FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 22752/03 
by Artur MIDERA 
against Poland

The European Court of Human Rights (Fourth Section), sitting on 19 May 2005 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr J. Casadevall
 Mr G. Bonello
 Mr R. Maruste
 Mr S. Pavlovschi
 Mr L. Garlicki, 
 Mr J. Borrego Borrego, judges
and Mr M. O'Boyle, Section Registrar,

Having regard to the above application lodged on 9 July 2003,

Having deliberated, decides as follows:

 

THE FACTS

The applicant, Mr Artur Midera, is a Polish national who was born in 1970 and lives in Częstochowa, Poland.

A.  The circumstances of the case

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

1.  The applicant's pre-trial detention

The applicant was arrested on 24 April 2001. On the following day the Katowice Regional Prosecutor (Prokurator Okręgowy) charged him with having participated in an organised armed group led by a certain M.M. which was set up to commit robberies and supply illegal drugs. The Regional Prosecutor relied, inter alia, on evidence given by the State's witnesses (świadek koronny). On the same day the Katowice District Court (Sąd Rejonowy) ordered the applicant's detention on remand for three months on suspicion of having participated in an organised armed group. It observed that on the basis of witnesses' evidence obtained so far in the investigation there was a strong likelihood that the applicant had committed the offences in question. It pointed also to the risk that the applicant would tamper with evidence. That decision was upheld by the Katowice Regional Court (Sąd Okręgowy) on 30 May 2001. Subsequently the applicant was also charged with drunken driving.

On 19 July 2001 the Częstochowa Regional Court prolonged the applicant's detention until 23 October 2001. It relied on evidence given by three witnesses who had provided information about the structure of the criminal group at issue and recognised its members. It also noted that given the complexity of the case it was necessary to continue the investigation in order to establish various aspects of the criminal group's activities and determine the responsibility of its individual members. Lastly, it observed that there was a risk that the applicant would obstruct the proceedings if released.

On 18 October 2001 the Częstochowa Regional Court prolonged the applicant's detention until 10 December 2001. In addition to the grounds previously given, it found that the investigation could not have been terminated due to the large number of suspects, the wide scope of the investigation and the new aspects of the case which had continuously arisen. That decision was upheld on appeal on 14 November 2001.

On 29 November 2001 the Regional Court ordered that the applicant be held in custody until 24 April 2002. It relied on some of the grounds given in the previous decisions. It also noted that his continued detention was necessary in order to ensure the proper conduct of the proceedings given the likelihood of a severe penalty being imposed on the applicant and the related risk that he would tamper with evidence if released.

On 9 April 2002 the Katowice Appellate Prosecutor (Prokurator Apelacyjny) made an application to the Katowice Court of Appeal (Sąd Apelacyjny) for prolongation of the applicant's detention until 10 June 2002. It relied on the need to obtain evidence from fingerprint and firearm experts and considered that it was also necessary to hold a view of the scene of crime and to confront the suspects with each other. On 17 April 2002 the Katowice Court of Appeal granted that application, pursuant to Article 263 § 4 of the Code of Criminal Procedure. On 22 May 2002 the Court of Appeal ordered the further prolongation of the applicant's detention until 10 December 2002. In addition to the grounds previously relied on, it based its decision on the complex nature of the case which involved many charges against a few dozen co-accused and the numerous expert reports. That decision was upheld on appeal by the Court of Appeal, sitting in a different panel of three judges, on 12 June 2002. In its decision, replying to the applicant's plea that he was in need of an orthopaedic surgery, it found that such surgery could be performed in the prison hospital and that his state of health did not justify his release. The applicant's detention was subsequently prolonged on an unspecified later date.

On an unspecified date in February 2003 the Regional Prosecutor submitted a bill of indictment against the applicant and his co-accused to the Częstochowa Regional Court. It requested that the trial court hear evidence from some 70 witnesses.

On 9 April 2003 the Court of Appeal ordered that the applicant and his 5 co-accused be held in custody until 24 December 2003. That decision was upheld on appeal on 7 May 2003.

Between 20 August and 18 September 2003 the applicant was held in the hospital of the Warsaw-Mokotów Detention Centre. On 1 September 2003 he underwent orthopaedic surgery.

