CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 3 juillet 2003

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Ress , President ,   Mr   L. Caflisch ,   Mr   P. Kūris ,   Mr   R. Türmen ,   Mr   J. Hedigan ,   Mrs   M. Tsatsa-Nikolovska ,   Mr   L. Garlicki, judges , and     Mr     V. Berger , Section Registrar , Having regard to the above application introduced on 26 March 1999, Having deliberated, decides as follows:   THE FACTS The applicant, Grzegorz Telecki, is a Polish national, who was born in 1959 and lives in Lublin. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 1 February 1999 the Bielsko Biała District Court issued a warrant of detention in respect of the applicant, valid until 1 May 1999, on suspicion of fraud   committed in conspiracy with other persons. The court stressed that the testimony given during the investigations by the co-suspects and the evidence gathered so far in the case-file strongly supported the suspicion against the applicant. At that time the applicant had already been detained on remand by the Kraków District Court in another set of criminal proceedings.   On 4 February 1999 the applicant lodged an appeal against this detention order with the Bielsko Biała District Court. By a decision of 2 March 1999 the Bielsko Biała District Court dismissed the appeal, finding that his detention was necessary to ensure the proper course of the proceedings. Apparently, the criminal case against the applicant was later taken over for consideration by the Lublin Regional Court, which had jurisdiction to deal with it. On 13 April 1999 the Lublin Regional Court granted the Lublin Regional Prosecutor’s request for prolongation of the applicant’s detention until 20   July 1999, considering that due to the complexity of the case and the need to obtain expert opinions, his detention had to be maintained. The court further noted that evidence against the applicant had pointed to his guilt, and that the charges against him had a serious character, as shown in particular by the fact that the alleged offences had been committed in an organised group, and that a very significant number of documents seemed to have been forged by the suspects. In addition, there existed a risk that the applicant, if released, would obstruct the collection of evidence. The applicant appealed. On 20 May 1999 the Lublin Court of Appeal dismissed the applicant’s appeal against this decision. On 7 June 1999 the applicant requested the Lublin Regional Prosecutor to be allowed access to the case-file. On 10 June 1999 the Lublin Regional Prosecutor refused his request and decided that the evidence given by other persons remain inaccessible to the suspect. The Lublin Regional Prosecutor   relied on the findings of the investigations that it was likely that the applicant had contacts with groups of organised crime and, if allowed access to the case file, would obstruct the proper course of the criminal investigations.     By a decision of 8 July 1999 the Lublin Appellate Prosecutor dismissed the applicant’s further appeal. By a decision of 16 June 1999 the Lublin Court of Appeal prolonged the applicant’s detention on remand until 19 September 1999. The court considered that the reasons for which the detention had been ordered continued to exist.   On 29 July 1999 the Supreme Court dismissed the applicant’s appeal against the decision of 16 June 1999, finding that there was sufficient suspicion that the applicant had committed the offence at issue, supported by the evidence gathered in the course of the criminal investigations. In the meantime, the applicant was transferred to another detention centre.   On 25 June 1999 the applicant requested the prosecuting authorities to institute criminal proceedings against the governor of the prison, submitting that he had been deprived of adequate medical care in respect of his neurological ailments. By a decision of 30 June 1999 the Bielsko-Biała District Prosecutor refused to institute the criminal proceedings at the applicant’s request. The applicant was informed that his allegations about inadequate medical treatment had been investigated and had been proved to be unfounded, as he had received specialised medical care adequate to his condition. All investigations showed that on numerous occasions he had been afforded comprehensive medical examinations by several specialists, including doctors from the public health service. There were no indications that the applicant’s health problems were disregarded or made light of. Moreover, he had failed to lodge a complaint about allegedly inadequate medical treatment with the governor of the prison. On 27 January 2000 the Bielsko-Biała District Court upheld the prosecutor’s decision. By a decision of 17 September 1999 the Biskupiec District Court prolonged the applicant’s detention on remand until 17 March 2000. The court referred to the strong probability of the applicant’s guilt, the gravity of the charges against him and to the high risk of his hindering the proper conduct of the proceedings. The court also emphasised that it was likely that the applicant, if released, would go into hiding. By a decision of 15 October 1999 the Olsztyn Regional Court Biskupiec District Court, having regard to the expert opinions, dismissed the applicant’s request for release on health grounds, finding his complaints about deteriorating health condition unsubstantiated. The court also pointed out that on numerous occasions the applicant had been examined by doctors from the prison health service and that no infringement of the obligation to ensure proper medical care to the applicant had been established by the court.   