FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34052/96 
by Artur OLSTOWSKI 
against Poland

The European Court of Human Rights (Fourth Section), sitting on 15 February 2001 as a Chamber composed of

Mr G. Ress, President
 Mr A. Pastor Ridruejo
 Mr L. Caflisch
 Mr J. Makarczyk
 Mr V. Butkevych
 Mr J. Hedigan
 Mrs S. Botoucharova, judges
and Mr V. Berger, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 7 February 1996 and registered on 5 December 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 partial decision of 10 February 2000,

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 is a Polish national, born in 1970 and living in Tczew, Poland.

A.  The circumstances of the case

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

On 14 December 1993 the applicant was arrested by the police. Subsequently, he was charged with the commission of robbery together with three accomplices. The charges related to a brutal assault of a businessman who had been attacked with a baseball bat and tear gas and robbed of 122,864 zlotys. On 16 December 1993 the Starogard Gdański District Prosecutor (Prokurator Rejonowy) remanded the applicant in custody.

On 22 February 1994 the Gdańsk Regional Court (Sąd Wojewódzki) decided to extend the applicant’s detention. On 1 March 1994 the applicant appealed against that decision to the Gdańsk Court of Appeal (Sąd Apelacyjny). On 16 March 1994 the appellate court dismissed the appeal. It rejected the applicant’s contention that the Regional Court’s decision referred only in general terms to the reasons justifying his detention. In addition, the appellate court considered that the evidence taken from one of the witnesses gave rise to reasonable suspicion that the applicant had committed the robbery.

On 24 May 1994 the Gdańsk Regional Court decided to extend the applicant’s detention until 1 September 1994. It considered that the evidence showed that the applicant had probably committed the criminal offence with which he was charged. The court pointed out that several pieces of evidence remained to be taken, including the psychiatric examination of the applicant. It also considered that the fact that the investigation in the case was not concluded at that stage could not be attributed to the inactivity of the prosecuting authorities. On 27 May 1994 the applicant appealed to the Gdańsk Court of Appeal against that decision. On 15 June 1994 his appeal was dismissed.

On 29 August 1994 the Gdańsk District Prosecutor submitted to the Gdańsk Regional Court a bill of indictment. On an unspecified date the Regional Court returned it to the District Prosecutor instructing him to elaborate its reasoning.

On 10 November 1994 the Gdańsk Regional Court dismissed an application for release made by the applicant. The court noted, inter alia, that the evidence gave rise to reasonable suspicion that the applicant had committed a criminal offence, which constituted the significant danger to society (znaczny stopień społecznego niebezpieczeństwa). It also observed that the applicant’s son was cared for by his cohabitee, who was assisted by her parents and the applicant’s mother. The applicant appealed that decision.

On 15 and 21 November 1994 the applicant applied to the Gdańsk Regional Court for release from detention.

On 28 November 1994 the Gdańsk District Prosecutor re-submitted a bill of indictment to the Gdańsk Regional Court.

On 5 December 1994 the applicant again applied to the Gdańsk Regional Court for release from detention but his application was dismissed on 6 December 1994.

On 14 December 1994 the Gdańsk Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 10 November 1994.

The applicant made a fresh application for release but it was on 17 January 1995 dismissed by the Gdańsk Regional Court. The court noted that the evidence gave rise to reasonable suspicion that the applicant had committed a criminal offence, which caused the significant danger to society. It also rejected the applicant’s contention that he should be released because he had already spent a long period of time in detention waiting for a hearing and pointed out that a hearing in his case was fixed for 23 February 1995.

On 25 January 1995 the Gdańsk Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 17 January 1995. The appellate court referred to several pieces of evidence collected in the case, which in its opinion pointed to the applicant’s guilt. It also recalled the significant danger to society caused by the criminal offence with which the applicant was charged and observed that, in view of the length of a sentence, which could be imposed on him for the commission of that offence, his detention was not excessively long.

On 23 February 1995 the Gdańsk Regional Court dismissed an application for release made by the applicant. On the same date the first hearing in the case was held. It was adjourned until 24 April 1995.

