CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 19 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. 27914/95                         by Piotr MIKULSKI                         against Poland         The European Commission of Human Rights sitting in private on 19 January 1998, the following members being present:               MM     S. TRECHSEL, President                   J.-C. GEUS                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER             Mrs    G.H. THUNE             MM     H. DANELIUS                   F. MARTINEZ                   C.L. ROZAKIS             Mrs    J. LIDDY             MM     L. LOUCAIDES                   M.A. NOWICKI                   I. CABRAL BARRETO                   B. CONFORTI                   N. BRATZA                   I. BÉKÉS                   J. MUCHA                   D. SVÁBY                   G. RESS                   A. PERENIC                   C. BÎRSAN                   K. HERNDL                   E. BIELIUNAS                   E.A. ALKEMA                   M. VILA AMIGÓ             Mrs    M. HION             MM     R. NICOLINI                   A. ARABADJIEV               Mr     M. de SALVIA, Secretary to the Commission         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 14 November 1994 by Piotr Mikulski against Poland and registered on 20 July 1995 under file No. 27914/95;       Having regard to:   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on 5 June       1997 and the observations in reply submitted by the applicant on       12 August 1997;         Having deliberated;         Decides as follows:      THE FACTS         The applicant, a Polish citizen born in 1954, is currently imprisoned in Bialol*ka prison.         The facts of the case, as submitted by the parties, may be summarised as follows:         On 7 September 1993 the Warsaw Praga-Pólnoc Public Prosecutor instituted criminal proceedings against the applicant on charges of aggravated assault and robbery, committed in August 1993. On 8 November 1993 the Praga-Pólnoc Public Prosecutor remanded the applicant in custody.         As in the course of the investigations doubts arose as to the applicant's mental condition, the Public Prosecutor ordered that he should undergo a psychiatric observation.   On 21 February 1994 the applicant was placed in a psychiatric hospital for six weeks' observation, which was subsequently prolonged, upon the psychiatrists' recommendation, until 10 May 1994.         In a letter of 1 June 1994, in reply to the Ombudsman's enquiry about the conduct of the proceedings, apparently following the applicant's complaint about its length, the Praga-Pólnoc District Prosecutor stated that the psychiatric observation had been completed but the relevant expert report had not yet been prepared.   The investigations would be terminated immediately after the submission of the report and the bill of indictment would be lodged with the court. The applicant's allegations about the unfairness of the investigations were, in the Prosecutor's opinion, unfounded and motivated by his wish to avoid criminal responsibility.         In a letter of 9 June 1994 the Warsaw District Bar replied to the applicant's complaint concerning the alleged lack of diligence on the part of an officially appointed lawyer and stated that there were no reasons for a finding that he lacked diligence.         On 10 June 1994 the Public Prosecutor submitted the bill of indictment to the Warsaw Regional Court (S*d Wojewódzki).   The applicant was charged with aggravated assault and robbery.         In a letter of 29 July 1994, in reply to the applicant's complaint about the length of the proceedings, the Ombudsman stated that the indictment would soon be lodged with the court.   He further stated that the applicant had undergone six weeks' psychiatric observation which had been prolonged for a further six weeks as he had refused to cooperate with the physicians.         On 11 August 1994 the Warsaw Regional Court dismissed the applicant's request for release of 9 August 1994, considering that there were sufficient grounds for a reasonable suspicion that he had committed a serious offence, supported in particular by the evidence given by the victim.   The court further considered that the detention should be maintained in view of the considerable seriousness of the offence concerned, and the fact that the applicant was a recidivist.         On 22 August 1994 the applicant complained to the Warsaw Regional Court about the delay in the proceedings.   In reply the court informed him on 29 August 1994 that the dates of hearings   were fixed following the chronological order in which the indictments had been filed with the court.         On 26 August 1994 the applicant lodged an appeal against the decision of 11 August 1994.         On 22 September 1994 the Warsaw Court of Appeal (S*d Apelacyjny) dismissed the applicant's appeal against the decision of 11 August 1994, considering that there were no sufficient grounds for a finding that the applicant's continued detention would entail undue distress for him or his family within the meaning of Article 218 of the Code of Criminal Procedure, and that the other reasons for the applicant's continued detention remained valid.   The court further considered that the lower court had been right in finding that there were grounds for a reasonable suspicion against the applicant, including the evidence given by the victim and the witnesses.   The serious character of the offence also justified the continuation of the applicant's detention.         On 27 December 1994 the applicant complained to the Warsaw Regional Court about the length of the criminal proceedings.         On 5 January 1995 the court informed the applicant that the first hearing could be held in June 1995.         On 22 February 1995 the applicant again requested his release. On 9 March 1995 the Warsaw Regional Court dismissed his request.         On 20 April 1995 the applicant again requested to be released. He relied in his request on his parents' need of his assistance in view of their bad health and their difficult financial situation.         On 4 May 1995 a judge of the Warsaw Regional Court ordered that the examination of the applicant's request be adjourned and that an enquiry be made as to the applicant's parents' actual situation.         On 22 May 1995 the Social Services prepared a report on their applicant's parents' situation.   It transpired therefrom that they were indeed in bad health and unable to take care of their needs without assistance.   However, they had refused any assistance from the Social Services and the applicant's father had declared that their income was sufficient for their subsistence.         On the same date the applicant again requested to be released.         On 26 June 1995 the applicant asked the court when his request for release of 22 May would be dealt with.         On 13 July 1995 the Warsaw Regional Court dismissed the applicant's requests for release of 20 April and 22 May 1995.   The court considered that, in view of the applicant's parents' refusal of social assistance the applicant's continued detention would not entail for them an exceptional hardship within the meaning of Article 218 of the Code of Criminal Procedure.         On 28 July 1995 a first hearing in the applicant's case was held before the Warsaw Regional Court.   The court questioned the applicant and heard evidence from two expert psychiatrists and one witness.   The hearing was adjourned until 29 August 1995 in order for other witnesses and the victim, who had failed to comply with the summons, to be questioned.         On 1 August 1995 the applicant lodged an appeal against the court's decision of 13 July 1995.   On 24 August 1995 the Warsaw Court of Appeal upheld the decision as the reasons for the applicant's continued detention had not ceased to exist.         On 29 August 1995 the hearing was adjourned as the witnesses failed to attend.         On 5 October 1995 the applicant requested his release. On 9 October 1995 the Warsaw Regional Court refused to release him from detention on remand.   The court reiterated that there were sufficient grounds for a reasonable suspicion that the applicant had committed the offence concerned.   The court remarked that efforts had been made to ensure that the witnesses, who had apparently failed to comply with the summonses, would be present at the next hearing.         On 9 October 1995 the applicant again requested to be released. On 19 October 1995 the Warsaw Regional Court refused to grant his request.         On 6 November 1995 the Warsaw Penitentiary Court (S*d Penitencjarny) decided that a prison sentence imposed on the applicant in separate proceedings should be executed.         On 5 December 1995 the Warsaw Regional Court pronounced judgment in the applicant's case.   It convicted him of robbery and assault and sentenced him to five years' imprisonment and a fine.         On 23 April 1996 the Warsaw Court of Appeal partly amended the judgment of the first-instance court, and upheld the judgment insofar as it concerned the sentence.         On 6 February 1997 the Supreme Court (S*d Najwyzszy) dismissed the applicant's appeal on a point of law.     Relevant domestic law         Pursuant to Article 218 of the Code of Criminal Procedure applicable at the material time, if there are no special considerations to the contrary, detention on remand shall not be imposed if it involves danger to life or limb or entails particular hardship for a suspect or his family.          Under Article 214 of the Code of Criminal Procedure a request for release shall be examined by a court within three days.     COMPLAINTS         The applicant complains under Article 5 paras. 3 and 4 of the Convention about the excessive length of his detention.         He further complains under Article 6 of the Convention of the length of the criminal proceedings.         The applicant complains under Article 13 of the Convention that he does not have any effective remedy at his disposal to complain about the length of the proceedings.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 14 November 1994 and registered on 20 July 1995.         On 26 February 1997 the Commission decided to communicate the applicant's complaints concerning the length of his detention on remand, the length of the proceedings to the respondent Government and the lack of an effective remedy and to declare the remainder of the application inadmissible.         The Government's written observations were submitted on 5 June 1997, after an extension of the time-limit fixed for that purpose. The applicant replied on 12 August 1997.     THE LAW   1.     The applicant complains under Article 5 paras. 3 and 4 (Art. 5-3, 5-4) of the Convention about the excessive length of his detention.         The Commission has examined this complaint under Article 5 para. 3 (Art. 5-3) of the Convention which, in its relevant part, reads:         "3.    Everyone arrested or detained in accordance with the       provisions of paragraph 1 (c) of this Article shall be brought       promptly before a judge or other officer authorised by law to       exercise judicial power and shall be entitled to trial within a       reasonable time or to release pending trial..."         The Government submit that the applicant's detention at the investigation stage lasted seven months and two days, whereas the detention when the case was pending before the court lasted from 10 June 1994 to 6 November 1995, i.e. sixteen months and twenty-six days.   The detention, both as to its grounds and its length, was in conformity with Polish law.   The reasons for the applicant's detention relied on in the initial detention order, i.e. the seriousness of the offence with which the applicant had been charged, the fact that he was a recidivist and the necessity of ensuring the proper conduct of the proceedings, did not cease to exist throughout the period concerned.         They further submit that the applicant's detention was necessary in view of the doubts which arose as to his mental condition. Consequently, his psychiatric examination   was ordered by the Public Prosecutor.   