention on remand may be imposed if:

(1)  there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent abode [in Poland]; or

(2)  there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper conduct of proceedings by any other unlawful means.”

Paragraph 2 of Article 217 then read:

“If an accused has been charged with a serious offence or an intentional offence [for the commission of which he may be] liable to a sentence of a statutory maximum of at least eight years’ imprisonment, or if a court of first instance has sentenced him to at least three years’ imprisonment, the need to continue detention in order to secure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed.”

Article 218 provided:

“If there are no special reasons to the contrary, detention on remand should be lifted, in particular, if:

(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.”

Until 4 August 1996, when the Code of Criminal Procedure was amended, Polish law did not set out any statutory time-limits concerning detention on remand in court proceedings but only in respect of the investigative stage.

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

“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 [offences for the commission of which a person was liable to a sentence of a statutory minimum of at least 3 years’ imprisonment] this period may not exceed two years.

4.  In particularly justified cases the Supreme Court may, on an application made by the court competent to deal with the case, ... prolong detention on remand for a further fixed period exceeding the time-limits set in paragraphs 2 and 3, when it is necessary in connection with a suspension of the proceedings, for the purposes of 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 accordance with the terms of paragraph 3.”

Subsequently, paragraph 4 was extended to include also “other significant circumstances, which could not be overcome by the organs conducting the proceedings”.

B.  The Code of Criminal Procedure 1997

The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the so-called “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition to leave the country (zakaz opuszczania kraju).

Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads:

“Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused’s committing another, serious offence; they may be imposed only if the evidence gathered shows a significant probability that an accused has committed an offence.”

Article 258 lists grounds for detention on remand. It provides, in so far as relevant:

“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 his identity cannot be established or when he has no permanent abode [in Poland];

(2)  there is a justified fear that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means;

2.  If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years’ imprisonment, or if a court of first instance has sentenced him to at least 3 years’ imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.”

The Code sets out the margin of discretion as to the continuation of a specific preventive measure. Article 257 reads, in so far as relevant:

“1.  Detention on remand shall not be imposed if another preventive measure is sufficient.”

Article 259, in its relevant part, reads:

“1.  If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would:

(1)  seriously jeopardise his life or health; or

(2)  entail excessively harsh consequences for the accused or his family.”

The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue.

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

“1.  When 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 an 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 Prosecutor 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, for the purposes of a prolonged psychiatric observation of the accused or the 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 in the court of appeal within whose jurisdiction the offence in question has been committed.

2.  The remedy for unreasonable length of proceedings2

On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.

Section 2 of the 2004 Act reads, in so far as relevant:

“1.  Parties to proceedings may lodge a complaint that their right to a trial within a reasonable time has been breached [in the proceedings] if the proceedings in the case last longer than is necessary to examine the factual and legal circumstances of the case ... or longer than is necessary to conclude enforcement proceedings or other proceedings concerning the execution of a court decision (unreasonable length of proceedings).”

Section 5 reads, in so far as relevant:

“1.  A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”

Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant:

“1.  The court shall dismiss a complaint which is unjustified.

2.  If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings.

3.  At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case.

4.  If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.”

Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant:

“1.  Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.

...”

On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.

3.  Censorship of correspondence

(a)  The Code of Execution of Criminal Sentences 1997

Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) (“the 1997 Code”) which entered into force on 1 September 1998.

The relevant part of Article 103 § 1 of the Code provides as follows:

“Convicted persons (...) have a right to lodge complaints with institutions established by international treaties ratified by the Republic of Poland concerning the protection of human rights. Correspondence in those cases (...) shall be sent to the addressee without delay and shall not be censored.”

Article 209 provides:

“The provisions concerning the execution of sentences shall apply accordingly to the execution of detention on remand, subject to changes resulting from this Chapter.”

Article 214 § 1 reads as follows:

“Unless exceptions are provided for in the present Chapter, a detainee shall enjoy at least the same rights as are secured to a convicted person serving a sentence of imprisonment under ordinary regime in a closed prison. No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings, to maintain order and security in a remand centre and to prevent demoralisation of detainees.”

Article 217 § 1 reads, in so far as relevant, as follows:

“(...) detainee’s correspondence shall be censored by [the organ at whose disposal he remains], unless the organ decides otherwise.”

Article 242 § 5 reads as follows:

“The prohibition of censorship shall also mean the prohibition of acquainting oneself with the content of the letter.”

(b)  The Rules of Detention on Remand 1998

On 1 September 1998 the Rules of Detention on Remand (Rozporządzenie Ministra Sprawiedliwości w sprawie regulaminu wykonywania tymczasowego aresztowania) entered into force.

§ 36 of the Rules provides:

“A detainee’s correspondence, including correspondence with the international institutions for the protection of human rights, which act on the basis of international agreements ratified by the Republic of Poland, with the Ombudsman and public and local government institutions, is mailed through the intermediary of the organ at whose disposal he remains.”

§ 37 provides:

“1.  If the organ at whose disposal [a detainee] remains ceases to censor correspondence, it shall be subject to the supervision or censorship by the prison administration, except for cases referred to in Article 73 of the Code of Criminal Procedure and Articles 102 (11) and 103 of the Code [of Execution of Criminal Sentences].

