CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 28 septembre 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 } .s20FC8552 { font-family:Arial; font-size:11.5pt } .sBBAA0874 { width:14.3pt; display:inline-block } .s9E88C848 { font-family:Arial; font-size:11.5pt; font-variant:small-caps } .sD4EAAB82 { font-family:Arial; font-size:11.5pt; font-style:italic } .sE509636C { width:14.94pt; display:inline-block } .sA95ED9F7 { width:9.19pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sBB5E682E { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s4B773175 { margin-top:0pt; 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 } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sF604F523 { margin-top:36pt; margin-bottom:12pt; font-size:14pt } .s48D61AB0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .sEC533701 { margin-top:24pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .s9DAED311 { width:4.99pt; text-indent:0pt; display:inline-block } .sDFC5B1C5 { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s377C1984 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt } .s9C230781 { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt } .s451A1BF5 { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt } .sA284A115 { width:11.79pt; text-indent:0pt; display:inline-block } .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 } .s6BBACBD8 { margin-top:6pt; 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 } .sA918FEC8 { margin-top:12pt; margin-bottom:12pt; text-indent:14.4pt } .s588BDBF1 { margin-top:12pt; margin-left:14.2pt; margin-bottom:12pt } .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 } .s9D025815 { width:20.21pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .s4FFB5796 { width:198.18pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .s60570E66 { width:233.81pt; display:inline-block } FOURTH SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 63905/00 by Adam WASILEWSKI against Poland The European Court of Human Rights (Fourth Section), sitting on 28   September 2004 as a Chamber composed of:   Sir   Nicolas Bratza , President ,   Mr   J. Casadevall ,   Mr   R. Maruste ,   Mr   S. Pavlovschi ,   Mr   L. Garlicki ,   Mr   J. Borrego Borrego ,   Mrs   E. Fura-Sandström, judges , and Mr M. O'Boyle , Section Registrar , Having regard to the above application lodged with the European Commission of Human Rights on 26 July 1998, 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 partial decision of 23 September 2003, 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   Adam Wasilewski, is a   Polish national who was born in 1974 and lives in Brwinów. He is represented before the Court by Mr Marek Wasilewski, his father and legal guardian. The respondent Government are represented by Mr Jakub Wołąsewicz, of the Ministry of Foreign Affairs. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is physically handicapped and suffers from various mental disorders which originated from prenatal damage caused by his mother's car accident. He suffers from encephalopathy, epilepsy and he is mentally retarded. His thumbs are malformed and he lacks one kidney. The applicant is legally incapacitated. In 1994 the court appointed his father as his guardian. On 15 April 1998 the applicant was arrested and charged with attempted extortion of money by threats. He was apprehended at the very moment of his attempt to extort money, as a result of police trap. He pleaded guilty but failed to name his accomplices. The applicant appealed against his arrest maintaining, among others, that in view of his health condition he should not be detained. On 16 April the Pruszków District Court dismissed his appeal, finding that the arrest was justified and that his medical records did not indicate that his detention would be incompatible with health. On 17 April 1998 the Pruszków District Court decided to detain the applicant on remand until 14 July 1998. The court found that there was a reasonable suspicion that the applicant had committed an offence in collusion with other persons and that there existed a danger of his obstructing the proceedings as the other perpetrators had escaped and their identity had not been established. The court further referred to the fact that the applicant might face severe punishment and that the medical report confirmed that his health condition was not incompatible with detention. Throughout the initial period of his detention, at least until 2 July 1998, the applicant remained in the detention centre Warszawa-Białołęka , which apparently was not fit for detainees with mental disorders. On 28 April 1998 the Warsaw Regional Court instructed the administration of the detention centre to set up a medical commission to examine the applicant, to assess whether the state of his health allowed him to remain in custody and, if so, to specify the conditions in which he should be kept. The court requested that the matter should be considered as urgent and the report should be sent by facsimile as soon as possible. On an unspecified date in June 1998 the applicant wrote to his father that he had been brought for medical examinations which were, however, allegedly abandoned. The medical examination was eventually carried out on 1 July 1998. On 2 July 1998 the medical commission issued a medical report. It found that the applicant suffered from encephalopathy with disorders of behaviour, from epilepsy with infrequent attacks and that he was mentally retarded. The commission concluded that the applicant could remain in a detention centre equipped with a psychiatric and neurological unit. On an unspecified date after 2 July 1998 the applicant was transferred to the detention centre Warszawa-Mokotów , which had a psychiatric clinic. On an unspecified date the applicant filed an appeal against the detention order, which was dismissed on 9 July 1998 by the Warsaw Regional Court.    The court shared the arguments of the first instance court and found that the applicant was receiving specialist medical care.    