FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33866/96 
by Józef BOGULAK 
against Poland

The European Court of Human Rights (Fourth Section), sitting on 19 October 2004 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr J. Casadevall,

Mr R. Maruste,

Mr S. Pavlovschi,

Mr L. Garlicki,

Mr J. Borrego Borrego,

Mrs E. Fura-Sandström, judges,

and  Mr M. O'Boyle, Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 30 July 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the Commission's partial decision of 11 December 2001,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant,  Józef Bogulak, is a Polish national, born in 1946 and living in Wrocław, Poland. He is represented before the Court by Mr S. Waliduda, a lawyer practising in Wrocław. The respondent Government are represented by Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.

A.  The circumstances of the case

The facts of the case, some of which are in dispute between the parties, may be summarised as follows:

According to the applicant, in October 1995 he was apprehended by the police in front of his house, handcuffed and escorted to the Wrocław Regional Police Headquarters. At the police premises he was forced under threats of arrest to sign a document stating his collaboration with the police in connection with the criminal proceedings against A.S. The applicant submits that he did not receive a copy of a “procès-verbal setting out the reasons for his arrest” (protokół zatrzymania) neither was he informed of his rights.

The Government maintain that the purpose in bringing the applicant to the police station was not to arrest him but to induce him to collaborate with the police. However, given that the applicant does not remember the exact date of the event in question, it is not certain whether it took place at all. What is more, the applicant might have gone to the police station of his own free will in order to discuss the issue of his possible collaboration with the police.

According to the applicant's submissions to the Court dated 2 July 2002, the above incident took place on 16 October 1995 as reflected in the text of the decision of 30 April 1997 issued by the Wrocław District Prosecutor.

The applicant further states that since he had refused to act as a police informer, several weeks later, on 24 October 1995, his flat was searched by the police and he himself was detained in custody in the company of two other persons who, in the applicant's opinion, had been previously instructed to “give him a hard time”. Two days later, the applicant was brought to the Wrocław Regional Prosecutor Office and kept waiting. Despite his repeated requests, he was not allowed to use a toilet for 40 minutes. After about an hour, he was interrogated by a prosecutor and a police officer who again tried to press him to collaborate with them. The applicant's lawyer was not allowed to take part in the interrogation. The prosecutor charged the applicant with the offence of obstructing the criminal proceedings against A.S. When the interrogation finished, the applicant was released.

The applicant maintains that, like on the previous occasion, no records relating to the search and the detention were made and he was not informed of the reasons for his arrest or of his right to appeal to a court.

The Government submit that the applicant was detained by the public prosecutor on 24 October 1995 at 7.30 a.m. On the morning of the following day, the applicant was interrogated by the prosecutor. He was then released at about 14.05 a.m. The Government assert that the applicant - suspected of obstructing criminal proceedings against a third party and of falsifying documents - was informed of the legal basis of his arrest and instructed about the possibility of lodging an appeal to the court, which he did not avail himself of. The fact that the applicant deliberately refused to sign the record of arrest does not mean that he was not acquainted with its content. On the contrary, it shows that he was informed of the reasons and purpose of his arrest.

From there on the parties' submissions are in agreement.

On 13 March 1996 after having searched the applicant's flat, the applicant was arrested on suspicion of an attempt to swindle money in VAT refunds.

On 15 March 1996 the prosecutor issued an order of detention against the applicant on charges of tax fraud and obstructing the conduct of the criminal proceedings against A.S. by inciting witnesses to give false testimony.

On 1 April 1996 the applicant's lawyer's appeal against the decision of 15 March 1996 was dismissed by the Wrocław Regional Court. The court considered that the applicant's detention was justified by the existence of strong evidence of his guilt, the gravity of charges against him and in order to secure the proper course of the proceedings.