On 1 March 1995 the Gdańsk Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 23 February 1995 rejecting his application for release from detention. The appellate court referred, inter alia, to the significant danger to society caused by the criminal offence with which the applicant was charged and the fact that it carried a penalty exceeding five years’ imprisonment. The court further noted that the applicant had not submitted any evidence showing that the situation of his family called for his release. It also pointed out that the length of court proceedings before the Regional Court was excessive (nadmierna długość postępowania sądowego). In that connection, the appellate court recalled that a period of three months had elapsed between the date on which the bill of indictment had been submitted to the trial court and the date of the first hearing. In addition, the first hearing had been adjourned for two months and only one day was reserved in the Regional Court’s calendar for the second hearing which, in the appellate court’s opinion, would result in a further adjournment as it would be impossible to take evidence from all four suspects in the case on a single day. The Gdańsk Court of Appeal finally recommended that the court proceedings in the case be expedited.

On 24 April 1995 a hearing was held before the trial court.

On 19 May 1995 the Vice-President of the Gdańsk Court of Appeal replied to the applicant’s letter of 8 April 1995 in which he complained, inter alia, about the delay in the court proceedings. The Vice-President advised the applicant that he was not in position to interfere with those proceedings and that only an independent court was competent to decide whether his detention on remand was justified. Furthermore, the Vice-President observed that a hearing held on 23 February 1995 had been adjourned because of the absence of counsel and that during a hearing held on 24 April 1995 evidence was taken from the defendants and eight witnesses. He also informed the applicant that the inability to hold hearings at shorter intervals resulted from the heavy workload of judges and the lack of courtrooms. Finally, the Vice-President observed that, although the applicant’s case disclosed certain delay in the court proceedings, it was not significant and that the President of the Gdańsk Regional Court had been informed about the necessity to expedite proceedings in criminal cases.

The next hearings in the case took place on 25 May and 5 July 1995. The Government submit that on the latter date the applicant’s cohabitee recanted her testimony and explained that she had been persuaded by the applicant to testify that he had been with her when the robbery had been committed.

On 25 July 1995 the Gdańsk Regional Court rejected as unsubstantiated the applicant’s challenge to one of the judges considering his case.

On 28 September and 16 November 1995 the Regional Court held hearings in the case.

On 16 November 1995 the Gdańsk Regional Court rejected an application for release made by the applicant. On 29 November 1995 the Gdańsk Court of Appeal dismissed the applicant’s appeal against that decision. The appellate court observed that the court proceedings in the applicant’s case had been expedited and that they should end before 21 December 1995. It also recalled the significant danger to society caused by the criminal offence with which the applicant was charged.

On 7 and 21 December 1995 hearings in the case took place.

The applicant made a further application for release but it was dismissed on 4 January 1996 by the Gdańsk Regional Court. On 17 January 1996 the Gdańsk Court of Appeal dismissed the applicant’s appeal against that decision. The appellate court referred, inter alia, to the fact that the evidence collected in the course of the proceedings showed that charges laid against the applicant were sufficiently justified. In addition, the alleged criminal act was drastic and involved the theft of a significant sum of money. The court noted that the proceedings had been recently expedited and pointed out that a hearing scheduled for 24 January 1995 had been adjourned “for objective reasons”. Moreover, the next hearing was fixed for 24 January 1996.

The next hearings were held on 24 January and 2 February 1996.

On 2 February 1996 the Gdańsk Regional Court rejected an application for release lodged by the applicant. On 14 February 1996 the Gdańsk Court of Appeal dismissed the applicant’s appeal against that decision. It considered that the evidence in the case pointed at the applicant and his co-defendants. Furthermore, the court agreed with the applicant’s submission that the proceedings in his case had already taken a significant period of time. However, it considered that, in view of the nature of the charges laid against the applicant, that period was not excessive. The appellate court further noted that only two witnesses remained to be heard in the case.

On 21 March, 9 and 26 April 1996 hearings were held before the Regional Court.

