FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 15154/03 
by Tomasz MALIKOWSKI 
against Poland

The European Court of Human Rights (Fourth Section), sitting on 18 October 2005 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr G. Bonello
 Mr M. Pellonpää
 Mr K. Traja
 Mr L. Garlicki
 Mr J. Borrego Borrego, 
 Ms L. Mijović, judges
and Mr M. O’Boyle, Section Registrar,

Having regard to the above application lodged on 18 April 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Tomasz Malikowski, is a Polish national who was born in 1968 and lives in Rumia. The application was lodged on his behalf by his common-law wife, Ms Teresa Rohde, who submitted a duly signed written authorisation from the applicant.

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 against the applicant

On 6 September 1999 the applicant was arrested on suspicion of armed robbery.

On 7 September 1999 the Gdańsk District Court remanded the applicant in custody for a period of three months in view of the reasonable suspicion that he had committed a number of armed robberies. That suspicion was supported by the evidence obtained in the course of the investigation. The District Court further held that there was a reasonable risk that the applicant would obstruct the investigation by, inter alia, inducing witnesses to give false testimony and relied on the severity of the anticipated penalty. It thus considered that the remanding the applicant in custody was the only preventive measure which could secure the proper conduct of the investigation.

On 18 November 1999 the Gdańsk Regional Court prolonged the applicant’s detention until 6 March 2000. It referred to the reasonable suspicion of the applicant having committed the offences in question and the need to take further investigative measures.

On 16 February 2000 the Gdańsk Court of Appeal ordered that the applicant and a certain T.M., a second detained suspect, be held in custody pending investigation until 30 June 2000. It held that his continued detention was justified by the reasonable suspicion that the applicant had committed the offences with which he had been charged. That suspicion was based primarily on evidence given by a certain A.Ł., another member of the same criminal group, who acted as a witness against the other suspects. The Court of Appeal also considered that the continued detention was necessary in view of the serious nature and scale of the offences in question. Furthermore, it was also justified by the need to obtain evidence from many sources.

On 20 June 2000 the Gdańsk Court of Appeal prolonged the applicant’s detention until 6 September 2000. In addition to the grounds previously given, it observed that that the applicant’s detention was justified by the complexity of the investigation and the likelihood that a severe penalty would be imposed.

On 17 August 2000 the Supreme Court (Sąd Najwyższy) extended the applicant’s detention until 15 December 2000. It found that the strong suspicion against the applicant of having committed the serious offences in question, the severity of the anticipated penalty and the need to obtain further evidence warranted holding him in custody.

Meanwhile, seven other persons were charged and detained in connection with the same investigation conducted by the Department of Organised Crime of the Gdańsk Regional Prosecutor’s Office.

On 13 December 2000 the Gdańsk Court of Appeal prolonged the applicant’s detention pending the investigation until 31 March 2001. It reiterated the original grounds given for his detention. Taking into account the nature of the offences, the Court of Appeal added that the fact that the charges against all the nine suspects were closely interrelated justified a fear that, once released, they might obstruct the proceedings. It also referred to the particular complexity of the case. Furthermore, it noted that the prolongation of the investigation was due to the fact that new suspects had been identified in the course of the investigation.

On 21 December 2000 the Gdańsk Regional Prosecutor charged the applicant with the commission of 4 counts of armed robbery and 4 counts of burglary.

On 7 March 2001 the Court of Appeal prolonged the applicant’s and his 9 co-suspects’ detention until 31 May 2001. It held that the original grounds given for the applicant’s detention were still valid and that the need to obtain DNA evidence justified the continuation of that measure.

On 10 May 2001 the Gdańsk Regional Prosecutor terminated the investigation. On 15 May 2001 the applicant was indicted before the Gdańsk Regional Court on, inter alia, several counts of armed robbery which had been committed in an organised armed criminal group. The bill of indictment listed 120 charges brought against 19 defendants, who all were detained on remand. The case-file comprised 114 volumes. The prosecution asked the court to hear evidence from 366 witnesses. The principal witness was A.Ł., who was indicted together with all the defendants but gave evidence against them.

On 17 May 2001 the Gdańsk Regional Court ordered that the applicant be detained until 6 September 2001, finding that it was necessary in order to prevent him – and his other 12 detained co-defendants – from evading justice or tampering with evidence. It also referred to the complexity of the case stemming from the number of defendants and the number of witnesses to be heard.

