AS TO THE ADMISSIBILITY OF
Application No. 27914/95
by Piotr MIKULSKI
against Poland
The European Commission of Human Rights sitting in private on
19 January 1998, the following members being present:
MM S. TRECHSEL, President
J.-C. GEUS
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
Mrs G.H. THUNE
MM H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
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 14 November 1994
by Piotr Mikulski against Poland and registered on 20 July 1995 under
file No. 27914/95;
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 5 June
1997 and the observations in reply submitted by the applicant on
12 August 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Polish citizen born in 1954, is currently
imprisoned in Bialol*ka prison.
The facts of the case, as submitted by the parties, may be
summarised as follows:
On 7 September 1993 the Warsaw Praga-Pólnoc Public Prosecutor
instituted criminal proceedings against the applicant on charges of
aggravated assault and robbery, committed in August 1993.
On 8 November 1993 the Praga-Pólnoc Public Prosecutor remanded the
applicant in custody.
As in the course of the investigations doubts arose as to the
applicant's mental condition, the Public Prosecutor ordered that he
should undergo a psychiatric observation. On 21 February 1994 the
applicant was placed in a psychiatric hospital for six weeks'
observation, which was subsequently prolonged, upon the psychiatrists'
recommendation, until 10 May 1994.
In a letter of 1 June 1994, in reply to the Ombudsman's enquiry
about the conduct of the proceedings, apparently following the
applicant's complaint about its length, the Praga-Pólnoc District
Prosecutor stated that the psychiatric observation had been completed
but the relevant expert report had not yet been prepared. The
investigations would be terminated immediately after the submission of
the report and the bill of indictment would be lodged with the court.
The applicant's allegations about the unfairness of the investigations
were, in the Prosecutor's opinion, unfounded and motivated by his wish
to avoid criminal responsibility.
In a letter of 9 June 1994 the Warsaw District Bar replied to the
applicant's complaint concerning the alleged lack of diligence on the
part of an officially appointed lawyer and stated that there were no
reasons for a finding that he lacked diligence.
On 10 June 1994 the Public Prosecutor submitted the bill of
indictment to the Warsaw Regional Court (S*d Wojewódzki). The
applicant was charged with aggravated assault and robbery.
In a letter of 29 July 1994, in reply to the applicant's
complaint about the length of the proceedings, the Ombudsman stated
that the indictment would soon be lodged with the court. He further
stated that the applicant had undergone six weeks' psychiatric
observation which had been prolonged for a further six weeks as he had
refused to cooperate with the physicians.
On 11 August 1994 the Warsaw Regional Court dismissed the
applicant's request for release of 9 August 1994, considering that
there were sufficient grounds for a reasonable suspicion that he had
committed a serious offence, supported in particular by the evidence
given by the victim. The court further considered that the detention
should be maintained in view of the considerable seriousness of the
offence concerned, and the fact that the applicant was a recidivist.
On 22 August 1994 the applicant complained to the Warsaw Regional
Court about the delay in the proceedings. In reply the court informed
him on 29 August 1994 that the dates of hearings were fixed following
the chronological order in which the indictments had been filed with
the court.
On 26 August 1994 the applicant lodged an appeal against the
decision of 11 August 1994.
On 22 September 1994 the Warsaw Court of Appeal (S*d Apelacyjny)
dismissed the applicant's appeal against the decision of 11 August
1994, considering that there were no sufficient grounds for a finding
that the applicant's continued detention would entail undue distress
for him or his family within the meaning of Article 218 of the Code of
Criminal Procedure, and that the other reasons for the applicant's
continued detention remained valid. The court further considered that
the lower court had been right in finding that there were grounds for
a reasonable suspicion against the applicant, including the evidence
given by the victim and the witnesses. The serious character of the
offence also justified the continuation of the applicant's detention.
On 27 December 1994 the applicant complained to the Warsaw
Regional Court about the length of the criminal proceedings.
On 5 January 1995 the court informed the applicant that the first
hearing could be held in June 1995.
On 22 February 1995 the applicant again requested his release.
On 9 March 1995 the Warsaw Regional Court dismissed his request.
On 20 April 1995 the applicant again requested to be released.
He relied in his request on his parents' need of his assistance in view
of their bad health and their difficult financial situation.
On 4 May 1995 a judge of the Warsaw Regional Court ordered that
the examination of the applicant's request be adjourned and that an
enquiry be made as to the applicant's parents' actual situation.
