AS TO THE ADMISSIBILITY OF
Application no. 6334/02
by Sebastian DOLASIŃSKI
The European Court of Human Rights (Fourth Section), sitting on 22 November 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 Mrs F. Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 17 December 2001,
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 Sebastian Dolasiński, is a Polish national who was born in 1972 and lives in Zielona Góra, Poland.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 28 March 2000 the applicant was arrested by the police. On 29 March 2000 he was charged with fraud.
On 30 March 2000 the Wrocław District Court (Sąd Rejonowy) remanded the applicant in custody. The court referred to the fact that the applicant was charged with a crime, which carried a heavy sentence. It also considered that the applicant could go into hiding and that he might try to avoid the trial.
On 27 April 2000 the applicant applied for release from detention. On 4 May 2000 the Wrocław District Prosecutor rejected his application. The prosecutor pointed out that the applicant’s co-accused was still in hiding. He also considered that the applicant’s case did not disclose any of the grounds for a release from detention listed in Article 259 § 1 of the Code of Criminal Proceedings. The applicant appealed against this decision but his appeal was dismissed on 19 May 2000 by the Wrocław Regional Prosecutor.
On 28 June 2000 the Wrocław District Court extended the applicant’s pre-trial detention until 29 September 2000. The court considered that the evidence collected in the case sufficiently supported the charges laid against the applicant. It was necessary to collect several pieces of evidence and the charges laid against the applicant carried a heavy sentence. The court was also of the view that the applicant would interfere with the criminal proceedings against him.
On 28 September 2000 the Wrocław District Court prolonged the applicant’s pre-trial detention until 29 December 2000. The court repeated the reasons given in its decision of 28 June 2000.
On 20 October 2000 the applicant made an application for release to the Wrocław Regional Prosecutor. He requested that his detention be replaced by police supervision and by a court order requiring him to remain in Poland.
On 23 October 2000 the Regional Prosecutor dismissed the application for release. The prosecutor pointed out that the applicant was a habitual offender and that the evidence collected in the case sufficiently supported the charges laid against him.
On 18 December 2000 the applicant made a fresh application for release from detention. He relied on Article 259 § 1 of the Code of Criminal Proceedings and pointed out that his cohabitee was receiving psychiatric treatment. Therefore, she needed somebody to provide care to herself and her two young children. However, the prosecutor rejected the application for the following reasons:
“It is obvious that pre-trial detention in every case results in hardship for the family of a detained person and such a person should take this into account when conducting his criminal activities. The present case does not disclose hardship within the meaning of Article 259 §1(2) of the Code of Criminal Proceedings. The background check carried out in the case of Sebastian Dolasiński shows that the situation of his family is difficult as his cohabitee receives welfare payments from the Municipal Social Security Office.”
On 28 December 2000 the Wrocław District Court extended the applicant’s pre-trial detention until 29 March 2001. The court repeated the reasons given in its decision of 28 June 2000.
On 2 February 2001 the Wrocław Regional Court dismissed the applicant’s appeal against the decision of 28 December 2000.
On 16 March 2001 the applicant was indicted before the Wrocław District Court. The bill of indictment against the applicant and one co-accused concerned several counts of fraud to the detriment of several companies allegedly committed by them while running a company owned by the applicant.
On 28 March 2001 the Wrocław District Court prolonged the applicant’s pre-trial detention until 29 June 2001. The court repeated the reasons given in its decision of 28 June 2000 and added that the applicant would remain in detention in order to “secure the proper conduct of the proceedings”.
At the hearing held on 12 September 2001 the trial court further prolonged the applicant’s detention justifying it by reference to the gravity of charges and the need to secure the proper conduct of proceedings. At the next hearing held on 15 November 2001 the applicant pleaded guilty to some of the charges against him.
On 19 December 2001 the applicant’s pre-trial detention was prolonged. The court considered that the reasons for keeping him in custody still existed.
Subsequently the trial court scheduled several hearings which were adjourned as the witnesses failed to appear.
On 13 March 2002 the Wrocław District Court made a request under Article 263 § 4 of the Code of Criminal Proceedings to the Wrocław Court of Appeal (Sąd Apelacyjny) in which it asked that the applicant’s detention be prolonged until 28 September 2002.
On 21 March 2002 the Wrocław Court of Appeal allowed the District Court’s request but decided to extend the applicant’s detention only until 28 July 2002. The appellate court agreed with the District Court that the need to take evidence from nineteen witnesses could justify the extension of the applicant’s detention. At the same time, the Court of Appeal pointed out that the proceedings before the trial court were slow-moving and that the conduct of the proceedings by the trial court “did not contribute to their termination within the proper time”. In this connection, the appellate court noted that only nine hearings had taken place within the first year of the proceedings and that the proceedings had begun in fact on 15 November 2001. Furthermore, the Court of Appeal observed that already in December 2001 and January 2002 some of the witnesses had informed the trial court that they could not attend hearings before it and had asked that they be heard by other courts at the request of the Wrocław District Court. A delay in taking a decision concerning these requests was difficult to understand. Finally, the Wrocław Court of Appeal stated that the applicant’s detention would be extended only until 28 July 2002 because the period of four months should be sufficient to allow the trial court to conclude the proceedings.
