WEDLER v. POLAND

FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44115/98
by Jarosław WEDLER
against Poland

The European Court of Human Rights (Fourth Section), sitting on 27 May 2003 as a Chamber composed of

SirNicolas Bratza, President,
MrM. Pellonpää,
MrsE. Palm,
MrsV. Strážnická,
MrS. Pavlovschi,
MrL. Garlicki,
MrJ. Borrego Borrego, judges
andMrM. O’Boyle, Section Registrar,

Having regard to the above application introduced on 22 December 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 deliberated, decides as follows:

THE FACTS

The applicant, Jarosław Wedler, is a Polish national, who was born in 1965 and lives in Opole, Poland.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 15 March 1995 the applicant left Poland and went to Moscow in order to set up a business. On 31 May 1995 the Opole District prosecutor issued a warrant to search the applicant by a wanted notice and a detention order for a period of seven days on suspicion of inter alia obtaining credit by false pretences, forgery of documents and embezzlement.

The applicant was arrested in Moscow on 30 September 1996. According to his submissions, on 2 December 1996 the applicant was delivered to Polish police officers at the Moscow airport, put on a plane and transported to Warsaw. The applicant maintains that he had earlier been given an injection and consequently, remained under the influence of a drug throughout the journey.

Apparently, on 5 December 1996 the prosecutor informed the applicant of the charges against him.

On 6 December 1996 the Opole District Court decided to detain the applicant on remand until 2 March 1997. The court considered that in the light of evidence gathered there was a sufficient likelihood that he had committed an offence. The court also pointed to a risk of the applicant’s absconding, observing that he had been arrested by a special Interpol unit in Moscow on the strength of an international search warrant.

Apparently, on the same date he lodged an appeal against this decision.

On 30 December 1996 the Opole Regional Court dismissed the applicant’s appeal, referring to the reasoning above. In addition, the court found no special circumstances listed in Section 218 of the Code of Criminal Procedure. In particular, given that he had been staying abroad for a lengthy period of time before he had been arrested, the applicant’s argument that his parents required his constant care did not seem at all convincing.

On 6 January 1997 the applicant filed a request to release him.

By a decision of 12 February 1997 the Opole Regional Prosecutor dismissed the applicant’s request. On 12 February 1997 the applicant appealed against this decision. On 18 February 1997 the Opole Regional Prosecutor informed the applicant that there were no reasons for suspending investigating police officer M.R. from carrying out his duties.

In a letter of 25 February 1997, the Opole Regional Prosecutor requested the Head of the Opole Detention Centre to allow the applicant to continue his dental treatment.

By a decision of 26 February 1997, upon the prosecutor’s request, the Opole Regional Court prolonged the applicant’s detention until 2 June 1997, considering that the grounds on which the detention had been ordered had not ceased to exist. The court also observed that a number of witnesses and an expert in accountancy had still to be heard.

On 27 February 1997, in reply to the applicant’s letter of 17 February 1997 the Opole Regional Prosecutor informed him that on 2 December 1996 he had not been arrested for up to 48 hours, but detained on remand for a period of seven days under a detention order issued by the Opole District Prosecutor. As regards the applicant’s allegations that he had not obtained necessary medical help, this matter would be examined at a later stage.

On 28 February 1997 the applicant appealed against the decision of 26 February 1997.

By a decision of 10 March 1997 the Wrocław Appellate Prosecutor dismissed the applicant’s appeal of 16 February 1997 against the decision of 12 February 1997 of the Opole Regional Prosecutor, considering that the evidence gathered up till then, as well as the nature of the offences the applicant was charged with, justified his continuing detention. Moreover, there were no grounds for releasing him under Section 218 of the Code of Criminal Procedure. Nevertheless, in view of the applicant’s repeated requests, the Prosecutor would once again weigh up the circumstances referred to in Section 218 of the CCP and, in particular, he would order the examination of the applicant’s state of health and the situation of his cohabitee and his parents.

By a decision of 25 March 1997 the Wrocław Court of Appeal dismissed the applicant’s appeal of 28 February 1996 against the decision of 26 February 1997 of the Opole Regional Court, considering that the grounds for maintaining the applicant in detention remained still valid. The court referred to a justified risk of the applicant’s absconding and of his hindering the conduct of the investigative proceedings. The court recalled that the applicant had been sought and arrested by Interpol pursuant to an international search warrant and noted that further extensive evidence needed to be obtained in the case. Furthermore, as the case-filed showed, there were no grounds for releasing the applicant under Section 218 of the Code of Criminal Procedure.

By a decision of 28 March 1997 the Opole Regional Prosecutor dismissed the applicant’s request 25 March 1997 for release, stating that contrary to his and his legal counsels’  submissions, a thorough examination of the applicant’s state of health and his family’s situation had showed no grounds for release provided for by Section 218 of the Code of Criminal Procedure.

On 3 April 1997 the applicant  requested the Wrocław Court of Appeal to replace his detention by police supervision.

On 7 April 1997, in reply to the applicant’s letter of 3 March 1997, the Opole Regional Prosecutor reiterated to the applicant that as regards the period between 2 and 6 December 1996, his detention had not been based on Section 205 of the Code of Criminal Procedure, but imposed by the detention order of 31 May 1995 issued by the Opole District Prosecutor.

On 17 April 1997 the Opole Regional Prosecutor dismissed the applicant’s request for release, relying on the grounds invoked in the decision of 28 March 1997. On 27 April 1997 the applicant lodged an appeal against this decision On 15 May 1997 the Wrocław Appellate Prosecutor dismissed the applicant’s appeal, considering that in view of the sufficient evidence of his guilt, the gravity of the offences he had been charged with and the fact that he had tried to abscond, his detention was justified. This reasoning had been supported by the courts’ decisions. Furthermore, there were no circumstances which might militate in favour of his release.

