FOURTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 1326/04
by Jan SZYDŁOWSKI
against Poland
The European Court of Human Rights (Fourth Section), sitting on 14 March 2006 as a Chamber composed of:
SirNicolas Bratza, President,
MrG. Bonello,
MrM. Pellonpää,
MrK. Traja,
MrL. Garlicki,
MrJ. Borrego Borrego,
MsL. Mijović, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 30 December 2003,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Jan Szydłowski, is a Polish national who was born in 1970 and lives in Gdynia. The application was lodged on his behalf by his wife, Mrs Beata Szydłowska, who submitted a duly signed written authorisation from the applicant.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The first set of criminal proceedings against the applicant (no. IV K 174/98)
On 2 December 1992 the applicant was detained on remand and subsequently released on bail on 17 March 1993. He was re-detained on 29 October 1997. That period of his detention was subsequently prolonged on a number of occasions until 26 March 2001.
On 26 March 2001 the Gdańsk Regional Court convicted the applicant of, inter alia, attempted homicide, extortion and assault, and sentenced him to 14 years’ imprisonment. The applicant appealed against that judgment.
On 3 October 2002 the Court of Appeal upheld the first-instance judgment for the most part and reduced the sentence to 7 years’ imprisonment. The applicant did not lodge a cassation appeal against the judgment of the Court of Appeal.
On 31 March 2003 the Gdańsk Regional Court gave a cumulative judgment (wyrok łączny) and sentenced the applicant respectively to 3 years’ imprisonment and 5 years and 3 months’ imprisonment as cumulative penalties for the conviction given in the first set of criminal proceedings (no. IV K 174/98) and some earlier conviction given in 1996. The Regional Court ordered that the time spent by the applicant in pre-trial detention should be counted towards the period of his imprisonment.
On 3 October 2002 the applicant began serving his sentence of imprisonment. That period ended on 29 April 2004.
2. The applicant’s complaint against the unreasonable length of the first set of criminal proceedings
On an unspecified date in January 2005 the applicant filed with the Gdańsk Court of Appeal a complaint about a breach of his right to a trial within a reasonable time and asked for compensation. He relied on the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (“the 2004 Act”) which entered into force on 17 September 2004.
On 26 January 2005 the Court of Appeal rejected the applicant’s complaint. It found that the applicant had not complied with the formal requirements attached to that remedy by failing to substantiate his complaint.
3. The second set of criminal proceedings against the applicant (no. IV K 169/01)
The applicant was arrested on 17 March 2000. On the same date the Gdańsk District Court remanded him in custody on suspicion of robbery and/or armed robbery committed in an organised criminal group. His detention on remand was subsequently prolonged on unspecified later dates.
The applicant was detained in connection with an investigation conducted by the Department of Organised Crime of the Gdańsk Regional Prosecutor’s Office, in which several other persons had been already detained and charged.
On 7 March 2001 the Gdańsk Court of Appeal prolonged the applicant’s detention until 31 May 2001. It relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged and the severity of the anticipated penalty. The Court of Appeal further held that the detention on remand was the only measure which could secure the proper conduct of the proceedings given the nature of the charges and the relations between the suspects who had acted in an organised group. It also considered that the prolongation of detention was justified by the need to obtain DNA evidence in order to corroborate evidence previously obtained.
On 10 May 2001 the Gdańsk Regional Prosecutor terminated the investigation. On 15 May 2001 the applicant was indicted before the Gdańsk Regional Court on one count of robbery and one count of armed robbery which had been committed in an organised armed criminal group. Additionally, he was indicted on one count of possessing a firearm without a licence. The bill of indictment listed 120 charges brought against 19 defendants, who all were detained on remand. The case-file comprised 114 volumes. The prosecution asked the court to hear evidence from 366 witnesses. The principal witness was a certain A.Ł., who was indicted together with all the defendants but gave evidence against them.