The applicant appealed against the decision of 21 March 2002 but his appeal was dismissed on 11 April 2002.
The trial court held hearings on 17 April and 8 May 2002. On 22 May 2002 the trial court gave judgment. The applicant was convicted and sentenced to five years’ imprisonment.
The applicant lodged an appeal against the judgment.
On 26 February 2003 the Wrocław Regional Court gave judgment in which it partly amended the trial court’s judgment. It appears that the judgment is final.
B. Relevant domestic law and practice
1. The pre-trial detention
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:
“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 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 an 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, or a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad, or 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.
2. The domestic remedy for unreasonable length of proceedings1
On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.
Section 2 of the 2004 Act reads, in so far as relevant:
“1. A party to proceedings may lodge a complaint that their right to a trial within a reasonable time has been breached [in the proceedings] if the proceedings in the case last longer than is necessary to examine the factual and legal circumstances of the case ... or longer than is necessary to conclude enforcement proceedings or other proceedings concerning the execution of a court decision (unreasonable length of proceedings).”
Section 5 reads, in so far as relevant:
“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”
Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant:
“1. The court shall dismiss a complaint which is unjustified.
2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings.
3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case.
4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.”
Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant:
“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.
On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.
1. The applicant complained under Article 5 § 3 of the Convention about the unreasonable length of his pre-trial detention.
2. He also alleged a violation of Article 6 §§ 1 and 2 of the Convention on account of the unreasonable length of the criminal proceedings against him.
1. The applicant alleged violation of Article 5 § 3 of the Convention in that his detention pending trial had been inordinately lengthy. That Article reads, in so far as relevant:
“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 detention that lasted almost two years and two months until the first instance judgment was not unreasonably lengthy. The Government argued that the case was complex as it concerned fraud allegedly committed by the applicant to the detriment of several companies. The complexity was also shown by the extensive expert evidence adduced by the trial court. Furthermore, the Government was of the opinion that in the examination of the case the domestic courts displayed due diligence as required in cases against detained persons.
They averred that his pre-trial detention was duly justified and that during the entire period the authorities had given relevant and sufficient reasons for prolonging it. In this connection they stated:
“Although not expressly mentioned in every decision refusing the applicant’s release, these circumstances of the applicant’s case were duly taken into account by the prosecution and judicial organs while finding that only detention on remand could secure the proper course of the proceedings conducted against the applicant.”
The applicant in general terms stated that his case was well-founded as he remained over two years in the pre-trial detention.
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.
2. The applicant also complained that the length of the proceedings in his case had exceeded a “reasonable time” within the meaning of this provision. The Court considers that this complaint should be examined under Article 6 § 1 of the Convention which, in so far as relevant, reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Court firstly notes that the 2004 Act, which entered into force on 17 September 2004, provides an effective domestic remedy in respect of complaints about the excessive length of the judicial proceedings in Poland (see Charzyński v. Poland (dec.), no. 15212/03, §§ 36-42). The Government did not plead that the applicant had failed to exhaust the domestic remedies. It is not clear whether the applicant lodged a complaint alleging that the length of the criminal proceedings in his case had been excessive. However, the Court would leave aside the question of exhaustion of the domestic remedies as for the reasons indicated below the applicant’s complaint under Article 6 § 1 of the Convention is in any event manifestly ill-founded.
The Court reiterates, that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the criteria established by its case-law, particularly the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
The proceedings in question started on 28 March 2000, when the applicant was arrested by the police and ended on 26 February 2003, when the appellate court gave judgment. It follows that they lasted two years and almost eleven months. During this period the case was examined at two instances. The Court finds that the case was one of some complexity and necessitated taking expert evidence.
In consequence, the Court considers that in the particular circumstances of the instant case, the length of proceedings did not exceed a reasonable time.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
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.
Françoise Elens-Passos Nicolas Bratza
Deputy Registrar President
1 For a more detailed rendition of the relevant domestic legal provisions see Charzyński v. Poland (dec.) no. 15212/03, §§ 12-23; and Michalak v. Poland (dec.) no. 24549/03, §§ 12-23, to be published in ECHR 2005-…; also available on the Court’s Internet site:
DOLASIŃSKI v. POLAND DECISION
DOLASIŃSKI v. POLAND DECISION