On 27 May 1997 the Wrocław Court of Appeal decided to prolong the applicant’s detention on remand until 2 September 1997, considering that further procedural steps, including steps outside Poland, had to be taken and that there were no new circumstances for the purposes of Section 218 of the Code of Criminal Procedure.

On 30 May 1997, the Opole Regional Prosecutor, in reply to the applicant’s letter of 13 May 1997, informed him that as regards the alleged failure to provide the applicant with medical help immediately after he had been transported from Russia to Poland in December 1997, it had been established that the applicant had not reported any health problems nor had he asked for any medical help at that time. Moreover, after his subsequent transfer to the Opole Detention Centre, the applicant had been examined by a doctor and had been found in good condition.

The applicant submits that on 4 June 1997 he lodged an appeal against the decision of 27 May 1997.

Apparently, on 10 June 1997 the applicant laid an information against police officers of the Warsaw Police Headquarters who had arrested him on 2 December 1996, alleging a number of irregularities. The applicant submitted that at the moment of his apprehension he had been asked, against his will, to sign the arrest report, which had been already filled in, to the effect that he did not insist on informing a relative about his apprehension and that he did not suffer any health problems. He maintained that shortly before his transport from Moscow to Warsaw he had been given an injection, which had badly affected his physical condition. The police officers had failed to inform him that he had a right to lodge an appeal against the decision about the warrant of arrest. Nor had he been given a chance to call for a lawyer of his choice. Finally the applicant submitted that he had not been served any meals during his transport from Warsaw to Opole Detention Centre.

By a decision of 17 July 1997 the Supreme Court upheld the contested decision of the Wrocław Court of Appeal of 27 May 1997.

On 18 July 1997 the Opole Regional Prosecutor dismissed the applicant’s request for release, considering that the grounds on which the detention had been ordered had not ceased to exist.

On 21 July 1997 the Opole Regional Prosecutor informed the applicant that he found no reasons to suspend the investigating police officer M.R.

On 30 July 1997 the applicant laid an information against the police officer M.R., claiming that he had applied psychological pressure to him during the interrogation on 10 June 1997. The applicant submitted that in the course of this interview he had been asked by M.R. an insinuating question concerning his alleged involvement in a car accident on 5 or 6 October 1995 in Opole. The applicant further complained that M.R. had threatened him and had let him know that he was capable of creating any evidence or witnesses against the applicant.

On 21 August 1997, upon the prosecutor’s request,  the Wrocław Court of Appeal prolonged the applicant’s detention on remand until 2 December 1997. The court relied on the sufficient probability of the applicant’s guilt, the necessity to secure the proper conduct of the proceedings, the need to continue the time-consuming investigation and the risk that the applicant, if released, would go into hiding. The court found no grounds for release provided for by Section 218 of the Code of Criminal Procedure.

By a letter of 22 August 1997 the Opole Regional Prosecutor explained to the applicant, inter alia, that pursuant to the Law of 29 June 1997 on Amendments to the Code of Criminal Procedure, detention on remand could be imposed only by a court. However, the search warrant issued by the prosecutor before 4 August 1996, i.e. the date on which the Law of 1995 came into force, remained in effect. Accordingly, at the moment of his delivery at the Warsaw airport, the applicant was detained on remand in accordance with the relevant legal provisions.

On 1 and 3 September 1997 the applicant lodged an appeal against the decision of 21 August 1997.

On 15 September 1997 the applicant requested the prosecuting authorities to release him from detention and apply more lenient preventive measures, namely police supervision and a prohibition against leaving the country. By a decision of 24 September 1997 the Opole Regional Prosecutor dismissed the applicant’s request, remarking that his continued detention had been justified and that it had been constantly reviewed by the courts.

Apparently, on 26 September 1997 the Supreme Court dismissed the appeals of the applicant and his legal counsel against the decision of 21 August 1997 of the Wrocław Court of Appeal.

By a decision of 30 September 1997 the Opole District Prosecutor refused to institute criminal proceedings against the police officer who had allegedly overstepped his competence while interrogating the applicant on 10 June 1997. The prosecutor stated that the contents of the police minutes of the interrogation showed that the applicant’s allegations were unfounded. It was the duty of the investigating officer to clarify all circumstances relevant to the case. As regards the question posed to the applicant about his alleged involvement in the car accident on 5 or 6 October 1995, it was a part of the enquiry and did not imply any charge against the applicant. Besides, an accused has a guaranteed right to be silent and to raise objections to the contents of police minutes at the moment of signing them. The applicant had not availed himself of this opportunity. The applicant appealed against this decision.

On 6 October 1997 the applicant lodged an appeal against the decision of 24 September 1997.

By a decision of 9 October 1997 the Opole Regional Prosecutor partly discontinued investigative proceedings against the applicant, on the ground that no offence had been committed.

On 23 October 1997 the Wrocław Appellate Prosecutor dismissed the applicant’s appeal of 6 October 1997 against the decision of 24 September 1997 of the Opole Regional Prosecutor, referring to the sufficient probability of the applicant’s guilt, the gravity of charges against him and the fact that the investigation had not yet been completed. The applicant’s family situation, although difficult, did not argue for his release.

By a decision of 27 October 1997 the Warszawa-Śródmieście District Prosecutor discontinued the investigative proceedings against the police officers from the Central Warsaw Police Headquarters. He explained that on 2 December 1997 the applicant had already been detained on remand. Therefore, strictly speaking, he had not been apprehended or arrested by the police at  the Warsaw airport on that day. Consequently, no record of arrest had been issued. Moreover, on that day he had not reported any health problems and hence there was no need to summon a doctor. There was no indication that the applicant had been subjected to any medical treatment which could have harmful effects on his health. In sum, it had not been proved that the police officers in question had been guilty of negligence or had committed any criminal offence. The applicant appealed.