On 28 April 1996 the Gdańsk Regional Court rejected an application for release made by the applicant. On 15 May 1996 the Gdańsk Court of Appeal dismissed the applicant’s appeal against that decision. The appellate court recalled the significant danger to society caused by the criminal offence with which the applicant was charged. It also pointed out that although the detention had lasted already thirty months, the trial court had not failed to try to expedite the proceedings. In this connection, it observed that five hearings had been held since the beginning of 1996 and that the trial court was not responsible for the failure to conclude the proceedings. Furthermore, the Court of Appeal was of the opinion that the worsening financial situation of the applicant’s family did not constitute a ground for his release and observed that the applicant’s wife was helped by social services, which provided for her basic needs.

On 30 April and 4, 17 and 31 May 1996 hearings took place before the trial court.

In a letter of 4 June 1996 the Ombudsman informed the applicant that his human rights had not been violated in the course of the criminal proceedings against him and pointed out that the trial court was not responsible for the delay in the proceedings.

The next hearings were held on 4 and 12 July 1996. 

On 25 July 1996 the Gdańsk Regional Court rejected an application for release made by the applicant together with his counsel. On unspecified dates the applicant and his counsel lodged separately appeals against that decision.

On 7 August 1996 the Gdańsk Court of Appeal dismissed the appeal lodged by the applicant’s counsel against the Regional Court’s decision of 25 July 1996. The court pointed out that the applicant was charged with a criminal offence, which carried “a heavy load of social harmfulness” (wysoki ładunek społecznej szkodliwości), especially in view of the manner in which it had been committed. Moreover, a severe penalty, which could be imposed for the commission of such an offence, justified the detention. The court also stated that although the judicial proceedings in the case were substantially delayed, they would be probably concluded shortly.

On 28 August 1996 the Gdańsk Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 25 July 1996. The appellate court referred to the grounds for its decision of 7 August 1996. In addition, it pointed out that the proceedings in the case had reached the final stage, as there had been a hearing fixed for 2 September 1996 and only two witnesses had been called to testify on that date.

On 7 November 1996 a hearing took place.

On 23 November 1996 the Gdańsk Regional Court rejected an application for release made by the applicant.

The next hearings were held on 26 November and 6 and 11 December 1996.

On 30 December 1996 the Gdańsk Regional Court transmitted the case-file to the Supreme Court (Sąd Najwyższy), together with a request that the applicant’s detention on remand be extended.

On 16 January 1997 the Supreme Court decided to extend the applicant’s detention until 30 April 1997. The court firstly observed that there existed in the applicant’s case general legal grounds for detaining him on remand. It considered that, although the question of guilt would be decided by the trial court, the evidence collected in the course of the proceedings pointed towards the applicant’s guilt. Moreover, the Supreme Court pointed out that although the proceedings in the case had lasted so far more than three years, they had reached the final stage already in 1995. However, thirteen out of twenty hearings scheduled in 1996 had been adjourned for reasons over which the trial court had no influence. Moreover, the counsel acting in the case were responsible for eleven adjournments. The Supreme Court based its decision to extend the applicant’s detention on Article 222 § 4 of the Code of Criminal Procedure which provided for the prolongation of detention because of  “other significant circumstances, which could not be overcome by the organs conducting the proceedings” (inne istotne okoliczności, których organy prowadzące postępowanie nie mogły usunąć). It also pointed out that the proceedings could end in the near future after just a few additional hearings. Finally, the court recommended that additional defence lawyers be appointed in the case in order to avoid adjournments of hearings caused by the ill-health of counsel.

On 27 and 28 February 1997 hearings were held before the Regional Court.

During the hearing held on 3 March 1997 the Gdańsk Regional Court convicted the applicant of robbery and sentenced him to eight years’ imprisonment, a fine and disenfranchisement for a period of six years. The applicant appealed against that judgment to the Gdańsk Court of Appeal.

On 12 November 1997 a hearing took place before the appellate court.

The next hearing was held on 27 November 1997. The Government assert that on that occasion one of the most important witnesses testified that the applicant’s mother had put on her pressure to submit false evidence.