On 14 March 2000 the Biskupiec District Court prolonged the applicant’s detention until 30 June 2000, having found no grounds on which to envisage his release under Article 259 of the Code of Criminal Procedure (“CCP”). On 31 March 2000 the Olsztyn Regional Court dismissed the applicant’s appeal against this decision.   On an unspecified later date the applicant requested his release. By the decisions of 25 April 2000 and of 10 May 2000, the latter upheld by the decision of the Olsztyn Regional Court of 19 May 2000, the Biskupiec District Court, rejected his requests, considering that the grounds for detaining the applicant still remained valid.    By a decision of 28 June 2000 the Biskupiec District Court prolonged the   applicant’s detention until 30 November 2000. On 14 July 2000 the Olsztyn Regional Court dismissed his further appeal against this decision. By decisions of 26 July 2000, of 11 September 2000 and of 27   September 2000 the Biskupiec District Court dismissed the applicant’s requests to be released.    By a decision of 21 November 2000 the Biskupiec District Court prolonged the applicant’s detention until 31 January 2001.   Later on, the applicant again requested to be released. His requests were subsequently dismissed by the Biskupiec District Court. By a decision of 31 January 2001, upheld by the decision of the Olsztyn Regional Court of 9 February 2001, the Biskupiec District Court prolonged the applicant’s detention until 31 May 2001, finding no grounds on which to order his release under Article 259 CCP.      On 9 April 2001, 30 April 2001 and 14 May 2001 the Biskupiec District Court rejected other requests for the applicant’s release. By a decision of 31 May 2001 the Biskupiec District Court prolonged the applicant’s detention until 31 July 2001. The applicant appealed. On 20   June 2001 the Olsztyn Regional Court dismissed his appeal and upheld the contested decision.   By a judgment of 26 June 2001 the Biskupiec District Court convicted the applicant of several counts of fraud and sentenced him to 4 years’ imprisonment. The applicant appealed. On 22 January 2002 the Olsztyn Regional Court held a hearing in the appellate proceedings, at which the applicant’s lawyer was present. The court dismissed the applicant’s appeal and upheld the contested judgment.   The applicant lodged a cassation appeal. By a decision of 28 November 2002 the Supreme Court dismissed his cassation appeal as unsubstantiated. B.     Relevant domestic law 1. Preventive measures The Code of Criminal Procedure (“CCP”) of 6 June 1997 lists as “preventive measures” ( środki zapobiegawcze ), inter alia , detention on remand, bail and police supervision. Article 249 § 1 sets out general grounds justifying imposition of preventive measures, including detention on remand. This provision reads: “Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, in exceptional cases, in order to prevent the accused from committing a new serious offence; they shall be ordered only if evidence against the accused sufficiently indicates a high likelihood that he has committed a criminal offence.”     Article 249 § 3 provides: “Before deciding on the application of the preventive measures, the court or the   prosecutor shall hear the person charged with offence... The lawyer of the detainee should be allowed to attend the court session, if he or she is present. It is not mandatory to inform the lawyer of the date and time of the court session, unless the suspect so requests and if it will not hinder the proceedings.” Article 249 § 5 provides: “ The court shall inform the lawyer of a detained person of the date and time of court sessions at which a decision is to be taken concerning prolongation of detention on remand, or an appeal against a decision to impose or to prolong detention on remand is to be considered.” Article 250 provides: “1. Detention on remand may be imposed only by a court order. 2. In the investigative stage of proceedings, detention on remand shall be imposed, on a prosecutor’s request, by a district court in the jurisdiction of which investigations are being conducted. After a bill of indictment is lodged with a court, a decision to impose detention on remand shall be given by a court competent to deal with the merits of the case. 3. The prosecutor, when submitting to a court a request referred to in § 2, shall at the same time order that the suspect be brought before a court.” 2. Grounds for detention on remand Article 258 of CCP sets out the grounds justifying the imposition of detention on remand. This provision provides: “1. Detention on remand may be imposed if: (1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent abode [in Poland]; or (2) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper conduct of proceedings by any other unlawful means. 