On 4 April 1996 the Wrocław Regional Prosecutor rejected the appeal against the decision of 15 March 1996 filed by the applicant himself, observing that it was submitted too late. On the same date the applicant's request to be granted leave to appeal out of time was rejected since he had not shown that the failure to lodge the appeal within the prescribed time-limit was without fault on his part.

On 26 April 1996 the Wrocław Regional Prosecutor dismissed the applicant's motions of 28 March 1996 and of 19 April 1996 to be released, referring to the charges against him and considering that the applicant's case did not disclose any of the grounds for release provided by Article 218 of the Code of Criminal Procedure.

On 24 May 1996, in reply to a letter of 7 May 1996 signed by the applicant's sons, the Wrocław Regional Prosecutor informed them that the applicant had been arrested at 7.30 on 24 October 1995 and released at 14.05 on 25 October 1995. Therefore, his detention did not exceed the statutory time-limit of 48 hours. As regards the “procès-verbal setting out the reasons for his arrest”, the applicant refused to accept it and to sign it. Moreover, the applicant himself decided not to lodge an appeal against the arrest with a court. The prosecutor further explained that when the applicant's lawyer arrived, the charges against the applicant had already been preferred and his examination had started. However, the interrogation continued on the following day, i.e. 26 October 1995 in the presence of his lawyer.

On 7 June 1996 the Wrocław Regional Court prolonged the applicant's detention on remand until 31 August 1996. The court relied on the strong probability of the applicant's guilt, the gravity of charges against him and the high risk of his hindering the proper conduct of the proceedings.

On 7 June 1996 the Wrocław Regional Court dismissed the applicant's appeal against the decisions of 4 April 1996 given by the Wrocław Regional Prosecutor. On 14 June 1996 the Wrocław Appellate Prosecutor dismissed the applicant's appeal against the decision of 26 April 1996, considering that the evidence strongly supported charges against the applicant and having regard to the Wrocław Regional Court's opinion expressed in the decision of 7 June 1996.

By a decision of 25 June 1996 the Wrocław Court of Appeal upheld the decision of 7 June 1996, pointing out that that the applicant's case disclosed the existence of grounds for detention provided under Section 209 and 217 § 1 of the Code of Criminal Procedure.

Apparently, on 5 July 1996 the Wrocław Court of Appeal dismissed the applicant's lawyer's appeal against the decision of 7 June 1996 given by the Wrocław Regional Court. The court recalled that the applicant's appeal against this decision had already been examined. The court referred to the reasoning of its decision of 25 June, observing that that no new circumstances in the case had come to light. On 16 July 1996 the Wrocław Appellate Prosecutor dismissed the applicant's and his lawyer's appeals against the decision of 7 June 1996 given by the Wrocław Regional Prosecutor relying on the grounds invoked in the previous decisions.

By the decision of 7 August 1996 the Wrocław Regional Prosecutor, in view of the fact that the investigation in the case had been almost completed, quashed the detention order and replaced it with a bail of 5000 PLN and a prohibition on leaving the country.

On 11 December 1996 the applicant requested the prosecutor to institute criminal proceedings against the police officers who had allegedly overstepped their competence by unlawfully depriving him of liberty on 16 and 24 October 1995 as well as on 13 March 1996.

On 30 April 1997 the Wrocław District Prosecutor dismissed the applicant's request.  The prosecutor observed that the applicant's and the policemen's testimonies concerning the circumstances surrounding the interrogations at the Wrocław Police Station on 16 and 24 October 1995 were contradictory. As regards the events of 16 October 1995 the applicant maintained that he had been brought by force to the police station, that the officers had been aggressive and threatening and that psychological pressure had been exerted on him to collaborate. The policemen in question denied all these allegations, submitting that the applicant was willing to co-operate with them without any compulsion or duress. As to the events on 24 October 1995, there was disagreement as to the circumstances concerning the drawing up and serving the applicant with the “procès- verbal setting out the reasons for his arrest”. The applicant maintained, which was contested by the police, that neither on 16 nor on 24 October had he received copies of the record of his arrest.

