MATWIEJCZUK proti Polsku

FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37641/97
by Tomasz MATWIEJCZUK
against Poland

The European Court of Human Rights (Fourth Section), sitting on 12 October 2000 as a Chamber composed of

Mr G. Ress, President,
Mr A. Pastor Ridruejo,
Mr L. Caflisch,
Mr J. Makarczyk,
Mr V. Butkevych,
Mr J. Hedigan,
Mrs S. Botoucharova, judges,

and Mr V. Berger, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 7 November 1996 and registered on 3 September 1997,

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

Having regard to the report provided for in Rule 49 of the Rules of Court,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Polish national, born in 1966. He is currently detained in the Żytkowice prison. The applicant is represented before the Court by Mrs Beata Ordowska, a lawyer practising in Warsaw.

A. The circumstances of the case

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

On 11 September 1996 the applicant was arrested by the police. On 13 September 1996 the Warsaw District Court (Sąd Rejonowy) remanded him in custody on charges of armed robbery and sexual assault.

On 8 November 1996 the Warsaw Regional Court (Sąd Wojewódzki) dismissed the applicant’s appeal against the District Court’s decision to remand him in custody. The Regional Court considered that the applicant’s detention was justified by the existence of serious evidence of his guilt, the gravity of charges against him, the risk of collusion, the fact that he was of no fixed abode and was unemployed. In addition, the court observed that the police failed to apprehend the applicant’s accomplices and that there was a risk that he would go into hiding. Finally, the court was of the view that the applicant’s case did not disclose any of the grounds for release provided by Article 218 of the Code of Criminal Procedure.

The applicant made an application for release but it was dismissed on 19 December 1996 by the Warsaw Regional Court. It referred to the gravity of the charges brought against the applicant and the existence of serious evidence of his guilt.

On an unspecified date the Warsaw Regional Court extended the applicant’s detention until 11 March 1997.

On 10 March 1997 the Warsaw Court of Appeal (Sąd Apelacyjny) allowed the request submitted by the prosecutor and extended the applicant’s detention on remand until 11 May 1997. The court referred to the gravity of the charges against the applicant and the grounds for detention provided in Article 217 §§ 1 and 2 of the Code of Criminal Procedure. Moreover, it noted that one of the co-accused was still in hiding and that immediately after the commission of the alleged crime “there had been an attempt to contact the victim [of the assault]”. The court also agreed with the submissions of the prosecutor that the investigation was not finished because certain forensic tests still had to be carried out, the applicant and another co-accused were still under psychiatric observation, whereas the police was trying to apprehend the third accused. On 17 March 1997 the applicant appealed against that decision to the Supreme Court (Sąd Najwyższy).

On 24 April 1997 the Supreme Court dismissed the appeal. It referred to the charges against the applicant and observed that there existed serious evidence of his guilt.

On 29 April 1997 the Warsaw-Ochota Deputy District Prosecutor (Zastępca Prokuratora Rejonowego) replied to the applicant’s letter of 23 April 1997 in which he complained about the censorship of his correspondence with the European Commission of Human Rights. The prosecutor advised the applicant about domestic legislation, which allowed the authorities to censor his correspondence.

On 9 May 1997 the Warsaw Court of Appeal allowed the request submitted by the prosecutor and extended the applicant’s detention on remand until 11 July 1997. The court relied on the existence of serious evidence of the applicant’s guilt and the nature of charges against the applicant. It also considered that the applicant’s case did not disclose any of the grounds for release provided by Article 218 of the Code of Criminal Procedure. Finally, the court noted that the prosecution service was awaiting an expert opinion from a forensic expert and that one of co-accused was still in hiding.

On 27 June 1997 the prosecuting authorities filed with the Warsaw Regional Court a bill of indictment against the applicant.

On 7 July 1997 the Warsaw Regional Court extended the applicant’s pre-trial detention until 11 September 1998.

On 10 July 1997 the Supreme Court dismissed the applicant’s appeal against the Warsaw Court of Appeal’s decision of 9 May 1997. The Supreme Court relied on the gravity of charges against the applicant, the existence of serious evidence of his guilt and the grounds for detention listed in Article 217 §§ 1 and 2 of the Code of Criminal Procedure. It also pointed out that the Warsaw Regional Court’s decision of 7 July 1997 extending the applicant’s detention had been taken before the Supreme Court had the opportunity to decide his appeal against the Warsaw Court of Appeal’s decision of 9 May 1997 and therefore constituted “an inappropriate practice”.

On 5 September 1997 the Warsaw Court of Appeal dismissed the applicant’s appeal against the Warsaw Regional Court’s decision of 7 July 1997.

