AS TO THE ADMISSIBILITY OF
Application no. 52479/99
by Andrzej RYBACKI
The European Court of Human Rights (Fourth Section), sitting on 9 October 2007 as a Chamber composed of:
Mr J. Casadevall, President,
Mr G. Bonello,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović,
Mr J. Šikuta,
Mrs P. Hirvelä, judges
and Mrs F. Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 31 December 1998,
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 applicant, Mr Andrzej Rybacki, is a Polish national, who was born in 1967 and lives in Włocławek. The respondent Government are represented by their Agent, Mr J. Wołąsiewicz of the Ministy of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was arrested by the police on 8 May 1996. He was suspected of having been involved in a robbery committed on 23 April 1995. On 9 May 1996 the District Prosecutor for Wrocław-Fabryczna issued a detention order against him on charges of aggravated robbery, involving a firearm, and committed in conspiracy with other persons. The prosecutor referred to a reasonable suspicion, based on witnesses’ testimony and the risk that the applicant could go into hiding or exert pressure on witnesses. Detention was imposed until 8 August 1996.
The applicant was detained on the same date as two other accused persons (S.C. and J.P.). Yet another person (K.G.) was detained on 23 August 1996. The investigation and subsequent court proceedings were conducted against five persons jointly, four of them detained and one at liberty.
On 10 May 1996 the applicant’s defence counsel filed an appeal against the detention order. He challenged the credibility of the evidence in the applicant’s case stating that it had been obtained illegally. In particular, he argued that the manner in which the applicant had been presented in an identification parade had not complied with procedural guarantees. He also requested that a new identification parade be conducted. This motion was dismissed on 13 May 1996. On 27 May 1996 the Wrocław Regional Court dismissed the appeal against the detention order.
On 17 May 1996 the prosecutor issued a decision whereby he reserved to himself the right to be present whenever the applicant saw his defence counsel. The applicant’s lawyer complained that such a restriction impaired the applicant’s defence rights and made it impossible for the defence to agree upon a defence strategy. He requested that the decision be quashed. On 4 June 1994 his request was refused.
On 12 June 1996 the prosecutor gave a new order that the applicant’s contacts with his lawyer were to be supervised.
On 24 June 1996 the lawyer renewed his request to see the applicant without any supervision.
On 4 July 1996 his request was refused. The applicant’s lawyer appealed. This appeal was dismissed by the Wrocław Regional Court on 15 July 1996. The court noted that the applicant could at that time see his lawyer whenever he requested. The restrictions imposed on his contacts with his lawyer did not impair his defence rights. The only restriction imposed on the applicant concerned the possibility of having unsupervised contacts with his lawyers. The fact that a prosecutor was to be present during these visits did not affect the applicant’s defence rights at that stage, the more so as this restriction was to apply only during the investigations. The court further stated that the defence strategy could also be discussed in accordance with law in the presence of a person appointed by the prosecutor.
On 1 August 1996 the Wrocław Regional Court, upon the motion of the District Prosecutor, decided to prolong the applicant’s detention until 31 October 1996. The Regional Court found that a reasonable suspicion existed that the applicant had actually committed the offence he was charged with, and that the offence represented a particularly high danger to the society. Therefore, the necessity of ensuring the proper course of the investigation justified the detention. The Regional Court further referred to the necessity of obtaining experts’ reports on certain items of material evidence. It appears that on the same date the court prolonged the detention of two other co-accused persons, S.C. and J.P.
On 9 August 1996 the applicant’s defence counsel appealed against the decision prolonging the applicant’s detention. In particular, he argued that the evidence in the case did not substantiate the suspicion that the applicant had committed the offence at issue. He further argued that the expert reports referred to in the decision should have already been obtained by that date, within three months from the date the investigation was instituted. No other procedural steps were needed or scheduled. The applicant’s defence counsel also referred to a number of other procedural shortcomings allegedly impairing the applicant’s defence rights. He again challenged the manner in which the evidence had been obtained. On 22 August 1996 the Wrocław Court of Appeal examined the appeals of all the co-accused persons against the prolongation of their detention and dismissed them. The Court of Appeal found that although the evidence against all the accused persons was to a large extent circumstantial, it sufficiently substantiated the “reasonable suspicion” that they had committed the offence at issue and, therefore, justified their detention.