On 25 November 1997 the applicant requested to replace his detention on remand with a more lenient preventive measure.

On 27 November 1997 the Opole Regional Prosecutor dismissed the applicant’s  appeal against the decision of 30 September 1997 of the Opole District Prosecutor, finding that the applicant had failed to present any convincing evidence regarding the alleged psychological pressure put on him by the investigating police officer on 10 June 1997. On the same date the Warsaw Regional Prosecutor upheld the decision of 27 October 1997, considering that on 2 December 1996 the applicant was arrested in accordance with the relevant regulations and that there was no indication that he had been refused necessary medical assistance. Both decisions concluded that there was no evidence that any offence had been committed.

By a decision of 2 December 1997 the Supreme Court prolonged the applicant’s detention on remand until 2 March 1998, considering that the applicant’s detention should not be lifted given that not all the necessary evidence had been obtained and stating that there was a reasonable risk of the applicant’s absconding abroad. On the same date the applicant complained that the hearing before the Supreme Court, at which the prosecution was present, was held in violation of principle of equality of arms in that he himself was not given an opportunity to present his defence. On 10 December 1997 the applicant was informed by the Supreme Court that no appeal lay against this decision.

On 29 December 1997 the Opole Regional Prison Inspectorate informed the applicant that his complaints regarding the alleged failure to provide him with dental services had proved to be unfounded. According to the findings the applicant had been provided with basic general and preventive dental treatment. Pursuant to the relevant rules, a detainee was not entitled to specialised dental care free of charge.  The applicant might nevertheless request assistance in arranging private dental services.

On 30 December 1997 the applicant preferred a private indictment against M.R., in connection with allegedly slanderous accusations against the applicant.

On  8 January 1998 the Supreme Court informed the applicant that no appeal lay against the decision of 2 December 1997. On the same day the applicant’s legal counsel requested that his detention be replaced with more lenient preventive measures, namely bail in the amount of around PLN 5,000, police supervision, prohibition to leave the country and the seizure of his passport. The applicant’s lawyers also argued that it was not true that their client had been hiding in Russia given that he had regularly visited the Polish Consulate in Moscow.

On 20 January 1998 the applicant requested that he and his legal counsel be permitted to attend any hearing before the Supreme Court in which the issue of his detention on remand would be examined.

On 22 January 1998 the Opole Regional Prosecutor dismissed the applicant’s lawyers’ motion of 8 January 1998, stating that the fact that the applicant had visited the Polish Consulate in Moscow was previously known, that there existed a danger of his absconding and there were no circumstances such as referred to in Section 218 of the Code of Criminal Procedure.

On 27 January 1998 the applicant appealed against this decision. On 16 February 1998 the Wrocław Appellate Prosecutor informed the applicant that since the case-file had been transferred to the Supreme Court, his appeal would be examined at a later date.

On 26 February 1998 the Supreme Court, upon the Prosecutor General’s request, prolonged the applicant’s detention on remand until 2 June 1998, finding that the applicant’s continuing detention was necessary since the investigation had not yet been concluded. In particular, the Central Forensic Laboratory and the Opole Forensic Laboratory had not completed the taking of necessary expert evidence and the judicial assistance requested from the Paderborn Prosecutor Office in Germany had not yet been provided. In addition, further aggrieved persons were turning up. Therefore, the investigative authorities could not be blamed for the delay. Moreover, there was a reasonable fear that the applicant, if released, would abscond or go into hiding or might otherwise obstruct the investigation. Finally, in view of the extensive evidence, sufficient time would be required for the applicant to acquaint himself with this material.

On 27 January 1998 the applicant appealed against the decision of 22 January 1998. On 16 February 1998 the Wrocław Appellate Prosecutor informed the applicant that since the case-file had been transferred to the Supreme Court, his appeal would be examined at a later date.

On 4 March 1998 the Wrocław Appellate Prosecutor dismissed the applicant’s appeal of 27 January 1998 against the decision of 22 January 1998, referring to the strong probability of the applicant’s guilt and a reasonable risk of his absconding, going into hiding or obstructing the investigative proceedings. The prosecutor noted that the investigation was soon coming to an end. In addition, there were no grounds for releasing the applicant under Section 218 of the Code of Criminal Procedure.

By a decision of 19 March 1998 the Opole District Court discontinued the criminal proceedings against M.R. in which the applicant was acting as a private prosecutor, considering the final decision had already been given in the case.

On 30 March 1998 the applicant, invoking Articles 5 § 1(c) , 5 § 4 and 6 § 3(d) of the European Convention of Human Rights, complained, inter alia, to the President of the Supreme Court that neither he nor his lawyer had been allowed to participate in a session, during which the lawfulness of his detention on remand was examined. Consequently, he was unable to submit any arguments in his favour.

On 19 April 1998 the applicant lodged a request to replace his detention with police supervision, seizure of his passport and bail in the amount of PLN 5,000. By a decision of  24 April 1998 the Opole Regional Prosecutor dismissed the applicant’s request, relying on the same reasons as those set forth before. On 15 May 1998 the Wrocław Appellate Prosecutor dismissed the applicant’s appeal against this decision, observing that the applicant’s continuing detention was still justified and that the investigation was in its final phase.

On 4 May 1998 the Opole Regional Court quashed the decision of 19 March 1998 of the Opole District Court, finding that the applicant’s private indictment against M.R.was admissible.

On 9 May 1998 the applicant requested the President of the Supreme Court to allow him to participate in a court session concerning his detention on remand.