On 22 July 1998 the Warsaw Regional Court requested the Supreme Court to extend the applicant’s pre-trial detention under Article 222 § 4 of the Code of Criminal Procedure which empowered the Supreme Court to prolong detention beyond two years. The request was based, inter alia, on Articles 209 and 217 § 2 of the Code of Criminal Procedure and referred to the gravity of charges against the applicant, the existence of serious evidence of his guilt and the inability to schedule hearings because of holidays and workload of judges involved in the applicant’s case. The request also referred to the fact that the next hearing could not be fixed before evidence is taken from an anonymous witness who could not testify before 3 November 1998.

On 28 August 1998 the Supreme Court allowed the Regional Court’s request and extended the applicant’s pre-trial detention until 15 December 1998. It pointed out that difficulties in fixing hearings caused by holidays and workload of judges could not be considered as grounds for extending pre-trial detention. Furthermore, the Supreme Court agreed with the Regional Court that the applicant’s case disclosed the existence of grounds for detention provided in Articles 209 and 217 § 2 of the Code of Criminal Procedure. The Supreme Court concluded that the inability to take evidence from an anonymous witness before 3 November 1998 justified the extension of the applicant’s detention under Article 222 § 4 of the Code of Criminal Procedure.

On 19 November 1998 the Warsaw Regional Court dismissed the applicant’s challenge to the judges serving in his case. The Regional Court considered that the fact that the judges were female did not deprive the applicant of a fair trial on charges of sexual assault.

The applicant made a further application for release but it was dismissed by the Warsaw Regional Court on 2 December 1998. The court considered that the applicant’s detention was justified by the existence of serious evidence of his guilt, the gravity of charges against him and the fact that he had been of no fixed abode at the time of his arrest. Moreover, the court observed it had not finished taking evidence from certain witnesses.

On 2 December 1998 the Warsaw Regional Court requested the Supreme Court to further extend the applicant’s pre-trial detention. On 4 December 1998 the Supreme Court allowed that request and prolonged the detention until 15 February 1999. The Supreme Court referred to its decision of 28 August 1998 and observed that the trial court still had to take evidence form certain witnesses. In addition, the trial court did not know the address of one of those witnesses, whereas another witness had to be transported to the court from the Łódź Prison.

Between 22 July and 17 December 1998 five hearings took place before the Warsaw Regional Court.

The applicant made a fresh application for release but it was dismissed on 4 January 1999 by the Warsaw Regional Court. It referred to the nature and the gravity of charges against the applicant and noted that his trial was in the final stage.

The hearing scheduled for 21 January 1999 was adjourned until 3 February 1999.

On 25 January 1999 the Warsaw Regional Court requested the Supreme Court to further extend the applicant’s pre-trial detention. On 10 February 1999 the Supreme Court allowed that request and prolonged the detention until 31 March 1999. It referred to the reasoning of its decision of 4 December 1998. The Supreme Court also noted the difficulties the trial court experienced in taking evidence from one of the witnesses. Moreover, the court considered that because the applicant had been of no fixed abode at the time of his arrest he could interfere with the proceedings if released from detention.

On 19 February and 15 March 1999 the hearings were held before the Warsaw Regional Court.

On 4 May 1999 the Warsaw Regional Court convicted the applicant of armed robbery and sexual assault and sentenced him to five years’ imprisonment. The applicant appealed against that judgment to the Warsaw Court of Appeal.

On 9 November 1999 the Warsaw Court of Appeal held a hearing at which the applicant’s lawyer was present. The court dismissed the appeal except for the conviction for armed robbery, which it qualified as robbery without the use of arms.

The applicant did not lodge with the Supreme Court a cassation appeal against the decision of the Warsaw Court of Appeal.

B. Relevant domestic law

1. The 1969 Code of Criminal Procedure

The 1969 Code of Criminal Procedure, which remained in force until 1 September 1998, listed as preventive measures, inter alia, detention on remand, bail and police supervision. Article 209 of the Code, which set out general grounds justifying the imposition of preventive measures, provided as follows:

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

Furthermore, the Code of Criminal Procedure allowed authorities a margin of discretion as to whether to continue the enforcement of preventive measures. Detention on remand was regarded as the most severe preventive measure. Article 213 of the Code provided as follows:

“A preventive measure shall be immediately quashed or changed if the grounds therefor have ceased to exist or if new circumstances have arisen, which justify quashing a given measure or replacing it with one that is either more or less severe.”

Article 225 of the Code provided:

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

Article 217 of the Code, before it was amended on 1 January 1996, provided insofar as relevant:

“Detention on remand may be imposed if:

1. there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent domicile, or

2. there is a reasonable risk that he will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means, or

3. the accused was charged with a commission of a criminal offence or acted as a habitual offender, as provided for by the Criminal Code, or

4. the accused was charged with the commission of an act which constituted significant danger to society.”