On 13 December 2003 the Częstochowa Regional Court made an application to the Katowice Court of Appeal for prolongation of the applicant's detention and 5 of his co-accused until 24 June 2004. That application was granted on 17 December 2003. The Court of Appeal emphasised the exceptionally complex nature of the case and the fact that despite the good organisation of the trial it had not been possible to terminate the proceedings. The applicant appealed against that decision, arguing that the charges against him were groundless and invoking the poor state of his health. On 14 January 2004 the Court of Appeal, sitting in a different panel of three judges, upheld the contested decision. In respect of the applicant's state of health, the Court of Appeal noted that the applicant had had surgery scheduled for 17 December 2003 in the hospital of the Warsaw-Mokotów Detention Centre, but that he had refused to be treated in that establishment.

It appears that in 2003 the trial court held a dozen or so hearings, of which three had to be cancelled for reasons which could not be attributed to the court.

On 26 May 2004 the Court of Appeal, on an application from the trial court, prolonged the applicant's detention and that of 5 of his co-accused until 24 December 2004. It upheld all the previous grounds for the applicant's detention. It also found that due to large number of witnesses to be heard, both for the prosecution and the defence, the trial could not have been terminated.

On 15 December 2004 the trial court made another application for extension of the applicant's detention until 24 April 2005. The Court of Appeal granted that application on 22 December 2004.

The applicant's numerous appeals against decisions prolonging his detention and his applications for release were unsuccessful.

It appears that the applicant is still in detention pending trial.

2.  Monitoring of the applicant's correspondence

1. On 21 July 2003 the Court received the applicant's letter of 8 July 2003. The envelope bears the following stamps: “Code 118 Received on 09.07.2003. (Kod 118 Wpłynęło dn. 09.07.2003r), “Received for censorship on 14 July 2003 Secretary” (Wpłynęło do cenzury dn. 14 LIP. 2003 Sekretarz) and an illegible signature, and “Received for censorship without control 14 July 2003” (Wpłynęło do cenzury bez kontroli dnia 14 VII 03r.) and an illegible signature.

2. On 6 October 2003 the Court received the applicant's letter of 14 September 2003. The envelope bears the following stamps: “Warsaw-Mokotów Detention Centre received on 16.09.2003” (Areszt Śledczy Warszawa-Mokotów wpłynęło dnia 16.09.2003) and “Received for censorship without control on 24 September 2003” and an illegible signature.

3. On 16 December 2003 the Court received the applicant's letter of 30 November 2003. The envelope bears a stamp that read: “Received for censorship without control on 3 December 2003” and an illegible signature.

4. On 3 February 2004 the Court received the applicant's letter of 17 January 2004. The envelope bears the following stamps: “Częstochowa Detention Centre Received on 20.01.2004” and “Received for censorship without control on 23 January 2004” and an illegible signature and “the Regional Court 42-201 Częstochowa II Section Criminal no. 23/25 Dąbrowskiego Street”.

5. On 9 February 2004 the Court received the applicant's letter of 27 January 2004. The envelope bears two stamps: “Częstochowa Detention Centre Received on 27 January 2004” and “Received for censorship without control on 30 January 2004” and an illegible signature.

6. On 19 March 2004 the Court received the applicant's letter of 24 February 2004. The envelope bears the following stamps: “Częstochowa Detention Centre Received on 24 February 2004” and “Received for censorship Received for censorship without control on 27 February 2004 Secretary” and an illegible signature.

7. On 2 August 2004 the Court received the applicant's letter sent on an unspecified date in July 2004. The envelope bears the following stamps: “Częstochowa Detention Centre Received on 20 July 2004” and “Received for censorship without control on 22 July 2004” and an illegible signature.

8. On 16 February 2005 the Court received the applicant's letter sent on an unspecified date in February 2005. The envelope bears the following stamps: “Częstochowa Detention Centre Received on 03.02.05” and “Received for censorship without control on 4 February 2005” and an illegible signature.

B.  Relevant domestic law and practice

1.  Remedies against unreasonable length of the proceedings

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 to leave 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 with 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.”

3.  Censorship of correspondence

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) of 1 September 1998.