On 24 October 1996 the Wrocław Court of Appeal again prolonged the applicant’s detention until 31 December 1996. The Court of Appeal referred to the persistence of a “reasonable suspicion” and the necessity to ensure the proper course of the investigation. In the Court of Appeal’s view, the seriousness of the charges against the applicant substantiated an actual risk that he might “undertake mendacious actions aimed at obstructing the investigation”. Moreover, the Court of Appeal pointed out the necessity of additional expertise, in particular with regard to fingerprints and mechanoscopy.
On an unspecified date in November or December 1996 the investigation was completed.
On 4 November 1996 the applicant’s lawyers requested permission to see the applicant without other persons being present. On 7 November 1996 their request was granted.
On 25 November the applicant’s lawyers were informed that on 2 December 1996 the applicant would be allowed access to the case-file. On 2 December the applicant was given such access in the offices of the prosecution. He was subsequently allowed to read the files from 3 to 6 December 1996.
The applicant confirmed by a relevant record, included in the case file, that he had been given an opportunity to read the case files from 2 to 6 December and that his lawyer M.R. was present on the last day. The applicant requested to be allowed to read volume VI of the file.
On 9 December 1996, from 8.30 a.m. until 3.10 p.m. the applicant’s lawyer M.R. was allowed to read the case file.
Having consulted the case files, the applicant’s lawyer requested the prosecutor to allow him to consult the files on another occasion, arguing that they comprised by that stage at least nine volumes. By a letter of 13 December the public prosecutor replied that “allowing this motion at the current stage of investigation is not possible”, without stating any specific reasons.
On 23 December 1996 the prosecutor filed a bill of indictment against the applicant and his co-accused with the Wrocław Regional Court. From that moment on, the applicant’s lawyers had unrestricted access to the files and could read them at any time. The bill of indictment listed 39 witnesses to be questioned and 137 pieces of documentary evidence to be read out during the trial.
The first hearing in the case was held on 21 March 1997. On 17 April 1997 two witnesses submitted to the court a request to be heard anonymously. They stated that the accused were dangerous and that they feared reprisals.
A further hearing was held on 29 April 1997. The court imposed a fine on a witness who failed to comply with a summons.
The hearing fixed for 17 June 1997 was adjourned as one of the accused had been hospitalised.
On 23 July 1997 the applicant’s defence counsel requested the Wrocław Regional Court to release the applicant from detention and apply a less severe preventive measure. He argued that the applicant’s detention had lasted almost 15 months and that there was no indication that the applicant would obstruct the proceedings if released. In his opinion, such a lengthy detention had become a punitive rather than preventive measure.
On 7 August 1997 the Wrocław Regional Court dismissed the motion. The court referred to a persistent reasonable suspicion that the applicant had committed the offence he was charged with. It further pointed out that the severe penalty that could be imposed on the applicant justified the fear that he might go into hiding or otherwise obstruct the proceedings.
The court held subsequent hearings on 11 and 12 September and 18 November 1997, 10 February and 3 March 1998. During a hearing held on 3 March the court heard two anonymous witnesses, the first one designated as T 05/96, and the second as T 06/96 and T 41/96. Neither the applicant nor his defence counsel were entitled to take part in the questioning. The witnesses answered four questions which had previously been formulated in writing by the lawyers representing the applicant. Subsequently, the applicant and his lawyer were given access to the minutes of the questioning. On 25 March 1998 they submitted to the court a list of 24 questions to be put to T 06/96 (T 41/96). At a hearing held on 1 April 1998 the court questioned that witness again and obtained answers to 20 questions out of 24.
During the proceedings witness J.C. stated that after the robbery he had obtained anonymous phone calls. The caller uttered threats and tried to induce this witness to give false testimony during the trial.
On 17 April 1997 two other witnesses submitted to the court a request to be questioned anonymously. They argued that the accused were dangerous and that they feared reprisals. In reply, the court informed them that at this stage of the proceedings it was too late to grant them the status of anonymous witnesses.
