CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 8 janvier 2004

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s5BA5B7C7 { margin-top:12pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s662121A1 { margin-top:12pt; margin-bottom:12pt; text-align:center } .sB8987CE9 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .s61ED8A2B { width:14.36pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sA36B60A1 { font-family:Arial; font-style:italic } .s84D0D60A { width:8.36pt; display:inline-block } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sBB5E682E { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt } .sF604F523 { margin-top:36pt; margin-bottom:12pt; font-size:14pt } .s76CF415B { page-break-before:always; clear:both } .s147369FC { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt } .sDEA336FF { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt } .s29100277 { font-family:Arial; font-weight:bold } .s4B773175 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt } .sE8EB5753 { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt } .s8AD34D0 { margin-top:6pt; margin-left:20.15pt; margin-bottom:6pt; text-indent:8.8pt; font-size:10pt } .s9671CAED { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt } .s6BBACBD8 { margin-top:6pt; margin-left:20.15pt; margin-bottom:12pt; text-indent:8.8pt; font-size:10pt } .sEEE3CE35 { margin-top:12pt; margin-left:20.15pt; margin-bottom:12pt; text-indent:8.8pt; font-size:10pt } .s160BBE39 { margin-top:12pt; margin-left:20.15pt; margin-bottom:6pt; text-indent:8.8pt; font-size:10pt } .s45EC7D31 { margin-top:6pt; margin-bottom:36pt; text-indent:14.2pt } .s145CCEB3 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt } .s451A1BF5 { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt } .s377C1984 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt } .sA918FEC8 { margin-top:12pt; margin-bottom:12pt; text-indent:14.4pt } .sBED5F98F { margin-top:12pt; margin-left:14.2pt; margin-bottom:36pt } .sA5C4F8A9 { margin-top:36pt; margin-bottom:0pt; text-align:left; page-break-inside:avoid; page-break-after:avoid } .sEF8F76C5 { width:20.87pt; display:inline-block } .s93B30DFA { width:207.46pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .s60570E66 { width:233.81pt; display:inline-block } THIRD SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 42643/98 by Krzysztof PASZKOWSKI against Poland The European Court of Human Rights (Third Section), sitting on 8   January 2004 as a Chamber composed of   Mr   G. Ress , President ,   Mr   P. Kūris ,   Mr   R. Türmen ,   Mr   B. Zupančič ,   Mr   J. Hedigan ,   Mrs   H.S. Greve ,   Mr   L. Garlicki, judges , and   Mr   V. Berger , Section Registrar , Having regard to the above application lodged with the European Commission of Human Rights on 11 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 observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mr Krzysztof Paszkowski, is a Polish national who was born in 1966 and lives in Gdańsk, Poland. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. On 24   August   1994 the applicant was arrested on suspicion of extorting protection money from an escort agency. Subsequently, eleven other persons were charged and remanded in custody in connection with the investigation against the applicant. In the course of the investigation proceedings the applicant’s detention was several times prolonged by the Gdańsk Regional Prosecutor ( Prokurator Wojewódzki ) and the Gdańsk Regional Court ( Sąd Wojewódzki ). The prosecution authorities also obtained two expert reports concerning the applicant’s mental health. On 27   June   1995 the Gdańsk Regional Prosecutor ( Prokurator Wojewódzki ) lodged a bill of indictment with the Gdańsk Regional Court ( Sąd Wojewódzki ). The applicant was indicted together with eleven other persons on charges of robbery and extortion. The prosecution asked the court to hear evidence from 106 witnesses. On 26   July   1995 the applicant lodged an application for release. He submitted that his wife had been placed in a mental hospital and that their daughter had been left without care. On 18   August   1995 the Gdańsk Regional Court upheld the detention order. The court held that, given the number of suspects involved in the case and the serious nature of the offence in question, keeping the applicant in custody was necessary to ensure that the process of obtaining evidence followed its proper course. On 6   September   1995 the Gdańsk Court of Appeal ( Sąd Apelacyjny ) dismissed the applicant’s further appeal. On 30   April   1996 the applicant made an application for release. It was rejected by the Gdańsk Regional Court on 14   May   1996. The court held that keeping the applicant in custody had been necessary to ensure the proper conduct of the proceedings. On 12   June   1996, on an appeal by the applicant, the Gdańsk Court of Appeal upheld this decision. The court found that the applicant’s family situation did not militate against his continuing detention and that there were no grounds on which to release the applicant, as defined in Article 218 of the Code of Criminal Procedure. Furthermore, it also underlined the gravity of charges brought against the applicant. On 4   December   1996 the applicant made yet another application for release. It was rejected by the Gdańsk Regional Court on 10   December   1996 as the applicant failed to submit any new arguments which would justify his release. On 30   December   1996 the Gdańsk Regional Court asked the Supreme Court ( Sąd Najwyższy ) to prolong the applicant’s detention. On 16   January   1997 the Supreme Court granted the application and prolonged his and eight other co-accused’ detention until 30   June   1997. On 6   June   1997 the applicant made yet another unsuccessful application for release from detention. On 26   June   1997 the Gdańsk Regional Court lodged a request under Article 222 § 4 of the Code of Criminal Procedure with the Supreme Court, asking it to prolong the applicant’s detention for a further period of six months. On 13   August   1997 the Supreme Court extended the applicant’s detention until 1   December   1997, considering that it was necessary to ensure the proper conduct of the proceedings. The court stressed that the case was particularly complex as it concerned several co-accused. Furthermore, it observed that the trial court still had to hear evidence from 50 witnesses. On 26   September   1996 the composition of the trial court had to be changed due to the presiding