2. If an accused has been charged with a serious offence or any other offence [for the commission of which he may be] liable to a sentence of a statutory maximum of at least eight years’ imprisonment, or if a court of first instance has sentenced him to at least three years’ imprisonment, the need to continue detention in order to ensure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed. 3. Detention on remand may also exceptionally be imposed if there is a reasonable risk that an accused who has been [already] charged with a serious offence or any intentional offence, will commit an offence against the person or public order, in particular if he has threatened to commit any of such offences.” Article 253 § 1 provides: “A preventive measure [including detention on remand] shall be immediately lifted or varied, if the basis therefor has ceased to exist or new circumstances have arisen which justify lifting a given measure, or replacing it.”   Article 257 § 1 states:   “Detention on remand shall not be imposed if any other measure is considered adequate.” Article 259 § 1 provides: “If there are no special reasons to the contrary, detention on remand should be lifted, in particular if: (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.” 3. Statutory time-limits for detention on remand Article 263 of CCP sets out the time-limits for detention on remand in the court proceedings. It provides as follows:   “3. The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed two years. 4. The Supreme Court may, on an application made by the court competent to deal with the case, ... prolong detention on remand for a further fixed period exceeding the time-limits set out in paragraphs 2 and 3, when this is necessary in connection with a suspension of the proceedings, a prolonged psychiatric observation of the accused, a prolonged preparation of an expert report, when evidence needs to be obtained in a very complex case or from abroad, when the accused has deliberately obstructed the termination of the proceedings or because of other significant obstacles, which could not be overcome [by the authorities conducting the proceedings].” COMPLAINTS The applicant complains under Article 5 § 3 of the Convention that the length of his detention on remand exceeded a reasonable time within the meaning of this provision. He complains that his detention on remand in the criminal proceedings against him from 1 February 2001 lacked a legal basis. He maintains that there were no valid decisions of the Supreme Court authorising his detention from 1 February 2001 until 26 June 2001. The applicant complains under Article 5 § 4 of the Convention that the proceedings concerning review of his detention on remand were not adversarial in that he was not present before the court in these proceedings. He complains under Article 3 of the Convention that he was subject to ill-treatment, as he should not have been staying in prison due to his bad health. THE LAW 1. The applicant complains that the unreasonable length of his pre-trial detention breached Article 5 § 3 of the Convention, which in so far as relevant provides: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.   2. The applicant further complains that his detention on remand between 1 February 2001 and 26 June 2001 was unlawful in that there was no judicial decision in force throughout this period to justify his detention. This complaint falls under Article 5 § 1 of the Convention, which provides: “1. 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;”   The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.   3. The applicant complains that the proceedings concerning review of his detention on remand were not adversarial in that he was not present before the court in these proceedings. The Court has examined this complaint under Article 5 § 4 of the Convention, which reads: "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." The Court recalls that by virtue of Article 5 § 4, an arrested or detained person is entitled to bring proceedings for the review by a court of the procedural and substantive conditions, which are essential for the “lawfulness”, in the sense of Article 5 § 1, of his or her deprivation of liberty (see Brogan and Others v. the United Kingdom , judgment of 29   November 1988, Series A no. 154-B, p. 34, § 65). Although it is not always necessary that the procedure under Article 5 § 4 be attended by the same guarantees as those required under Article 6 § 1 of the Convention for criminal or civil litigation (see Megyeri v. Germany , judgment of 12 May 1992, Series A no. 237-A, p. 11, § 22), it must have a judicial character and provide guarantees appropriate to the kind of deprivation of liberty in question. In the case of a person whose detention falls within the ambit of Article 5 § 1 (c), a hearing is required (see Schiesser v. Switzerland , judgment of 4 December 1979, Series A no. 34, p. 13, §§ 30–31; and Kampanis v. Greece, judgment of 13 July 1995, Series A no. 318-B, p. 45, §   47). In particular, in the proceedings in which an appeal against detention order is being examined, “equality of arms” between