The trial began on 28 December 2001. However, as of April 2002 the reading out of the bill of indictment by the prosecution still continued. Initially, the trial court held three hearings per month.

On 15 January 2002 the Gdańsk Regional Court dismissed the applicant’s request for the presiding judge to withdraw. On 15 January 2003 the applicant and 17 of his co-defendants unsuccessfully challenged the judges and lay members of the trial court.

Since on 6 September 2001 the applicant’s detention had reached the statutory time-limit of 2 years laid down in Article 263 § 3 of the Code of Criminal Procedure, further prolongation of the applicant’s detention was ordered by the Gdańsk Court of Appeal. The relevant decisions were given on 22 August 2001 (prolonging his detention until 31 March 2002), on 28 March 2002 (extending his detention up to 30 September 2002), on 11 September 2002 (ordering his continued detention until 31 December 2002), on 18 December 2002 (prolonging that period until 30 June 2003), on 25 June 2003 (extending his detention up to 31 December 2003), on 17 December 2003 (ordering his continued detention until 30 June 2004), on 23 June 2004 (prolonging his detention until 31 December 2004), on 15 December 2004 (prolonging his detention until 31 March 2005) and on 30 March 2005 (extending that period until 30 June 2005).

In all those decisions the Court of Appeal considered that the original grounds given for the applicant’s detention were still valid. It stressed that the applicant’s detention was the only measure which could secure the proper conduct of the proceedings in that particularly complex case, given the nature of the charges, the number of the defendants and the connections between them. In addition, it referred to the volume of evidence to be heard. In its decision of 19 September 2001 the Court of Appeal dismissed the applicant’s appeal against the decision of 22 August 2001, prolonging his detention. It held, inter alia, that Article 258 § 2 of the Code of Criminal Procedure alone constituted a sufficient ground for the applicant’s detention as he had been charged with an offence for the commission of which he was liable to a statutory maximum sentence of at least 8 years’ imprisonment. It further found that the applicant’s continued detention was the only measure which could secure the proper conduct of the trial, given the fact that he had been charged with commission of the offences in an organised criminal group.

In its decision of 25 June 2003 prolonging the applicant’s detention, the Court of Appeal observed that the trial could not have been terminated due to obstructiveness on the part of the defendants who filed numerous requests challenging the trial court. It further considered that although the applicant and other defendants were free to make use of their procedural rights, the abuse of those rights had undoubtedly led to delays in the trial. It also noted that the trial court had taken various procedural steps in order to accelerate the proceedings.

In its decision on the applicant’s detention of 23 June 2004, the Court of Appeal observed that up to April 2003 the main reason for the delays during the trial was the obstructiveness of the defendants and the abuse of the rights of the defence. It also observed that the trial could be concluded by the end of 2004 provided that the Regional Court endeavoured to organise the trial efficiently.

In its decision of 18 January 2005 dismissing the applicant’s appeal against the decision of 15 December 2004 prolonging his detention, the Court of Appeal held that Article 258 § 2 of the Code of Criminal Procedure established a presumption to the effect that the likelihood of a severe penalty being imposed on the applicant might induce him to obstruct the proceedings. It added that the risk of absconding or tampering with witnesses which existed in the present case did not have to be supported by any concrete facts, but resulted from the above presumption1.

On 21 March 2005 the trial court made a severance order with a view to expediting the proceedings, and thereafter four defendants (J.N., G.P., Z.S. and Z.C.), who in the meantime had been released from detention, were to be tried separately from other defendants.

By June 2005 the trial court held over 150 hearings and heard more than 400 witnesses.

In the course of the proceedings the applicant made numerous, unsuccessful applications for release and appealed, likewise unsuccessfully, against refusals to release him and decisions extending his detention.

In its decision of 28 August 2002 dismissing the applicant’s application for release, the Gdańsk Regional Court found that according to evidence given by a witness R.G., the applicant had attempted to induce him to give false testimony.

2.  The applicant’s complaint against the unreasonable length of proceedings

On 25 January 2005 the applicant filed with the Gdańsk Court of Appeal a complaint about a breach of his right to a trial within a reasonable time and asked for compensation. He relied on Section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (“the 2004 Act”) which entered into force on 17 September 2004.

