HULEWICZ V. POLAND

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39598/98
by Grzegorz HULEWICZ
against Poland

The European Court of Human Rights (Third Section), sitting on 2 June 2005 as a Chamber composed of:

MrB.M. Zupančič, President,
MrJ. Hedigan,
MrL. Caflisch,
MrC. Bîrsan,
MrL. Garlicki,
MrsA. Gyulumyan,
MsR. Jaeger, judges,
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 24 August 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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 FACTS

The applicant, Mr Grzegorz Hulewicz, is a Polish national who was born in 1974 and lives in Lębork. He was represented before the Court by Mr Piotr Pieczykolan, a lawyer practising in Gdańsk. The respondent Government were represented by their Agents, Mr K. Drzewicki, and subsequently by 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.

I. The first set of criminal proceedings against the applicant (no. II K 77/97)

In the evening of 12 November 1996 the applicant was arrested on suspicion of attempted extortion committed earlier on that day.

On 14 November 1996 the Lębork District Court (Sąd Rejonowy) detained him on remand until 12 February 1997. It observed that the evidence obtained so far indicated that there was a great likelihood that the offence in question had been committed by the applicant. Further, it noted that the victim of the crime gave detailed testimony which he confirmed during the confrontation with the applicant. The placing of the applicant in detention was also justified by the severity of the anticipated penalty and the risk of the applicant going into hiding and attempting to influence witnesses. With regard to the risk of going into hiding, the District Court emphasised that in connection with the second set of proceedings (see below), the police had been looking for the applicant for over a month before his arrest. The applicant appealed against the detention order.

On 25 November 1996 the applicant requested his release. On 29 November 1996 the Słupsk Regional Court (Sąd Wojewódzki) upheld the decision on the applicant's detention and rejected his application for release.

On unspecified dates in November 1996 the Lębork District Prosecutor heard testimonies from a number of witnesses.

On 11 December 1996 the applicant's lawyer requested that the applicant be examined by psychiatrists. On 23 December 1996 the District Prosecutor appointed two experts in psychiatry and on 3 January 1997 she appointed an expert in psychology in order to examine the applicant. On 7 January 1997 the psychiatric report was submitted to the prosecutor.

On 15 and 16 January 1997 the applicant and three co-accused persons were granted access to the case-file.

On 21 January 1997 the investigation was terminated. On 30 January 1997 the District Prosecutor lodged with the Lębork District Court a bill of indictment against the applicant and the three co-accused persons. The applicant was charged with attempted extortion.

On 12 February 1997 the President of the Lębork District Court fixed the date of the first hearing for 8 May 1997. On 14 April 1997 the applicant's lawyer requested the trial court to adjourn the hearing scheduled for 8 May 1997 since on the same day he had to attend a hearing in another case. On 18 April 1997 the court informed the applicant's lawyer that it did not find any compelling reasons to adjourn the hearing.

On 28 April 1997 the lawyer of B.C., one of the co-accused persons, requested the court not to hold a hearing on 8 May 1997. On 7 May 1997 the lawyer submitted to the trial court a certificate attesting that B.C. would be on a sick leave until 15 May 1997.

A hearing scheduled for 8 May 1997 was adjourned due to the absence of the co-accused B.C. and the lawyers for the applicant and B.C. The trial court fixed the dates of the subsequent hearings for 17 June and 1 July 1997.

At the hearing on 17 June 1997 the co-accused B.C. failed to appear. His lawyer submitted to the court a certificate of sick leave issued by a psychiatrist and stated that B.C. was continuously receiving intimidating phone calls in connection with the proceedings. The lawyer also requested the court to make a severance order in respect of B.C. The trial court rejected that request and observed that B.C. was attempting to evade trial. It also ordered that B.C. be arrested on 27 August 1997 and brought to trial by the police.

At the same hearing the applicant's lawyer requested the applicant's release. The trial court dismissed the request, considering that the grounds originally given for the applicant's detention were still valid and that there were no new circumstances which would justify the termination of the detention.

The trial court decided to adjourn the trial until 28 August 1997.

The hearing fixed for 28 August 1997 was adjourned until 9 October 1997. The co-accused B.C. failed to appear at the hearing since he had been hospitalised. The trial court ordered that the co-accused B.C. be arrested on 6 October 1997 and brought to the hearing by the police.

On 12 September 1997 the District Court ordered that the co-accused B.C. be detained on remand, considering that his behaviour clearly jeopardised the proper conduct of the proceedings.