On 17 May 2001 the Gdańsk Regional Court ordered that the applicant be remanded in custody until 31 October 2001, finding that it was necessary in order to prevent him – and his other 12 detained co-defendants – from evading justice or tampering with evidence. It also referred to the complexity of the case stemming from the number of defendants and the number of witnesses to be heard.
On 13 September 2001 the Gdańsk Regional Court refused the request of the applicant and two other defendants (J.N. and R.O.) to grant a severance order with a view to hearing their cases separately from other defendants, and thus expediting the proceedings. Similar requests were refused on 23 January 2003 and 15 April 2003.
On 16 October 2001 the Regional Court prolonged the applicant’s detention until 17 March 2002, considering that the grounds previously given for remanding him in custody were still valid.
The trial began on 28 December 2001. However, as at April 2002 the reading out of the bill of indictment by the prosecution was still continuing. Initially, the trial court held three hearings per month. As from June 2002 it decided to hold five hearings per month.
On 13 March 2002 the Court of Appeal ordered that the applicant be remanded in custody until 30 September 2002. In addition to the grounds previously invoked, the Court of Appeal found that the prolongation of detention was justified under Article 263 § 4 of the Code of Criminal Procedure by the particular complexity of the case. It further observed that the delays in the trial were partly attributable to some of the defendants who attempted to disrupt the proceedings and, consequently, had to be removed from the court room. Furthermore, the Court of Appeal held that no other preventive measure could secure the proper conduct of the trial. In that respect, the Court of Appeal observed that there was a reasonable risk that the applicant and other defendants might interfere with the proceedings, given the nature of the charges, the severity of the anticipated penalty and the fact that such attempts had been made by some of them in the course of the investigation.
On 11 September 2002 the Court of Appeal prolonged the applicant’s detention until 31 December 2002. In addition to the grounds previously relied on, it considered that the applicant’s detention was justified under Article 258 § 2 of the Code of Criminal Procedure since that provision established a presumption to the effect that the likelihood of a severe penalty being imposed on the applicant might induce him to obstruct the proceedings. It also noted that the prolongation of detention was justified by the volume of evidence to be heard in the trial.
On 18 December 2002 the Gdańsk Court of Appeal ordered that the applicant be held in custody until 30 June 2003. It considered that the grounds invoked in its previous decisions were still valid.
On 25 June 2003 the Court of Appeal extended the applicant’s detention until 31 December 2003, relying on the same grounds as previously. In addition, it observed that the trial could not have been terminated earlier due to obstructiveness on the part of the defendants who had filed numerous requests challenging the trial court. It also noted that the trial court had taken various procedural steps in order to accelerate the proceedings.
On 11 December 2003 the Regional Court made an application under Article 263 § 4 of the Code of Criminal Procedure to the Gdańsk Court of Appeal (Sąd Apelacyjny), asking that the applicant’s detention be prolonged beyond the statutory time-limit of 2 years – until 30 June 2004.
On 17 December 2003 the Court of Appeal granted that application. The applicant appealed against that decision.
On 29 January 2004 a different panel of the Court of Appeal amended the decision of 17 December 2003, holding that the Court of Appeal could not rule on the Regional Court’s application of 11 December 2003, as that application had been premature. The Court of Appeal considered that since in the first set of criminal proceedings (no. IV K 174/98) the applicant had been remanded in custody from 29 October 1997 to 3 October 2002, and subsequently had begun to serve his sentence, the period of the applicant’s detention in the present case has not yet reached the statutory time-limit of 2 years. Consequently, a decision on the prolongation of the applicant’s detention should be taken by the Regional Court.
On 10 February 2004 the Regional Court ordered that the applicant be remanded in custody until 30 June 2004. It invoked the complexity of the case, the volume of evidence and the severity of the penalty to which the applicant was liable. Having regard to the latter, it considered that the applicant might attempt to obstruct the proceedings. In addition, the Regional Court observed that up to April 2003, when the court commenced to hear evidence, the defendants had frequently attempted to obstruct the proceedings, i.e. by filing numerous requests challenging the trial court.