the parties, the prosecutor and the detained person, must be ensured ( Włoch v. Poland , no.   27785/95, §§ 129-135, ECHR 2000-XI). The Court observes that under the law on criminal procedure detention on remand is ordered by a decision of a court, given at the public prosecutor’s request. The Code of Criminal Procedure of 1997 entitles both the person in respect of whom such a request has been issued, and his lawyer, if he/she had already been appointed by that time, to attend the court session held in the judicial proceedings, instituted following a prosecutor’s request. The court is obliged to hear the suspect before giving a decision on the prosecutor’s request to have a detention order issued in order to establish whether, in the light of the evidence gathered by the prosecution and the arguments advanced by the suspect, there are sufficient grounds for believing that there is a reasonable suspicion that he/she committed the criminal offence in question. The Court observes that in the case under consideration the applicant was remanded in custody under the warrant of arrest issued by the Bielsko-Biała District Court of 1 February 1999. The court issued the detention order having held a session in the presence of the applicant, as required by the law in force at that time, and having questioned the applicant. On 4 February 1999 the applicant lodged an appeal against the detention order with that court. The applicant has not advanced any arguments or evidence that would establish that in his case the court departed from the normal procedure as set out by the provisions of the Code of Criminal Procedure and acted in breach of its obligation to hear the suspect before giving its decision on the imposition of the pre-trial detention. The Court further notes that under the applicable law of criminal procedure, in the proceedings concerning prolongation of pre-trial detention, the courts are also under an obligation set out by Article 249 § 5 of the Code of Criminal Procedure to inform the lawyer of a detained person of the date and time of court sessions at which a decision was to be taken concerning prolongation of detention on remand, or an appeal against a decision to impose or to prolong detention on remand is to be considered. It is open for the lawyer to attend such session. Therefore, even assuming that the applicant, when complaining under Article 5 § 4 of the Convention, refers also to the proceedings, as envisaged in the Code of Criminal Procedure, in which the prolongation of his detention was examined and to which this provision of the Convention is also applicable ( Włoch , cited above), the Court is of the view that the proceedings concerned satisfied the requirements of Article 5 § 4. There are therefore no grounds on which to find that the proceedings, concerning review of the lawfulness of the applicant’s detention, examined as a whole, fell short of the requirements of this provision of the Convention. It follows that this complaint must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.   4. The applicant complains that his detention on remand amounted, in the light of the lack of adequate medical care available to him in detention centres, to inhuman and degrading treatment within the meaning of Article 3 of the Convention, which reads: “No one shall be subjected ... to inhuman or degrading treatment ...” The Court recalls that the lack of medical treatment in prison may raise an issue under Article 3. In such cases, the factors to be considered are the seriousness of the applicant’s condition, the quality of medical care he receives and whether his state of health is compatible with a detention. Also, there remains the State’s obligation to maintain a continuous review of the detention arrangements employed with a view to ensuring the health and well-being of all prisoners, having due regard to the ordinary and reasonable requirements of imprisonment ( Bonnechaux v.   Switzerland , Eur. Comm. HR, Report 5.12.1979, D.R. 18, pp. 100 and 148; Lukanov v. Bulgaria , Eur. Comm. HR, Dec. 12.1.1995, D.R. 80-A, pp.   128-130; Kudła v. Poland, no.   30210/96, §   94, ECHR 2000 ‑ XI).   In the present case the applicant was remanded in custody in various detention centres. From the documents in the case-file it transpires that he received specialised medical care adequate to his health condition. He was repeatedly examined by specialists, including specialists from civil health services. He failed to submit any details which might indicate that the conditions of detention were particularly difficult or that they caused him any hardship other than that inherent to detention, or incompatible with his health. In conclusion, the Court considers that the circumstances under which the applicant was detained do not disclose any appearance of a breach of Article 3. It follows that this complaint must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously Decides to adjourn the examination of the applicant’s complaints concerning the lawfulness of the applicant’s pre-trial detention and the length of his detention; Declares the remainder of the application inadmissible.   Vincent Berger   Georg Ress   Registrar   President