Article 218 provided:

“If there are no special reasons to the contrary, detention on remand should be quashed, in particular, when:

(1) it may seriously jeopardise the life or health of the accused; or

(2) it would entail excessively burdensome effects for the accused or his family.”

Until 4 August 1996, when the Code of Criminal Procedure was amended, Polish law did not set out any statutory time-limits concerning detention on remand in court proceedings but only in respect of the investigative stage.

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

“3. The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed one year and six months in cases concerning ordinary 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 case (...) 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 suspension of the proceedings, 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 in the terms referred to in paragraph 3.”

Subsequently, paragraph 4 was extended to include also “other significant circumstances, which could not be overcome by the organs conducting the proceedings”.

2. 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 made 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:

1) the trial court – for up to 6 months,

2) 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 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, a delay in the proceedings caused by an accused as well as other obstacles which could not be overcome”.

COMPLAINTS

The applicant complains about the unreasonable length of his pre-trial detention. He also raises a complaint under Article 6 of the Convention about the unreasonable length of the criminal proceedings against him.

The applicant further complains under Article 6 of the Convention about the use of an anonymous witness against him at his trial and the refusal to hear a witness called by the applicant. He further complains about the refusal to allow him to attend the appeal hearing before the Warsaw Court of Appeal.

Furthermore, the applicant complains about the censorship and delaying of his correspondence.

Finally, he submits that the facts of his case disclose a violation of Articles 3, 4 and 14 of the Convention.

THE LAW

1. The applicant complains under Article 6 of the Convention about the use of an anonymous witness against him at his trial and the refusal to hear a witness called by the applicant. He further complains about the refusal to allow him to attend the appeal hearing before the Warsaw Court of Appeal. However, the Court is not required to decide whether or not the facts submitted by the applicant disclose any appearance of a violation of the Convention since he failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention. In particular, he failed to lodge with the Supreme Court a cassation appeal against the judgment of the Warsaw Court of Appeal. It follows that this part of the application must be rejected, in accordance with Article 35 § 4 (see No. 33492/96, Dec. 16.4.98, unreported).

2. The applicant submits that the facts of his case disclose a violation of Articles 3, 4 and 14 of the Convention. The Court notes that the applicant has not provided any prima facie evidence pointing towards the breach of those provisions. 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.

3. The applicant complains about the unreasonable length of his pre-trial detention. He also raises a complaint under Article 6 of the Convention about the unreasonable length of the criminal proceedings against him.

The Court considers that it cannot, on the basis of the case-file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 3 (b)[Note1] of the Rules of Court, to give notice of this part of the application to the respondent Government.

4. Furthermore, the applicant complains about the censorship and delaying of his correspondence.

The Court notes that the case-file includes the following documents, which appear to have been censored by domestic authorities:

(i) the applicant’s letters of 5, 22 and 31 January and 7 February 1997 addressed to the European Commission of Human Rights are marked with a hand-written note: “Censored” (Ocenzurowano) and an illegible signature and also bear a stamp: “Assistant Warsaw-Ochota District Prosecutor Grażyna Garboś-Jędral” (Asesor Prokuratury Rejonowej Warszawa Ochota Grażyna Garboś-Jędral);

(ii) the applicant’s letters of 8, 21 and 24 April 1997 addressed to the European Commission of Human Rights are marked with a hand-written note: “Censored” and an illegible signature;

(iii) the applicant’s letters of 5 March, 16 May and 3 September 1997 as well as an undated letter received on 19 March 1997 addressed to the European Commission of Human Rights are marked with an illegible signature;

(iv) an envelope mailed by the applicant on 5 September 1997 to the European Commission of Human Rights is marked with a hand-written note: “Censored” and an illegible signature;

(v) a flap of an envelope with the logo of the Council of Europe bears on the inside a stamp: “Assistant Warsaw-Ochota District Prosecutor Grażyna Garboś-Jędral” and an illegible signature;

(vi) an envelope mailed by the European Court of Human Rights on 23 February 1999 to the applicant bears a stamp: “Censored on, signature” (Ocenzurowano dn. podpis), a hand-written date: 5 March and an illegible signature.

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 (b)[Note2] of the Rules of Court, to give notice of this complaint to the respondent Government.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant’s complaints[Note3] about the unreasonable length of his pre-trial detention and of the criminal proceedings against him and the censorship and delaying of his correspondence;

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger Georg Ress
Registrar President

[Note1] Change as necessary.

[Note2] Change as necessary.

[Note3] Summarise the complaints without necessarily citing the invoked Convention Articles.