On 17 February 2004 the Regional Court informed the applicant that it was not feasible to schedule more than 5 hearings per month.
Subsequently, the Regional Court prolonged the applicant’s detention on 29 June 2004 (until 31 December 2004) and on 27 December 2004 (until 30 June 2005). It relied on the same grounds as in its decision of 10 February 2004.
By June 2005 the trial court had held over 150 hearings and heard more than 400 witnesses.
During the trial the applicant filed numerous but unsuccessful applications for release and appealed, likewise unsuccessfully, against the decisions prolonging his detention. He maintained that the length of his detention was excessive and that the charges against him lacked a sufficiently strong basis since they were founded on unreliable evidence from A.Ł.
In a number of decisions refusing his applications for release, the Regional Court (of 20 May 2003 and 20 January 2004) relied on the likelihood of a severe penalty being imposed on the applicant. That factor, in the court’s view, justified the conclusion that the applicant might attempt to obstruct the proceedings by absconding or interfering with the witnesses. On that basis the Regional Court considered that other preventive measures would not be sufficient to secure the proper conduct of the proceedings.
It appears that the applicant is still remanded in custody.
4. The applicant’s complaint against the unreasonable length of the second set of criminal proceedings
On 3 November 2004 the applicant filed with the Gdańsk Court of Appeal a complaint about a breach of his right to a trial within a reasonable time and asked for compensation. He relied on section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (“the 2004 Act”) which entered into force on 17 September 2004.
The applicant submitted that the hearings in the case had been short and that a significant number of them had been cancelled. He further referred to numerous absences of the witnesses and the fact that the trial court had failed to enforce discipline against those witnesses who had failed to appear. Lastly, he submitted that the trial court had refused his request for a severance order in respect of the charges against him.
On 28 December 2004 the Court of Appeal dismissed his complaint as unfounded, having regard to the criteria set out in section 2 § 2 of the 2004 Act.
It admitted that some hearings had been short, but that had been due to the witnesses’ absence or the need to take into account the defendants’ health problems. However, there had been a number of hearings in the course of 2004 which had lasted until the late afternoon. Overall, the Court of Appeal considered that the isolated cases of hearings which had not been well prepared in advance could not diminish the substantial efforts of the trial court in dealing with the case. Furthermore, it considered that it could not be said that the exceptional cancellation of some hearings pointed to inactivity on the part of the trial court.
The Court of Appeal also found that certain absences of witnesses referred to by the applicant had been justified, while in other cases the trial court had taken steps to discipline the relevant persons. It further considered that the joint examination of the charges against the defendants who had committed a crime acting collectively was justified under domestic law.
In conclusion, the Court of Appeal found that given the nature of the case, its complexity and the attitude of the defendants, who by filing numerous unsubstantiated procedural applications, had contributed to the delays in the trial, there was no ground to hold that the proceedings were unreasonably long.
B. Relevant domestic law
The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the so-called “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition on leaving the country (zakaz opuszczania kraju).
Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads:
“1. Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused’s committing another, serious offence; they may be imposed only if the evidence gathered shows a significant probability that an accused has committed an offence.”
Article 258 lists grounds for detention on remand. It provides, in so far as relevant:
“1. Detention on remand may be imposed if:
(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland];
(2) there is a reasonable risk that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means;
2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years’ imprisonment, or if a court of first instance has sentenced him to at least 3 years’ imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.”
The Code sets out the margin of discretion as to the continuation of a specific preventive measure. Article 257 reads, in so far as relevant:
“1. Detention on remand shall not be imposed if another preventive measure is sufficient.”
Article 259, in its relevant part, reads:
“1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would:
(1) seriously jeopardise his life or health; or
(2) entail excessively harsh consequences for the accused or his family.”
The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue.
Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided:
“1. Imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months.
2. If, due to the particular circumstances of the case, an investigation cannot be terminated within the term referred to in paragraph 1, the court of first instance competent to deal with the case may – if need be and on an application made by the [relevant] prosecutor – prolong detention for a period [or periods] which as a whole may not exceed 12 months.