On 16 April 1998 the Wrocław Regional Court decided to request the Supreme Court to prolong the applicant’s detention which was about to exceed two years. The Regional Court, when motivating the request, submitted that:
“The evidence collected against the accused - in particular the testimony of anonymous witnesses - substantiated the suspicion that the applicant had committed the crime of aggravated robbery which as such [the crime] represented an extremely high danger to society. The proceedings before the first-instance court were at their final stage and - unless any unpredictable circumstances would appear - they should be soon terminated. The Regional Court already heard all witnesses for the prosecution and the majority of defence witnesses (...). The Regional Court was still waiting for additional expert reports and data from mobile telephone operator, requested by the defence (...). It should also be underlined that one of the accused persons deliberately contributed to the prolonging of the proceedings by consuming a poisonous substance.”
On 24 April 1998 the applicant’s defence counsel filed pleadings in which he commented on the Wrocław Regional Court’s decision to request the further detention of the applicant. He challenged the credibility of the evidence against the applicant and his co-accused. He further pointed out the numerous shortcomings in the proceedings for the taking of the evidence and disputed the finding that the accused persons had substantially contributed to the length of the proceedings. He stated that the proceedings were lengthy due to the long intervals between the hearings (from 1.5 months to 2.3 months). Had the court decided to proceed for several consecutive days in a row, the case would have been concluded by that time.
On 15 May 1998 the Supreme Court ruled as sought by the Wrocław Regional Court and prolonged the applicant’s detention until 31 October 1998. The Supreme Court found that apart from the reasonable suspicion that the applicant and the two co-accused persons committed the offence at issue, there existed an actual risk that they would obstruct the proceedings if released. The assumption of this risk was based on the severity of the potential sentence, the fact that not all witnesses had yet been heard by the court and that the accused had indeed attempted to contact witnesses who appeared at the trial. Thus, in the view of the Supreme Court, only continued detention could guarantee the proper conduct of the proceedings.
Nevertheless, the Supreme Court also recommended that the trial court should “schedule the hearings in a more rational way so as to avoid several months’ intervals which had already happened in the instant case”.
Subsequent hearings were held on 9 July, 16 September, 1 October and on 3 November 1998.
On 1 October 1998 the Wrocław Regional Court again requested the Supreme Court to prolong the detention of the applicant and of his co-accused. The Regional Court was still waiting for additional data from the mobile telephone operator to be submitted in evidence.
On 13 October 1998 the Supreme Court prolonged the detention of the applicant and three co-accused until 30 November 1998. The Supreme Court found that the trial court had “effectively used the time since the previous prolongation of the detention by the Supreme Court in this particularly complex case”.
Upon another request from the trial court, on 17 November 1998, the Supreme Court again prolonged the detention of the applicant and his co-accused. The Supreme Court found that the additional evidence has not yet been obtained “for reasons beyond the trial court’s control” and the other premises for detention remained valid. Detention was prolonged until 31 December 1998.
The next hearing was held on 7 December 1998. On 8 December 1998 the applicant’s lawyer M.R. submitted to the court a motion requesting the court to hear H.B. as a witness. He submitted that this person had already given evidence in the case as an anonymous witness, but her name had since become known to the defence. The defence counsel requested that the status of anonymous witness granted to H.B. be withdrawn.
Following a further request from the trial court, on 30 December 1998, the Supreme Court again prolonged the detention of the applicant and of his co-accused until 28 February 1999. The Supreme Court referred to “considerable obstacles which arose in the course of the evidence proceedings, i.e. the need to examine contradictory data obtained from the mobile telephone operator”.
The motion submitted by the applicant’s lawyer on 8 December 1998 was refused at a hearing held on 11 January 1999.
Subsequent hearings were held on 29 January and 16 February 1999. On the latter date the court closed the trial. On 18 February 1999 the applicant’s lawyer submitted a request that the trial be re-opened and requested the court to take additional evidence. At a hearing held on 23 February 1999 the court dismissed that motion.