On 7 October 1997 the trial court heard three witnesses. A hearing scheduled for 9 October 1997 was adjourned until 13 November 1997. On that date the District Court heard one witness and decided to close the trial. The applicant's lawyer requested that his client be released.

On 14 November 1997 the Lębork District Court delivered its judgment. It convicted the applicant as charged and sentenced him to three years' imprisonment and a fine. It also dismissed a request for the applicant's release. The applicant appealed.

On 6 February 1998 the Slupsk Regional Court amended the first-instance judgment in favour of the applicant by reducing the sentence of imprisonment to one year and a half.

2. The second set of criminal proceedings against the applicant (no. II K 52/97)

On 12 November 1996 the applicant was arrested on suspicion of extortion committed at the beginning of October 1996.

On 14 November 1996 the Lębork District Court ordered that the applicant be detained on remand until 13 January 1997. The court considered that the evidence obtained so far in the investigation, in particular through the testimony of witnesses, revealed a great likelihood that the applicant had committed the offence with which he had been charged. It also pointed to the severity of the anticipated penalty and the risk that the applicant would go into hiding and attempt to induce witnesses and the victim to change their testimonies.

On 18 November 1996 the applicant requested to be released or to have his detention replaced by a more lenient preventive measure. On 29 November 1996 the Słupsk Regional Court (Sąd Wojewódzki) upheld the decision of 14 November 1996.

On 11 December 1996 the applicant's lawyer requested that the applicant be examined by psychiatrists. On 23 December 1996 the prosecutor ordered that the applicant be examined by two experts in psychiatry in order to determine whether he could stand for trial.

On 3 January 1997 the District Prosecutor appointed an expert in psychology in order to examine the applicant. On 7 January 1997 the expert's report was submitted to the prosecutor.

On 7 January 1997 the Lębork District Court prolonged the applicant's detention until 12 February 1997, referring to the necessity to carry out certain investigative measures.

On 10 January 1997 the applicant was granted access to the case-file of the investigation.

On 13 January 1997 the District Prosecutor lodged with the Lębork District Court a bill of indictment against the applicant and three co-accused persons. The prosecutor asked the trial court to hear eleven witnesses.

On 10 February 1997 the President of the District Court fixed the dates of the hearings for 25 and 27 February 1997. On 13 February 1997 the applicant's lawyer requested the trial court to postpone the hearing scheduled for 25 February 1997 since on that date he had to attend another hearing.

At the hearing held on 25 February 1997 the court heard the co-accused R.G.-D. Subsequently, the latter's lawyer resigned, obliging the court to adjourn the hearing until 25 March 1997.

At the hearing of 25 March 1997 the trial court heard one of the co-accused and some witnesses. Subsequently, the District Court decided that the charges brought in the case should be characterised as armed robbery and that it did not have jurisdiction to hear the case due to the gravity of the charges. Accordingly, the case was transmitted to the Słupsk Regional Court, sitting as a court of first-instance, and registered under no. II K 25/97 on 8 April 1997.

On 21 April 1997 the applicant filed an application for release. On 23 April 1997 the Słupsk Regional Court dismissed the application. It relied on the great likelihood that the applicant had committed the offence at issue. The Regional Court emphasised the severity of the penalty likely to be imposed on the applicant. It further referred to the need to ensure the proper conduct of the proceedings, which concerned four co-accused persons. The court rejected as irrelevant the applicant's argument that his detention in the present case “duplicated” the detention order made in the first set of proceedings. Lastly, the court considered that there were no circumstances which would justify the termination of the applicant's detention pursuant to Article 218 of the Code of Criminal Procedure.

On 9 May 1997 the Regional Court refused to join case no. II K 77/97 (the first set of proceedings) to the present case. It considered that the three co-accused persons were different in each case and that the applicant was the only accused person to face charges in both sets of proceedings.

On 23 and 24 May 1997 the applicant was granted access to the case-file. On 22 July 1997 the President of the Regional Court fixed the dates of the hearing for 5 and 6 November 1997.

The court held hearings on 5 and 6 November 1997. On 5 November 1997 the applicant again requested his release. On the following day the applicant was released but continued to be detained in the framework of the first set of proceedings.

On 5 December 1997 the trial court held a hearing and delivered a judgment. It sentenced the applicant to one year's imprisonment.

The judgment became final on 24 June 1998.

