FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 62323/00 
by Zygmunt NAJDECKI 
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 21 April 1999,

Having deliberated, decides as follows:

 

THE FACTS

The applicant, Mr Zygmunt Najdecki, is a Polish national who was born in 1950 and lives in Miłkowice, Poland.

A.  The circumstances of the case

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

1. The applicant’s detention on remand and the criminal proceedings against him

On 26 May 1998 the applicant was arrested on suspicion of having committed fraud.

On 27 May 1998 the Legnica District Court (Sąd Rejonowy) detained the applicant and two other co-suspects on remand. The Legnica Regional Court (Sąd Okręgowy) upheld that decision on 18 June 1998. The courts considered that the applicant’s detention was justified by the existence of strong evidence against him and the gravity of the charges. They also relied on the risk that the applicant might attempt to tamper with evidence.

The applicant’s detention was prolonged several times by the Legnica Regional Court. The court repeated the reasons previously given for his detention. The applicant’s appeals against those decisions were dismissed.

On an unspecified date in May or June 1999 the applicant was indicted.

The applicant’s detention was subsequently prolonged numerous times by the Legnica Regional Court and the Wrocław Court of Appeal (Sąd Apelacyjny) for the same reasons as before. The applicant’s appeals against those decisions were dismissed.

On 8 July 1999 and 7 November 2001 the applicant lodged unsuccessful applications for release before the Legnica Regional Court.

On 15 February the Legnica Regional Court asked the Wrocław Court of Appeal to further prolong the applicant’s detention until 30 April 2002.

On 21 February 2002 the Court of Appeal refused the application. The court noted that the applicant had already been detained for 3 years and 8 months. The court found further that the interests of the trial did not justify keeping him in detention any longer, especially since a large part of the evidence had already been examined and the witnesses heard.

On 27 February 2002 the Legnica Regional Court released the applicant.

From the applicant’s submissions it would appear that he was convicted by the Legnica Regional Court on 16 December 2002. It also appears that the Wrocław Court of Appeal upheld the first-instance judgment on 20 November 2003. However, the applicant has failed to produce any material evidence that would allow the Court to establish the course and the result of the proceedings. In particular, he has not submitted copies of the judgments. It is also uncertain whether the applicant has lodged a cassation appeal against the judgment of the Wrocław Court of Appeal.

2. Censorship of the applicant’s correspondence

On 9 August 2001 the applicant sent a letter to the Court, submitting that his correspondence with his defence counsel had been censored. He enclosed a fragment of the envelope of the letter his lawyer had sent to him at the detention centre. The envelope bears an official stamp of the legal office: “Kancelaria Adwokacka, adw. Zenon Duda” (Legal Office, Zenon Duda, Barrister). It also bears the stamp “Ocenzurowano, Legnica, dn. 06.08.2001” (Censored, Legnica on 06.08.2001) and an illegible signature.

B.  Relevant domestic law and practice

1.  Amendments to criminal legislation

During the material time, Polish criminal legislation was amended on several occasions.

The applicant was detained on remand under the provisions of the 1969 Code of Criminal Procedure. That Code is no longer in force as it was repealed and replaced by the 1997 Code, which entered into force on 1 September 1998.

2.  Detention on remand and other “preventive measures”

Both Codes list as “preventive measures” (środki zapobiegawcze) inter alia detention on remand, bail and police supervision.

(a)  1969 Code

Article 209 provided:

“Preventive measures may be imposed in order to ensure the proper conduct of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.”

Article 217 defined the grounds for detention on remand. That provision, provided, 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 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;

2.  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 8 years’ imprisonment, or if a court of first instance has sentenced him to at least 3 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 222 of the 1969 Code set out statutory time-limits for detention on remand. It provided, in so far 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 1 year and 6 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 or 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.”

On 28 December 1996, by virtue of the Law of 6 December 1996, paragraph 4 of that Article was amended and the grounds for prolonging detention beyond the statutory time-limits included also:

“... other significant obstacles, which could not be overcome by the authorities conducting the proceedings...”

(b)  1997 Code

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 from 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 must in each detention decision determine the exact time, within those time-limits, for which detention shall continue.

Article 263 sets out time-limits for detention. In the version applicable at the material time it provided, in so far as relevant:

“1.  Imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 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.

3.  Monitoring of correspondence

Section 73 of the Code of Criminal Procedure of 1997 provides, in so far as relevant:

Ҥ 1. An accused who is in custody may communicate with his defence counsel in the absence of third persons or by correspondence;

...

§ 3. A prosecutor may also order that the suspect’s correspondence with his defence counsel be controlled;

§ 4. The order referred to in §§ 2 and 3 shall not be executed or issued after the lapse of 14 days from the date of the arrest.”

COMPLAINTS

1. The applicant complains under Article 5 § 1 of the Convention.

2. He further complains under Article 5 § 3 of the Convention about the excessive length of his detention.

3. Relying on Article 6 § 1 of the Convention, the applicant complains about the unfairness of the proceedings and objects to their outcome.

4. Lastly, he complains under Article 8 § 1 of the Convention about censorship of his correspondence with his defence counsel.

THE LAW

1. The applicant complains that his detention was in breach of Article 5 § 1 of the Convention.

However, the Court notes that the applicant’s detention was based on Article 258 § 1 of the 1997 Code. Furthermore, the Court observes that in the present case the applicant was detained on reasonable suspicion of having committed a serious offence. The Court accordingly finds that the decision to place the applicant in custody had a legal basis and was issued by the appropriate judicial authority.  There is nothing to suggest that the legal basis for his detention was not clearly defined and, therefore, lacked the necessary foreseeability required under the Convention. The Court is therefore satisfied that the applicant’s detention complied with the requirements of Article 5 § 1. Moreover, the Court does not see any appearance of arbitrariness on the part of the relevant judicial authorities in the process of making decisions on the applicant’s detention. It also observes that its lawfulness was repeatedly reviewed by the competent domestic courts.

Against that background, the Court concludes that the applicant’s detention was “lawful” within the meaning of Article 5 § 1 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 simultaneously.

2. The applicant complains under Article 5 § 3 of the Convention that his pre-trial detention exceeded a “reasonable time”.

The Court considers that it cannot, on the basis of the file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of these complaints to the respondent Government.

3. The applicant further complains under Article 6 § 1 of the Convention about the unfairness of the proceedings. He alleges that the courts committed errors of fact and law when dealing with his case and that their judgments were unjust.

The Court notes that the applicant has not provided a sufficient factual basis for his allegations. In particular he has not submitted the copies of the decision given in his case. It is therefore impossible to establish the course and the outcome of the proceedings complained of. Nor does the material in the Court’s possession disclose any appearance of a violation of the rights and freedoms set out in the invoked Articles.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

4. Relying on Article 8 of the Convention the applicant complains about censorship of his correspondence with his counsel.

The Court considers that it cannot, on the basis of the file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of these complaints to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning the length of his detention and an alleged breach of Article 8 on account of the monitoring of his correspondence;

Declares the remainder of the application inadmissible.

Michael O’Boyle Nicolas Bratza 
 Registrar President

NAJDECKI v. POLAND DECISION


NAJDECKI v. POLAND DECISION