On the same date the Wrocław Regional Court rendered its judgment. The court found the applicant and his co-accused guilty of robbery committed by an organised group. The court established that three of the accused had threatened the victim and stolen a briefcase containing Polish and foreign currency in the amount of PLN 515,000 and some personal items of a total value of PLN 516,810. The applicant had participated in the planning and the preparation of the crime as well in the assistance given to the perpetrators thereafter. The findings of the court were based on the testimony of the following witnesses: Z.Z., who had been a victim of the robbery, P.S., H.B., J.Ch., A.Sz., D. B., J. Cz., M.C. and two anonymous witnesses T 05/96 and T 41/96. The court further had regard to the following evidence: a survey report, a contract of purchase of a motorcycle which one of the accused had bought, an expert opinion, minutes of presentation of certain objects to the witnesses, some banking documents, photographs made by the police for the purpose of the proceedings, reports of searches of certain apartments, a list of objects of material evidence, the billings of mobile phone connections.
The court considered that it was the evidence given by J. Cz., M.C., P.S., J.Ch., Z.Z., D.B. and two anonymous witnesses which had been crucial in establishing the guilt of the four accused. The court further observed that the evidence taken during the trial allowed – even if the evidence given by the anonymous witnesses had not been available – for the fundamental findings of fact to be made in the case. The evidence given by T05/96 and T 41/96 allowed for an accurate reconstruction of the role of each of the accused in the material events, thereby permitting the court to find with absolute certainty that none of the other witnesses had erred in their account of these events. The evidence of the anonymous witnesses also allowed findings to be made as to the applicant’s role in the planning and the preparation of the crime.
The applicant was sentenced to seven years’ imprisonment and a fine.
On 28 June 1999 the applicant’s defence counsel filed an appeal against the Regional Court’s judgment. They referred to the procedural shortcomings of the proceedings and expressed the view that the proceedings before that court had, as a whole, been unfair. Fundamental procedural guarantees, relating to the applicant’s defence rights had been breached.
In particular, they complained that the defence had been denied access to the full statements made by anonymous witnesses, which had been admitted as evidence in the case. In their opinion, this denial was in flagrant violation of domestic law, as the respective provisions of the Code of Criminal Procedure only allowed personal data of an anonymous witness to be kept secret, not the content of his or her testimony. They alleged that the impossibility for the defence to have access to the full statements made by the anonymous witnesses infringed the applicant’s defence rights. It was further argued that the first-instance court had made fundamental findings of fact on the basis of the testimony of the anonymous witnesses, one of them in particular. Finally, the very purpose of keeping secret the testimony of the anonymous witnesses was challenged since “it was clear who the anonymous witnesses were”. The applicant’s defence counsel also referred to admissibility of evidence and challenged its assessment by the trial court. He also pointed to the excessive length of the proceedings which was due to long intervals between the hearings.
On 27 October 1999 the Wrocław Court of Appeal upheld the first-instance judgment.
The Court of Appeal considered that the appeal was groundless, but it admitted that certain arguments advanced by the defence were convincing. Thus, the Court of Appeal accepted the argument that the first-instance court had kept secret certain parts of the anonymous witness’ testimony in order not to compromise their anonymity. This was open to criticism, in particular in the light of the Supreme Court’s resolution to the effect that “personal data” within the meaning of Article 184 of the Code of Criminal Procedure had to be interpreted narrowly and that in no circumstances could the content of the testimony be kept secret (the Supreme Court’s resolution of 20 January 1999, I KZP 21/98). However, in the view of the Court of Appeal, while it was true that the first-instance court had made certain findings of fact on the basis of the evidence given by the anonymous witnesses, it had also expressly stated that there was sufficient other evidence in the case on which to convict the accused. The appellate court concluded that the fact that the court based its judgment on, inter alia, the testimony of the anonymous witnesses, did not affect the finding of the applicant’s guilt and the outcome of the proceedings.
On 4 January 2000 the applicant’s defence counsel filed a cassation appeal with the Supreme Court. In particular, they addressed the issue of anonymous witnesses. They regretted that the appellate court had failed to quash the impugned judgment despite finding that secret testimony of anonymous witnesses had violated the law. They argued that the appellate court had failed to address the procedural complaints which they had made in their appeal.
On 16 November 2001 the Supreme Court dismissed the cassation appeal as manifestly unsubstantiated.
B. Relevant domestic law and practice
1. Provisions governing detention on remand
During the period of the applicant’s detention, the respective provisions governing preventive measures have been amended twice.