On 28 January 2000, upon the applicant's request, the Słupsk Regional Court issued a cumulative judgment (wyrok łączny) sentencing the applicant to a cumulative penalty of one year and ten months' imprisonment (kara łączna) for the convictions contained in the judgments of 6 February 1998 (delivered in the course of the first set of proceedings) and of 5 December 1997 (delivered in the course of the second set of proceedings). The applicant appealed. On 11 May 2000 the Gdańsk Court of Appeal (Sąd Apelacyjny) upheld the judgment.

B. Relevant domestic law and practice

At the material time the domestic provisions governing detention on remand were contained in the Code of Criminal Procedure of 1969, which is no longer in force as it was repealed and replaced by the Code of Criminal Procedure of 6 June 1997, which entered into force on 1 September 1998.

The 1969 Code of Criminal Procedure listed detention among the so-called “preventive measures” imposed by a prosecutor (which also included, inter alia, bail and police supervision). After 4 August 1996 (that is, the date on which the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes came into force) detention on remand could be imposed, pursuant to Article 210 § 3, only by a court.

Article 209 of the Code of Criminal Procedure set out the general grounds for the imposition of preventive measures. That provision, as it stood at the relevant time, provided:

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

Article 217 § 1 of the Code defined grounds for detention on remand. At the relevant time, that provision read:

“Detention on remand may be imposed if:

(1) there is a reasonable risk that an accused person 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 person will attempt to induce witnesses to give false testimony or to obstruct the proper conduct of the proceedings by any other unlawful means.”

The 1969 Code set out a margin of discretion for deciding whether to maintain a specific preventive measure. Articles 213 § 1, 218 and 225 of the Code were based on the idea that detention on remand, the most severe among the preventive measures, should not be imposed if more lenient means were adequate.

Article 213 § 1 provided:

“A preventive measure [including detention on remand] shall be immediately lifted or varied if the basis therefor has ceased to exist or if new circumstances have arisen which justify ending a given measure or replacing it by a more or less severe one.”

Article 225 stated:

“Detention on remand shall be imposed only when it is mandatory; it shall not be imposed if bail or police supervision, or both, are considered adequate.”

Finally, Article 218 provided:

“If there are no special reasons to the contrary, detention on remand shall be ended, 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.”

Article 214 of the 1969 Code, in the version applicable at the material time, stated, in so far as relevant:

“An accused may at any time apply to have a preventive measure quashed or altered. ...”

Until 4 August 1996, i.e. the date on which the relevant provisions of the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes entered into force, the law did not set any time-limits for detention on remand in court proceedings; it did so only for the investigation stage.

Article 222(3) of the 1969 Code, in the version applicable after 4 August 1996, provided, in so far as relevant:

“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.”

At the relevant time there was no specific provision governing detention on remand after the bill of indictment had been lodged with the competent court. Since 4 August 1996 the courts have been and are bound by the maximum statutory time-limits for which detention on remand can be imposed during the entire course of the proceedings. However, at the material time, there was no provision stating that the lodging of a bill of indictment automatically prolonged or replaced a previous detention order, or that this event itself resulted in detention – which had originally been prolonged by a court for a fixed period at the investigation stage – being continued either for an unlimited period or until a first-instance judgment was given. Nor was there any case-law to that effect. Nevertheless, according to domestic practice, once a bill of indictment had been lodged with the court competent to deal with the case, detention was assumed to be prolonged pending trial even in the absence of any further judicial decision.

It was only on 6 February 1997 that the Supreme Court, referring to the historical background of the amended criminal legislation, mentioned the practice of keeping an accused person in detention under the bill of indictment. It did so in a ruling on the interpretation of the Code of Criminal Procedure. That ruling related to the Code as amended with effect from 4 August 1996, where Article 222 (as amended) set out maximum time-limits for detention on remand not only at the investigation stage but at the whole pre-trial stage. In its Resolution no. I KZP 35/96 the Supreme Court replied – in the affirmative – to the question of whether, after the lodging of a bill of indictment with the competent court, that court was obliged to issue a decision prolonging the detention on remand which had, meanwhile, exceeded the period fixed (or prolonged) at the investigation stage. The relevant parts of the resolution read as follows:

“Under the provisions of the Code of Criminal Procedure which applied before [4 August 1996, when] the amendment of 29 June 1995 took effect, an obligation to determine the period of detention imposed by a prosecutor at the investigation stage was laid down in Article 211 § 2. However, it did not emerge explicitly from Article 222 §§ 1 and 2 (1) of the Code that, at the investigation stage, a prosecutor or the court competent to deal with the case had each time to determine the point until which detention should last. It was deemed to be obvious that, when prolonging detention at the investigation stage, both the prosecutor and the court competent to deal with the case had to determine the time until which detention was to last under a given decision. It was therefore assumed that the obligation to determine the period of detention arose if a decision on that matter was given before the expiry of the maximum statutory terms applicable at a given stage of the proceedings.