judge’s illness. Between October and December 1997 the trial court on four occasions allowed that the applicant’s family visit him in prison. On 25   November   1997 the Gdańsk Regional Court again asked the Supreme Court to prolong the applicant’s detention. On 19   December   1997 the Supreme Court decided to extend the applicant’s detention until 30   April   1998. It considered that even though the proceedings had been lengthy, the trial court could not be held responsible for the delay. The composition of the trial court had to be changed due to the presiding judge’s illness. Moreover, some of the accused contributed to the length of the proceedings by lodging numerous motions with the court. The Supreme Court also referred to the complexity of the case, the fact that it involved several accused, and the large number of witnesses. In January, February, March 1998 the applicant’s family was allowed on five occasions to visit him in prison. On 30   April   1998 the Gdańsk Regional Court released the applicant under police supervision. The court held that the detention had already been prolonged three times by the Supreme Court but to no avail, as the proceedings had still not been terminated. In the court’s opinion, any prolongation of his further detention on remand would be tantamount to serving a prison sentence. Before 30   April   1998 the trial court listed 31 hearings, of which 17 were cancelled or adjourned. On 22   October   2002 the Regional Court gave judgment. It sentenced the applicant to four years’ imprisonment. B.     Relevant domestic law and practice At the material time the rules governing detention on remand were contained in Chapter 24 of the Law of 19 April 1969 “Code of Criminal Procedure” ( Kodeks postępowania karnego ) (“the Code”) entitled “Preventive measures” ( Środki zapobiegawcze ). The Code is no longer in force. It was repealed and replaced by the Law of 6 June 1997 (commonly referred to as the “New Code of Criminal Procedure”), which entered into force on 1 September 1998. The Code listed as “preventive measures”, inter alia , detention on remand, bail and police supervision. Article 209 set out the general grounds justifying imposition of the preventive measures. That provision read: “Preventive measures may be imposed in order to ensure the proper conduct of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.” Article 217 § 1 defined grounds for detention on remand. The relevant part of this provision, in the version applicable until 1 January 1996, provided: “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 he has no fixed residence [in Poland] or his identity cannot be established; or (2)     there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means; or (3)     an accused has been charged with a serious offence or has relapsed into crime in the manner defined in the Criminal Code; or (4)     an accused has been charged with an offence which creates a serious danger to society....” On 1 January 1996 sub-paragraphs 3 and 4 of Article 217 § 1 were repealed and the whole provision was redrafted. From that date onwards the relevant sub-paragraphs read: “(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)     [as it stood before 1 January 1996].” Paragraph 2 of Article 217 provided: “If an accused has been charged with a serious offence or an intentional 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 secure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed.” The Code set out the margin of discretion in maintaining a specific preventive measure. Articles 213 § 1, 218 and 225 of the Code were based on the precept that detention on remand was the most extreme preventive measure and that it should not be imposed if more lenient measures were adequate. COMPLAINT The applicant complained under Article 5 § 3 of the Convention that the length of his detention on remand was excessive. THE LAW Under Article 5 § 3 of the Convention the applicant complained that the length of his detention had exceeded a “reasonable time”. Article 5 § 3 reads, in so far as relevant: “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 Government submitted that the period of the applicant’s detention falling within the scope of Article 5 § 3 lasted from 24   August   1994 to 30   April   1998. However, in their opinion, there had been valid reasons for holding the applicant in custody. First of all, the applicant’s detention had been subject to a frequent review of the domestic courts. The courts had examined his applications for release diligently and each time had given detailed reasons. Also the courts had on several occasions allowed the applicant’s family to visit him in prison. Secondly, given the complexity of the issues involved and, in particular, the number of witnesses and co-accused involved in the proceedings, the authorities had shown due diligence in dealing with the case. Moreover, there had been a reasonable suspicion based on voluminous evidence that the applicant had committed the offences with which he had been charged. There had been further a sufficient basis to believe that, had the applicant been released, he might have obstructed the process of obtaining the evidence. In conclusion, the Government maintained that there had been no breach of Article 5 § 3. The applicant argued that the period of 3 years and 8 months that he had spent in detention was not compatible with the “reasonable time” requirement. He claimed that one of the reasons for keeping him in detention given by the courts was that he could have interfered with the process of obtaining evidence. However, after 30   April   1998, i.e. the date on which he had been released from detention, the trial court continued to hear evidence from witnesses. In the applicant’s opinion this fact confirmed that he could have been released earlier. The applicant further maintained that the authorities had failed to act with due diligence. He stressed that the first-instance proceedings lasted more than 7 years. In his view, the time that he had spent in detention while the trial court had gathered evidence was too lengthy. In sum, the applicant asked the Court to find a violation of Article 5 § 3 of the Convention. The Court considers, in the light of the parties’ submissions, that the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. For these reasons, the Court unanimously Declares the application admissible, without prejudging the merits of the case.   Vincent Berger   Georg Ress   Registrar   President