Until 4 August 1996 pursuant to the provisions of the 1969 Code of Criminal Procedure (“Old Code of Criminal Procedure”) detention could be imposed by the prosecutor.
On 4 August 1996, an amendment was introduced to the Old Code of Criminal Procedure which provided that detention could only be imposed by a court, which should hear the suspect before imposing such a measure.
As of 1 September 1998 the Old Code of Criminal Procedure was repealed and the 1998 Code entered into force (the New Code of Criminal Procedure). It provides that detention can only be imposed by a court and requires that a court, when imposing detention, should motivate why it considered less severe measure to be insufficient in a given case.
With regard to the length of detention, both Article 222 of the Old Code of Criminal Procedure (as amended) and Article 263 of the New Code of Criminal Procedure stipulated maximum periods of detention – 2 years applied to cases like the applicant’s under both regimes. Following an application from a trial court, the Supreme Court could, in particularly justified circumstances, prolong detention for a fixed period exceeding the stipulated periods. In particular, detention could be prolonged when it was necessary in connection with a suspension of the proceedings, a prolonged psychiatric observation of the accused, when evidence had to be obtained in an exceptionally complicated case or from abroad or when delays were deliberately caused by the accused or due to other serious obstacles which could not be overcome by the authorities.
2. Contacts between defendant and counsel during the investigative stage of the proceedings
Under Article 64 of the 1969 Code of Criminal Procedure the defendant remanded in custody was entitled to communicate with his or her counsel in the absence of any other persons, and to send and receive correspondence to and from the counsel, unless the prosecutor reserved for himself the right to be present whenever the applicant saw his defence counsel. Such a decision of the prosecutor could be appealed against to a court. No further appeal lay against a court decision given in this respect.
3. Provisions relating to anonymous witnesses
As of 4 November 1995 Polish law regulates admissibility of evidence from testimony of anonymous witnesses (Article 164a of the 1969 Code of Criminal Procedure, subsequently Article 184 of the 1998 Code of Criminal Procedure). It provides that, in a case where a justified fear that life, health, freedom or significant property of a witness or of a person close to him / her is endangered, a court or a prosecutor may decide to keep secret this witness’ personal data.
The prosecutor’s decision to admit evidence from testimony of anonymous witnesses can be appealed against to a court competent to examine the merits of the case.
Pursuant to the same provision, anonymous witness shall be questioned by a prosecutor or a court, of by a specially appointed judge, in such a way as to make it impossible to have the witness’ personal data revealed. If a witness is questioned by a court, the prosecutor, the accused and his lawyer are entitled to participate in the session.
When questioning an anonymous witness, such technical appliances can be used by the prosecutor or by the court as to make it impossible to establish the identity of the witness.
The Supreme Court held that “personal data” had to be interpreted narrowly; the content of the testimony itself could not be classified secret as this would have unduly restricted the defence rights of the accused (the Supreme Court’s resolution of 20 January 1999, I KZP 21/98, published in OSNKW 1999/1-2/3).
In a judgment of 27 September 2001 the Katowice Court of Appeal stated that a refusal, on the part of anonymous witness, to reply to questions intended to establish his or her identity, do not disqualify the evidence given by that witness. Such evidence can be used by the court to establish the facts of a case. Had it been accepted that such evidence was always to be declared inadmissible as a whole, it would have render the very concept of anonymous witnesses un-operational (N II Aka 150/01).
4. Cassation appeal to the Supreme Court
Under the Code of Criminal Procedure of 1998 a party to criminal proceedings could lodge a cassation appeal with the Supreme Court against a final judgment of the appellate court, which had terminated the proceedings.
A cassation appeal could be lodged only on the grounds referred to in Article 439 of the Code. These grounds included certain procedural shortcomings, which justified the quashing of a first-instance decision, regardless of whether they were invoked by the party lodging any remedy against such a decision (for example, wrong composition of the court, lack of legal assistance in cases where such assistance was compulsory, violation of the rules governing jurisdiction of criminal courts, certain breaches of defence rights). A cassation appeal could also be lodged on the ground of another flagrant breach of law, if such a breach had negatively affected the judicial decision under appeal.