Comparing the old legislation with the present one leads [this Court] to the conclusion that the legislator, when amending the Code in June 1995, simply extended [the scope of] the rules applicable to continuing and prolonging detention on remand – which had previously applied only at the investigation stage – to the phase of court proceedings.

Before the amendment, the legislation was based on the idea that a suspect should not be detained indefinitely as long as his case was not being dealt with by an independent court. Now the starting-point is that a suspect (and an accused person) should not be detained indefinitely, as long as a first-instance judgment is not rendered.

Under the previous legislation there was no need to determine the period of detention after a bill of indictment had been lodged with the court because at this point proceedings reached the phase in which there was no statutory time-limit [on this measure]. For this reason, the court concerned had no interest in [knowing] until when detention had been prolonged under the last decision[;] detention could continue because 'detention of limited duration' had become 'detention of unlimited duration'. There was therefore only a need to ascertain whether there were grounds for continuing detention under Article 213 of the Code.”

In its further Resolution no. I KZP 23/97 of 2 September 1997, the Supreme Court confirmed that:

“If the case in which detention on remand was ordered has been referred to a court with a bill of indictment and the period of detention previously fixed has expired, the court has a duty to consider whether detention needs to be continued and to give an appropriate decision on this matter.”

Referring to its ruling of 6 February 1997, it also stressed that:

“... the ratio legis of the amendments to the criminal legislation is based on the concept that a suspect (accused person) should in no case be detained indefinitely until the first-instance judgment is rendered in his case...

It should be noted that, from the point of view of procedural safeguards for an accused person, what is material is not how long his detention at the investigation stage has lasted and how long it has lasted at the stage of the court proceedings, but the total period of his detention and whether his detention and its length are subject to review. If there is such a review at the investigation stage (Article 222 §§ 1 and 2), there is no reason why there should not be one at the stage of the court proceedings...”

COMPLAINTS

1. The applicant complained under Article 5 § 1 of the Convention that in the first set of proceedings against him, his pre-trial detention between 13 February and 14 November 1997 had been unlawful since in the relevant period there had been no judicial decision on the prolongation of this measure.

2. The applicant further complained under Article 5 § 1 of the Convention that in the second set of proceedings against him, his detention on remand between 13 February and 6 November 1997 had been unlawful since in the relevant period there had been no judicial decision authorising his continued detention.

3. The applicant also alleged a breach of Article 5 § 3 of the Convention in respect of both sets of proceedings.

THE LAW

1. The applicant complained under Article 5 § 1 of the Convention that in the first set of proceedings his detention between 13 February and 14 November 1997 had been unlawful.

Article 5 § 1, in so far as relevant, 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;

...”

A. The Government's objection as to the non-exhaustion of domestic remedies

The Government submitted that the applicant had not exhausted the available domestic remedies by failing to avail himself of an application for release from detention in the period between 13 February and 17 June 1997. They further submitted that although the applicant had filed two applications for release on 17 June and 13 November 1997, respectively, he had not thereby contested the lawfulness of his detention.

The Government maintained that in the Baranowski v. Poland case (judgment of 28 March 2000, §§ 14-19 and 53) the Court had clearly accepted that an application for release constituted an effective remedy by finding that the decision on Mr Baranowski's application for release had terminated the period of his unlawful detention.

The applicant submitted that he had made use of the remedy referred to by the Government on 17 June and 13 November 1997 and complained, in substance, of the unlawful character of his detention, but to no avail. He consequently maintained that an application for release could not be considered an effective remedy in the circumstances of the present case.

The Court recalls that the purpose of Article 35 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions (see, for example, Selmouni v. France [GC], no. 25803/94, § 74, RJD 1999-V). However, the only remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are both available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see Selmouni, cited above, § 75).

The Court recalls that at the material time there was a domestic practice of keeping persons in detention under a bill of indictment. This practice was not based on any specific legislative provision or case-law, but stemmed from the fact that the Polish criminal legislation at the relevant time lacked clear rules governing the situation of a detainee in court proceedings after the expiry of the term of his detention fixed in the last detention order made at the investigation stage (see Baranowski cited above, § 54).

The Court observes that the applicant did avail himself of the remedy referred to by the Government by applications for release made on 17 June and 13 November 1997. However, the Court finds that that remedy could not be considered effective within the meaning of Article 35 § 1 of the Convention, since it did not have any practical effect on the applicant's situation. Despite having used that remedy, he continued to be detained solely on the basis of the domestic practice referred to above (cf. Ciszewski v. Poland, (dec.), no. 38668/97, 6 January 2004).

Against this background, the Court considers that the Government has failed to establish that the application for release was an effective remedy in the circumstances of the present case. It follows that the Government's objection must be rejected.

B. Merits of the complaint

The applicant submitted that his detention between 13 February and 14 November 1997 was unlawful within the meaning of Article 5 § 1 of the Convention.

The Government argued that after 13 February 1997 the Lębork District Court decided on the applicant's detention for the first time on 17 June 1997, upon the applicant's request for release. Thus, as from that date the applicant's detention was authorised by a judicial decision which provided an appropriate legal basis for his continued detention.

Accordingly the Government submitted that the complaint about the unlawfulness of the applicant's detention could concern only the period from 13 February to 17 June 1997. In respect of that period, the Government refrained from assessing its compliance with Article 5 § 1 of the Convention.

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. It therefore concludes 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.

2. The applicant further complained under Article 5 § 1 of the Convention that, in the second set of proceedings, his detention between 13 February and 6 November 1997 was unlawful.

A. The Government's objection as to the non-exhaustion of domestic remedies

The Government argued, as in respect of the first set of proceedings, that the applicant had failed to exhaust domestic remedies as he had not filed an application for release in the relevant time in order to contest the lawfulness of his detention.

The applicant maintained that he had vainly filed a number of applications for release with the courts. He thus asserted that the remedy at issue could not be considered effective.

Having regard to the reasons given above in respect of the first set of proceedings, the Court finds that the Government's objection must also be rejected.

B. Merits of the complaint

The applicant claimed that his detention from 13 February to 6 November 1997 was unlawful within the meaning of Article 5 § 1 of the Convention.

The Government submitted that on 23 April 1997 the Słupsk Regional Court ruled on the applicant's request to be released. They thus maintained that as from that date the applicant's detention was based on a judicial decision which constituted an appropriate legal basis for his detention.

Accordingly, the Government stressed that the applicant could complain of the unlawful character of his detention only in respect of the period from 13 February to 23 April 1997. They refrained from assessing the compatibility of the applicant's detention in that period with Article 5 § 1 of the Convention.

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. It therefore concludes 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.

3. The applicant also alleged a breach of Article 5 § 3 of the Convention in respect of both sets of proceedings. The relevant part of that provision reads:

“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 applicant argued that his right to be released pending trial had been violated in respect of both sets of proceedings. He asserted that the penalties imposed on him and the periods of his pre-trial detention in both sets of proceedings justified his complaint about a breach of Article 5 § 3 of the Convention. He further maintained that in the first set of proceedings there had been no risk of his going into hiding. In respect of the second set of proceedings, the applicant argued that the courts relied on the unfounded allegation that he would tamper with the evidence.

The Government, having regard to the circumstances of both sets of proceedings, submitted that the applicant's detention had been indispensable and the only measure apt to secure the proper conduct of those proceedings.

They submitted that in the first set of proceedings the Lębork District Court, in its detention order of 14 November 1996, had invoked the gravity of the charges, the risk of absconding and the risk of collusion as reasons for keeping the applicant in custody.

In respect of the second set of proceedings, the Government submitted that the courts, when ordering the applicant's detention, had relied on the gravity of the charges, the risk of the applicant's going into hiding and the risk of his tampering with the evidence. They maintained that in its decision of 23 April 1997 the Słupsk Regional Court had emphasised that the applicant's detention was necessary to secure the proper conduct of the proceedings against four co-accused persons.

The Government also stressed that the risks of collusion and of absconding invoked by the courts had been attested to by objective circumstances. They submitted that in the second set of proceedings the police had to search for the applicant prior to his arrest. Secondly, the Government referred to the fact that in the first set of proceedings one of the co-accused persons had informed the trial court that he had been intimidated by the applicant.

The Court considers that the applicant's complaint under Article 5 § 3 of the Convention should be examined from the angle of the guarantee “to trial within a reasonable time or to release pending trial”.

In respect of the first set of proceedings, the Court observes that the applicant was detained on remand on 12 November 1996 and convicted by the first-instance court on 14 November 1997. Accordingly, the period of his detention for the purposes of Article 5 § 3 of the Convention was 1 year and 2 days.