On 28 November 1997 the applicant made a new application for release but it was on 3 December 1997 dismissed by the Gdańsk Court of Appeal.

On 5 January 1998 the court received an expert opinion. On 13 January 1998 the applicant’s legal aid counsel asked the court to exempt him from defending the applicant.

On 17 June 1998 the Gdańsk Court of Appeal quashed the judgment of the trial court and remitted the case to the prosecution service instructing it to carry out further investigation. On the same date the applicant was released from detention.

The Government submit that on 3 December 1998 the victim of the robbery informed the Gdańsk Regional Court that he would not take part in the crime scene reconstruction because he had received threats to his life and family and was therefore afraid of the perpetrators of the crime.

On 17 March 1999 the Starogard Gdański District Prosecutor filed with the Gdańsk Regional Court a new bill of indictment against the applicant.

The hearing held on 30 July 1999 before the Gdańsk Regional Court was adjourned. The Government submit that the adjournment resulted from the applicant’s failure to attend the hearing.

On 16 August 1999 the applicant withdrew a power of attorney from his cousel.

On 3 September, 8 October and 26 November 1999 hearings took place. On two latter occasions they were adjourned because of the absence of some of the accused.

The next hearings were held on 11 January, 25 February and 24 March 2000. The Government submit that the first and the third of those hearings were adjourned because the applicant failed to appear before the court.

The proceedings are still pending. 

B.  Relevant domestic law

At the material time, the 1969 Code of Criminal Procedure 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 therefor 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 of the Code, before it was amended on 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 domicile, or

2. there is a reasonable risk that he will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means, or

3. the accused was charged with a commission of a criminal offence or acted as a habitual offender, as provided for by the Criminal Code, or

4. the accused was charged with the commission of an act which constituted the significant danger to society.”

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 ordinary offences. In cases concerning serious offences this period may not exceed two years.

4. In particularly justified cases the Supreme Court may, upon the request of the court competent to deal with the case (...) 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 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, point 4 was extended to include also “other significant circumstances, which could not be overcome by the organs conducting the proceedings”.

COMPLAINTS

The applicant complains under Article 5 § 3 of the Convention about the unreasonable length of his pre-trial detention.

He further complains under Article 6 § 1 about the unreasonable length of court proceedings.

Finally, the applicant asserts that Article 6 § 2 was breached in his case on account of the unreasonable length of his detention.

THE LAW

1.  The applicant complains that the length of his pre-trial detention was unreasonable in breach of Article 5 § 3 of the Convention which provides:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

The Government submit that the applicant’s pre-trial detention satisfied the requirements of Article 5 § 3. It lasted from 14 December 1993 to 3 March 1997 and was justified by the reasonable and persistent suspicion that he had committed the offence with which he was charged. In this connection, they refer to “one very peculiar incident”, namely the fact that during a hearing held before the Gdańsk Regional Court one of the co-accused said: “How could the witness recognise us when we were wearing masks?” The Government also assert that in the light of the evidence it appeared very likely that the applicant would receive a prison sentence. They point out that on 3 March 1997 the Gdańsk Regional Court convicted the applicant and sentenced him to eight years’ imprisonment.

Furthermore, the Government submit that there existed the danger of pressure being brought to bear on witnesses. In that respect they refer to their submissions concerning the events of 5 July 1995, 27 November 1997 and 3 December 1998. The Government also contend that the applicant’s case was “of extremely high complexity”. The prosecuting authorities asked the trial court to hear fifty-five witnesses and to read out in court testimony of other forty-five witnesses. In addition, evidence was taken from expert witnesses.

The Government further assert that the applicant’s pre-trial detention was justified by the risk of repetition of offences. They refer to “a long and rich history of assaults and robberies” committed by the applicant since the beginning of the 1990s. Moreover, neither the state of the applicant’s health nor the situation of his family required his release. The applicant on numerous occasions made applications for release and appealed against decisions dismissing them. Consequently, the case file was transmitted between the courts which was time-consuming.

The Government conclude that the courts displayed special diligence and duly considered grounds of the applicant’s detention. On the other hand, the applicant failed to present the courts with any new facts justifying his release.

