AS TO THE ADMISSIBILITY OF
Application No. 30210/96
by Andrzej KUDLA
against Poland
The European Commission of Human Rights sitting in private on
20 April 1998, the following members being present:
MM S. TRECHSEL, President
M.P. PELLONPÄÄ
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J. -C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
A. PERENIC
C. BÎRSAN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs M. HION
MM R. NICOLINI
A. ARABADJIEV
Mr M. de SALVIA, Secretary to the Commission.
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 12 April 1995 by
Andrzej KUDLA against Poland and registered on 15 February 1996 under
file No. 30210/95;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
25 June 1997 and the observations in reply submitted by the
applicant on 18 September 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Polish citizen born in 1962. He is a
technician by profession and resides in Kraków, Poland.
The facts of the case, as submitted by the parties, may be
summarised as follows:
A. Particular circumstances of the case
On 8 August 1991 the Kraków Regional Prosecutor (Prokurator
Wojewódzki) charged the applicant with fraud and forgery and detained
him on remand. Shortly afterwards the applicant reported to the
investigating prosecutor that he was suffering from various ailments,
including depression. On an unspecified date the authorities ordered
that the applicant be examined by a doctor. The medical examination
concerned did not reveal circumstances militating in favour of his
release. The applicant was placed in the Kraków Detention Centre.
On an unspecified date the applicant appealed against the
detention order.
On 21 August 1991 the Kraków Regional Court (S*d Wojewódzki)
dismissed his appeal in view of the high probability that the applicant
had committed the offences in question. The court also found that
according to the medical examination previously ordered there were no
circumstances concerning the applicant's health which might have argued
for his release.
Between August 1991 and the end of July 1992 the applicant lodged
thirty applications for release and appeals against decisions to
maintain his detention.
In the meantime, on an unspecified date in October 1991, the
applicant attempted to commit suicide in prison. As from 4 November
1991 he went on hunger strike for an unspecified period. Subsequently,
the authorities ordered that the applicant be examined by doctors. The
relevant report by experts of the Faculty of Forensic Psychiatry of the
Jagiellonian University, dated 25 November 1991, stated that the
applicant could not be detained in an ordinary prison. Therefore, if
his detention was to be continued, he should be confined in a
psychiatric ward of a prison hospital. The applicant was placed in the
Bytom Prison Hospital where, at the material time, there was no
psychiatric ward. He was placed in an internal diseases ward and
received treatment for his mental illness. The applicant stayed in the
hospital for an unspecified period following which he was brought back
to the Kraków Detention Centre.
On 20 January and 27 February 1992 the applicant was examined by
medical experts. They concluded that the applicant needed psychiatric
treatment in prison but that it was not necessary to place him in a
psychiatric ward of a prison hospital.
On 30 April 1992 a bill of indictment against the applicant was
lodged with the Kraków Regional Court. The case-file comprised
nineteen volumes. In all twenty-nine charges were brought against the
applicant and nine co-defendants. The prosecution requested the court
to hear evidence from ninety-eight witnesses.
On 15 June 1992 experts from the Kraków Clinic of Psychiatry and
the Faculty of Medicine of the Jagiellonian University prepared a
report concerning the applicant's psychological state. The report
stated, inter alia:
" ... The patient shows persistent suicidal tendencies. Following
the medical examination we find that he suffers from a deep
syndrome of depression coupled with thoughts of suicide. In the
light of the intensity of suicidal thoughts and of the fact that
he has already attempted to commit suicide, he should receive
psychiatric treatment. His detention on remand amounts to a
serious danger to his life (a grave risk of a further attempt to
commit suicide)... ."
On 27 July 1992 the Kraków Regional Court quashed the detention
order.
On 26, 27 and 28 October, and 14 and 15 December 1992 the court
held hearings in the applicant's case. The hearings scheduled for
8 February and 16 March 1993 were cancelled due to the applicant's
absence. On both occasions his defence counsel submitted medical
certificates confirming that the applicant was ill.