3. The whole period of detention on remand until the date of the first conviction at first instance may not exceed 2 years.
4. Only the Supreme Court may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, for the purpose of a prolonged psychiatric observation of the accused or a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad or when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.”
On 20 July 2000 paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs 2 and 3 has been vested in the court of appeal within whose jurisdiction the offence in question has been committed.
COMPLAINTS
1. The applicant complains under Article 5 § 3 of the Convention about the excessive length of his detention on remand in respect of the first set of criminal proceedings.
2. The applicant further complains under Article 5 § 3 of the Convention about the excessive length of his detention in respect of the second set of criminal proceedings.
3. He further complains under Article 6 § 1 and § 3(b) of the Convention about the unfairness of the first set of criminal proceedings and about the restrictions on his defence rights.
4. The applicant also complains under Article 6 § 1 and § 3(b) of the Convention about the unfairness of the second set of criminal proceedings and about the restrictions on his defence rights.
5. He also complains under Article 6 § 1 of the Convention about the unreasonable length of the first set of criminal proceedings.
6. Lastly, the applicant complains under Article 6 § 1 of the Convention about the excessive length of the second set of criminal proceedings against him.
THE LAW
1. The applicant complains under Article 5 § 3 of the Convention about the excessive length of his detention on remand in respect of the first set of criminal proceedings.
The Court notes that the applicant was remanded in custody on 2 December 1992 and was subsequently released on bail on 17 March 1993. He was again remanded in custody on 29 October 1997. That period of his detention was subsequently prolonged on a number of occasions until 26 March 2001.
However, as Poland’s declaration recognising the right of individual petition for the purposes of former Article 25 of the Convention took effect on 1 May 1993, the period of the applicant’s detention before that date lies outside the Court’s jurisdiction ratione temporis.
In respect of the second period of the applicant’s detention the Court notes that the applicant was remanded in custody on 29 October 1997. On 26 March 2001 the trial court convicted him of, inter alia, attempted homicide, extortion and assault. As from that date he was detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a) and therefore that period of his detention falls outside the scope of Article 5 § 3 (see, for example, Kudła v. Poland [GC], no. 30210/96, §§ 104-105, ECHR 2000-XI).
The Court considers that the six-month time-limit set down by Article 35 § 1 of the Convention began to run on 26 March 2001, being the end of the situation of which the applicant complains. Since the application was introduced on 30 December 2003, it has been presented more than six months after the date on which the relevant period to be considered under Article 5 § 3 came to an end.
It follows that the complaint under Article 5 § 3 of the Convention in respect of the first set of criminal proceedings has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
2. The applicant further complains under Article 5 § 3 of the Convention about the excessive length of his detention in respect of the second set of criminal proceedings.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
3. He further complains under Article 6 § 1 and § 3(b) of the Convention about the unfairness of the first set of criminal proceedings and about the restrictions on his defence rights.
However, the Court notes that the applicant did not lodge a cassation appeal against the judgment of the Court of Appeal of 3 October 2002. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
4. The applicant also complains under Article 6 § 1 and § 3(b) of the Convention about the unfairness of the second set of criminal proceedings and about the restrictions on his defence rights.
However, the Court observes that the impugned proceedings are still pending. Accordingly, the applicant still can, and should, put the substance of these complaints before the domestic authorities and ask for appropriate relief. It follows that this part of the application is inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.
5. The applicant also complains under Article 6 § 1 of the Convention about the unreasonable length of the first set of criminal proceedings.
The Court notes that the applicant’s complaint about a breach of his right to a trial within a reasonable time submitted under the 2004 Act was rejected for failure to comply with the statutory requirements.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
6. Lastly, the applicant complains under Article 6 § 1 of the Convention about the excessive length of the second set of criminal proceedings against him.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints concerning the excessive length of his detention in respect of the second set of criminal proceedings and the unreasonable length of those proceedings;
Declares the remainder of the application inadmissible.
Michael O’BoyleNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy