AS TO THE ADMISSIBILITY OF
Application no. 56552/00
by Grzegorz TELECKI
The European Court of Human Rights (Third Section), sitting on 10 November 2005 as a Chamber composed of:
Mr B.M. Zupančič, President,
Mr J. Hedigan,
Mr L. Caflisch,
Mr C. Bîrsan,
Mr L. Garlicki,
Mrs A. Gyulumyan,
Mrs R. Jaeger, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 26 March 1999,
Having regard to the partial decision of 3 July 2003,
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, Grzegorz Telecki, is a Polish national, who was born in 1959 and lives in Lublin. The respondent Government were represented by their agent Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 1 February 1999 the Bielsko-Biała District Court (Sąd Rejonowy) ordered that the applicant be remanded in custody in view of the reasonable suspicion that, acting in an organised group, he had committed fraud. At that time the applicant had already been detained on remand by the Kraków District Court on 8 April 1998 in connection with another set of criminal proceedings.
The applicant appealed against this decision, but on 19 March 1999 the Bielsko-Biała Regional Court dismissed it, finding that his detention was necessary to ensure the proper course of the proceedings.
On 13 April 1999 the Lublin Regional Court (Sąd Okręgowy), to which the case was in the meantime transferred, further prolonged the applicant’s detention. The court relied in particular on the complexity of the case, the need to obtain expert opinions and the seriousness of the charges against the applicant. In addition, the court considered that there existed a risk that the applicant, if released, would obstruct the collection of evidence.
The applicant appealed. On 20 May 1999 the Lublin Court of Appeal (Sąd Apelacyjny) dismissed the appeal.
By a decision of 16 June 1999 the Lublin Court of Appeal further prolonged the applicant’s detention on remand. The court considered that the reasons for which the detention had been ordered still existed and that the prosecuting authorities continued the process of obtaining evidence. The applicant’s appeal against this decision was dismissed on 29 July 1999 by the Supreme Court (Sąd Najwyższy) relying on the strong suspicion against the applicant and on the complexity of the case.
In September 1999 the applicant was indicted before the Biskupiec District Court. The bill of indictment, directed against the applicant and one co-accused, concerned 16 counts of fraud allegedly committed by them between July and September 1997.
On 17 September 1999 the Biskupiec District Court prolonged the applicant’s pre-trial detention reiterating the grounds previously given for keeping him in the custody. The applicant appealed but his appeal was dismissed by the Olsztyn Regional Court on 15 October 1999.
On 14 March 2000 the Biskupiec District Court further prolonged the applicant’s detention. The court found that the grounds for the detention were still valid, having found no grounds for his release under Article 259 of the Code of Criminal Procedure (“1997 Code”). On 31 March 2000 the Olsztyn Regional Court dismissed the applicant’s appeal against this decision.
At an unspecified later date the applicant requested his release. By the decisions of 25 April 2000 and of 10 May 2000 the Biskupiec District Court, rejected his requests, considering that the grounds for detaining the applicant still remained valid.
By a decision of 28 June 2000 the Biskupiec District Court prolonged the applicant’s detention until 30 November 2000. The court repeated the reasons given previously. On 14 July 2000 the Olsztyn Regional Court dismissed his appeal against this decision finding that the period of his detention was not excessive.
The first trial hearings scheduled for 11 and 12 April 2000 were adjourned as the applicant’s lawyer failed to appear before the court. The court appointed another lawyer for the applicant. The trial started on 8 November 2000.
At the hearing held on 21 November 2000 the Biskupiec District Court prolonged the applicant’s detention until 31 January 2001. The court relied on the identical reasons as given on precious occasions. The trial court held the hearings on 12 December 2000 and 16 January 2001.
Subsequently, the District Court made an application to the Warsaw Court of Appeal to prolong the applicant’s detention because it considered that the applicant’s detention would soon reach the statutory time-limit of 2 years as laid down in Article 263 § 3 of the 1997 Code. However, on 29 January 2001 the Warsaw Court of Appeal found that it was not competent to examine the request as the District Court had incorrectly calculated the time-limit. The Court of Appeal established that in the case pending before the Biskupiec District Court the applicant’s detention for the purposes of Article 263 § 3 of the 1997 Code should be counted only as of 31 March 2000 since before this date he was at the disposal of another court in connection with another set of criminal proceedings against him. The Court of Appeal stated:
“According to the well-established jurisprudence of the Supreme Court ‘the necessity to prolong the pre-trial detention shall be assessed in relation to periods of genuine depravation of liberty of an accused in that set of proceedings in the course of which the decision to prolong is to be taken’ (see decision of 7 judges of the Supreme Court of 29.01.1998 and ...)”
The Warsaw Court of Appeal concluded therefore that the time limit as set in Article 263 § 3 of the 1997 Code had not yet expired and that the Biskupiec District Court was competent to decide on the prolongation of his pre-trial detention. It remitted the request to the Biskupiec District Court.
By a decision of 31 January 2001, upheld by the Olsztyn Regional Court on 9 February 2001, the Biskupiec District Court prolonged the applicant’s detention until 31 May 2001, finding no grounds on which to order his release under Article 259 of the 1997 Code. The trial court further established that the process of hearing witnesses was incomplete and consequently retaining the applicant in custody was necessary to secure the proper conduct of the proceedings. The court also held that the measure was justified by the severity of the anticipated sentence and the criminal relationship between the suspects.
The court held hearings on 20 February, 27 February, 28 March, 24 April and 29 May 2001. From December 2000 till May 2001 the court heard over 60 witnesses.
On 9 April 2001, 30 April 2001 and 14 May 2001 the Biskupiec District Court rejected other requests for the applicant’s release.
By a decision of 31 May 2001 the Biskupiec District Court prolonged the applicant’s detention until 31 July 2001, repeating the grounds given on previous occasions. The applicant appealed. On 20 June 2001 the Olsztyn Regional Court dismissed his appeal and upheld the contested decision.
By a judgment of 26 June 2001 the Biskupiec District Court convicted the applicant of 16 counts of fraud and sentenced him to 5 years’ imprisonment. The applicant lodged an appeal.
On 22 January 2002 the Olsztyn Regional Court held a hearing in the appellate proceedings, at which the applicant’s lawyer was present. The court dismissed the applicant’s appeal and upheld the contested judgment.
The applicant lodged a cassation appeal but on 28 November 2002 the Supreme Court dismissed his cassation appeal as unsubstantiated.
B. Relevant domestic law
1. 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”.
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) it may seriously jeopardise the life or health of the accused; or
(2) it 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”.
2. The Code of Criminal Procedure 1997
The Code of Criminal Procedure of 1997 (“1997 Code”), 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:
“Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused committing another, serious offence; they may be imposed only if 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 justified fear 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.
1. The applicant complained under Article 5 § 1 of the Convention that his detention on remand after 1 February 2001 lacked any legal basis as his detention had not been prolonged by the Supreme Court.
2. He further complained under Article 5 § 3 of the Convention that the length of his detention on remand exceeded a reasonable time within the meaning of this provision.
1. The applicant complained that his detention on remand between 1 February 2001 and 26 June 2001 was unlawful in that there was no decision of the Supreme Court to justify his detention. This complaint falls under Article 5 § 1 of the Convention, which provides:
“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 Government submitted that the applicant’s claim was manifestly ill-founded. They underlined that his pre-trial detention from 1 February to 26 June 2001 was “lawful”, as the court issued decisions for every single day of the applicant’s detention during this period. Thus, by a decision of 31 January 2001 the Biskupiec District Court prolonged the applicant’s detention until 31 May 2001. Subsequently, on 31 May 2001, the same court decided to prolong the applicant’s detention until 31 July 2001.
The applicant’s observations did not contain any additional information relevant to the issue. He repeated his submission that his detention after 1 February 2001 should have been prolonged by the Supreme Court.
The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. While it is normally in the first place for the national authorities, notably the courts, to interpret and apply domestic law, it is otherwise in relation to cases where, as under Article 5 § 1, failure to comply with that law entails a breach of the Convention. In such cases the Court can and should exercise a certain power to review whether national law has been observed (see, among other authorities, Baranowski v. Poland, no. 28358/95, § 50, ECHR 2000-III).
Turning to the particular circumstances of the instant case, the Court firstly notes that on 20 July 2000 the relevant Article of the 1997 Code was amended and since then the competence to prolong detention beyond the time-limits set out in Article 263 paragraphs 2 and 3 has been vested with the court of appeal within whose jurisdiction the offence in question has been committed and no longer with the Supreme Court. The Court also notes that the Warsaw Court of Appeal examined the request submitted to it by the District Court and found that it was not competent to decide on prolongation of the detention. It held that the District Court, in submitting the request to further prolong the applicant’s detention, had based it on an erroneous interpretation as to what had been the date from which the time-limit, for the purpose of Article 263 § 3 of the 1997 Code, should have been calculated. The Court of Appeal pointed to the well-established jurisprudence of the Supreme Court according to which the applicant had been detained for less then 2 years in connection with this set of criminal proceedings against him and that the previous period of detention during which he had been at the disposal of another court in connection with another set of criminal proceedings was to be excluded for the purposes of Article 263 of the 1997 Code.
The Court further notes that the Biskupiec District Court, in its decisions of 31 January and 31 May 2001, prolonged the applicant’s detention. These decisions were upheld by the appellate courts.
The Court recalls that a period of detention will in principle be lawful if it is carried out pursuant to a court order. The Court does not find it established that the decisions given by the Biskupiec District Court to prolong the applicant’s detention after 1 February 2001 were invalid, and thus that the detention which resulted from it was unlawful under national law. Nor does the Court find that the detention was arbitrary (see Benham v. the United Kingdom, judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III, §§ 46 and 47).
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The applicant further complained that the unreasonable length of his pre-trial detention breached Article 5 § 3 of the Convention, which in so far as relevant 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 submitted that the applicant’s pre-trial detention lasted from 1 February 1999 until 26 June 2001. However, they argued that this period had not been inordinately lengthy. The Government stressed that the applicant had been remanded in custody in view of the strong suspicion that he had committed several serious offences of fraud committed in conspiracy with other persons in various locations of the country, and therefore his continued detention had been justified by the need to secure the proper conduct of the proceedings.
They further contended that the applicant’s case was without doubt a very complex one. The bill of indictment against the applicant contained almost 50 pages of legal reasoning; the prosecutor asked the court to hear evidence from 57 witnesses and examine 116 pieces of other evidence at the trial.
The Government were of the opinion that the proceedings in the applicant’s case, despite one short period of inactivity between September 1999 and March 2000, were conducted within a reasonable time and his detention had been subject to frequent review by the domestic courts. The courts had examined his applications for release diligently and had given detailed reasons. The Government considered that, given that on the whole there had been valid grounds for keeping the applicant in custody and that the authorities had acted with due diligence, the requirements of Article 5 § 3 had been satisfied.
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 should depend on an examination of the merits. The Court concludes therefore that the 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.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant’s complaint concerning the length of his pre-trial detention;
Declares the remainder of the application inadmissible.
Vincent Berger Boštjan
TELECKI v. POLAND DECISION
TELECKI v. POLAND DECISION