On 1 June 1998 the Opole Regional Court decided to continue the applicant’s detention on remand until 2 November 1998 in view of the evidence gathered, a justified fear of his absconding or going into hiding, the serious nature of the offence and the complexity of the proceedings. On 4 June 1998 the applicant lodged an appeal against this decision and requested to be allowed to be present at a hearing before the appellate court at which his appeal would be examined.

On 16 June 1998 the Opole District Court refused to institute criminal proceedings against M.R., in which the applicant was acting as a private prosecutor, considering that the conduct of the police officer on 10 June 1997 was not unlawful.

On 24 June 1998 the Wrocław Court of Appeal upheld this decision, considering that the detention was necessary in order to ensure the proper conduct of the proceedings and found no circumstances referred to in Section 218 of the Code of Criminal Procedure nor any other new circumstances requiring the applicant’s release. The court noted that the grounds of the applicant’s detention had already been examined three times by the Supreme Court, which had confirmed them.

On 10 July 1998 the Opole Regional Court quashed the decision of 16 June 1998, finding that the criminal proceedings against M.R. had been in fact instituted on 30 December 1998, i.e. on the day when the applicant had brought his private indictment.

On 27 July 1998 the applicant filed a request for release.

On 29 July 1998 the Opole Regional Court dismissed his request, considering that the grounds on which his detention had been ordered had not ceased to exist. On 7 August 1998 the Opole Regional Court dismissed the applicant’s appeal against this decision, qualifying it as a new motion for release.

On 26 August 1998 the Opole Regional Court decided to adjourn the examination of the applicant’s request for release until information concerning the applicant’s health condition and his family situation had been obtained.

Apparently on 12 September 1998 the applicant lodged a request to be allowed to participate in a court session before the Opole Regional Court concerning his detention on remand.

On 17 September 1998 the Opole Regional Court refused to release the applicant, relying on the grounds invoked in the previous decisions.

On 23 September 1998 the applicant requested the court, inter alia, to quash his detention on remand and to allow him and his lawyer to participate in a court session at which his motion would be examined.

Apparently on 26 November 1998 the Supreme Court prolonged the applicant’s detention on remand until 2 June 1999.

On 29 January 1999 the applicant requested the court to quash his detention on remand. On 5 February 1999 the Opole Regional Court refused to release applicant, considering that his continuing detention was necessary to ensure the proper conduct of the proceedings.

On 9 March 1999 the applicant lodged a request for release, complaining that his detention was unlawful and too long, that he was in a bad health condition, and that there had been a delay in proceedings in breach of Article 6 § 1 of the European Convention on Human Rights.

On 10 March 1999 the applicant demanded to be brought before the Supreme Court to take part in a session at which his detention on remand would be examined.

On 15 March 1999 the Opole Regional Court dismissed the applicant’s request of 9 March 1999. The court considered that the applicant’s continuing detention was necessary to secure the proper conduct of the proceedings and that it did not entail a serious danger to his life or health.

On 16 March 1999 the applicant requested that the decision to detain him on remand be quashed, claiming in particular that he was in a very bad health condition and complaining about the failure of the prison health staff to diagnose and treat his illness.

By a decision of 25 March 1999 the Supreme Court dismissed the applicant’s request of 7 April 1999 to be brought to the hearing which was due to take place on 15 April 1999, on which date the Supreme Court refused to examine the applicant’s motion to declare the decision of 26 November 1998 null and void.

On 19 April 1999 the applicant complained that he had been suffering from a chronic and incurable motor system disorder due to the fact that his poor state of health had been neglected by the prosecuting authorities and incompetent prison medical staff and given that he had been treated in appalling conditions in the prison hospital.

On 26 April 1999 the applicant lodged a request to quash his detention on remand, referring to his poor state of health.

By a decision of 29 April 1999 the Opole Regional Court dismissed the applicant’s requests of 16 March 1999 and 26 April 1999, considering that his detention was necessary in view of the probability of his guilt and given that according to medical certificates submitted by the prison doctors the applicant could be treated by the prison medical system.

On 17 May 1999 the applicant requested to be brought to the court session in the Supreme Court at which his detention on remand would be examined.

On 25 May 1999 the Supreme Court decided to prolong the applicant’s detention on remand until 2 December 1999. The court was of the opinion that the failure to start the court proceedings in the applicant’s case was primarily due to his conduct, given that he had filed a motion challenging a judge and a motion to terminate the authority of his attorney. The court once again referred to a justified fear of the applicant’s absconding and recalled that he had been sought  by Interpol.

On 19 October 1999 the Opole District Court discontinued the criminal proceedings against M.R., in which the applicant was acting as a private prosecutor, considering that the applicant’s private bill of indictment did not comply with the necessary legal requirements.

The applicant was released on 2 December 1999.

According to the applicant’s submissions of 9 December 2002, the trial in the case against him has not yet commenced.

B.  Relevant domestic law

1.Evolution of Polish criminal law in the relevant period

Polish criminal legislation was amended several times during the relevant period. The Code of Criminal Procedure enacted in 1973 (“old” Code) was replaced by a new Code of Criminal Procedure, adopted by Parliament (Sejm) on 6 June 1997, and which entered into force on 1 September 1998.

The “old” Code was significantly amended by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes. This Law entered into force on 1 January 1996. However, the entry into force of the provisions concerning imposition of detention on remand was postponed until 4 August 1996. In pursuance with these provisions, detention on remand was imposed by a judge (whereas before it was imposed by a prosecutor - see section 2 below).

The second amendment, effected by the Law of 1 December 1995 on Amendments to the Law of 29 June 1995 (commonly referred to as “the Interim Law of 1 December 1995”) entered into force on 1 January 1996.

