AS TO THE ADMISSIBILITY OF
Application no. 71628/01
by Dariusz OSTAPIUK
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,
Mrs L. Mijović, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 1 May 2000,
Having deliberated, decides as follows:
The applicant, Mr Dariusz Ostapiuk, is a Polish national who was born in 1969 and lives in Strzelce Opolskie, Poland.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 11 April 1998 the Bytom District Court (Sąd Rejonowy) remanded the applicant in custody. The court considered that the applicant’s detention was justified by the existence of strong evidence against him and the gravity of the charges.
The Katowice Regional Court (Sąd Okręgowy) upheld that decision on 29 April 1998.
On 3 July 1998 the District Court prolonged the applicant’s detention until 9 October 1998. The court found that the original grounds for keeping the applicant in custody were still valid.
On 2 September 1998 the Regional Court upheld that decision.
On an unspecified date in September 1998 the applicant was indicted on a charge of having committed an assault.
On 28 September 1998 the Regional Court prolonged the applicant’s detention until 30 April 1999. That decision was upheld by the Katowice Court of Appeal (Sąd Apelacyjny) on 21 October 1998.
On 2 and 23 November 1998, 3 March 1999 the Katowice Regional Court dismissed the applicant’s applications for release. It also considered that there were “no grounds for release” as referred to in Article 259 of the Code of Criminal Procedure.
The Regional Court scheduled the first hearing for 5 January 1999. Subsequent hearings were held at regular intervals ranging from several days to several months.
On 26 April 1999 the applicant’s detention was further prolonged by the Regional Court. The court ordered that he remain in custody until 30 September 1999. The Court of Appeal upheld that decision on 2 June 1999.
On 2 August 1999 the Regional Court dismissed the applicant’s application for release. The court repeated the reasons given before.
On 24 September 1999 the Katowice Regional Court convicted the applicant as charged and sentenced him to 6 years’ imprisonment.
On 25 May 2000 the Katowice Court of Appeal quashed the first-instance judgment and remitted the case.
The applicant remained in custody.
The Regional Court held 11 hearings in regular intervals of 1–3 months.
On 26 June 2000 the Regional Court prolonged the applicant’s detention until 31 December 2000.
On 9 August 2000 the Court of Appeal quashed that decision and remitted the case to the Regional Court for reconsideration.
On 9 August 2000 the Regional Court upheld its original decision.
The applicant’s detention was subsequently prolonged several times by the Regional Court. The applicant unsuccessfully appealed against those decisions.
On 9 August 2001 the Katowice Regional Court upheld its original judgment and convicted the applicant as charged.
On 23 May 2002 the Katowice Court of Appeal amended the first-instance judgment and upheld the remainder of it.
The applicant’s officially-appointed lawyer informed the court on 19 June 2002 that he would not lodge a cassation appeal on his behalf as there were no grounds for lodging it.
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.
1. The applicant complains under Article 5 § 3 of the Convention about the excessive length of his detention.
2. He further complains under Article 6 § 1 about the excessive length of the proceedings.
1. 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.
2. Relying on article 6 § 1 of the Convention the applicant complains his trial exceeded a “reasonable time” within the meaning of that provision.
The Court recalls that 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. The applicant has not informed the Court whether he did, as required under Article 35 § 1 of the Convention, take advantage of the new remedies introduced.
However, the Court considers it unnecessary to establish whether the applicant has complied with the rule of exhaustion of domestic remedies since the complaint is in any event manifestly ill-founded.
The proceedings complained of lasted 4 years, 1 month and 12 days and the case was examined by the courts at 4 instances.
As regards the conduct of the authorities, the Court notes that the proceedings in all instances progressed at an acceptable pace. Hearings were scheduled at regular intervals of up to several months and there were no substantial periods of inactivity for which the domestic authorities could be held responsible.
In view of the foregoing, the Court concludes that the proceedings complained of do not disclose an unreasonable delay within the meaning of Article 6 § 1.
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.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint concerning the excessive length of detention;
Declares the remainder of the application inadmissible.
Michael O’Boyle Nicolas Bratza
OSTAPIUK v. POLAND DECISION
OSTAPIUK v. POLAND DECISION