The applicant disputes the Government’s submissions. He points out that he made several applications for release because he had a right to do so under domestic legislation and his detention was unjustified. Moreover, the applicant asserts that his criminal record is irrelevant.

The Court considers, in the light of the parties’ submissions, that this complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. The Court concludes, therefore, that it is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

2.  The applicant further complains that the length of court proceedings in his case exceeded a reasonable time in breach of Article 6 § 1 of the Convention, which in so far as relevant provides:

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

The Government submit that the length of the proceedings did not exceed a reasonable time. They consider that the period under consideration began on 28 November 1994 when the prosecuting authorities lodged with the trial court a bill of indictment against the applicant. They further point out that the proceedings are still pending and have therefore lasted, at the time of filing the Government’s observations, approximately five years and six months. The Government assert that the case was “of an extremely high degree of complexity” because of the serious nature of the charges and a large number of witnesses. Moreover, evidence was taken from expert witnesses and the case-file consisted of more than sixteen volumes. On numerous occasions the Gdańsk Regional Court had to find new addresses of witnesses and serve summonses on witnesses who failed to attend hearings.

Furthermore, the Government assert that the judicial authorities showed due diligence in the course of the proceedings. The Gdańsk Regional Court scheduled at least twenty-six hearings between 28 November 1994 and 3 March 1997.

The Government submit that the conduct of the applicant contributed to the delay in the proceedings. In this respect, they observe that he made several applications for release and contested the evidence against him. What is more, the applicant on one occasion unsuccessfully challenged a judge and asked the trial court to change his counsel. The Government also submit that on eleven occasions hearings were adjourned by the Gdańsk Regional Court because of the illness of lawyers acting for the applicant or the other three co-defendants. In addition, since the applicant’s release from detention on 17 June 1998 numerous hearings before the Gdańsk Regional Court had to be adjourned because either the applicant or the other defendants did not appear before the court. The Government conclude that the conduct of the applicant, particularly after his release, “showed manifest symptoms of the persistent obstruction of justice by him”.

The applicant disagrees with the Government’s submissions. He asserts that he contested unprofessional collection of evidence and that the subsequent course of the proceedings proved him right. The applicant made several applications for release because he had a right to do so under domestic legislation and his detention was unjustified. Moreover, the applicant claims that he attended all hearings except for two occasions when he was in a hospital and had a broken leg. The reasons for both absences were certified by medical practitioners. The applicant further points out that he cannot be blamed for the behaviour of other persons who failed to attend hearings. Courts are responsible for using their powers to prevent those taking part in the proceedings from failing to appear before them. 

The Court considers, in the light of the parties’ submissions, that this complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. The Court concludes, therefore, that it is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

3.  The applicant asserts that Article 6 § 2 of the Convention was breached in his case on account of the unreasonable length of his detention. Article 6 § 2 provides:

 “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The Court reiterates that the placement of a person in pre-trial detention in itself constitutes a restriction of the principle of the presumption of innocence. However, it is precisely because a person has to be presumed innocent until proved guilty according to law that Article 5 § 3 of the Convention implies that continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty. Accordingly, Article 5 § 3 also protects, indirectly, the principle of the presumption of innocence, to which it constitutes an essential complement. Consequently, no separate issue normally arises under Article 6 § 2 in cases concerning the length of pre-trial detention, since in such cases the aim of ensuring respect for that principle is attained through Article 5 § 3 (see Aggiato v. Italy, (dec.), no. 35207/97, 16.3.99).

The Court considers that the circumstances of the present case do not justify a different conclusion and therefore rejects this complaint as manifestly ill-founded with the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints that the unreasonable length of his pre-trial detention was in breach of Article 5 § 3 and that the unresonable length of court proceedings resulted in a violation of Article 6 § 1;

Declares inadmissible the remainder of the application.

Vincent Berger Georg Ress 
 Registrar President

OLSTOWSKI v. POLAND DECISION


OLSTOWSKI v. POLAND DECISION