On 22 May 1995 the Social Services prepared a report on their
applicant's parents' situation. It transpired therefrom that they were
indeed in bad health and unable to take care of their needs without
assistance. However, they had refused any assistance from the Social
Services and the applicant's father had declared that their income was
sufficient for their subsistence.
On the same date the applicant again requested to be released.
On 26 June 1995 the applicant asked the court when his request
for release of 22 May would be dealt with.
On 13 July 1995 the Warsaw Regional Court dismissed the
applicant's requests for release of 20 April and 22 May 1995. The
court considered that, in view of the applicant's parents' refusal of
social assistance the applicant's continued detention would not entail
for them an exceptional hardship within the meaning of Article 218 of
the Code of Criminal Procedure.
On 28 July 1995 a first hearing in the applicant's case was held
before the Warsaw Regional Court. The court questioned the applicant
and heard evidence from two expert psychiatrists and one witness. The
hearing was adjourned until 29 August 1995 in order for other witnesses
and the victim, who had failed to comply with the summons, to be
questioned.
On 1 August 1995 the applicant lodged an appeal against the
court's decision of 13 July 1995. On 24 August 1995 the Warsaw Court
of Appeal upheld the decision as the reasons for the applicant's
continued detention had not ceased to exist.
On 29 August 1995 the hearing was adjourned as the witnesses
failed to attend.
On 5 October 1995 the applicant requested his release.
On 9 October 1995 the Warsaw Regional Court refused to release him from
detention on remand. The court reiterated that there were sufficient
grounds for a reasonable suspicion that the applicant had committed the
offence concerned. The court remarked that efforts had been made to
ensure that the witnesses, who had apparently failed to comply with the
summonses, would be present at the next hearing.
On 9 October 1995 the applicant again requested to be released.
On 19 October 1995 the Warsaw Regional Court refused to grant his
request.
On 6 November 1995 the Warsaw Penitentiary Court (S*d
Penitencjarny) decided that a prison sentence imposed on the applicant
in separate proceedings should be executed.
On 5 December 1995 the Warsaw Regional Court pronounced judgment
in the applicant's case. It convicted him of robbery and assault and
sentenced him to five years' imprisonment and a fine.
On 23 April 1996 the Warsaw Court of Appeal partly amended the
judgment of the first-instance court, and upheld the judgment insofar
as it concerned the sentence.
On 6 February 1997 the Supreme Court (S*d Najwyzszy) dismissed
the applicant's appeal on a point of law.
Relevant domestic law
Pursuant to Article 218 of the Code of Criminal Procedure
applicable at the material time, if there are no special considerations
to the contrary, detention on remand shall not be imposed if it
involves danger to life or limb or entails particular hardship for
a suspect or his family.
Under Article 214 of the Code of Criminal Procedure a request
for release shall be examined by a court within three days.
COMPLAINTS
The applicant complains under Article 5 paras. 3 and 4 of the
Convention about the excessive length of his detention.
He further complains under Article 6 of the Convention of the
length of the criminal proceedings.
The applicant complains under Article 13 of the Convention that
he does not have any effective remedy at his disposal to complain about
the length of the proceedings.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 14 November 1994 and registered
on 20 July 1995.
On 26 February 1997 the Commission decided to communicate the
applicant's complaints concerning the length of his detention on
remand, the length of the proceedings to the respondent Government and
the lack of an effective remedy and to declare the remainder of the
application inadmissible.
The Government's written observations were submitted on 5 June
1997, after an extension of the time-limit fixed for that purpose.
The applicant replied on 12 August 1997.
THE LAW
1. The applicant complains under Article 5 paras. 3 and 4
(Art. 5-3, 5-4) of the Convention about the excessive length of his
detention.
The Commission has examined this complaint under Article 5 para.
3 (Art. 5-3) of the Convention which, in its relevant part, reads:
"3. Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article shall be brought
promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within a
reasonable time or to release pending trial..."
The Government submit that the applicant's detention at the
investigation stage lasted seven months and two days, whereas the
detention when the case was pending before the court lasted from
10 June 1994 to 6 November 1995, i.e. sixteen months and twenty-six
days. The detention, both as to its grounds and its length, was in
conformity with Polish law. The reasons for the applicant's detention
relied on in the initial detention order, i.e. the seriousness of the
offence with which the applicant had been charged, the fact that he was
a recidivist and the necessity of ensuring the proper conduct of the
proceedings, did not cease to exist throughout the period concerned.
They further submit that the applicant's detention was necessary
in view of the doubts which arose as to his mental condition.