In respect of the second set of proceedings, the Court notes that the applicant was detained on remand on 12 November 1996 and released on 6 November 1997. Thus, he spent nearly 1 year in detention pending trial.

The Court recalls that the question of whether or not a period of detention is reasonable cannot be answered in the abstract. Whether it is reasonable for an accused person to remain in detention must be assessed case by case. Continued detention can be justified only if there are specific indications of a genuine public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, §§ 110-111, with further references, ECHR 2000-XI).

It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must, paying due regard to the presumption of innocence, examine all the facts arguing for or against the existence of the above-mentioned requirement of public interest justifying a departure from the rule in Article 5, and they must set them out in their decisions on the applications for release. It is essentially on the basis of the reasons given in these decisions and of well-documented facts stated by the applicant in his appeals that the Court can decide whether or not there has been a violation of Article 5 § 3 (see Jabłoński v. Poland, no. 33492/96, § 80, 21 December 2000).

The persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of continued detention, but after a certain lapse of time it no longer suffices. The Court must then establish whether the other grounds given by the judicial authorities justify a continued deprivation of liberty. Where such grounds are “relevant” and “sufficient”, the Court must also be satisfied that the national authorities displayed “special diligence” in the conduct of the proceedings (see Klamecki v. Poland (no. 2), no. 31583/96, § 119, 3 April 2003).

Regarding the first set of proceedings, the Court observes that, when originally placing the applicant in detention, the Lębork District Court relied on the reasonable suspicion that he had committed the offence of attempted extortion, having regard to the victim's testimony. The District Court also considered that the applicant's detention was justified by the severity of the anticipated penalty and by the risk of the applicant's going into hiding and tampering with the evidence. In respect of the former risk, the District Court pointed to the fact that in the second set of proceedings the police had had to search for the applicant for over a month. In the subsequent decision on the applicant's detention, made on 17 June 1997, the District Court considered that the grounds originally given for detention were still valid and that there were no circumstances which would justify the lifting of the detention.

In respect of the second set of the proceedings, the Court observes that when ordering the detention, the Lębork District Court relied on the reasonable suspicion that the applicant had committed the offence with which he had been charged. It also had regard to the severity of the anticipated penalty and the risk that the applicant would go into hiding and tamper with the evidence. In the subsequent decision of 23 April 1997, the Słupsk Regional Court additionally considered that the applicant's detention was necessary to ensure the proper conduct of the proceedings against the four co-accused persons. Moreover, it found no circumstances which would justify the lifting of the applicant's detention pursuant to Article 218 of the Code of Criminal Procedure.

The Court notes that the length of the applicant's detention in the first set of proceedings was 1 year and 2 days, and nearly 1 year in the second set of proceedings. In the Court's view, those periods of detention on remand could not be regarded as excessive. Furthermore, the Court considers that the grounds invoked by the domestic authorities in their decisions on the applicant's detention could suffice to justify both periods of detention.

The Court must also determine whether the national authorities displayed “special diligence” in the conduct of both sets of proceedings. In that connection, in so far as the first set of proceedings is concerned, the Court observes that the trial court appears to have initially faced some obstruction in the conduct of the proceedings from B.C., one of the co-accused persons. In respect of the second set of proceedings, the Court notes that, after the re-classification of the offence with which the applicant had been charged, the case was transferred from the Lębork District Court to the Słupsk Regional Court on an unspecified date at the beginning of April 1997. Assessing the diligence displayed by the authorities, the Court notes that in both sets of proceedings, at their investigation stages, the applicant asked to be examined by psychiatrists in order to determine whether he could stand for trial. In bots sets of proceedings the relevant reports were submitted to the prosecuting authorities without undue delay. The Court attaches importance to the fact that that the authorities were faced with the difficulties related to the conduct of two parallel trials, first before the same District Court, and subsequently, as from April 1997, after the transfer of the second case to the Regional Court, before two different courts. It also takes account of the fact that there were 4 co-accused persons in the first set of proceedings and 4 in the second set, while the applicant was the only of those accused to be tried in both sets of proceedings. Taking into account all the relevant circumstances, the Court finds that the authorities did display “special diligence” in the conduct of both sets of proceedings.

Against this background, and having regard to the overall period of the applicant's detention in both proceedings, the Court considers that the applicant's right to trial within a reasonable time or to release pending trial was respected. 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 complaints under Article 5 § 1 of the Convention concerning the unlawful character of his pre-trial detention in both sets of proceedings;

Declares the remainder of the application inadmissible.

Vincent BergerBoštjan M. Zupančič
RegistrarPresident

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