AS TO THE ADMISSIBILITY OF
Application no. 7347/02
by Dariusz KUSYK
The European Court of Human Rights (Fourth Section), sitting on 19 May 2005 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr G. Bonello,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr L. Garlicki,
Mr J. Borrego Borrego, judges,
and Mr M. O'Boyle, Section Registrar,
Having regard to the above application lodged on 7 February 2002,
Having deliberated, decides as follows:
The applicant, Mr Dariusz Kusyk, is a Polish national who was born in 1964 and lives in Zawada, 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 pre-trial detention
The applicant was arrested by the police on 24 June 1999. On the following day the Lubartów District Court (Sąd Rejonowy) ordered his detention on suspicion of robbery. On 14 September 1999 the Lublin Regional Court (Sąd Okręgowy) prolonged the applicant's detention until 23 December 1999.
On 8 December 1999 the Lubartów District Prosecutor (Prokurator Rejonowy) indicted the applicant on charges of armed robbery and theft. In the course of the investigation the applicant was examined by a psychiatrist and a psychologist. According to their findings, the applicant was able to understand his acts at the time of the commission of the alleged offences and could participate in the trial.
The trial court held 6 hearings (6 April, 17 May, 16 June, 14 September, 16 October and 16 November 2000). On 23 November 2000 it gave judgment. The applicant was convicted as charged and sentenced to 5 years' imprisonment.
It appears that subsequently the Lublin Court of Appeal (Sąd Apelacyjny) quashed the first-instance judgment and ordered a retrial.
On 5 July 2001 the health unit of the Lublin Detention Centre issued a health certificate for the applicant which stated that he was suspected of suffering from epilepsy. It also stated that he was mentally handicapped and had an unsound personality.
On an unspecified later date the Lublin Regional Court prolonged the applicant's detention until 30 April 2002. On 16 January 2002 the Lublin Court of Appeal reduced that prolongation to 31 March 2002. It appears that, subsequently, the applicant's detention was extended until 30 June 2002.
On 18 June 2002 the Regional Court ordered that the applicant be held in custody until 18 September 2002. It found that the evidence obtained in the proceedings pointed to the strong likelihood that the offences in question had been committed by the applicant. The Regional Court also referred to the minimum sentence of 3 years' imprisonment which was likely to be imposed on the applicant. Lastly, it considered that the continued detention of the applicant was necessary in order to secure the proper conduct of the proceedings.
The applicant's requests for release and appeals against prolongation of his detention were to no avail.
It appears that in the course of the retrial the Regional Court ordered that the applicant be examined by a psychiatrist and psychologist. According to their report, at the relevant time the applicant was not of diminished responsibility for his acts, although he was a mentally handicapped person with an unsound personality.
The Regional Court held 6 hearings (8 October and 28 November 2001, 24 January, 27 February, 20 March and 2 October 2002). It gave judgment on 8 October 2002. The applicant was convicted of armed robbery and theft and sentenced to 7 years' imprisonment. The applicant appealed against that judgment.
On 27 May 2003 the Lublin Court of Appeal gave judgment. It acquitted the applicant of theft and upheld the remainder of the Regional Court's judgment. The applicant lodged a cassation appeal against the Court of Appeal's judgment. On 21 July 2004 the Supreme Court (Sąd Najwyższy) dismissed his cassation appeal as being manifestly ill-founded. Throughout the proceedings the applicant was represented by a legal aid lawyer.
2. Censorship of correspondence
It appears that a letter of 28 September 2000 sent to the applicant from the Helsinki Human Rights Foundation, a human rights organisation based in Warsaw, was delivered to the applicant after having been controlled by the authorities. The letter's envelope bears a stamp that reads “Censored. The Lublin Regional Court. Received on 6 October 2000. Dispatched on 6 October 2000” and an illegible signature (Cenzurowano SO Lublin, otrzym. dn. 6 PAŹ 200, wysłano dn. 6 PAŹ 2000).
B. Relevant domestic law and practice
1. Remedies against unreasonable length of the proceedings
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 the 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.