5. Domestic remedy concerning the length of judicial proceedings
On 17 June 2004 Parliament adopted a law ‘on a complaint about a breach of a right to have one’s case heard within a reasonable time’. It entered into force on 17 September 2004.
Section 2 of the Law provides for a special action by which a party to a judicial action 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 conduct of the court before which the case is pending, the character of the case and the complexity of legal and factual issues involved therein, what was at stake for the complainant, and the conduct of the parties, in particular the conduct of the complainant.
Section 5 provides that the length complaint must be lodged with the competent court when the proceedings concerned are still pending.
Pursuant to section 12, if the court finds that the length complaint is well-founded, it gives 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 proceedings at issue. The court may also, if the complainant so requests, award an appropriate amount of money to the complainant, in an amount not exceeding PLN 10,000.
Under section 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 European Convention for the Protection of Human Rights and Fundamental Freedoms shall be entitled to lodge a claim under section 5 thereof provided that the application to the Court has been lodged when the proceedings were still pending and that the case has not by then been declared admissible by the European Court.
1. The applicant complained under Article 5 § 3 of the Convention that the length of his detention had exceeded a reasonable time.
2. He further complained under Article 6 § 1 in conjunction with Article 6 § 3 (b), (c) and (d) of the Convention that his right to a fair trial had been violated. He maintained, in particular, that he had not had sufficient time and facilities to prepare his defence as he had not been allowed additional time to consult voluminous evidence when the investigation had been completed.
He further contended that, throughout the initial period of his detention, he could not communicate with his defence counsel out of hearing of the prosecutor or a person appointed by him.
The applicant finally submitted that the court, in contravention of the law, kept secret some parts of the testimony of anonymous witnesses.
3. Finally, the applicant also complained about the length of the criminal proceedings against him.
1. The applicant complained under Article 5 § 3 of the Convention that the length of his detention had exceeded a reasonable time.
Article 5 § 3 of the Convention, insofar as relevant, reads:
“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 maintained that the applicant’s detention complied with the requirements of this provision. The applicant disagreed.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. It was therefore to be declared admissible.
2. The applicant complained that the criminal proceedings against him had been unfair. He referred to Article 6 § 1 in conjunction with Article 6 § 3 (b), (c) and (d) of the Convention. These provisions read, insofar as relevant:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
3. Everyone charged with a criminal offence has the following minimum rights:
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”
3. The Government first argued that this part of the application had not been lodged with the Court within the six-month time-limit provided for by Article 35 of the Convention. They were of the view that the six-month period started to run, insofar as the applicant complained about the refusal to be granted further access to the case file which he had already read, on 13 December 1996, when he had been refused such access. Insofar as the applicant complained that during the investigations he had not been allowed to communicate with his lawyer without any supervision, the six-month period had started to run on 7 November 1996 when the relevant permission had been granted.
The Court recalls that, even if the primary purpose of Article 6, as far as criminal matters are concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, it does not follow that this provision of the Convention has no application to pre-trial proceedings. Thus, Article 6 - especially paragraph 3 - may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions. The manner in which Article 6 §§ 1 and 3 (c) is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case seen as a whole (see Brennan v. the United Kingdom, no. 39846/98, 16.10.2001, § 45, ECHR 2001-X).
The Court observes that under the applicable provisions of domestic law the applicant could bring procedural complaints to the attention of the Supreme Court when lodging an appeal on points of law. Hence, the six-month period for lodging the application under Article 35 § 1 of the Convention started to run on 16 November 2001, the date on which a final judgment, following the applicant’s cassation appeal, was given by the Supreme Court.
It follows that this part of the application cannot be rejected for failure to comply with the six-month time-limit.
4. The Government stated that the applicant had exhausted applicable remedies available under Polish law in respect of his complaints about the alleged unfairness of the criminal proceedings against him. The applicant did not address this issue.
The Court notes that in the present case the applicant, in his appeal against the first-instance judgment and in his cassation appeal, argued in general terms that the proceedings had been unfair. In particular, he made specific and detailed submissions on the issue of anonymous witnesses. Furthermore, the Court observes that the Government accepted that the applicant had exhausted relevant domestic remedies. (no. 33777/96, Urbańczyk v. Poland (dec.), 28 May 2002, mutatis mutandis).