Consequently, his psychiatric examination was ordered by the Public
Prosecutor. As the applicant refused to cooperate with the
psychiatrists, he underwent observation in a hospital for six weeks.
This was subsequently prolonged upon the psychiatrists' request for
another six weeks.
The Government state that the indictment was submitted to the
court with no delay after the observation was finished, the expert
report completed and the applicant granted access to the case-file.
No delays occurred at the investigations stage. The applicant and his
counsel submitted requests for release several times. The Regional
Court dismissed all these requests, considering that the detention
should be maintained in view of the seriousness of the offence, the
fact that the applicant was a recidivist and the need to secure the
proper conduct of the proceedings. They emphasise that the offence
concerned carried a risk of imprisonment of at least five years or of
capital punishment.
The Government further contend that there were no sufficient
reasons to release the applicant on the grounds indicated in Article
218 of the Code of Criminal Procedure. The Warsaw Regional Court
showed due diligence in that respect as in its decision of 4 May 1995
it ordered that the applicant's parents' situation be examined by the
Social Services. However, even though the enquiry of the Social
Services showed that they actually needed assistance, they refused to
accept it.
The Government conclude that the applicant's detention on remand
satisfied the requirements of Article 5 par. 3 (Art. 5-3) of the
Convention.
The applicant submits that his detention was too long.
The Commission considers, in the light of the parties'
submissions, that this complaint raises complex issues of law and of
fact under the Convention, the determination of which should depend on
an examination of the merits of the complaint. The Commission
concludes, therefore, that this part of the application 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 further complains under Article 6 (Art. 6) of the
Convention of the length of the criminal proceedings.
Article 6 para. 1 (Art. 6-1) of the Convention in its relevant
part reads:
"1. In the determination of ... any criminal charge against him,
everyone is entitled to a ... fair hearing within a reasonable
time by (a) ... tribunal ..."
As regards the length of the proceedings, the Government submit
that the overall length was two years and twenty-seven days.
They submit that the case was complex, regard being had to the
seriousness of the offence concerned and to the severity of the
sentence which could have been imposed on the applicant. Moreover, the
applicant was a recidivist and he had previously been convicted of many
criminal offences. During the investigations he had to undergo a
psychiatric examination as doubts had arisen as to his mental health.
As he refused to cooperate with the psychiatrists, he had subsequently
to undergo psychiatric observation in a hospital for twelve weeks
altogether. His lack of cooperation consequently prolonged the
proceedings.
The Government further state that the hearing in the case was
adjourned three times due to the fact that the victim and three other
witnesses failed to comply with the summonses. In the light of the
circumstances of the case, it was necessary for the court to hear
evidence from them. They contend that the period which elapsed before
the first hearing was held in the case was due exclusively to an
enormous case-load of the Warsaw Regional Court at the relevant time
and to the difficulties in composing a panel of judges.
The Government conclude that the length of the proceedings
complied with the "reasonable time" requirement of Article 6 para. 1
(Art. 6-1) of the Convention.
The applicant maintains that the proceedings lasted too long.
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 the complaint is
required.
3. The applicant complains under Article 13 (Art. 13) of the
Convention that he did not have any effective remedy at his disposal
to complain about the length of the proceedings.
The Government submit that there is no specific remedy in Polish
criminal procedure concerning particularly the length of criminal
proceedings. However, this complaint may be raised by parties to
criminal proceedings by way of ordinary procedural remedies, i.e.
appeals against judicial interlocutory decisions. In particular, such
a complaint may be raised in requests for release from detention on
remand, in appeals against a decision to impose or maintain detention
on remand, and at court hearings.
As regards the present case, the Government stress that the
applicant raised this complaint several times in his requests for
release. The Government emphasise that these remedies should be
regarded as effective within the meaning of Article 13 (Art. 13) of the
Convention as their use entails a change in the appellant's situation
in that detention on remand can be lifted and the proceedings can be
shortened.
The applicant does not address this issue.
The Commission considers, in the light of the parties'
submissions, that this complaint raises complex issues of law and of
fact under the Convention, the determination of which should depend on
an examination of the merits of the complaint. The Commission
concludes, therefore, that this part of the application 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.
For these reasons, the Commission, unanimously,
DECLARES INADMISSIBLE the applicant's complaint relating to the
alleged unfairness of the criminal proceedings,
DECLARES ADMISSIBLE, without prejudging the merits of the case,
the remainder of the application.
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy