CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 janvier 1998

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 27504/95                       by Wojciech ILOWIECKI                       against Poland           The European Commission of Human Rights (Second Chamber) sitting in private on 14 January 1998, the following members being present:              MM     J.-C. GEUS, President                  M.A. NOWICKI                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS            Mrs    G.H. THUNE            MM     F. MARTINEZ                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              Ms     M.-T. SCHOEPFER, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 3 November 1994 by Wojciech ILOWIECKI against Poland and registered on 2 June 1995 under file No. 27504/95;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:     THE FACTS         The applicant, a Polish citizen born in 1955, is a businessman residing in Poznan, Poland.         The facts of the case, as submitted by the applicant, may be summarised as follows:   Particular circumstances of the case:         On 6 November 1993 the Poznan-Nowe Miasto District Prosecutor (Prokurator Rejonowy) charged the applicant with forgery and attempting to obtain a loan of USD 25,000,000 by false pretences, committed together with four co-suspects, and detained him on remand in view of the reasonable suspicion that he had committed the offences with which he had been charged.         On 12 January 1994, upon the applicant's request, the prosecutor presented, in writing, detailed reasons for the charges laid against him, holding that they were justified by various bank documents and the statements of his co-suspects.   According to the evidence collected at this stage, there was a suspicion that the applicant and his co- suspects had forged thirty provisional bank guarantees and fifty final bank guarantees in order to obtain a loan in the sum of USD 25,000,000.         Subsequently, on an unspecified date, the Poznan Regional Prosecutor (Prokurator Wojewódzki) took over the investigations from the Poznan-Nowe Miasto District Prosecutor.         On 4 April 1994 the applicant unsuccessfully requested the Poznan Regional Prosecutor to replace the preventive measure imposed on him and to release him on bail. He claimed that his detention entailed a heavy burden on his family since, in the meantime, his daughter had been examined by psychiatrists in view of the fact that the separation from her father had seriously affected her mental state.   He also submitted that his daughter was suffering from dyslexia and that her mental state had been rapidly worsening during the recent months.         On 21 June 1994 the applicant again requested the prosecutor to release him on bail, submitting that his isolation from his family had resulted in both his daughter and wife suffering from serious neurosis and depression.   On 7 July 1994, upon the prosecutor's request, a medical expert submitted a report stating that the applicant's wife was suffering from neurasthenia resulting from her family situation.         In the meantime, on 27 June 1994, upon the Poznan Regional Prosecutor's request, the Poznan Regional Court (S*d Wojewódzki) prolonged the applicant's detention until 30 July 1994.   On 11 August 1994 the Poznan Court of Appeal (S*d Apelacyjny), upon the applicant's appeal, upheld the decision of the court of first instance in view of the reasonable suspicion that the applicant had committed the offences in question and their serious nature.         On 4 July 1994 the applicant unsuccessfully requested the Poznan Regional Prosecutor to take evidence from witnesses proposed by him and from a graphology expert.           On 7 July 1994 the Poznan Regional Prosecutor terminated the investigation.   Subsequently, on an unspecified date in July 1994, he lodged a bill of indictment with the Poznan Regional Court. Apparently, the applicant's request for release dated 21 June 1994 was transferred to that court along with the case-file.         On 20 July 1994 the applicant again requested the Poznan Regional Court to release him on bail in view of his difficult family situation. On 19 September 1994 the Poznan Regional Court apparently ruled on both his requests (i.e also the one dated 21 June 1994) and held that his detention should be maintained in view of the reasonable suspicion that the applicant had committed the offences with which he had been charged and their serious nature.   The court also found that the applicant's family's situation did not militate against his continuing detention.         The applicant appealed on 27 September 1994, submitting, inter alia, that the mere suspicion that he had committed the offences with which he had been charged could not suffice to justify the maintaining of his detention and that such reasoning had amounted to a breach of the presumption of innocence.   He admitted that his co-defendants had already been released.   On 13 October 1994 the Poznan Court of Appeal dismissed his appeal, holding that the lower court's findings had not concerned the question of the applicant's guilt but the likelihood that he had committed the offences in question and that his detention should be maintained in view of the serious nature of the charges laid against him and the fact that he had acted in an organised group.         On 24 October 1994 the applicant again requested the Poznan Regional Court to release him on bail, submitting that his family situation was critical, especially in view of the mental state of his wife and daughter.   On 7 November 1994 the court dismissed his request, finding that even though his detention entailed a heavy burden on his family, it should be maintained in view of the serious nature of the charges laid against him.         