It follows that this part of the application cannot be declared inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention.
5. Insofar as the applicant maintained that he had not had sufficient time and proper facilities to prepare his defence as he had not been allowed additional time to consult voluminous evidence, the Government argued that after the investigations had been completed the applicant had been given a possibility to consult the case files for five days, from 2 to 6 December 1996. Throughout this period of time, he had been reading the case files in the prosecutor’s office. On 6 December 1996 he had been reading the files in the presence of one of his lawyers and confirmed this by his signature. They further submitted that after the investigations had been terminated, the applicant had a right to request further access to the files at any time. The first hearing in the case had been held on 21 March 1997, three months after the investigations had been completed, but the applicant had not availed himself of his right to request further access to the case file throughout this period.
The applicant disagreed.
The Court reiterates that Article 6 § 3 (b) of the Convention concerns two elements of a proper defence, namely the question of facilities and that of time. The question of time cannot be addressed in abstracto, but only in relation to the circumstances of the concrete case (see Mortensen v. Denmark, no. 24867/94, Commission decision of 15 May 1996, and Hayward v. Sweden, no. 14106/88, Commission decision of 6 December 1991). In the present case the applicant was given five working days to acquaint himself with the case file. It has not been argued or shown that he was in any way prevented from reading them. It is true that his request of 13 December 1996 to be allowed to re-read volume VI remained apparently unanswered. However, the Court observes that on 23 December 1996 the bill of indictment against the applicant was lodged with the Wrocław Regional Court. The first hearing in the case was held three months later. Throughout this time the applicant’s lawyer had unlimited access to the files. It has not been shown that during this period of time the applicant requested to be granted access to them.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
6. In reply to the complaint that until 7 November 1997 the applicant could not communicate with his defence counsel out of hearing of a person appointed by the prosecutor, the Government did not contest that the restrictions imposed by the prosecution on the contacts between the applicant and his lawyers had limited his defence rights. However, they were of the view that this shortcoming had been fully counterbalanced by the further course of the judicial proceedings, given that in this stage the applicant could communicate freely with his lawyers. They argued that in order to determine whether the aim of Article 6 – a fair trial – had been achieved, regard had to be had to the entirety of the domestic proceedings conducted in the case (Imbrioscia v. Switzerland, judgment of 24 November 1993, Series A no. 275, § 38).
The applicant disagreed with the arguments advanced by the Government.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
7. Insofar as the applicant submitted that the court had kept secret some parts of the testimony of anonymous witnesses, the Government argued that parts of the testimony given by the anonymous witnesses had been withheld in order to keep their identities secret and to protect them. They stressed that the testimony of the anonymous witnesses had played only an insignificant role in establishing the facts of the case. The Wroclaw Regional Court had stated in the reasoning of its judgment of 21 February 1999 that there had been other ample evidence to make factual findings of the guilt of the accused. Furthermore, the defence had exercised its right to put questions to the anonymous witnesses in writing.
They concluded that the mere fact that certain parts of the testimony given by these witnesses had not been revealed to the defence had not amounted to a violation of the applicant’s right to a fair hearing.
The applicant disagreed with all the Government’s submissions.
The Court first recalls that all evidence, including testimonies by witnesses, must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence (see, among others, Lucà v. Italy, no. 33354/96, § 39, ECHR 2001-II; Solakov v. the Former Yugoslav Republic of Macedonia, no. 47023/99, § 57, ECHR 2001-X; P.S. v. Germany, no. 33900/96, § 21, 20 December 2001). The national authorities must adduce relevant and sufficient reasons to keep secret the identity of certain witnesses (see, in particular, Doorson v. the Netherlands, judgment of 26 March 1996, Reports 1996-II, pp. 470-471, § 71; Visser v. the Netherlands, no. 26668/95, § 47, 14 February 2002).
If the anonymity of prosecution witnesses is maintained, Article 6 §§ 1 and 3 (d) requires that the handicaps under which the defence labours are sufficiently counterbalanced by the procedures followed by the judicial authorities (see Van Mechelen and Others, cited above, p. 712, § 54; Haas v. Germany (dec.), no. 73047/01, 17 November 2005). Moreover, evidence obtained from a witness under conditions in which the rights of the defence cannot be secured to the extent normally required by the Convention should be treated with extreme care (see Visser, cited above, § 44; S.N. v. Sweden, no. 34209/96, § 53, ECHR 2002-V).
