FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 3994/03 
by Jarosław KĄKOL 
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 15 November 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Jarosław Kąkol, is a Polish national who was born in 1969 and lives in Gdynia.

A.  The circumstances of the case

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

1   The criminal proceedings against the applicant

On 21 April 1999 the applicant was arrested on suspicion of armed robbery.

On 22 April 1999 the Gdańsk District Court remanded the applicant in custody in view of the reasonable suspicion that he had committed several counts of armed robbery. The applicant has not produced a copy of that and certain subsequent detention orders.

Later, several other persons were detained and charged in connection with the same investigation conducted by the Department of Organised Crime of the Gdańsk Regional Prosecutor’s Office.

On 13 December 2001 the Gdańsk Court of Appeal prolonged the applicant’s and his 8 co-suspects’ detention pending investigation until 31 March 2001.

Between 22 January and 16 February 2001 the applicant was granted access to the case-file. He complained to the Regional Prosecutor that he was able to read only 48 out of 105 volumes of the case-file during that period and that in the relevant time on two occasions he had not been brought to the Prosecutor’s Office from a detention centre.

On 7 March 2001 the Gdańsk Court of Appeal prolonged the applicant’s detention until 31 May 2001. It relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged and the severity of the anticipated penalty. The Court of Appeal further held that the detention on remand was the only measure which could secure the proper conduct of the proceedings given the nature of the charges and the relations between the suspects who acted in an organised group. It also considered that the prolongation of detention was justified by the need to obtain DNA evidence in order to corroborate evidence previously obtained.

On 25 April 2001 the applicant was granted access to the case-file.

On 10 May 2001 the Gdańsk Regional Prosecutor terminated the investigation. On 15 May 2001 the applicant was indicted before the Gdańsk Regional Court on several dozen counts of armed robbery which had been committed in an organised armed criminal group. The bill of indictment listed 120 charges brought against 19 defendants, who all were detained on remand. The case-file comprised 114 volumes. The prosecution asked the court to hear evidence from 366 witnesses. The principal witness was a certain A.Ł., who was indicted together with all the defendants but gave evidence against them.

On 23 May 2001 the Court of Appeal ordered that the applicant be kept in custody until 31 October 2001. In addition to the grounds previously invoked, it referred to the complexity of the case, the significant number of defendants and the number of witnesses to be heard in the trial.

On 24 October 2001 the Court of Appeal extended the applicant’s detention until 31 March 2002, relying on the same grounds as in its earlier decisions.

The trial began on 28 December 2001. However, as of 22 April 2002 the reading out of the bill of indictment by the prosecution still continued. Initially, the trial court held three hearings per month.

During the hearing held on 30 January 2002 the trial court ordered the removal of the applicant and two other defendants from the court room. They disrupted the trial by screaming when the prosecutor was reading the bill of indictment, notwithstanding the warning from the presiding judge

On 13 March 2002 the Court of Appeal ordered that the applicant and his 7 co-defendants be held in custody until 30 September 2002. It considered that the trial could be terminated by the last-mentioned date. In addition to the grounds previously invoked, the Court of Appeal found that the prolongation of detention was justified under Article 263 § 4 of the Code of Criminal Procedure by the particular complexity of the case. It further observed that the delays in the trial were partly attributable to some of the defendants who attempted to disrupt the proceedings and, consequently, had to be removed from the court room. On the other, the Court of Appeal instructed the trial court to hold more than 3 hearings per month. Furthermore, it held that no other preventive measure could secure the proper conduct of the trial. In that respect, the Court of Appeal observed that there was a reasonable risk that the applicant and other defendants might interfere with the proceedings, given the nature of the charges, the severity of the anticipated penalty and the fact that such attempts had been made in the course of the investigation.

On 27, 28 and 29 May 2002 the Gdańsk Regional Court dismissed the applicant’s requests for the presiding judge to withdraw.

On 11 September 2002 the Court of Appeal prolonged the applicant’s and his 9 co-defendants’ detention until 31 December 2002. In addition to the grounds previously relied on, it considered that the applicant’s detention was justified under Article 258 § 2 of the Code of Criminal Procedure since that provision established a presumption to the effect that the likelihood of severe penalty being imposed on the applicant might induce him to obstruct the proceedings. It also noted that the prolongation of detention was justified by the volume of evidence to be heard in the trial.

On 18 December 2002 the Court of Appeal ordered that the applicant and his 17 co-defendants be kept in custody until 30 June 2003. It held that the grounds invoked in its previous decisions were still valid.

On 13 January and 31 March 2003 the Gdańsk Regional Court dismissed the applicant’s request for the judges and lay members of the trial court to withdraw. On 15 January 2003 the applicant and 17 of his co-defendants unsuccessfully challenged the judges and lay members of the trial court.

On 13 January 2003 the trial court refused the applicant’s request for dismissal of his legal aid counsel. The similar requests were dismissed on 12 February and 20 March 2003.

On 25 June 2003 the Court of Appeal prolonged the applicant’s and 18 of his co-defendant’s detention until 31 December 2003, relying on the same grounds as previously. In addition, it observed that the trial could not have been terminated due to obstructiveness on the part of the defendants who filed numerous requests challenging the trial court. It also noted that the trial court had taken various procedural steps in order to accelerate the proceedings.