In the meantime, on 6 November 1994, the applicant attempted to commit suicide by swallowing fifty tablets of the sedative "Relanium". On 6 December 1994 a psychiatrist examined him in prison and found that he was suffering from depression due to his confinement and separation from his family.         Subsequently, on an unspecified date, the Poznan Regional Court scheduled hearings for 7 and 8 December 1994.   On 5 December 1994 both hearings were cancelled since the presiding judge was ill.         During the hearing of 21 February 1995 the court decided not to examine the case on the merits and remitted the case-file to the Poznan Regional Prosecutor, finding that the investigations should be supplemented.   On 10 March 1995, upon the parties' appeals, the Poznan Court of Appeal quashed the decision of the court of first instance, ordering that the case should be examined on the merits.         On 6 June 1995 the applicant again requested the Poznan Regional Court to release him on bail in view of his family's situation.   He also submitted that the criminal proceedings against him were not progressing with due expediency.    On 19 June 1995 the court dismissed his request in view of the reasonable suspicion that he had committed the offences with which he had been charged in an organised group, stressing that he had attempted to obtain a substantial loan by false pretences.   The court admitted that his detention, which at the material time had exceeded eighteen months, had lasted for a long time; however this fact in itself did not change the reasons given to justify it.   The applicant unsuccessfully appealed against this decision.         On 23 August 1995 the court held a hearing during which the applicant and his co-defendant requested the court to release them. The hearing was adjourned.         On 25 August 1995 the Poznan Regional Court quashed their detention orders and released the applicant and his co-defendant on police supervision in view of the fact that at the material time their detention had amounted to nearly two years and the next hearing had not been scheduled until an unspecified date in December 1995.   The court found that there was no risk of collusion and that the police supervision would sufficiently ensure the due course of the ensuing proceedings.   On 8 September 1995, upon the Poznan Regional Prosecutor's appeal, the Poznan Court of Appeal upheld the decision of the court of first instance and the reasons therefor.         On 13 and 14 June 1996 the court held a hearing during which a bill of indictment was read out and the evidence from the witnesses called by the prosecution was heard.   The next hearing was scheduled for 19 August 1996 but subsequently cancelled.   During the hearing of 23 October 1996 the court continued to hear evidence from the witnesses called by the prosecution.   On 9 December 1996 the court heard the evidence from the witnesses called by the defence.   The next hearing was scheduled for 22 January 1997 as the court had ordered that evidence be taken from experts.   On 22 January 1997 the hearing was cancelled since the court experts had failed to appear.         In view of the fact that after 22 January 1997 the Poznan Regional Court scheduled no hearing, on 9 September 1997 the applicant complained to the Ombudsman (Rzecznik Praw Obywatelskich) about the length of the proceedings in his case, requesting him to intervene on his behalf.   Relevant domestic law and practice   1.     Preventive measures, in particular, detention on remand         The Polish Code of Criminal Procedure lists as preventive measures, inter alia, detention on remand, bail and police supervision.         Section 209 of the Code of Criminal Procedure (in the version applicable at the material time) provided:         "Preventive measures may be imposed in order to secure the due       course of proceedings if the evidence against the accused       sufficiently justifies the opinion that he has committed a       criminal offence."         The Code of Criminal Procedure sets out the margin of discretion as to maintaining the specific preventive measure.   Detention on remand is regarded as the most extreme among the preventive measures and the domestic law lays down that in principle it should not be imposed if more lenient measures are adequate or sufficient.         Section 213 of the Code of Criminal Procedure provided:         "1.   A preventive measure (including detention on remand) shall       be immediately quashed or altered if the basis therefor has       ceased to exist or new circumstances have arisen which justify       quashing or replacing a given measure with a more or less severe       one."         Section 225 of the Code of Criminal Procedure 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."         Within the above margin of discretion the Code of Criminal Procedure sets out a list of particular instances in which detention on remand may be imposed.         Section 217 of the Code of Criminal Procedure, insofar as relevant, provided:         "Detention on remand may be imposed if:         1.    there is a reasonable risk that an accused will abscond or       go into hiding, in particular when his identity cannot be       established or he has no permanent domicile (in Poland), or         2.    there is a reasonable risk that he will attempt to induce       witnesses to give false testimony or to obstruct the due course       of proceedings by any other unlawful means, or         3.    an accused has been charged with a serious offence       [this concerns the so-called "crimes", i.e. offences       punishable by a minimum of three years' imprisonment], or         4.    