2.Imposition of arrest

Under Sections 205 and 206 of the Polish Code of Criminal Procedure, as applicable at the relevant time the police could arrest any person “if there existed a reasonable suspicion that he had committed an offence and if there was a danger of his absconding”.  Under Section 208 a prosecutor could issue a warrant of arrest, ordering that a person suspected of having committed an offence be arrested and brought before him.

Section 207 provided:

“An arrested person shall immediately be released if, within 48 hours following his arrest, no [prosecutor’s] decision ordering his detention on remand has been served on him.”

Section 207a provided:

“1. An arrested person may lodge an appeal with a district court against a warrant of arrest.

2. The court shall examine an appeal promptly.  If the court finds that the arrest in question lacked grounds, it shall order that an arrested person be released immediately and shall inform of this fact a hierarchical superior of the person who issued a warrant of arrest.”

3.Preventive measures

The Code of Criminal Procedure (“old”) listed as "preventive measures", inter alia, detention on remand, bail and police supervision.

Articles 210 and 212 of the “old” Code of Criminal Procedure provided that before the bill of indictment was transmitted to the court, detention on remand was imposed by the prosecutor. The decision to impose detention on remand could be appealed against, within a seven-day time-limit, to the court competent to deal with the merits of the case. In pursuance of Article 222 of the Code of Criminal Procedure, the prosecutor could order detention on remand for a period not exceeding three months. When, in view of the particular circumstances of the case, the investigations could not be terminated within this period, detention on remand could, if necessary, be prolonged by the court competent to deal with the merits of the case, upon the prosecutor’s request, for a period not exceeding one year. This decision could be appealed against to a higher court.

After the bill of indictment was transmitted to the court, relevant orders were to be made by the court. A decision concerning preventive measures could be appealed to a higher court.

4.Grounds for detention on remand

Article 217 of the “old” Code of Criminal Procedure, as applicable at the relevant time, provided that a person could be held in detention on remand if there were serious grounds for believing that he or she would abscond, in particular when he or she did not have a permanent address or his/her identity could not be established. Further, detention could be imposed if there were serious grounds for believing that there was a risk of collusion or that an accused would otherwise jeopardise criminal proceedings. Finally, alternative grounds for detention on remand were either the fact that an accused was charged with an offence of a particular danger to society (“wysokie społeczne niebezpieczeństwo czynu”), or that he was a recidivist (“recydywa”) within the meaning of the Criminal Code.

The notion of “danger to society” as set out in the Criminal Code related to the assessment of the seriousness of the criminal offences concerned.

Pursuant to Article 218 of the “old” Code of Criminal Procedure, if there were no special considerations to the contrary, detention on remand should not be imposed or should be lifted, if it involved danger to life or limb or entailed particular hardship for a suspect or his family.

After the Interim Law of 1 December 1995 entered into force on 1 January 1996, grounds of imposition of detention on remand were restricted to situations in which there was a reasonable risk of absconding, or that a suspect would go into hiding, in particular when his identity could not be established or he had no permanent domicile. Secondly, detention could be imposed if there was a reasonable risk that the suspect would attempt to induce witnesses to give false testimony or to hinder the proper course of proceedings by any other unlawful means.

5.Proceedings to examine the lawfulness of detention on remand

At the material time there were three types of proceedings enabling a detainee to challenge the lawfulness of his detention and thus possibly obtain release. Under Article 221 § 2 of the “old” Code of Criminal Procedure he could appeal to a court against a detention order made by a prosecutor (see above). Under Article 222 §§ 2(1) and 3 he could appeal against a further decision by that court prolonging his detention on a prosecutor’s request. Lastly, under Article 214 an accused could at any time request the competent authority to quash or alter the preventive measure applied in his case. Such an application had to be decided by the prosecutor or, after the bill of indictment had been lodged with the court competent to deal with the case, by that court, within three days. Under Article 412 §§ 3 and 4 appeals against decisions concerning detention on remand and should be transmitted for consideration within 48 hours and considered within seven days.

6.Statutory time-limits for detention on remand

Until 4 August 1996 the law did not fix any time-limits concerning detention on remand in judicial proceedings. During the investigations, the prosecutor could order detention for up to three months. Prolongation of this period was possible by a court order, for a period not exceeding one year, and for any further periods, by a decision of the Supreme Court given upon a request of the Prosecutor General

Article 222 of the Code of Criminal Procedure, as applicable from 4 August 1996, provided insofar as relevant:

"3. The whole period of detention on remand until the date on which the first-instance court gives judgment may not exceed one year and six months in cases concerning offences. In cases concerning serious offences this period may not exceed two years.

4. ‘In particularly justified cases the Supreme Court may, upon the request of the court competent to deal with the merits of the case, ... prolong detention on remand for a further fixed period exceeding the periods referred to § ... 3, when it is necessary in connection with a suspension of the proceedings or with a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings within the time-limits set out in § 3.”

However, under Section 10 (a) of the Interim Law of 1 December 1995 different rules applied in respect of persons whose detention on remand started prior to 4 August 1996. This section provided:

“1. In cases where the total period of detention on remand which started prior to 1 August 1996 exceeds the [maximum] time-limits referred to in Article 222 §§ ... and 3 of the Code of Criminal Procedure [as amended by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes], the accused shall be maintained in detention until the Supreme Court gives a decision on a request for prolongation of such detention under Article 222 § 4 of the Code of Criminal Procedure.

2. In cases referred to in § 1, if no [such] request has been lodged, detention shall be lifted not later than 1 January 1997.”