Article 103 of that Code, which is contained in Chapter IV entitled “Rights and duties of convicted persons”, provides as follows:

“Convicted persons, their counsel, representatives and the relevant non-governmental organisations have a right to lodge complaints with institutions set up by international treaties ratified by the Republic of Poland concerning the protection of human rights. In those cases, correspondence of persons deprived of their liberty shall be sent to the addressee without delay and shall not be censored.”

Provisions relating to the execution of detention on remand (Articles 207-223) are contained in Chapter XV entitled “Detention on remand”.

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

“... a detainee's correspondence shall be censored by [the authority at whose disposal he remains], unless the authority decides otherwise.”

Pursuant to Article 214 § 1:

“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 the 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 242 § 5, which is contained in Chapter XXI entitled “Definitions”, provides:

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

COMPLAINTS

1. The applicant complains that he did not receive adequate medical treatment while in detention. He does not rely on any provision of the Convention.

2. The applicant also complains under Article 5 § 3 of the Convention about the length of his detention.

3. He also complains, without invoking any provision of the Convention, about the unreasonable length of the criminal proceedings.

4. In respect of the monitoring of the applicant's correspondence, the Court raises ex officio a complaint about a breach of Article 8 of the Convention.

THE LAW

1. The applicant complains, without invoking any provision of the Convention, that he did not receive adequate medical treatment while in detention.

The Court considers that this complaint falls to be examined under Article 3 of the Convention which provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court recalls that this provision cannot be interpreted as laying down a general obligation to release a detainee on health grounds or to place him in a civil hospital to enable him to obtain a particular kind of medical treatment. Nevertheless, under this provision the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance (Kudła v. Poland [GC], no. 30210/96, §§ 93-94, ECHR 2000-X).

The Court firstly observes that the applicant has not submitted any relevant documents related to the nature of his ailments or the recommended course of treatment. On the basis of the available material, the Court notes that in his appeal against the Court of Appeal's decision of 22 May 2002 prolonging his detention, the applicant claimed that he had to undergo orthopaedic surgery. However, the Court of Appeal in its decision of 12 June 2002 considered that the applicant could receive such a treatment in the prison hospital and that his state of health did not justify his release. It transpires from the case-file that on 1 September 2003 the applicant did undergo orthopaedic surgery in the hospital of the Warsaw-Mokotów Detention Centre. Subsequently, the applicant refused to undergo a second surgery which was scheduled for 17 December 2003 in the same establishment.

In the present case, the Court finds no indication of any discernible shortcomings on the part of the authorities in securing adequate medical treatment to the applicant. Consequently, it cannot be said that the applicant was subjected to ill-treatment that attained a sufficient level of severity to come within the scope of Article 3 of the Convention.

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

2. The applicant also complains under Article 5 § 3 of the Convention about the length of his detention on remand.

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. The applicant alleges, without relying on any provision of the Convention, that his case was not heard within a “reasonable time”. The Court considers that this complaint falls to be examined under Article 6 § 1 of the Convention which, in its relevant part, provides:

  “In the determination ... of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

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 and, it appears, that they are still pending before the first-instance 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. Moreover, given that the proceedings complained of are still pending, nothing prevents the applicant from lodging such a complaint even after the expiry of the time-limit set by the transitional rule, in accordance with the general provisions of the 2004 Act.

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 has already occurred (see Charzyński v. Poland (dec.), no. 15212/03, §§ 36-42).

The applicant, having been informed by the Registrar of the possibility of lodging a complaint about the length of the proceedings under the 2004 Act, has chosen to avail himself of this remedy.

Accordingly, the complaint about the unreasonable length of the proceedings is premature and must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

4. In respect of the monitoring of the applicant's correspondence, the Court raises ex officio a complaint about a breach of Article 8 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.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant's complaint under Article 5 § 3 concerning the length of his pre-trial detention and the complaint under Article 8 concerning a breach of the right to respect for his correspondence raised by the Court ex officio;

Declares the remainder of the application inadmissible.

Michael O'Boyle Nicolas Bratza 
 Registrar President

MIDERA v. POLAND DECISION


MIDERA v. POLAND DECISION