AS TO THE ADMISSIBILITY OF
Application no. 4657/02
by Krzysztof POLAKOWSKI
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 22 January 2002,
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 applicant, Mr Krzysztof Polakowski, is a Polish national, who was born in 1964 and lives in Gdynia, Poland. He is represented before the Court by Mrs Iwona Polakowska, his wife.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 28 October 1996 he was arrested by the police on suspicion of having committed armed robbery. On 29 October 1996 the Gdańsk District Court (Sąd Rejonowy) ordered that he be detained on remand until 28 January 1997. The court relied on the reasonable suspicion that he had committed the offence in question. It considered that, given the risk that the applicant might tamper with the evidence, keeping him in detention was necessary to secure the proper conduct of the proceedings. It also stressed the severity of the anticipated sentence.
In the course of investigation, the applicant’s detention was prolonged on several occasions. On 16 January 1997 the Gdańsk Regional Court (Sąd Wojewódzki) prolonged his detention until 29 April 1997. On 16 April 1997 the Gdańsk Court of Appeal (Sąd Apelacyjny) extended the applicant’s detention until 29 July 1997. On 16 July 1997 the Gdańsk Court of Appeal prolonged his detention until 27 October 1997.
On 17 September 1997 the Supreme Court (Sąd Najwyższy) extended the applicant’s and his 5 co-suspects’ detention until 31 December 1997. The court reiterated the original grounds for his detention. It also stressed the need to obtain and secure further evidence.
On an unspecified date, apparently in November 1997, the applicant was indicted on several charges of armed robbery committed in an organised group before the Gdańsk Regional Court.
On 7 January 1998 the Gdańsk Regional Court prolonged his detention until 21 September 1998. The court referred to the grounds for detention listed in the previous decisions. It also considered that the applicant’s detention was justified by the complexity of the case.
On 24 February 1998 the trial court held the first hearing.
During the proceedings the applicant’s detention was extended on several occasions. On 21 September 1998 the Supreme Court extended his detention until 30 January 1999. Subsequently, on 19 January 1999 the Supreme Court extended his detention until 30 June 1999. On 2 June 1999 the Supreme Court prolonged his detention until 31 December 1999.
On 14 December 1999 the Gdańsk Regional Court convicted the applicant of two counts of armed robbery and sentenced him to 7 years’ and 6 months’ imprisonment.
On 21 December 1999 the Gdańsk Regional Court ordered that the applicant’s detention be continued pending his appeal against the first-instance conviction up to 30 June 2000. Subsequently, on 21 June 2000 the Gdańsk Regional Court prolonged his detention until 30 November 2000.
On 22 November 2000 the Gdańsk Court of Appeal prolonged his detention until 31 January 2001. On 17 January 2001 the Gdańsk Court of Appeal extended his detention until 31 March 2001.
On 7 March 2001 the Gdańsk Court of Appeal quashed the first instance judgment and remitted the case to the Gdańsk Regional Court.
On 14 March 2001 the Gdańsk Court of Appeal prolonged the applicant’s detention until 31 June 2001. Subsequently, further decisions prolonging his detention were taken by the Gdańsk Regional Court. The relevant decisions were taken on the following dates: 19 June, 28 September and 28 December 2001, on 15 March and 21 June 2002.
During the trial the applicant filed numerous but unsuccessful applications for release and appealed, likewise unsuccessfully, against the decisions prolonging his detention.
On 31 July 2002 the applicant was released from detention.
It appears that the criminal proceedings against the applicant are still pending.
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.
1. The applicant complains under Article 5 § 3 of the Convention about the length of his detention on remand.
2. He further alleges that from 1 to 6 January 1998 he had been kept in detention without any legal basis as there was no judicial decision authorising his detention. He does not invoke any provision of the Convention.
3. He also complains under Article 6 § 1 read in conjunction with Article 6 § 3 (d) of the Convention about unfairness of the proceedings. The applicant submits that his defence rights were not respected and complains about the manner in which the courts assessed evidence.
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 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 alleges that from 1 to 6 January 1998 he had been kept in detention without any legal basis as there was no judicial decision authorising his detention. The Court notes that this complaint should be examined under Article 5 § 1.
Article 5 § 1, insofar as relevant, provides as follows:
“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so ... ”
The Court notes that on 31 December 1997 the detention order of 17 September 1997 had expired. On 7 January 1998 the grounds of the applicant’s detention on remand were examined by the Gdańsk Regional Court. The Court further notes that the applicant submitted this complaint to the Court on 22 January 2002 and the six-month period started running from the moment when the applicant appeared before a judge, i.e. 7 January 1998.
It follows that this part of the application is inadmissible for failure to respect the six-month rule referred to in Article 35 § 1 of the Convention and must be rejected under paragraph 4 of that Article.
3. The applicant also alleges a breach of Article 6 § 1 read in conjunction with Article 6 § 3 (b) of the Convention in that the criminal proceedings against him were conducted unfairly and his defence rights were not respected. In particular, he calls into question the manner in which the courts assessed evidence pointing out to his guilt.
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 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 under Article 5 § 3 concerning the length of his pre-trial detention;
Declares the remainder of the application inadmissible.
Michael O’Boyle Nicolas Bratza
POLAKOWSKI v. POLAND DECISION
POLAKOWSKI v. POLAND DECISION