As the applicant refused to cooperate with   the psychiatrists, he underwent observation in a hospital for six weeks. This was subsequently prolonged upon the psychiatrists' request for another six weeks.         The Government state that the indictment was submitted to the court with no delay after the observation was finished, the expert report completed and the applicant granted access to the case-file. No delays occurred at the investigations stage.   The applicant and his counsel submitted requests for release several times.   The Regional Court dismissed all these requests, considering that the detention should be maintained in view of the seriousness of the offence, the fact that the applicant was a recidivist and the need to secure the proper conduct of the proceedings.   They emphasise that the offence concerned carried a risk of imprisonment of at least five years or of capital punishment.         The Government further contend that there were no sufficient reasons to release the applicant on the grounds indicated in Article 218 of the Code of Criminal Procedure.   The Warsaw Regional Court showed due diligence in that respect as in its decision of 4 May 1995 it ordered that the applicant's parents' situation be examined by the Social Services.   However, even though the enquiry of the Social Services showed that they actually needed assistance, they refused to accept it.         The Government conclude that the applicant's detention on remand satisfied the requirements of Article 5 par. 3 (Art. 5-3) of the Convention.         The applicant submits that his detention was too long.         The Commission considers, in the light of the parties' submissions, that this complaint raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the complaint.   The Commission concludes, therefore, that this part of the application is not manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for declaring it inadmissible have been established.   2.     The applicant further complains under Article 6 (Art. 6) of the Convention of the length of the criminal proceedings.         Article 6 para. 1 (Art. 6-1) of the Convention in its relevant part reads:         "1.    In the determination of ... any criminal charge against him,       everyone is entitled to a ... fair hearing within a reasonable       time by (a) ... tribunal ..."         As regards the length of the proceedings, the Government submit that the overall length was two years and twenty-seven days.         They submit that the case was complex, regard being had to the seriousness of the offence concerned and to the severity of the sentence which could have been imposed on the applicant.   Moreover, the applicant was a recidivist and he had previously been convicted of many criminal offences.   During the investigations he had to undergo a psychiatric examination as doubts had arisen as to his mental health. As he refused to cooperate with the psychiatrists, he had subsequently to undergo psychiatric observation in a hospital for twelve weeks altogether.   His lack of cooperation consequently prolonged the proceedings.         The Government further state that the hearing in the case was adjourned three times due to the fact that the victim and three other witnesses failed to comply with the summonses.   In the light of the circumstances of the case, it   was necessary for the court to hear evidence from them.   They contend that the period which elapsed before the first hearing was held in the case was due exclusively to an enormous case-load of the Warsaw Regional Court at the relevant time and to the difficulties in composing a panel of judges.         The Government conclude that the length of the proceedings complied with the "reasonable time" requirement of Article 6 para. 1 (Art. 6-1) of the Convention.         The applicant maintains that the proceedings lasted too long.         The Commission considers, in the light of the criteria established by the case-law of the Convention organs on the question of "reasonable time", and having regard to all the information in its possession, that an examination of the merits of the complaint is required.   3.     The applicant complains under Article 13 (Art. 13) of the Convention that he did not have any effective remedy at his disposal to complain about the length of the proceedings.         The Government submit that there is no specific remedy in Polish criminal procedure concerning particularly the length of criminal proceedings.   However, this complaint may be raised by parties to criminal proceedings by way of ordinary procedural remedies, i.e. appeals against judicial interlocutory decisions.   In particular, such a complaint may be raised in requests for release from detention on remand, in appeals against a decision to impose or maintain detention on remand, and at court hearings.         As regards the present case, the Government stress that the applicant raised this complaint several times in his requests for release.   The Government emphasise that these remedies should be regarded as effective within the meaning of Article 13 (Art. 13) of the Convention as their use entails a change in the appellant's situation in that detention on remand can be lifted and the proceedings can be shortened.         The applicant does not address this issue.         The Commission considers, in the light of the parties' submissions, that this complaint raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the complaint.   The Commission concludes, therefore, that this part of the application is not manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for declaring it inadmissible have been established.           For these reasons, the Commission, unanimously,           DECLARES INADMISSIBLE the applicant's complaint relating to the       alleged unfairness of the criminal proceedings,         DECLARES   ADMISSIBLE, without prejudging the merits of the case,       the remainder of the application.            M. de SALVIA                         S. TRECHSEL        Secretary                           President    to the Commission                    of the Commission