Where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6 (see Saïdi v. France, judgment of 20 September 1993, Series A no. 261-C, pp. 56-57, § 44; Solakov, cited above, § 57; Calabrò v. Italy and Germany (dec.), no. 59895/00, ECHR 2002-V).
Turning to the facts of the present case, the Court first observes that under Article 164 § 5 of the Code of Criminal Procedure it was open to the applicant to lodge an appeal against the prosecutor’s decision to admit the evidence from the testimony of anonymous witnesses. It has not been shown that the applicant availed himself of this possibility.
However, even assuming that the applicant complied with the requirement of exhaustion of domestic remedies provided for by Article 35 § 1 of the Convention, this complaint should be declared inadmissible for the following reasons:
The Court notes that the questions prepared by the applicant and his lawyers were submitted to the court. The court heard two anonymous witnesses on 3 March 1998 and obtained answers to these questions.
The Court observes that after the hearing held on that date the applicant and his lawyer were given access to the minutes of the questioning. Subsequently, in the light of this evidence, the applicant submitted to the court a list of twenty-four further questions to witness T 6/96 (T 41/96). As a result, this witness was questioned once again and these questions were put to him at a hearing held on 1 April 1998. The court obtained answers to twenty of those questions.
The Court further notes that three other witnesses in the case made statements which indicated that they feared reprisals from their involvement in the proceedings. It cannot therefore be said, in the Court’s view, that the decisions to keep the identities of certain witnesses secret were taken without due consideration to the necessary balance to be struck between the applicant’s defence rights and the witnesses’ safety.
Lastly, the Court notes the relevance for the assessment of this complaint of its admissibility decision in the present case (Rybacki v. Poland (dec.), 52479/99, 9 November 2004). It examined therein the applicant’s complaint that his conviction had been based to a decisive extent on the testimony of anonymous witnesses. In this connection, the Court observed that the findings of the first-instance court had been based on the testimony of ten witnesses, including the victim of the offence, and two anonymous witnesses T 05/96 and T 41/96. The court further had regard to numerous pieces of other evidence, documentary and otherwise. The Court observed that it was the evidence given by six of the witnesses and by two anonymous witnesses which was crucial in establishing the guilt of the four accused. The Court further noted that the appellate court had subsequently examined the applicant’s submissions in this respect. The appellate court concluded that the first-instance court had before it sufficient and ample evidence available in the case files to make factual findings sufficient for establishing the guilt of the accused.
Having regard to the circumstances of the case taken as a whole, the Court is satisfied that the fact that two witnesses in the case remained anonymous was compatible with the standards of Article 6 §§ 1 and 3 of the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
8. The applicant also complained about the length of the criminal proceedings against him.
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 observes that the present application was lodged with the Court when the relevant proceedings were pending before the domestic court.
It further observes that, pursuant to section 18 of the 2004 Act, it was open to persons such as the applicant in the present case whose case was pending before the Court to lodge, within six months from 17 September 2004, a complaint about the unreasonable length of the proceedings with the relevant domestic court, provided that their application to the Court had been lodged in the course of the impugned proceedings and that it had not yet been declared admissible.
The Court has already examined that remedy for the purposes of Article 35 § 1 of the Convention and found it effective in respect of complaints about the excessive length of judicial proceedings in Poland. In particular, it considered that it was capable both of preventing the alleged violation of the right to a hearing within a reasonable time or its continuation, and of providing adequate redress for any violation that has already occurred (see Michalak v. Poland (dec.), no. 24549/03, §§ 37-43).
However, the applicant, despite having been informed by the Registrar of the possibility of lodging a complaint about the length of the proceedings under the 2004 Act, chose not to avail himself of this remedy.
It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant’s complaints relating to the excessive length of his detention and the lack of unsupervised contacts with his lawyer during the investigations;
Declares inadmissible the remainder of the application.
Fatoş Aracı Josep Casadevall
Deputy Registrar President
RYBACKI v. POLAND DECISION
RYBACKI v. POLAND DECISION