The Wrocław District Prosecutor, having carefully examined the available material, found that, in the absence of independent evidence and in view of the consistent submissions of the policemen involved, the applicant's version of facts could not be accepted uncritically. In sum, there was no ground for concluding that the police officers in question had committed any criminal offence.

It appears that the applicant did not lodge an appeal against the decision of 30 April 1997.

On 17 November 1997 the Wrocław Regional Prosecutor lodged a bill of indictment against the applicant and twenty six co-defendants with the Wrocław Regional Court. The applicant was charged with obstructing the conduct of criminal proceedings against A.S. and with tax frauds. The criminal proceedings against the applicant are still pending.

B.  Relevant domestic law

a) Evolution of Polish criminal law in the relevant period

Polish criminal legislation was amended several times during the relevant period. The Code of Criminal Procedure enacted in 1973 (“old” Code) was replaced by a new Code of Criminal Procedure, adopted by Parliament (Sejm) on 6 June 1997, which entered into force on 1 September 1998.

The “old” Code was significantly amended by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes. This Law entered into force on 1 January 1996. However, the entry into force of the provisions concerning the imposition of detention on remand was postponed until 4 August 1996. In accordance with these provisions, detention on remand was imposed by a judge (whereas before it was imposed by a prosecutor - see section (b) below).

The second amendment, effected by the Law of 1 December 1995 on Amendments to the Law of 29 June 1995 (commonly referred to as “the Interim Law of 1 December 1995”) entered into force on 1 January 1996.

b) Preventive measures

The Polish Code of Criminal Procedure (“old”), applicable at the relevant time, listed as "preventive measures", inter alia, detention on remand, bail and police supervision.

Articles 210 and 212 of the “old” Code of Criminal Procedure applicable at the relevant time provided that before the bill of indictment was transmitted to the court, detention on remand was imposed by the prosecutor. The decision to impose detention on remand could be appealed against, within a seven-day time-limit, to the court competent to deal with the merits of the case.  In pursuance of Article 222 of the Code of Criminal Procedure, the prosecutor could order detention on remand for a period not exceeding three months. When, in view of the particular circumstances of the case, the investigations could not be terminated within this period, detention on remand could, if necessary, be prolonged by the court competent to deal with the merits of the case, upon the prosecutor's request, for a period not exceeding one year. This decision could be appealed against to a higher court.

After the bill of indictment was transmitted to the court, relevant orders were to be made by the court. A decision concerning preventive measures could be appealed to a higher court.

c) Grounds for detention on remand

Article 217 of the “old” Code of Criminal Procedure, as applicable at the relevant time, provided that a person could be held in detention on remand if there were serious grounds for believing that he or she would abscond, in particular when he or she did not have a permanent address or his/her identity could not be established. Further, detention could be imposed if there were serious grounds for believing that there was a risk of collusion or that an accused would otherwise jeopardise criminal proceedings. Finally, alternative grounds for detention on remand were either the fact that an accused was charged with an offence of a particular danger to society (“wysokie społeczne niebezpieczeństwo czynu”), or that the accused was a recidivist (“recydywa”) within the meaning of the Criminal Code.

The notion of “danger to society” as set out in the Criminal Code related to the assessment of the seriousness of criminal offences and, if the "danger to society" represented by a given offence was serious, this was also an aggravating circumstance which the court had to take into consideration  when determining a sentence.

Pursuant to Article 218 of the “old” Code of Criminal Procedure, if there were no special considerations to the contrary, detention on remand should not be imposed or should be lifted, if it involved danger to life or limb or entailed particular hardship for a suspect or his family.