2.  The correspondence of a detainee shall be supervised by the administration of the detention centre when necessary for the protection of social interests, the security of a detention centre or requirements of personal re-education.

3.  The supervision referred to in paragraph 2 shall be executed by controlling the content of the correspondence and acquainting oneself with its wording.

4.  The correspondence referred to in Articles 8 § 3, 102 (11) and 103 § 1 of the Code [of Execution of Criminal Sentences] may only be subjected to the control of its content, which shall take place in the presence of a detainee.”

§ 38 provides:

“1.  A detainee’s correspondence shall be censored or seized by the prison administration in the case referred to in Article 105 § 4 of the Code [of Execution of Criminal Sentences].

2.  Censorship shall mean deleting a part of text or making it illegible, whereas seizing correspondence shall mean not transmitting it to a detainee and placing it in his file.

3.  The decision to censor or to seize correspondence shall be taken by a Governor, who shall inform a detainee about the reasons for censorship or for seizure.

4.  For controlling purposes a copy of the correspondence before it was censored shall be placed in the detainee’s personal file; if the detainee consults the file, copies of the correspondence before it was censored and the seized correspondence shall not be made available [to him].”

COMPLAINTS

1.  The applicant complained about the length of his pre-trial detention.

2.  The applicant further complained that in the proceedings for the prolongation of the pre-trial detention neither he nor his lawyer was present.

3.  The applicant complained, under Article 8 of the Convention, that his correspondence with his lawyer, other institutions in Poland and the Court had been censored.

4.  The applicant complained under Article 6 § 1 of the Convention that the length of the proceedings in his case had exceeded a “reasonable time” within the meaning of this provision.

5.  The applicant complained that he did not have a “fair trial” in that the courts were not impartial and had wrongly assessed the evidence.

6.  Finally, the applicant complained under Article 3 of the Convention that his state of health was too fragile to keep him in prison and that he had been ill-treated by the police during his arrest in 1997.

THE LAW

1.  The applicant complained under Article 5 § 3 of the Convention that the length of his pre-trial detention had been unreasonable.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2.  He further complained that the procedure for the prolongation of his detention was not adversarial in that neither he nor his lawyer was notified of the court sessions at which his detention on remand had been prolonged and that they were prevented from attending them.

The Court notes that the complaint falls to be examined under Article 5 § 4 of the Convention.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

3.  The applicant also complained under Article 8 of the Convention that his correspondence with his lawyer, various institutions in Poland and the Court had been censored by the authorities.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

4.  He also complained under Article 6 § 1 of the Convention that the length of the proceedings in his case had exceeded a “reasonable time” within the meaning of this provision.

However, pursuant to 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...”

The Court observes that the present application was lodged with the Court when the relevant proceedings were pending before the domestic court.

It further observes that, pursuant to section 18 of the 2004 Act, it was open to persons such as the applicant in the present case whose case was pending before the Court to lodge, within six months from 17 September 2004, a complaint about the unreasonable length of the proceedings with the relevant domestic court, provided that their application to the Court had been lodged in the course of the impugned proceedings and that it had not yet been declared admissible.

The Court has already examined that remedy for the purposes of Article 35 § 1 of the Convention and found it effective in respect of complaints about the excessive length of judicial proceedings in Poland. In particular, it considered that it was capable both of preventing the alleged violation of the right to a hearing within a reasonable time or its continuation, and of providing adequate redress for any violation that had already occurred (see Charzyński v. Poland (dec.), no. 15212/03, §§ 36-42).

However, the applicant has chosen not to avail himself of this remedy.

It follows that the complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

5.  The applicant complained that he did not have a “fair trial” in that the courts had not been impartial and had wrongly assessed the evidence.

However, the Court recalls that it is not called upon 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. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see García Ruiz v. Spain [GC], no 30544/96, ECHR 1999-I, § 28).

In the present case, the Court finds no indication that the courts went beyond the margin of appreciation left to them in respect of the assessment of evidence, or that the proceedings were otherwise unfair.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

6.  Finally the applicant alleged violation of Article 3 of the Convention in that the state of his health was too fragile to keep him in the prison and that during his arrest in 1997 the police had ill-treated him.

However, those complaints have not been supported by any material evidence. Nor has the applicant stated any factual basis for his Convention claims.

It follows that the remainder of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning the length of the applicant’s pre-trial detention, lack of equality of arms in the proceedings for prolonging his pre-trial detention and the censorship of his correspondence;

Declares the remainder of the application inadmissible.

Françoise Elens-Passos Nicolas Bratza 
    Deputy Registrar President

1.  For a more detailed rendition of the relevant domestic legal provisions see Charzyński v. Poland (dec.), no. 15212/03, §§ 12-23, to be published in ECHR 2005-... – also available on the Court’s Internet site (http://www.echr.coe.int).


2.  For a more detailed rendition of the relevant domestic legal provisions see Michalak v. Poland (dec.), no. 24549/03, §§ 12-23, to be published in ECHR 2005-... – also available on the Court’s Internet site (http://www.echr@coe.int).


KOZIMOR v. POLAND DECISION


KOZIMOR v. POLAND DECISION