an accused has been charged with an offence which creates       a serious danger to society (...)"         Finally, the Code of Criminal Procedure refers to particular situations in which detention on remand shall not, in principle, be maintained.         Section 218 of the Code of Criminal Procedure 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."   2.     Proceedings relating to requests for release.         Section 214 of the Code of Criminal Procedure stated:         "An accused may at any time apply to have a preventive measure       quashed or altered.         Such an application must be decided by the prosecutor or, after       the bill of indictment has been lodged, by the court competent       to deal with the case, within a period not exceeding three days."   3.     Domestic remedies against inactivity on the part of the judiciary         The Polish Code of Criminal Procedure provides for two principal remedies, i.e. the so called "appellate measures": an appeal (which may be brought solely against the judgment of the court) and an interlocutory appeal (which may be brought against decisions other than judgments and against orders for preventive measures).   There is no specific provision referring explicitly to remedies against inactivity or lack of decision in the course of criminal proceedings.   COMPLAINTS   1.     The applicant complains under Article 5 para. 3 of the Convention that the length of his detention on remand exceeded a «reasonable time» within the meaning of this provision.   2.     Under Article 6 para. 1 he complains about the length of the criminal proceedings against him, submitting that they commenced on 6 November 1993 and are still pending before the court of first instance.   3.     He further complains under Article 13 of the Convention that the Polish authorities failed to examine speedily his various requests and appeals, including those relating to his detention on remand.   4.     The applicant also raises various complaints under Article 6 para. 3 (b) and (d) read together with Articles 13 and 14 of the Convention about the conduct of the criminal proceedings in question, in particular that:   a)     he was deprived of his defence rights, especially during the investigations, as the authorities did not reveal all the facts on which the charges had been laid against him;   b)     the investigating prosecutor had rejected his various requests to call witnesses to give evidence on his behalf and, subsequently, in the court proceedings, those witnesses were not promptly heard;   c)     the authorities employed discriminatory criteria, in comparison to his co-defendants, in assessing the charges laid against him.   THE LAW   1.     The applicant complains under Article 6 para. 3 (b) and (c) read together with Articles 13 and 14 (Art. 6-3-b+6-3-C+13, 6-3-b+6-3-C+14) of the Convention about the conduct of the criminal proceedings against him.   In particular he submits that in the investigations he was deprived of his defence rights as the authorities did not reveal all the facts on which the charges had been laid against him.   He further asserts that the investigating prosecutor rejected his requests to call witnesses to give evidence on his behalf and that those witnesses were not promptly heard in the court proceedings.   Finally, he complains that the authorities employed discriminatory criteria, in comparison to his co-defendants, in assessing the charges laid against him.         The Commission notes that the criminal proceedings against the applicant have not yet been terminated since they are still pending before the court of first instance.   Thus, at this stage, the Commission cannot speculate as to how the applicant's trial will continue, in particular whether, and if so to what extent, the manner in which the charges were presented to him might affect the fairness of the proceedings as a whole.         Also, it is too early to evaluate whether, and if so how, the way in which the evidence from the witnesses proposed by the applicant was taken might affect his right to fair trial.   As a consequence and assessing these complaints as a whole, the Commission considers that they are premature.         It follows that this part of the application is inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant also complains under Article 5 para. 3 (Art. 5-3) of the Convention about the length of his detention on remand and under Article 6 para. 1 (Art. 6-1) of the Convention about the length of the criminal proceedings against him.   He invokes Article 13 (Art. 13) of the Convention in support of his complaints, which by their nature fall within Article 5 para. 4 (Art. 5-4) of the Convention, that the authorities failed to examine speedily his various requests and appeals, including those relating to his detention on remand.         The Commission considers that it cannot, on the basis of the file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Commission's Rules of Procedure, to give notice of these complaints to the respondent Government.           For these reasons, the Commission,         DECIDES TO ADJOURN the examination of the applicant's       complaints about the length of his detention on remand, the       length of the proceedings relating to the lawfulness of his       detention on remand and about the length of the criminal       proceedings against him;         unanimously,       DECLARES INADMISSIBLE the remainder of the application.      M.-T. SCHOEPFER                               J.-C. GEUS       Secretary                                   President to the Second Chamber                       of the Second Chamber