After the Interim Law of 1 December 1995 entered into force on 1 January 1996, grounds of imposition of detention on remand were restricted to situations in which there was a reasonable risk of absconding, or that a suspect would go into hiding, in particular when his identity could not be established or he had no permanent domicile. Secondly, detention could be imposed if there was a reasonable risk that he would attempt to induce witnesses to give false testimony or to hinder the proper course of proceedings by any other unlawful means.

d) Proceedings to examine the lawfulness of detention on remand

At the material time there were three different legal avenues enabling a detainee to challenge the lawfulness of his detention: appeal to a court against a detention order made by a prosecutor; proceedings in which courts examined applications for prolongation of detention made by a prosecutor at the investigation stage and proceedings set in motion by a detainee's application for release.

As regards the last of these, Article 214 of the 1969 Code stated that an accused could at any time apply to have a preventive measure lifted or varied. Such an application had to be decided by the prosecutor or, after the bill of indictment had been lodged, by the court competent to deal with the case, within a period not exceeding three days.

Under Article 88 of the 1969 Code the participation of the parties at judicial sessions other than hearings was a matter for discretion of the court. Sessions concerning an application for release, a prosecutor's application for prolongation of detention or an appeal against a decision on detention on remand were held in camera. If the defendant asked for release at a hearing, the court made a decision either during the same hearing or at a subsequent session in camera.

At the material time the law did not give the detainee the right to participate – either himself or through his counsel – in any court session concerning his detention on remand. In practice, only the prosecutor was notified of, and could participate in, those sessions. If he was present, he was entitled to adduce arguments before the court. The prosecutor's submissions were put on the record of the session (see also Włoch v. Poland, no. 27785/95, judgment of 19 October 2000, §§ 69-73).

Under all the relevant provisions read together a detainee was entitled to appeal against any decision prolonging his detention on remand, regardless of whether it had been made at the investigative or trial stage. However, no appeal laid in law either against a decision whereby the trial court applied, under Article 222 § 4, for prolongation of detention beyond the statutory time-limit, or against a decision of the Supreme Court prolonging detention under that provision.

e) Severance of charges

Article 24 § 1 of the 1969 Code read, in so far as relevant:

“1.  The court competent to deal with the charges laid against a principal offender shall be competent to determine the charges laid against all his accessories and/or other persons, if the offence[s] committed by the latter are closely related to that [or those] committed by a principal offender [and] if the criminal proceedings against [all of them] are pending simultaneously.

 2.  The cases of persons referred to in paragraph 1 shall be joined in the same proceedings;

 3.  In cases where circumstances have rendered a joint determination of all the charges referred to in paragraphs 1 and 2 difficult [the court] may sever a specific charge [or charges] from the case ... .”

f)  Act of 17 June 2004

On 17 June 2004 Polish Parliament adopted a new law 'on a complaint about a breach of a right to have one's case heard within a reasonable time'. The Act entered into force on 17 September 2004.

Article 2 of the Act provides for a special action by which a party can seek a declaration that his or her right to have the case heard within a reasonable time has been breached. The court shall take into consideration the following criteria: the conduct of the court before which the case is pending; the character of the case and the complexity of the legal and factual issues involved therein; what was at stake for the complainant, and the conduct of the parties.

The length complaint must be lodged when the proceedings concerned are still pending. The complainant shall submit, apart from the request that a declaration be made to the effect that the proceedings exceeded a reasonable time, the evidence to substantiate this complaint. The complaint shall be examined by a court composed of three professional judges. The court shall give its decision within two months from the date on which the complaint has been lodged.

Pursuant to Article 12, if the court finds that the length complaint is well-founded, it shall give a ruling to this effect. If the complainant so requests, the court can also recommend that the court before which the case is pending takes certain procedural measures in the impugned proceedings.  The court may also, award an appropriate amount of money to the complainant, in an amount not exceeding PLN 10,000.

Under Article 18, within six months after the entry into force of this Act, anyone who has lodged an application with the European Court of Human Rights in due time complaining of a violation of the 'reasonable-time' requirement contained in Article 6 § 1 of the Convention shall be entitled to lodge a length complaint provided for by the Act, if the application to the Court was lodged when the proceedings were still pending and it has not by then been declared admissible by the European Court.