In the meantime, on 18 February 1993, the Kraków Regional Court ordered
that the applicant be redetained in view of the fact that he had not
attended hearings. Subsequently, on an unspecified date, the
authorities issued a warrant to search for the applicant by means of
a wanted notice.
The detention order concerned had not been enforced by 4 October
1993, when the applicant was redetained apparently in connection with
the fact that he had committed a traffic offence. He was placed in the
Kraków Detention Centre.
The court scheduled the next hearings for 6 October, 15 and
17 November 1993 but cancelled all of them as the applicant's mental
state (in particular, his difficulties in concentrating) did not allow
him to participate properly in the trial. According to a further
expert report requested by the court on an unspecified date at this
time, the applicant's mental state did not militate against his
continued detention.
Meanwhile, on 18 October 1993, the applicant's lawyer appealed
against the detention order, arguing that the applicant, following his
release on 27 July 1992, had received continuous treatment for his
severe depression and that his illness had apparently influenced his
behaviour.
On an unspecified date the Kraków Regional Court dismissed the
above appeal.
Between October 1993 and November 1994 the applicant
unsuccessfully lodged twenty-one requests for release and appeals
against the decisions to maintain his detention.
On 13, 14 and 16 December 1993 the court held hearings in the
applicant's case. On 19 January 1994 the next hearing was cancelled
as, in the meantime, the applicant had attempted to commit suicide by
taking an overdose.
On 14, 15 and 16 February 1994 the court held hearings in the
applicant's case. The hearings scheduled for 9 and 10 March 1994 were
cancelled as the presiding judge was ill. The next hearings took place
on 14, 15 and 16 June 1994. In the meantime, the applicant underwent
psychiatric observation in the Wroclaw Prison Hospital in connection
with a different set of proceedings.
On 11 July 1994 the court held a hearing but cancelled the
hearings scheduled for 12 and 14 July 1994 since the applicant revoked
a power of attorney granted to his defence counsel. The hearings
continued on 20, 21 and 22 September, 25 and 26 October and 14 and
15 November 1994. On 15 November 1994 the applicant refused to enter
the courtroom. The hearings scheduled for 20, 21 and 22 December 1994
were cancelled as the applicant's co-defendant had failed to appear.
In the meantime, on 17 November 1994, the applicant complained
to the Chief Justice of the Kraków Regional Court about the length of
his detention on remand and the conduct of the proceedings in his case.
He asserted, in particular, that all of his nine co-defendants had been
released while he was still being detained, and that the overall period
of his detention had meanwhile exceeded two years. He also submitted
that the minutes of the court hearings had not reflected the witnesses'
testimonies and that the court had omitted to note his and his lawyer's
submissions and had not let him freely express his version of the facts
of the case. Finally, he contended that the fact that the criminal
proceedings instituted against him had lasted more than four years had
amounted to a "nightmare".
On an unspecified date the applicant again requested the court
to release him. On 8 December 1994 the Kraków Regional Court dismissed
his request.
On 4 January 1995, upon the applicant's appeal, the Kraków Court
of Appeal (S*d Apelacyjny) upheld the above decision and held that the
detention should be maintained in view of the reasonable suspicion that
he had committed the offences in question and the fact that he had been
detained because he had absconded. The court also found that the
situation of the applicant's family, although difficult, did not argue
for his release.
On 25 January 1995 the applicant's lawyer requested that the
detention order be quashed or replaced by police supervision. He
argued that on 23 January 1995 the applicant had again attempted to
commit suicide (i.e. he had attempted to hang himself) which, coupled
with his chronic depression, had given a serious indication that
continuing detention could jeopardise his life. He submitted that the
applicant had been redetained solely because of his absence at the
hearings and, as the evidence against him had been presented, there was
no necessity to maintain the detention further.
On 13 February 1995 the Kraków Regional Court dismissed the above
request. The court held that according to a statement from the prison
authorities, the applicant's attempt to commit suicide had constituted
a "tactic to demonstrate" and that the previous reasons for continuing
the detention had not ceased to exist.