2. Preventive measures, including detention on remand
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:
“1. 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 the evidence gathered shows a significant probability that an accused has committed an offence.”
Article 249 § 5 of the 1997 Code, in the version applicable at the relevant time, provides:
“The court shall inform the detainee's lawyer of the time of a court session at which a decision is to be taken on the prolongation of detention on remand or at which an appeal against a decision imposing or prolonging detention on remand is to be examined.”
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 reasonable risk 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. In addition, new paragraph 5 was added. It provides:
“A decision of the Court of Appeal taken pursuant to paragraph 4 may be appealed against to the Court of Appeal sitting in a panel of three judges.”
3. Censorship of correspondence
Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) of 1 September 1998.
Article 103 of that Code, which is contained in Chapter IV entitled “Rights and duties of convicted persons”, provides as follows:
“Convicted persons, their counsel, representatives and the relevant non-governmental organisations have a right to lodge complaints with institutions set up by international treaties ratified by the Republic of Poland concerning the protection of human rights. In those cases, correspondence of persons deprived of their liberty shall be sent to the addressee without delay and shall not be censored.”
Provisions relating to the execution of detention on remand (Articles 207-223) are contained in Chapter XV entitled “Detention on remand”.
Article 217 § 1 reads, in so far as relevant:
“... a detainee's correspondence shall be censored by [the authority at whose disposal he remains], unless the authority decides otherwise.”
Pursuant to Article 214 § 1:
“Unless exceptions are provided for in the present Chapter, a detainee shall enjoy at least the same rights as are secured to a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison. No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings, to maintain order and security in a remand centre and to prevent demoralisation of detainees.”
Article 242 § 5, which is contained in Chapter XXI entitled “Definitions”, provides:
“The prohibition of censorship shall also mean the prohibition of acquainting oneself with the contents of a letter.”
1. The applicant complains about excessive length of his detention on remand. He does not invoke any provision of the Convention.
2. The applicant also complains that he was not fit to stand trial on account of his mental health. He does not rely on any provision of the Convention.
3. The applicant further complains about the unreasonable length of the criminal proceedings. He does not invoke any provision of the Convention.
1. The applicant complains, without invoking any provision of the Convention, about the length of his detention on remand. This complaint falls to be examined under Article 5 § 3 of the Convention.
The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary to give notice of this part of the application to the respondent Government.
2. The applicant also complains, without relying on any provision of the Convention, that he was not fit to stand trial on account of his mental health.
This complaint falls to be examined under Article 6 § 1 of the Convention which, in its relevant part, provides:
“In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] tribunal ...”
The Court notes that the applicant was examined by experts in psychiatry and psychology in order to determine whether his state of mental health allowed him to stand trial and be held criminally responsible for his acts. Such examination, according to the material available to the Court, took place on two occasions: during the pre-trial investigation and at the retrial stage of the proceedings. According to the experts' findings, the applicant, although being found mentally handicapped, was not of diminished responsibility and could participate in the trial.
In these circumstances, the Court finds no indication that the applicant's right to a fair hearing was compromised in any way on account of the state of his mental health. Furthermore, the Court considers that in the proceedings under consideration, throughout which the applicant was represented by a legal aid lawyer, there is no appearance of unfairness or arbitrariness which would infringe the guarantees of a fair hearing within the meaning of Article 6 § 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.
3. The applicant, without invoking any provision of the Convention, complains about the excessive length of the criminal proceedings. The Court finds that this complaint falls to be examined under Article 6 § 1 of the Convention which, in its relevant part, provides:
“In the determination ... of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
However, 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 Charzyński v. Poland (dec.), no. 15212/03, §§ 36-42).
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, has chosen not to avail himself of this remedy.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant's complaint under Article 5 § 3 concerning the length of his pre-trial detention;
Declares the remainder of the application inadmissible.
Michael O'Boyle Nicolas Bratza
KUSYK v. POLAND DECISION
KUSYK v. POLAND DECISION