COMPLAINTS

1. The applicant complained under Article 5 § 2 of the Convention that he had not received a copy of “procès-verbal setting out the reasons for his arrest” in October 1995 and therefore had not been informed promptly of the reason for his arrest.

2. He complained under Article 5 § 3 that he had been detained by a decision of a prosecutor and had not been brought promptly before a “judge or other officer authorised by law to exercise judicial power”.

3. He complained under Article 5 § 4 that he had not been allowed to be present in the court proceedings reviewing the lawfulness of his detention.

4. He further complained under Article 6 § 1 about the length of the criminal proceedings against him and that the courts were not impartial.

THE LAW

1. The applicant complained under Article 5 § 2 of the Convention that he had not received a copy of “procès-verbal setting out the reasons for his arrest” in October 1995 and therefore had not been informed promptly of the reason for his arrest. Article 5 § 2 of the Convention provides:

“Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”

1.  Arguments of the Government

The Government submit that the applicant has exhausted all the remedies available under Polish law. However, the Government argue that the applicant failed to lodge his complaint under Article 5 § 2 of the Convention within the requisite time-limit imposed by Article 35 § 1 of the Convention. They point out that the six-month period for submission of the application to the Court runs from the date of the events which are complained of and that the deprivation of liberty for a few hours does not give rise to a continuing situation which prevents the running of the period. The incidents in question took place in October 1995 whereas the applicant introduced his application only on 30 July 1996, which is more than six months after the alleged violation of his rights under Article 5 § 2 of the Convention. Given that the applicant did not institute any domestic proceedings in respect of his complaint, he should have filed his application to the Court without unnecessary delay.

As to the merits, the Government argue that they are not in a position to confirm that the first incident in October 1995 ever took place. They suggest that the applicant might himself have decided to go to the police station, in which case there was no need to draw up a record of his arrest. Even if the applicant was brought to a police station, it was only for the purpose of persuading him to collaborate with the police and not in order to arrest him. Otherwise, the applicant should have lodged a complaint with a public prosecutor about the allegedly unlawful deprivation of his liberty and instituted criminal proceedings against the alleged perpetrators.

As regards the applicant's arrest on 24 October 1995, the Government submit that the applicant was sufficiently informed of the legal basis for his detention. They maintain that he was given a document describing in detail the grounds and purpose of his arrest. In the Government's view, the fact that the applicant deliberately refused to sign the record of arrest does not entail that he was not acquainted with its content.

2.  Arguments of the applicant

The applicant maintains that he was deprived of liberty on three occasions, namely on 16 and 24 October 1995 and on 13 March 1996. Because each time he was detained in relation to the same criminal proceedings, the acts complained of must be regarded as giving rise to a continuous situation. Therefore, it cannot be said that he failed to comply with the six-month rule.

As to the substance of the complaint, the applicant argues that, contrary to the Government's submissions, it is indisputable that the police arrested him both on 16 and 24 October 1995. He claims that in neither case was he served with any records relating to the search or the detention nor was he informed of the reasons for his arrest or of his right to appeal to a court.

3.  The Court's assessment

The Court recalls that Article 35 § 1 of the Convention provides that it may only deal with a matter where it has been introduced within six months from the date of the final decision in the process of exhaustion of domestic remedies.

The Court observes that, as it appears from the document provided by the applicant in his submissions of 1 July 2002, on 11 December 1996 he requested the Wrocław Stare Miasto District Prosecutor to institute criminal proceedings against police officers of the Wrocław Regional Police Headquarters, alleging that they had overstepped their competence by unlawfully depriving him of liberty on 16 and 24 October 1995 as well as on 13 March 1996. On 30 April 1997 the District Prosecutor decided to discontinue investigative proceedings against the policemen in question. No evidence has been submitted to the Court showing that the applicant lodged an appeal against the decision 30 April 1997.