Under all the relevant provisions of the Code of Criminal Procedure read together, a detainee was entitled to appeal against any decision prolonging his detention on remand, regardless of whether it had been made at the investigative or judicial stage of proceedings. However, no appeal lay in law either against a decision containing a request under Article 222 § 4, or against a decision of the Supreme Court granting such a request.

7. The 1997 Code of Criminal Procedure.

On 1 September 1998 the 1997 Code of Criminal Procedure replaced the 1969 Code.

Article 263 of the 1997 Code, insofar as relevant, provides:

Ҥ 1. During investigation the court which decides about detention on remand shall impose it for a period not longer than 3 months.

§ 2. If the special circumstances of a case make it impossible to conclude the investigation within the time-limit provided in § 1, detention on remand may be prolonged, at the request of the prosecutor and when it is necessary, by:

the trial court – for up to 6 months,

the appeal court – for a further fixed period necessary to conclude the investigation but not longer than 12 months.

§ 3. The length of detention on remand until the delivery of a first judgment by the trial court shall not exceed 2 years.

§ 4. Detention on remand may be prolonged for a fixed period exceeding the periods provided in §§ 2 and 3 only by the Supreme Court at the request of the court dealing with a case (...) – if it is necessary because of the suspension of criminal proceedings, the prolonged psychiatric observation of an accused, the prolonged preparation of an expert opinion, the collection of evidence in a particularly complicated case or abroad, or a delay in the proceedings caused by an accused as well as other obstacles which could not be overcome”.

COMPLAINTS

1. The applicant complains under Article 3 of the Convention that he was subjected to inhuman and degrading treatment in that on 2 December 1996 he was extradited from Russia to Poland under the influence of drugs that had been injected in him and that he did not obtain the necessary medical help on his arrival in Warsaw. He also submits that during his transportation from Warsaw to the Opole Detention Centre on 4 and 5 December 1996, for a day and a half, he was not served any meals. He further complains that during his interrogation on 10 June 1997 he was subjected to psychological torture by the investigating police officer M.R. He finally complains about the failure to provide him with the adequate dental treatment and medical care in the Opole Detention Centre, which caused his serious suffering and has led to a considerable deterioration of his health.

2. The applicant complains under Article 5 § 1 of the Convention that there was no reasonable suspicion of his having committed any offence at the moment of his arrest and that he is not guilty of any criminal charge. He submits that he was brought from Russia to Poland by use of illegal and devious means and in contravention of the relevant rules of procedure.

3. He submits, invoking Article 5 § 2 of the Convention, that the Polish Consuls, who visited him several times in detention in Russia, failed to inform him of nature of charges against him. He also submits that on 2 December 1996, while being extradited to Poland, he was not informed by the police officers of the reasons for his arrest nor was he asked to sign the record of arrest. Consequently, he could not lodge an appeal against the decision ordering his detention with a court.

4. The applicant complains under Article 5 § 3 of the Convention, that during his stay in custody in Russia from 30 September 1996 until 2 December 1996 he was never brought before any court. The applicant complains under Article 5 § 3 of the Convention that he was deprived of liberty by a decision of a prosecutor and that he was not brought promptly before a judge. He also complains about the length of his detention on remand, submitting that it was unjustified and that bail conditions or other preventive measures could have been imposed on him by the courts.

5. The applicant complains under Article 5 § 4 that neither he nor his lawyer were entitled to be present in the court proceedings reviewing his detention on remand. The applicant further complains that in the proceedings concerning his detention on remand, the courts refused to examine the witnesses on his behalf. He also submits that his applications for release as well as his appeals against refusals to release him, in particular those of 6.12.1996, 6.01.1997, 18.02.1997, 28.02.1997, 27.04.1997, 4.06.1997 and 3.09.97, were not examined speedily by the courts. He finally complains that he could not lodge an appeal against decisions given by the Supreme Court concerning his continuing detention on remand.

6. The applicant complains under Article 6 § 1 of the Convention about the overall length of the criminal proceedings against him.

7. The applicant complains under Article 6 § 3 (b) that he did not have adequate facilities for preparation of his defence against the charges that had been preferred against him on 5 December 1996. The applicant further complains, invoking Article 6 § 3 (c) of the Convention, that at the first hearing before the Opole District Court his right to defend himself through legal assistance was violated.

8. Th applicant complains, invoking Article 8 of the Convention, about the alleged interference with his correspondence to the Convention organs.

9. The applicant alleges under Article 14 of the Convention that he was discriminated against on political grounds.

10. The applicant finally complains, without invoking any provisions of the Convention, about the refusals to institute criminal proceedings against the police officer M.R.

THE LAW

1. The applicant complains under Article 3 of the Convention that he was subjected to inhuman and degrading treatment in that:

a) on 2 December 1996 he was extradited from Russia to Poland under the influence of drugs that had been injected in him and that he did not obtain the necessary medical help on his arrival in Warsaw. Next, during his transfer from Warsaw to the Opole Detention Centre on 4 and 5 December 1996, for a day and a half, he was not served any meals. The applicant further complains that during his interrogation on 10 June 1997 he was subjected to psychological torture by the investigating police officer M.R.

b) The applicant also complains about the alleged failure to provide him with adequate dental treatment and general medical care in the Opole Detention Centre, submitting that due to this neglect he experienced serious suffering and that his health condition had considerably deteriorated.

Article 3 of the Convention  provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

a) As to the applicant’s complaint concerning the alleged ill-treatment in the course of his extradition from Russia to Poland and his subsequent transfer to the Opole Detention Centre as well as the alleged psychological torture inflicted on him by the investigating police officer on 10 June 1997, the Court observes that in each case a thorough investigation into the applicant’s allegations was carried out by the prosecution authorities, which arrived at the decisions that no offence had been committed. There is no indication that any other steps should have been taken in order to establish the facts alleged by the applicant. The Court notes that the applicant has failed to adduce evidence to contradict the findings made by the domestic authorities and sees no reason to cast doubt on the credibility thereof. The Court further recalls that in order to fall within the scope of Article 3, the alleged treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc. In the present case, even assuming that the applicant has provided sufficient evidence of the ill-treatment he allegedly suffered, the Court considers that there is no evidence that the treatment complained of has reached the threshold of severity required to bring the matter within the ambit of Article 3 of the Convention.

It follows that this complaint is manifestly ill-founded under Article 35 § 3 of the Convention and must be rejected under Article 35 § 4.

b) As to the applicant’s complaint about the alleged failure to provide him with adequate dental treatment and medical care in detention, the Court considers that it cannot, on the basis of the case file, determine the admissibility of the complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant complains under Article 5 § 1 of the Convention that:

a) he was extradited from Russia to Poland on 2 December 1996 by use of illegal and devious means and in contravention of the relevant rules of procedure.

b) there was no reasonable suspicion of his having committed any offence at the moment of his arrest and that he is not guilty of any criminal charge.

Article 5 § 1, insofar as relevant, provides as follows:

“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) As regards the complaint concerning the extradition proceedings, the Court notes that the events in question took place within the jurisdiction of the Russian Federation. The Court considers that nothing indicates that the Polish authorities could be held responsible in respect of the acts complained of. It follows that this complaint is manifestly ill-founded under Article 35 § 3 of the Convention and must be rejected under Article 35 § 4. The Court further notes that Russia, a Contracting State not named as a respondent in the application form, ratified the Convention on 5 May 1998, whereas the applicant’s complaint relates to the period prior to that date. Thus even assuming that the Russian Federation could be regarded as a co-respondent State, any complaints against Russia would be incompatible ratione temporis with the Convention within the meaning of Article 35 § 3.

b) As regards the applicant’s complaint about the alleged lack of reasonable suspicion, the Court recalls that the “reasonableness” of the suspicion on which an arrest must be based forms an essential part of the safeguard against arbitrary arrest and detention laid down in Article 5 § 1(c) of the Convention. This requires the existence of some facts or information which would satisfy an objective observer that the person concerned may have committed the offence, though what may be regarded as reasonable will depend on all the circumstances of the case (Fox, Campbell and Hartley v. the United Kingdom judgment of 30 August 1990, Series A no. 182, p. 16, § 32). The Court further recalls that the standard imposed by Article 5 § 1(c) does not presuppose that the police have sufficient evidence to bring charges at the time of arrest. The object of questioning during detention under sub-paragraph (c) of Article 5 § 1 is to further the criminal investigation by way of confirming or dispelling the concrete suspicion grounding the arrest. Thus facts which raise a suspicion need not be of the same level as those necessary to justify a conviction, or even the bringing of a charge which comes at the next stage of the process of criminal investigation (see Brogan and Others v. the United Kingdom judgment of 29 November 1988, Series A no. 145-B, p. 29, § 53; Murray v. the United Kingdom judgment of 28 October 1994, Series A no. 300-A, p. 27, § 55).

In the present case, the Court notes that the relevant decisions ordering the applicant’s detention on remand were based on the evidence gathered in the course of the proceedings. The Court sees no reason to doubt that the suspicion against the applicant reached the level required by Article 5 § 1(c) and that the purpose of the deprivation of liberty was to confirm or dispel that suspicion.

It follows that this complaint is manifestly ill-founded under Article 35 § 3 of the Convention and must be rejected under Article 35 § 4.

3. The applicant complains about the failure to inform him of the charges against him and the reasons for his arrest by the Polish Consul, visiting him in police custody in Russia as well as by the Polish police officers who transported him to Poland on 2 December 1996. He also submits that he was not asked to sign the record of arrest, and as a result, he could not lodge an appeal against the decision ordering his detention with a court. The applicant invokes Article 5 § 2 of the Convention, which provides:

“Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”

The Court notes that the applicant was detained on remand on 2 December 1996 for a period of seven days under the detention order of 31 May 1995 issued by the Opole District Prosecutor according to Section 210 of the Code of Criminal Procedure. On 5 December 1996 the prosecutor informed the applicant of the charges against him. The Court further notes that the application was lodged on 22 December 1997. Therefore, the complaints under this head must be rejected for failure to respect the six‑month rule provided for in Article 35 § 1 of the Convention.

4. The applicant complains, under Article 5 § 3 of the Convention, 

a) that during his stay in custody in Russia from 30 September 1996 until 2 December 1996 he was never brought before any court;

b) that he was deprived of liberty by a decision of a prosecutor and that he was not brought promptly before a judge;

c) about the length of his detention on remand, submitting that it was unjustified and that bail conditions or other preventive measures could have been imposed on him by the courts.

Article 5 § 3 of the Convention provides:

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. Release may be conditioned by guarantees to appear for trial.”

a) As regards the applicant’s complaint concerning his stay in custody in Russia, the Court notes that the events in question took place within the jurisdiction of the Russian Federation. The Court considers that nothing indicates that the Polish authorities could be held responsible in respect of the acts complained of. It follows that this complaint is manifestly ill-founded under Article 35 § 3 of the Convention and must be rejected under Article 35 § 4. The Court further notes that Russia, a Contracting State not named as a respondent in the application form, ratified the Convention on 5 May 1998, whereas the applicant’s complaint relates to the period prior to that date. Thus even assuming that the Russian Federation could be regarded as a co-respondent State, any complaints against Russia would be incompatible ratione temporis with the Convention within the meaning of Article 35 § 3.

