FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 25501/02 
by Roman KOZIK 
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
 Mrs L. Mijović, judges
and Mr M. O’Boyle, Section Registrar,

Having regard to the above application lodged on 17 July 2001,

Having deliberated, decides as follows:

 

THE FACTS

The applicant, Mr Roman Kozik, is a Polish national who was born in 1959 and lives in Szczecin, Poland.

A.  The circumstances of the case

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

On 19 June 2000 the applicant was arrested on suspicion of having committed a homicide.

On 20 June 2000 the Świnoujście District Court (Sąd Rejonowy) ordered his detention. It considered that the applicant’s detention was justified by the existence of strong evidence against him and the gravity of the charges. It also relied on the risk that the applicant might abscond or obstruct the proceedings.

The applicant’s detention was subsequently prolonged several times by the Szczecin Regional Court (Sąd Okręgowy). Each time the court repeated the reasons it had previously given.

On 7 March 2001 the prosecutor dismissed the applicant’s application for release.

On 26 April 2001 the applicant was indicted on charges of homicide and fraud.

The applicant remained in custody.

On 30 January 2002 the Szczecin Regional Court convicted him as charged and sentenced him to 15 years’ imprisonment.

The Poznań Court of Appeal quashed that judgment and remitted the case on 14 May 2002.

On 13 June 2002 the Poznań Court of Appeal (Sąd Apelacyjny) ordered that the applicant remain in custody until 30 September 2002.

On 19 June 2002 the court refused the applicant’s application for release.

Subsequently, the applicant’s detention was extended every 3 months by the Szczecin Regional Court, for the same reasons as before.

The applicant lodged numerous unsuccessful applications for release with the Szczecin Regional Court.

On 12 September 2003 the Regional Court prolonged the applicant’s detention until 20 March 2004.

His further applications for release were dismissed by the court on 19 September 2003 and 10 May 2004.

On 7 October 2004 the Szczecin Regional Court convicted the applicant as charged.

The Poznań Court of Appeal upheld the first instance judgment on 29 December 2004.

On 28 February 2005 the applicant lodged a cassation appeal.

The proceedings are pending before the Supreme Court (Sąd Najwyższy).

B.  Relevant domestic law and practice

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 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.  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.

COMPLAINTS

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

2. He further complains about the unfairness of the proceedings against him.

THE LAW

1. The applicant 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 these complaints and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of these complaints to the respondent Government.

2. Without invoking any Articles of the Convention, the applicant complains about the unfairness of the proceedings against him. His complaint falls to be examined under Article 6 § 1 of the Convention.

The court recalls that, under Article 35 § 1 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted. In the present case, the proceedings complained of are still pending before the Supreme Court.

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 concerning the length of his pre-trial detention;

Declares the remainder of the application inadmissible.

Michael O’Boyle Nicolas Bratza 
 Registrar President

KOZIK v. POLAND DECISION


KOZIK v. POLAND DECISION