The applicant submitted that the charges against all the defendants had been unjustifiably joined to be examined in one set of the proceedings. He further referred to numerous absences of the witnesses, lawyers and the defendants and claimed that many hearings had been cancelled in the course of 2004. Lastly, he complained about the procedural errors committed by the trial court.

On 1 March 2005 the Court of Appeal dismissed his complaint as unfounded, having regard to the criteria set out in Section 2 § 2 of the 2004 Act. It held that the joint examination of the charges against the defendants who had committed a crime acting collectively was justified under the domestic law. The Court of Appeal also found that certain absences referred to by the applicant had been justified, while in other cases the trial court had taken steps to discipline the relevant persons. It further held that certain hearings in 2004 had been cancelled, however for reasons which had not been attributable to the trial court. As to the applicant’s submission about the alleged procedural errors of the trial court, the Court of Appeal held that those could not be examined in the framework of the complaint against the unreasonable length of the proceedings.

Lastly, the Court of Appeal observed that the 2004 Act could not be relied on in cases where delays in the proceedings had occurred before the entry into force of the Act and were remedied prior to that date2.

B.  Relevant domestic law and practice

1.  Remedies against unreasonable length of the proceedings3

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.  A party 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 the 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.

2.  Preventive measures, including detention on remand

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 on leaving the country (zakaz opuszczania kraju).

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

“1. 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 249 § 5 of the 1997 Code, in the version applicable at the relevant time, provides:

“The court shall inform the detainee’s lawyer of the time of a court session at which a decision is to be taken on the prolongation of detention on remand or at which an appeal against a decision imposing or prolonging detention on remand is to be examined.”

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 reasonable risk 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.  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 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, 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 in the court of appeal within whose jurisdiction the offence in question has been committed. In addition, new paragraph 5 was added. It provides:

“ A decision of the Court of Appeal taken pursuant to paragraph 4 may be appealed against to the Court of Appeal sitting in a panel of three judges.”

COMPLAINTS

1. The applicant complains under Article 13 of the Convention about the excessive length of his pre-trial detention.

2. The applicant further complains under Article 6 § 1 of the Convention about the unreasonable length of the criminal proceedings against him.

3. He also complains under Article 6 § 1 of the Convention about unfairness of the proceedings.

4. He also complains under Articles 6 § 3(b) and 17 of the Convention that he was not afforded sufficient time for consultation of the case-file and thus did not have adequate time for the preparation of his defence.

THE LAW

1.  The applicant complains under Article 13 of the Convention about the excessive length of his pre-trial detention. However, the Court notes that this complaint falls to be examined under Article 5 § 3 of the Convention.

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary to give notice of this part of the application to the respondent Government.

2. The applicant further complains under Article 6 § 1 of the Convention about the unreasonable length of the criminal proceedings against him.

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary to give notice of this part of the application to the respondent Government.

3. He also complains under Article 6 § 1 of the Convention about unfairness of the proceedings.

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 notes that the criminal proceedings against the applicant are still pending. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

4. He also complains under Articles 6 § 3(b) and 17 of the Convention that he was not afforded sufficient time for consultation of the case-file and thus did not have adequate time for the preparation of his defence.

The Court considers that this complaint falls to be examined under Article 6 § 1 read in conjunction with Article 6 § 3 (b) of the Convention.

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 notes that the criminal proceedings against the applicant are still pending. Accordingly, the applicant still can, and should, put the substance of the complaint before the domestic authorities and ask for appropriate relief.

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

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning the excessive length of his pre-trial detention and the undue length of the criminal proceedings against him;

Declares the remainder of the application inadmissible.

Michael O’Boyle Nicolas Bratza 
 Registrar President

1 The Court of Appeal relied on the decision of the Supreme Court of 19 November 1996, no. IV KZ 119/96, published in OSP 1997 no. 4, item 74.


2 The Court of Appeal referred to the resolution of the Supreme Court of 18 January 2005, no. III SPP 113/04.


3 For a more detailed rendition of the relevant domestic legal provisions see Charzyński v. Poland (dec.) no. 15212/03, §§ 12-23; and Michalak v. Poland (dec.) no. 24549/03, §§ 12-23, to be published in ECHR 2005-…; also available on the Court’s Internet site: www.echr.coe.int 


MALIKOWSKI v. POLAND DECISION


MALIKOWSKI v. POLAND DECISION