In its decision of 30 July 2003 dismissing the applicant’s appeal against the decision of 25 June 2003 prolonging his detention, the Court of Appeal held that Article 258 § 2 of the Code of Criminal Procedure established a presumption to the effect that the likelihood of a severe penalty being imposed on the applicant might induce him to obstruct the proceedings1. It added that the risk of absconding or tampering with witnesses which existed in the present case did not have to be supported by any concrete facts, but resulted from the above presumption. The Court of Appeal also observed that although the applicant and other defendants were free to make use of their procedural rights, the abuse of those rights undoubtedly led to delays in the trial.

On 1 September 2003 a new legal aid counsel was appointed for the applicant. The previous counsel was discharged by the trial court from his duties on his own request and following a number of complaints made by the applicant.

Subsequently, the Court of Appeal prolonged the applicant’s detention on several occasions. The relevant decisions were given on 17 December 2003 (prolonging his detention until 30 June 2004), on 23 June 2004 (extending his detention until 31 December 2004), on 15 December 2004 (ordering his continued detention until 31 March 2005), on 30 March 3005 (prolonging his detention until 30 June 2005) and on 22 June 2005 (extending his detention until 30 September 2005). In all those decisions the Court of Appeal stated that the grounds originally given for the applicant’s detention were still valid. It also stressed the exceptionally complex nature of the case.

In its decision on the applicant’s detention of 23 June 2004, the Court of Appeal observed that up to April 2003 the main reason for the delays during the trial was the obstructiveness of the defendants and the abuse of the rights of the defence. It also observed that the trial could be concluded by the end of 2004 provided that the Regional Court endeavoured to organise the trial efficiently.

On 15 January and 29 July 2004 and 16 and 31 May 2005 the Gdańsk Regional Court dismissed as unfounded the applicant’s requests for various members of the trial court to withdraw.

On 8 March and 24 May 2005 the trial court dismissed the applicant’s application for release on health grounds, relying on the report prepared by the experts from the Gdańsk Medical Academy. The applicant was diagnosed with a number of ailments, including a brain tumour, however the experts determined that he could remain and receive treatment in detention.

In its decision of 27 July 2005 dismissing the applicant’s appeal against the decision of 22 June 2005 prolonging his detention, the Court of Appeal referred, inter alia, to the presumption established under Article 258 § 2 of the Code of Criminal Procedure and held that that presumption alone justified the applicant’s continued detention. It also held that keeping the applicant in custody was necessary in order to prevent him from interfering with the trial, given the reasonable risk of such interference which flowed from the fact that he had been charged with commission of the offences in an organised criminal group.

By June 2005 the trial court held over 150 hearings and heard more than 400 witnesses.

During the trial the applicant filed numerous but unsuccessful applications for release and appealed, likewise unsuccessfully, against the decisions prolonging his detention. He maintained that the length of his detention was excessive and that the charges against him lacked a sufficiently strong basis since they were founded on unreliable evidence from A.Ł.

2.  The applicant’s complaint against the unreasonable length of proceedings

On an unspecified date in November 2004 the applicant filed with the Gdańsk Court of Appeal a complaint about a breach of his right to a trial within a reasonable time and asked for compensation. He relied on the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (“the 2004 Act”) which entered into force on 17 September 2004. On 21 December 2004 the Court of Appeal exempted the applicant from the relevant court fee.

On 5 January 2004 the Court of Appeal rejected the applicant’s complaint. It found that the applicant had not complied with the formal requirements attached to that remedy by failing to substantiate his complaint.

B.  Relevant domestic law and practice

1.  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 on leaving 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 in 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.”

COMPLAINTS

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

2. The applicant further complains under Article 6 § 1 of the Convention about the unreasonable length of the criminal proceedings against him.

3. He also complains under Article 6 § 3 (b) that his defence rights were restricted. He alleges that he was not notified about the appointment of his first legal aid counsel and that he disagreed with that counsel as to the conduct of his defence.

4. Lastly, the applicant alleges that he was not given full access to the case file during the investigation and the trial. He submits that that affected his defence rights in the trial. He does not rely on any provision of the Convention in this respect.

THE LAW

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

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.

2. The applicant further complains under Article 6 § 1 of the Convention about unreasonable length of the criminal proceedings against him.

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 applicant’s complaint about a breach of his right to a trial within a reasonable time submitted under the 2004 Act was rejected for failure to comply with the statutory requirements.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

3. The applicant also complains under Article 6 § 3 (b) that his defence rights were restricted. He alleges that he was not notified about the appointment of his first legal aid counsel and that he disagreed with that counsel as to the conduct of his defence.

The Court considers that this complaint falls to be examined under Article 6 § 1 read in conjunction with Article 6 § 3 (b) of the Convention.

The Court firstly notes that the criminal proceedings against the applicant are still pending and that any issue related to the applicant’s representation in the criminal proceedings could be put before the competent domestic authorities. In addition, it notes that the applicant’s first legal aid counsel was discharged by the trial court following a number of his complaints, and that a new counsel was appointed in the course of the trial.

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

4. Lastly, the applicant alleges that he was not given full access to the case file during the investigation and the trial. He submits that that affected his defence rights in the trial. He does not rely on any provision of the Convention in this respect.

The Court considers that this complaint falls to be examined under Article 6 § 1 read in conjunction with Article 6 § 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 must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the unreasonable length of his pre-trial detention;

Declares the remainder of the application inadmissible.

Michael O’Boyle Nicolas Bratza 
 Registrar President

1 The Court of Appeal relied on the decision of the Supreme Court of 19 November 1996, no. IV KZ 119/96, published in OSP 1997 no. 4, item 74.


KĄKOL v. POLAND DECISION


KĄKOL v. POLAND DECISION