b) As regards the applicant’s complaint that he was deprived of liberty by a decision of a prosecutor and that he was not brought promptly before a judge, the Court notes that the applicant was detained on remand on 2 December 1996 for a period of seven days under the detention order of 31 May 1995 issued by the Opole District Prosecutor according to Section 210 of the Code of Criminal Procedure. On 6 December 1996 the applicant was present in person before the Opole District Court, which decided to detain him on remand until 2 March 1997. It follows that this part of the application is inadmissible for the failure to observe the six-month rule and must be rejected under Article 35 §§ 1 and 4 of the Convention.

c) As regards the applicant’s complaint about the unreasonable length of his detention on remand, the Court considers that it cannot, on the basis of the case file, determine the admissibility of the complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

5. The applicant complains under Article 5 § 4 that

a) neither he nor his lawyer was entitled to be present in the court proceedings reviewing his detention on remand and that the courts refused to examine the witnesses on his behalf in these proceedings.

b) his appeals against decisions on his continuing detention, inter alia those of 6.12.1996, 6.01.1976, 18.02.1997, 28.02.1997, 27.04.1997, 4.06.1997 and of 3.09.97, were not examined speedily by the courts.

c) he could not lodge an appeal against decisions given by the Supreme Court concerning his continuing detention on remand.

Article 5 § 4 of the Convention states as follows:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

a) As regards the applicant’s complaint relating to the proceedings concerning his detention on remand, the Court considers that it cannot, on the basis of the case file, determine the admissibility of the complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

b) As regards the applicant’s complaint relating to the alleged failure to examine the applicant’s request for release and his appeals against decisions concerning his detention the Court notes that

(i) the complaints of 6.12.1996, 6.01.1997, 18.02.1997, 28.02.1997 and of 27.04.1997 were considered by the courts on 30.12.1996, 12.02.1997, 10.03.1997, 25.03.1997 and on 15.05.1997 respectively. The Court notes that the applicant lodged the present application on 22 December 1997. It follows that this part of the application has been introduced out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention.

(ii) as to the applicant’s motions submitted on 4.06.1997 and 3.09.1997 which were considered by the courts on 17.07.1997 and on 26.09.1997 as well as his applications lodged after that date, the Court considers that it cannot, on the basis of the case file, determine the admissibility of the complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

c) As regards the applicant’s complaint that he could not appeal against decisions given by the Supreme Court concerning his continuing detention on remand, the Court recalls that Article 5 § 4 guarantees no right, as such, to appeal against decisions ordering or extending detention as the above provision speaks of “proceedings” and not of “appeal”. The intervention of one “court” satisfies the requirements of Article 5 § 4, on condition that the procedure followed has a judicial character and gives to the individual concerned guarantees appropriate to the kind of deprivation of liberty in question. Where domestic law provides for a system of appeal, the appellate body must also comply with Article 5 § 4 (see the Grauzinis v. Lithuania judgment, no. 37975/97, 10 October 2000, §§ 30-32, unreported).

It follows that this complaint is manifestly ill-founded under Article 35 § 3 of the Convention and must be rejected under Article 35 § 4.

6. The applicant complains under Article 6 § 1 about the length of criminal proceedings against him. Article 6 § 1 of the Convention, insofar as relevant, provides:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal ...”

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 § 3 of the Rules of Court, to give notice of this complaint to the respondent Government.

7. The applicant complains under Article 6 § 3 (b) that he did not have adequate facilities for preparation of his defence against the charges that had been preferred against him on 5 December 1996. The applicant also complains under Article 6 § 3 (c) that at the first hearing before the Opole District Court his right to defend himself through legal assistance was violated.

Article 6 § 3 (b) and (c) reads:

“Everyone charged with a criminal offence has the following minimum rights: ...

b) to have adequate time and facilities for the preparation of his defence;

c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require ... .”

The Court recalls that the guarantees of Article 6 § 3 are to be seen as part of the general notion of the right to a fair hearing ensured by Article 6 § 1 of the Convention. Moreover, the fairness of criminal proceedings must be examined on the basis of the proceedings as a whole. The Court notes that the trial in the present case has not started, the applicant has not yet been convicted, and he still has the possibility of submitting his complaints before the domestic courts. Accordingly, it would be premature for the Court to deal with the applicant’s complaints under Article 6.

The Court concludes that the applicant cannot at this stage claim to be a victim of a violation of the above provision. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must therefore be rejected pursuant to Article 35 § 4.

8. The applicant complains, invoking Article 8 of the Convention, about the alleged interference with his correspondence to the Convention organs.

Article 8 of the Convention provides in so far as relevant:

“1. Everyone has the right to respect for his [...] family life, [...] and his correspondence.

However, the Court considers, on the basis of the evidence before it, that the applicant has failed to submit any prima facie evidence in support of his allegations.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

9. The applicant alleges under Article 14 of the Convention that he was discriminated against on political grounds. Article 14 of the Convention reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

However, the Court finds this part of the application to be entirely unsubstantiated and rejects it as manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.

10. The applicant finally complains under Article 6 § 1 of the Convention, about the refusals to institute criminal proceedings against the police officer M.R. Article 6, in so far as relevant, provides:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ... .”

The Court recalls the Convention organs’ established case-law according to which the Convention does not guarantee the right to pursue criminal proceedings against third persons (see, e.g., No. 10877/84, Dec. 16.5.85, D.R. 43, p. 185) and that Article 6 does not apply to proceedings aimed at instituting criminal proceedings against third persons.

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected under Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning the allegedly inadequate medical treatment in detention, the unreasonable length of detention on remand, the adequacy and speediness of release proceedings and the unreasonable length of criminal proceedings as a whole;

Declares the remainder of the application inadmissible.

Michael O’BoyleNicolas Bratza
RegistrarPresident

Full & Egal Universal Law Academy