On 25 February 1995 the applicant's lawyer lodged an appeal
against the decision of 13 February 1995. He submitted that the
applicant's mental health had deteriorated as he was constantly
suffering from depression. He also requested the court to call
psychiatric and other medical experts to assess the applicant's state
of health instead of relying on the assessment given by the prison
authorities. He argued that the length of the criminal proceedings in
question was excessive and that the period of the applicant's detention
on remand had meanwhile exceeded two years and four months.
On 2 March 1995 the Kraków Court of Appeal dismissed this appeal.
The court held, inter alia, that it was not necessary to call medical
experts and that the detention should be maintained in order to ensure
the due course of proceedings.
Between 8 March 1995 and 1 June 1995 the applicant filed four
unsuccessful applications for release and appeals against decisions to
maintain his detention.
On 13, 14 and 15 March, 3, 4 and 5 April, and 4, 5, 30 and 31 May
1994 the court held hearings during which evidence from witnesses was
heard.
On 1 June 1995 the Kraków Regional Court convicted the applicant
of fraud and forgery and sentenced him to six years' imprisonment and
a fine of PLN 5,000.
On 2 June 1995 the applicant and his lawyer filed a notice of
appeal.
On 1 August 1995 the applicant complained to the Minister of
Justice that the statement of the reasons for the judgment of the court
of first instance had not been prepared within the statutory time-
limit. He submitted that the delay in question amounted to two months.
On an unspecified date the applicant requested to be released,
arguing that his prolonged detention had entailed burdensome effects
on his health and the well-being of his family.
On 14 August 1995 the Kraków Regional Court dismissed his
request. On 31 August 1995, upon the applicant's appeal, the Kraków
Court of Appeal upheld this decision and held that the detention should
be maintained in view of the fact that the applicant had been sentenced
to six years' imprisonment by the court of first instance.
On an unspecified date the applicant complained to the Minister
of Justice about the length of the proceedings in his case, stressing
that the Kraków Regional Court had failed to provide him with the
written reasoning of the judgment within the statutory time-limit, thus
unnecessarily prolonging the appellate proceedings.
On 28 August 1995 the Head of the Criminal Department of the
Ministry of Justice, in reply to the applicant's complaint, informed
him that it was likely that the written reasoning of the judgment would
exceed two hundred pages and that the non-compliance with the statutory
time-limits had resulted from the fact that the judge-rapporteur was
on vacation.
On 6 October 1995 the applicant received a statement of the
reasons for the judgment of the court of first instance.
In October 1995, on an unspecified date, the applicant's lawyer
lodged an appeal against the judgment of the Kraków Regional Court of
1 June 1995.
On 14 November 1995 the case-file was transferred to the Kraków
Court of Appeal.
On 22 February 1996 the Kraków Court of Appeal quashed the
judgment of the court of first instance. It remitted the case to that
court on the ground that the court had been improperly composed and
that there had been serious violations of procedural provisions.
In the course of the appellate hearing the applicant's lawyer
unsuccessfully requested the court to quash the detention order.
On 11 April 1996 the case was remitted to the court of first
instance.
On 30 April 1996 the applicant requested that the preventive
measure imposed on him be quashed or altered.
On 28 May 1996 the Kraków Regional Court gave a decision which
stated, inter alia, that:
"... At the present stage of the case the due course of the
proceedings can be ensured by imposing preventive measures other
than detention on remand. ... The court therefore subjects the
quashing of the detention order to the condition that the
applicant will secure bail in the amount of PLN 10,000 within one
month from the date on which this decision is served on him. ..."
On an unspecified date the applicant appealed against the above
decision, requesting, in particular, that the amount of bail be lowered
in accordance with his financial situation or that another preventive
measure be imposed on him, i.e. police supervision.
On 11 June 1996 a psychiatric expert submitted a report to the
court, stating that the applicant was in a state of chronic depression
coupled with suicidal thoughts. He also asserted that the applicant
was able to participate in hearings but that continuing detention could
jeopardise his life in view of the likelihood that he would attempt to
commit suicide.
On 20 June 1996 the Kraków Court of Appeal dismissed the
applicant's appeal against the decision of 28 May 1996, holding that
the amount of bail was not excessive.
On an unspecified date the applicant complained to the Ombudsman
that the overall length of his detention on remand had meanwhile
exceeded three years. This complaint was referred to the Chief Justice
of the Kraków Court of Appeal.
In the meantime, on an unspecified date, the applicant's lawyer
again requested the Kraków Regional Court to alter the preventive
measure imposed on his client or to lower the amount of bail fixed by
the decision of that court of 28 May 1996. On 2 July 1996 the court
dismissed this request.
On 12 July 1996 the Chief Justice of the Kraków Court of Appeal
replied to the applicant's complaint (which had originally been
addressed to the Ombudsman) stating, in particular:
"... You were indicted of fraud and forgery on 30 April 1992.
The bill of indictment concerned ten co-defendants and evidence
from ninety-eight witnesses was to be taken. The proceedings
were delayed due to the fact that you had been in hiding until
your subsequent detention in October 1993. You have also lodged
numerous requests for release. ... The length of the proceedings
between the date of the judgment of the court of first instance
and the date on which the case-file was sent to the Court of
Appeal was justified by the volume of your case-file and the
length of the statement of reasons for the judgment (twenty-nine
volumes and one hundred and forty pages, respectively). ... The
written reasoning of the judgment was ready before 16 August 1995
and was sent on 16 September 1995 due to the fact that the judge-
rapporteur was on leave. The only delay concerned the
examination of your request for release of 30 April 1996 as it
was examined on 28 May 1996 due to the fact that between 1 May
and 5 May 1996 there had been a public holiday. ..."
In the meantime, on an unspecified date, the applicant's lawyer
appealed against the decision of the Kraków Regional Court of 2 July
1996, arguing that in the light of the psychiatric report of 11 June
1996 the detention order should be quashed in view of the fact that the
applicant's life was in danger.
On 18 July 1996 the Kraków Court of Appeal dismissed the above
appeal and found that the danger to the applicant's life was not
absolute as, in the court's opinion, he could obtain psychiatric
consultation in prison. The court also held that the detention order
could be quashed provided the bail of PLN 10,000 was paid.
On 31 July 1996 the applicant again requested the Kraków Regional
Court to lower the amount of bail fixed or to alter the preventive
measure imposed, submitting that he did not have sufficient financial
resources to secure such an amount of bail.
On 19 August 1996 the court dismissed this request and found that
the applicant's submissions concerning the problem of bail had amounted
to an "unjustified polemic with the organs of justice" and that bail
could be also offered by "third persons".
On an unspecified date the applicant requested the Kraków
Regional Court to release him in order to enable him to pay the sum of
bail fixed.
On 10 September 1996 the court dismissed this request finding,
inter alia, that:
"... It is logical that the applicant should be released after
the bail is paid. The accused's request to reverse the sequence
of events is against the rules of procedure and common sense and,
therefore, it must be dismissed. ..."
On 29 October 1996 the detention order was quashed by the Kraków
Regional Court since the applicant's family had meanwhile paid the bail
of PLN 10,000 into court.
From 22 February 1996, i.e. the date on which the appellate
hearing before the Kraków Court of Appeal took place, to at least
18 September 1997 no hearing on the merits was held in the applicant's
case.
The proceedings are pending before the Kraków Regional Court.
B. Relevant domestic law and practice
1. Preventive measures, in particular, detention on remand.
The Polish Code of Criminal Procedure lists as preventive
measures, inter alia, detention on remand, bail and police supervision.
Section 209 of the Code of Criminal Procedure provides:
"Preventive measures may be imposed in order to secure the due
course of proceedings if the evidence against the accused
sufficiently justifies the opinion that he has committed a
criminal offence."
The Code of Criminal Procedure sets out the margin of discretion
as to maintaining the specific preventive measure. Detention on remand
is regarded as the most extreme among the preventive measures and the
domestic law lays down that in principle it should not be imposed if
more lenient measures are adequate or sufficient.
Section 213 of the Code of Criminal Procedure provides:
"1. A preventive measure (including detention on remand) shall
be immediately quashed or altered, if the basis therefor has
ceased to exist or new circumstances have arisen which justify
quashing or replacing a given measure with a more or less severe
one."
Section 225 of the Code of Criminal Procedure provides:
"Detention on remand shall be imposed only when it is mandatory;
this measure shall not be imposed if bail or police supervision,
or both of these measures, are considered adequate."
Within the above margin of discretion the Code of Criminal
Procedure sets out a list of particular instances in which detention
on remand may be imposed.
Section 217 of the Code of Criminal Procedure, in the version
applicable at the material time, insofar as relevant, provided:
"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 domicile [in Poland], or:
2. there is a reasonable risk that he will attempt to induce
witnesses to give false testimony or to obstruct the due course
of the proceedings by any other unlawful means. ..."
Finally, the Code of Criminal Procedure refers to particular
situations in which detention on remand shall not, in principle, be
maintained.
Section 218 of the Code of Criminal Procedure, in the version
applicable at the material time, provided:
"If there are no special reasons to the contrary, detention on
remand shall be quashed, in particular when:
(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."
As regards bail, according to the domestic practice, the sum of
money required from an accused must be paid into court before the
person concerned is released.
2. Medical treatment of an accused in the course of detention on
remand.
Section 219 of the Polish Code of Criminal Procedure provides:
"If the state of health of an accused requires treatment in a
medical establishment, he cannot be further detained except in
such an establishment."
3. Statutory time-limits for preparing the statement of the reasons
for the judgment of the court of first instance where appellate
proceedings have been brought.
Section 371 of the Code of Criminal Procedure, insofar as
relevant, provides:
"1. The statement of the reasons for the judgment shall be
prepared within seven days from the date on which a notice of
appeal has been lodged; in a complex case, when it is impossible
to prepare it within the prescribed time-limit, the chief justice
of the court may extend the time-limit for a specified time..."
The above statement is a prerequisite for lodging an appeal
against the judgment of the court of first instance.
4. Request for release.
According to Section 214 of the Code of Criminal Procedure, an
accused may, at any time, lodge a request for release with the court
competent to deal with his case. Such a request must be decided by the
court within a period not exceeding three days.
5. Domestic remedies against excessive length of proceedings.
The Polish Code of Criminal Procedure provides for two principal
remedies, i.e. so-called "appellate measures": an appeal which, under
Section 374 et seq. of the Code, may be brought solely against a
judgment of a court and an interlocutory appeal which, under Section
409 et seq. of the Code, may be brought against decisions other than
judgments and against orders for preventive measures. There is no
specific provision explicitly providing remedies against inactivity on
the part of the judiciary or the lack of a decision in the course of
criminal proceedings.
On 2 April 1997 the new Constitution of Poland was adopted by the
National Assembly.
Article 45 para. 1 of the Constitution states:
"1. Everyone shall have the right to a fair and public hearing,
without undue delay, before a competent, impartial and
independent court."
Article 79 para. 1 of the Constitution, which refers to a
constitutional complaint, states:
"1. In accordance with principles specified by statute,
everyone whose constitutional freedoms or rights have been
infringed, shall have the right to appeal to the Constitutional
Court for a judgment on the conformity with the Constitution of
a statute or another normative act on the basis of which a court
or organ of public administration has made a final decision on
his freedoms, rights or obligations as specified in the
Constitution."
Regardless of the fact that, to date, there has been no relevant
jurisprudence of the Constitutional Court relating to the manner of
exercise of the right to make a constitutional complaint, such a remedy
can be attempted only after a final decision in court or other
proceedings has been given.
COMPLAINTS
1. The applicant complains first under Article 3 of the Convention
that the refusals to release him from detention on remand in view of
his state of health and his family situation were contrary to this
provision of the Convention.
2. He complains under Articles 5 and 6 para. 2 of the Convention
that his detention on remand lasted for an unreasonably long time and
was, therefore, contrary to the principle of the presumption of
innocence.
3. The applicant also complains under Article 6 para. 1 of the
Convention that the criminal proceedings in his case have not been
conducted within a "reasonable time".
4. He further submits, invoking Article 6 para. 1 of the Convention,
that the above proceedings have been conducted unfairly in view of the
fact that co-defendants were treated differently, that he could not
express himself freely before the courts and that the minutes of the
hearings did not reflect the witnesses' testimonies.
5. Finally, the applicant complains under Article 13 of the
Convention that he has no domestic remedy against the length of the
proceedings in his case and against various violations of his
procedural rights.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 12 April 1995 and registered
on 15 February 1996.
On 26 February 1997 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on 25 June
1997, after the second extension of the time-limit fixed for that
purpose. The applicant replied on 18 September 1997.
The translation of the Government's observations was submitted
on 15 February 1998.
THE LAW
1. The applicant complains under Article 3 (Art. 3) of the
Convention that the refusals to release him from detention on remand
in view of his state of health and his family situation were contrary
to this provision of the Convention.
Article 3 (Art. 3) of the Convention states:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
a) The Government submit that the Convention entered into force with
respect to Poland on 19 January 1993. Poland recognised the
Commission's competence to receive individual applications "from any
person, non-governmental organisation or group of individuals claiming
to be a victim of a violation by Poland of the rights recognised in the
Convention through any act, decision or event occurring after 30 April
1993". Since all the complaints submitted by the applicant, including
the present one, relate to the criminal proceedings against him which
commenced on 8 August 1991, i.e. before 30 April 1993, the application,
insofar as it relates to events prior to this date, is outside the
competence ratione temporis of the Commission.
The applicant does not address this issue.
The Commission observes that the present application relates in
part to a period prior to 1 May 1993, the date on which Poland's
declaration acknowledging the right of individual petition took effect.
Since, in that declaration Poland, limited the Commission's competence
to facts subsequent to the declaration, the Commission, by reason of
its competence ratione temporis, can examine the applicant's complaints
only insofar as they relate to the period after this date.
It follows that this part of the application is inadmissible as
being incompatible ratione temporis with the provisions of the
Convention withion the meaning of Article 27 para. 2 (Art. 27-2).
b) The Government maintain further that in any event the applicant's
complaint under Article 3 (Art. 3) of the Convention is manifestly ill-
founded.
They stress that the applicant received medical treatment
adequate for his state of health during the entire period of his
detention. Nevertheless, he consistently deteriorated his condition
by his repeated attempts to commit suicide which were of a purposefully
demonstrative nature. The authorities concerned followed the
recommendations given by medical experts, in particular by placing him
in the psychiatric ward of the Bytom Prison Hospital in 1991 and by
releasing him on 27 July 1992. The applicant, however, following his
release on this date, had recourse to psychiatric treatment on three
occasions only.
Moreover, the Government point out that the applicant was
subsequently redetained due to the fact that he had failed to appear
before the trial court. As a consequence, the refusals to release him
complained of were justified by the need to ensure his presence at
hearings.
The applicant replies that, first of all, in 1991 there was no
psychiatric ward in the Bytom Prison Hospital where he was placed
allegedly in accordance with the recommendations given by the medical
experts. Such a ward existed, for instance, in Kraków, where he had
been detained before being confined in Bytom. For unspecified reasons
he had initially been detained in a prison ward and, following his
further attempt to commit suicide, placed in an internal diseases ward.
The authorities did not, therefore, follow the recommendations of the
medical experts' report of 25 November 1991 according to which his
detention could have been continued only on condition that he was
placed in a psychiatric ward.
As from 4 October 1993, when he was redetained, the authorities
did not provide him with adequate psychiatric treatment either. They
totally disregarded the nature of his mental suffering which, taken
together with his isolation, resulted in his having repeatedly
attempted to commit suicide in prison. The whole attitude presented
by the authorities, including their lack of any serious attempt to
treat his chronic depression, their total disregard for the fact that
his detention might have resulted in a serious danger to his life and
their highly offensive comments on his suicidal tendencies deeply
humiliated him and exposed him to feelings of fear and inferiority.
The fact that he is still alive as his attempts to commit suicide
proved unsuccessful cannot in itself suffice as evidence that the
authorities provided him with adequate treatment. In contrast, it
shows that the psychiatric treatment received by him was superficial
and insufficient.
The applicant stresses that the other co-defendants were released
on bail at an early stage of the proceedings even though they were
charged with equally serious offences. Moreover, as early as 28 May
1996, when the psychiatrist submitted his report, the authorities were
aware of the fact that his continued detention might have seriously
endangered his life. In response to this, they required an
extraordinarily high sum of bail from him, notwithstanding his state
of health and financial standing, thus subjecting him to further stress
and uncertainty. He concludes that his continued detention, maintained
regardless of the fact that it could have endangered his life, amounted
to inhuman and degrading treatment contrary to Article 3 (Art. 3) of
the Convention.
The Commission considers, in the light of the parties'
submissions, that this complaint raises complex issues of law and fact
under the Convention, the determination of which should depend on an
examination of its merits. The Commission concludes, therefore, that
this complaint is not manifestly ill-founded, within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for
declaring it inadmissible have been established.
2. The applicant also complains under Articles 5 and 6 para. 2
(Art. 5, 6-2) of the Convention that his detention on remand lasted for
an unreasonably long time and was, therefore, contrary to the principle
of the presumption of innocence.
The Commission, noting that this complaint relates solely to the
question of the length of the applicant's detention on remand, has
examined it under Article 5 para. 3 (Art. 5-3) of the Convention which,
insofar as relevant, provides:
"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 maintain that, having regard to the Commission's
competence ratione temporis, the applicant's detention on remand, which
lasted from 4 October 1993, when he was redetained, to 1 June 1995,
when he was convicted at first instance, and again from 22 February
1996, when his conviction was quashed, to 29 October 1996, when he was
released on bail, did not exceed a "reasonable time" within the meaning
of Article 5 para. 3 (Art. 5-3) of the Convention.
They emphasize that the applicant, in particular before 1 June
1995, lodged numerous requests for release and appeals against the
decisions refusing to release him. Moreover, after 22 February 1996
the applicant could have been released immediately, if had secured bail
of PLN 10,000 which was equal to approximately twelve average monthly
salaries in Poland at the material time. His failure to secure bail
resulted in the court being unable to alter the preventive measure
imposed on him.
The applicant contests the Government's submissions. He asserts
that on 4 October 1993 he was redetained because of his absence at the
hearings even though his counsel had submitted medical certificates
confirming that he had not been able to appear before the court on
account of his illness. This was an extreme measure as the court could
have first ordered a verification of the circumstances relating to his
state of health if it had not regarded the medical certificates in
question as credible or sufficient. It is true that his detention was
eventually replaced by release on bail; this was, however, solely due
to the fact that for a period of several months following the appellate
hearing the proceedings did not progress at all.
He further submits that the authorities conditioned his release
on an unusually high sum of bail. This was fixed without any reference
to his actual financial situation, since it was equal to a twenty-five
months' salary of his wife, who had less than an average income at the
material time. It took his family five months to collect the sum in
question and pay it into court. During this time all his requests to
have the bail lowered were to no avail. This inevitably and
unnecessarily prolonged his detention and resulted in deepening his
depression. Thus, as early as 11 June 1996 the psychiatrists concluded
that his continued detention could jeopardise his life.
The Commission considers, in the light of the parties'
submissions, that this complaint raises complex issues of law and fact
under the Convention, the determination of which should depend on an
examination of its merits. The Commission concludes, therefore, that
this complaint is not manifestly ill-founded, within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for
declaring it inadmissible have been established.
3. The applicant further complains under Article 6 para. 1
(Art. 6-1) of the Convention that the criminal proceedings in his case
were not conducted within a "reasonable time".
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, states:
"In the determination ... of any criminal charge against him,
everyone is entitled to a ... hearing within a reasonable time
by ... [a] ... tribunal established by law. ..."
The Government submit that the applicant's case was a complex
one. It concerned a significant number of serious charges of fraud
against ten co-accused. The court had to hear voluminous evidence.
The hearings were scheduled frequently, that is to say at intervals not
exceeding one month. The applicant obstructed the due course of the
trial since between 8 February and 4 October 1993, i.e. for a period
of nearly eight months the case remained adjourned as his absence from
hearings prompted the authorities to issue a warrant to search for him
by a wanted notice. Moreover, the fact that the applicant was placed
under psychiatric observation in another set of proceedings, and the
illness of a judge contributed to the overall length of the proceedings
before the court of first instance.
As regards the appellate proceedings, the Government point out
that they lasted for an acceptable period of approximately six months.
They conclude that the length of the proceedings in the applicant's
case has not exceeded a "reasonable time" within the meaning of Article
6 para. 1 (Art. 6-1) of the Convention.
The applicant replies that the overall length of the proceedings
complained of has, to date, exceeded six years and this period in
itself shows that the charge against him has not been determined in a
reasonable time. Moreover, from 22 February 1996, i.e. the date on
which the appellate hearing took place, to 18 September 1997, the date
on which he filed his reply to the Government's observations, no
further hearing on the merits was held in his case.
In the applicant's opinion, his absence from the hearings did not
contribute to the length of the proceedings; the relevant medical
certificates, which were disregarded by the court, clearly confirmed
that his absence was due to illness rather than a deliberate attempt
to upset the due course of the proceedings.
The Commission considers, in the light of the criteria
established by the case-law of the Convention organs on the question
of "reasonable time", and having regard to all the information in its
possession, that an examination of the merits of this complaint is
required.
4. The applicant complains under Article 13 (Art. 13) of the
Convention that he has no domestic remedy against the length of the
proceedings in his case and against various violations of his
procedural rights.
The Commission, noting that the present complaint concerns the
question of the existence of a remedy protecting the right to trial
within a reasonable time, guaranteed under Article 6 para. 1
(Art. 6-1) of the Convention cited above, has examined this complaint
under Article 6 para. 1 (Art. 6-1) and Article 13 (Art. 13) of the
Convention read together.
Article 13 (Art. 13) of the Convention provides:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
The Government submit that, under Section 409 of the Code of
Criminal Procedure, the applicant was entitled to lodge an
interlocutory appeal against any decision other than a judgment or any
decision relating to the imposition of a preventive measure on him.
Furthermore, under Section 214 of the Code he could, at any time,
request the court competent to deal with his case to quash the order
for his detention or to replace it by another measure.
They conclude that the remedies referred to by them satisfy the
requirements of Article 13 (Art. 13) of the Convention in respect of
the present complaint.
The applicant does not address this issue in his submissions.
The Commission considers, in the light of the parties'
submissions, that this complaint raises complex issues of law and fact
under the Convention, the determination of which should depend on an
examination of its merits. The Commission concludes, therefore, that
this complaint is not manifestly ill-founded, within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for
declaring it inadmissible have been established.
5. Finally, the applicant submits, invoking Article 6 para. 1
(Art. 6-1) of the Convention, that the criminal proceedings against
him were conducted unfairly in view of the fact that co-defendants were
treated differently, that he could not express himself freely before
the Kraków Regional Court and that the minutes of the hearings did not
reflect the witnesses' testimonies.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, states:
"In the determination ... of any criminal charge against him,
everyone is entitled to a fair ... hearing ... by ... [a]
tribunal established by law. ..."
However, the Commission notes that the criminal proceedings
against the applicant are still pending as his original conviction was
quashed. Thus, it observes that, at the present stage of the case, the
Commission cannot speculate as to how the applicant's trial will
continue - in particular whether, and if so to what extent, the manner
in which his case was conducted during the original proceedings before
the court of first instance might affect the fairness of the
proceedings as a whole. The Commission considers, therefore, that this
complaint is premature.
It follows that the remainder of the application is inadmissible
as being manifestly ill-founded within the meaning of Article 27 para.
2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES ADMISSIBLE, without prejudging the merits, the
applicant's complaint that the refusals to release him from
detention were contrary to Article 3 of the Convention; that the
length of his detention on remand exceeded a reasonable time,
that the criminal proceedings against him have lasted for an
unreasonably long time and that he has no domestic remedy against
the length of the proceedings in his case;
DECLARES INADMISSIBLE the remainder of the application.
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy