FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 23755/03 
by Maksymilian MACIEJEWSKI 
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 11 July 2003,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Maksymilian Maciejewski, is a Polish national, who was born in 1961 and lives in Gdańsk, Poland.

A.  The circumstances of the case

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

On 31 March 1999 the applicant was arrested by the police on suspicion of having committed armed robbery. On 1 April 1999 the Gdańsk District Court (Sąd Rejonowy) ordered that he be detained on remand in view of the reasonable suspicion that he had committed the offences with which he had been charged (charges of armed robbery and possessing a firearm without a licence). It also considered that there was a risk that the applicant might go into hiding or tamper with evidence or obstruct the proceedings by other unlawful means. Later, several other persons were detained and charged in connection with the same set of offences.

In the course of investigation, the applicant’s detention was prolonged several times.

On 24 June 1999 the Gdańsk Regional Court (Sąd Okręgowy) prolonged the applicant’s detention until 30 September 1999. The Court relied on the need to obtain and secure further evidence.

On 15 September 1999 the Gdańsk Court of Appeal (Sąd Apelacyjny) prolonged the applicant’s detention until 31 December 1999, reiterating the grounds previously given for his detention and adding that the measure was also justified by the severity of the anticipated sentence.

On 8 December 1999 the Gdańsk Court of Appeal extended his detention until 30 March 2000, relying on the grounds previously given for his detention. It stressed the need to obtain and secure further expert evidence. The court also held that it was necessary to inspect the scene of the crime.

On 30 March 2000 the Supreme Court (Sąd Nawyższy), on an application from the Prosecutor General (Prokurator Generalny), extended the applicant’s detention until 30 June 2000. It found that the strong suspicion against him of having committed the serious offences with which he had been charged, the severity of the anticipated sentence and the risk of his tampering with evidence justified holding him in custody. It also relied on the complexity of the case.

On 24 May 2000 the Supreme Court prolonged the applicant’s detention until 15 December 2000, repeating the grounds that had been given in the previous decisions.

On 13 December 2000 the Gdańsk Court of Appeal extended the applicant’s and his 8 co-suspects’ detention pending investigation until 31 March 2001. On 7 March 2001 it ordered that the applicant be held in detention until 31 May 2001. It relied on the grounds stated in the previous decisions.

In the meantime, between 22 January and 16 February 2001, the applicant had been granted access to the case-file. On 21 February 2001 the applicant complained to the Regional Prosecutor that it was impossible for him to read all the materials within the time allowed.

On 24 April 2001 the case-file was made available to him.

On 15 May 2001 the applicant was indicted before the Gdańsk Regional Court. The bill of indictment listed 120 charges of attempted homicide and armed robbery, brought against the 19 accused, who were all detained on remand. The case-file comprised of 120 volumes.

Since on 30 March 2001 the applicant’ s detention reached the statutory time-limit of two years laid down in Article 263 § 3 of the Code of Criminal Procedure (Kodeks postepowania karnego), further prolongation of his detention was ordered by the Gdańsk Court of Appeal. The relevant decisions were given on 23 May and 24 October 2001, 13 March, 11 September and 18 December 2002 and on 25 June and 17 December 2003 and 23 June 2004. On the last of those dates, the Court of Appeal prolonged the applicant’s detention until 31 December 2004.

On 15 December 2004 the Gdańsk Court of Appeal prolonged the applicant’s detention until 31 March 2005. On 30 March 2005 it extended his detention until 30 June 2005.

In all those decisions the Court of Appeal stated that the grounds originally given for the applicant’s detention were still valid. It especially relied on the need to secure the proper conduct of the proceedings and stressed the complex nature of the case.

During the proceedings the applicant filed numerous but unsuccessful applications for release and applied, likewise unsuccessfully, against the decisions prolonging his detention.

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

B.  Relevant domestic law and practice

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 therefore 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; or

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)o it may seriously jeopardise the life or health of the accused; or

(2) oit 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, a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in 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:

“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 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.”

2.  Sentences applicable in respect to offences of robbery, fraud and acting in an organised criminal group

Pursuant to Article 280 §§ 1 and 2 of the Criminal Code (Kodeks Karny), a person convicted of robbery is liable to a sentence from 2 to 12 years’ imprisonment; in case of armed robbery, the applicable sentence is from 3 to 15 years’ imprisonment.

A person convicted of fraud is liable to a sentence of imprisonment ranging from 6 months to 8 years (Article 286).

Acting in an organised group set up in order to commit offences is an offence under Article 258 of the Criminal Code; the applicable sentence is from 1 month’s to 3 years’ imprisonment or, in case of acting in an armed organised group, from 3 months’ to 5 years’ imprisonment.

COMPLAINTS

1.  The applicant complains under Article 6 § 1 of the Convention about the length of his pre-trial detention.

2.  He further alleges a breach of Article 6 §§ 1 and 3 (b) of the Convention in that he was not given sufficient access to the case-file, which affected his defence rights in the trial.

THE LAW

1.  The applicant complains under Article 6 § 1 of the Convention about the length of his pre-trial detention.

The Court, noting that the complaint falls to be examined under Article 5 § 3, 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 that he was not given sufficient access to the case-file, which affected his defence rights in the trial, in breach of Article 6 §§ 1 and 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 is inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.

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;

Declares the remainder of the application inadmissible.

Michael O’Boyle Nicolas Bratza 
 Registrar President

MACIEJEWSKI v. POLAND DECISION


MACIEJEWSKI v. POLAND DECISION