Since the Government accept that the applicant had exhausted domestic remedies, it is not necessary for the Court to consider the matter of its own motion.

The Court further notes that the applicant introduced his application to the Court on 30 July 1996. As the final decision for the purposes of exhaustion of domestic remedies was the decision of the Wrocław Stare Miasto District Prosecutor of 30 April 1997, the six month period began to run from that date.

Accordingly, this part of the application cannot be rejected for lack of compliance with the requirements of Article 35 § 1 of the Convention. 

As regards the substance of the complaint, the Court notes that the Wrocław Stare Miasto District Prosecutor examined thoroughly the applicant's complaint concerning the alleged unlawful deprivation of liberty.  It was established that the police officers' statements had been consistent and that the applicant's allegations had not been sufficiently substantiated. Therefore, notwithstanding the differing accounts of events given by the participants in the events of 16 and 24 October 1995, there were no grounds to conclude that any crime had been committed. The Court finds no reason to take a different view in the present case.

Furthermore, the applicant, who apparently did not appeal against the District's Prosecutor's decision, has not adduced any material which would permit the Court to depart from the findings of fact of the domestic authorities.

In these circumstances, and leaving open the question as to whether on 16 October 1995 the applicant was deprived of liberty within the meaning of Article 5 of the Convention, the Court considers that there is no evidence of a violation of the applicant's rights under Article 5 § 2 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4 of the Convention. 

2. The applicant complained that he had been deprived of his liberty by a decision of a prosecutor and that he had not been brought promptly before a “judge or other officer authorised by law to exercise judicial power” to review the lawfulness of his detention. He relied on Article 5 § 3 of the Convention which, insofar as relevant, reads:

 “ Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. ...”

The Government refrain from expressing their opinion on the merits of this complaint.

The Court, having regard to the criteria established in its case-law in respect of a “judge” or “officer authorised by law to exercise judicial power” for the purposes of Article 5 § 3 and, more particularly, to its judgments in the cases of Niedbała v. Poland (no. 27915/95, §§ 48-57, 4 July 2000) and Dacewicz v. Poland (no. 34611/97, §§ 21-23, 2 July 2002) considers that the examination of the merits of the complaint is required.

3. The applicant complained under Article 5 § 4 that he had not been allowed to be present in the court proceedings in review of the lawfulness of his detention. Article 5 § 4 reads:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

The Government abstain from making their own assessment of this part of the application.

The Court, having regard to the criteria established in its case-law in respect of the procedural requirements of Article 5 § 4 and, more particularly, to its judgments in the cases of Niedbała v. Poland (no. 27915/95, §§ 48-57, 4 July 2000) and Włoch v. Poland (no. 27785/95, §§ 125-132; 19 October 2000, ECHR-2000-X), considers that an examination of the merits of the complaint is required.

4. He further complained under Article 6 § 1 (a) about the length of the criminal proceedings against him and (b) that the courts were not impartial. Article 6 § 1 of the Convention provides, in relevant part:

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal...''

a) Length of proceedings

The Court considers that it cannot, at the present state of the file, determine the admissibility of this complaint. The Court therefore considers that this part of the application must be adjourned.  

b) Other complaint under Article 6 of the Convention

As regards the applicant's complaint relating to the alleged lack of impartiality on the part of the domestic court, the Court notes that the proceedings against the applicant are still pending and that this complaint is therefore premature.

It follows that this part of the application 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 criminal proceedings;

Declares admissible, without prejudging the merits, the applicant's complaints about the prosecutor's role in ordering his detention on remand and the adequacy of the review of the lawfulness of his detention on remand;

Declares inadmissible the remainder of the application.

Michael O'Boyle Nicolas Bratza 
 Registrar President

BOGULAK v. POLAND DECISION


BOGULAK v. POLAND DECISION