On 13 July 1998, upon the competent public prosecutor's motion, the Pruszków District Court decided to prolong the applicant's detention until 14 October 1998. The court found that four days earlier the Regional Court had upheld the initial detention order and since then the circumstances remained unchanged. The court also noted that nothing had been done in the investigation against the applicant because the prosecutor had not had the case file at his disposal at any time since the applicant's arrest (“ w dotychczas zakreślonym terminie Prokurator w istocie nie dysponował sprawą i sytuacja procesowa znajduje się praktycznie w punkcie jak w dniu stosowania aresztu ”). The court concluded that the proper conduct of the investigation required the applicant's stay in detention. The applicant appealed. He also contended that, should the detention order be upheld, he should remain in a regular hospital and not in a detention centre.   On 4 August 1998 the Warsaw Regional Court found that the detention was necessary as, in particular, a psychiatric report had been requested to establish whether the applicant could be held criminally responsible. It decided, however, that the extension given by the District Court was excessively long and ruled that the applicant should be detained until 14   September 1998. On 27 August 1998 the prosecutor conducting the investigation decided to place the applicant under psychiatric observation. This decision was upheld by a court upon the applicant's appeal. On 26 July 1998 the applicant sent his first letter to the European Commission of Human Rights. A letter of 24 August 1998, sent by the Commission to the applicant, was intercepted, opened and read by the administration of the detention centre on 15 September 1998. On 8 September 1998 the Pruszków District Court decided to prolong the applicant's detention until 14 October 1998. The court referred to the persistence of a reasonable suspicion that the applicant had committed the offence, to its seriousness and to the severity of the potential sentence. It also noted that further procedural steps were necessary to identify the other perpetrators and considered that there was a danger that the applicant would obstruct the investigation. Reference was also made to the applicant's bad reputation in his place of residence and to the need for further psychiatric examinations of him. On 29 September 1998 doctors from the clinic of the Warszawa ‑ Mokotów detention centre examined the applicant and concluded that he could remain in the detention centre with psychiatric and neurological specialists. The applicant appealed against the prolongation of his detention. The Warsaw Regional Court dismissed his appeal on 8 October 1998, upholding the findings of the first instance court. On the same date, the same court examined a fresh motion by the prosecutor and again prolonged the applicant's detention, until 31 December 1998. The court found that, since the psychiatric report was of crucial importance for determining the scope of the applicant's criminal liability, and since the doctors had stressed the need for the applicant's observation in the psychiatric hospital, the prolongation of his detention was necessary. Following an appeal, the Warsaw Court of Appeal upheld the decision on 6 November 1998. On 29 October 1998 the applicant renewed his motion to be detained in a regular hospital instead of a detention centre, pursuant to the provisions of the Code on the Execution of Sentences, applicable also to detention on remand. It appears that no decision was rendered in this respect. The bill of indictment in the applicant's case was lodged with the Pruszków District Court on 21 December 1998. The trial was set to commence on 26 January 1999. The applicant's subsequent motions for release were dismissed by the Pruszków District Court on 24 December 1998 and 15 January 1999. The first hearings were held on 26 January, 24 February and 12 March 1999. In the meantime, on 26 January 1999, upon a renewed motion, the Pruszków District Court decided to release the applicant subject to police supervision. In January 2000 the applicant was hospitalised for anaemia. In March 2000 he was again hospitalised following a suicide attempt. On 15 April 1999 the court decided that the applicant should be again examined by a team of three psychiatrists who would establish his condition tempore criminis. Their report was submitted on 20 October 1999. At a next hearing held on 3 December 1999 the court decided to conduct the trial ab initio , the composition of the court having changed. The court also ordered, upon the applicant's request, a new medical opinion as to whether his condition prevented him from participating in the proceedings. This opinion was submitted to the court on 17 April 2000. Apparently, no further hearings were held in 2000. On 6 December 2000 the court decided that it lacked jurisdiction to deal with the applicant's case. This decision was quashed, following the applicant's appeal, on 1 February 2001. The next hearings were held on 22 June, 4 September, 1 October and 14   November 2001. On 4 September 2001 the Pruszków District Court refused to transmit the case back to the prosecuting authorities for the investigations to be completed. The applicant appealed. On 11 December 2001 the Warsaw Regional Court quashed the decision of 4 September 2001 and ordered that the request to transmit the case for further investigations be re-examined. On 14 December 2001 the Pruszków District Court again turned this request down.   By a judgment of 28 June 2002 the Pruszków District Court found the applicant guilty of an attempt to extort money by threats in collusion with other persons whose identity had not been established. The court found that, despite certain mental disorders, the applicant could be held criminally liable. His handicap and limited capacity to understand and control his conduct were taken into account as mitigating circumstances. The court sentenced the applicant to two years' imprisonment, suspended. The applicant appealed and also requested that the first-instance judgment be declared null and void. The latter motion was eventually dismissed on 28 October 2002. On 26 February 2003 the Warsaw Regional Court ordered a new medical report as to the applicant's health. On 27 May 2003 the court decided to stay the appellate proceedings in view of the fact that the applicant's state of health did not allow him to participate in the proceedings. The case is pending. COMPLAINTS The applicant complains under Article 5 of the Convention that his detention was excessively long. In particular, he submits that   the authorities failed to act with special diligence when conducting the investigation in his case. He argues that, given his medical condition, he should not have stayed in detention. The applicant also complains under Article 6 of the Convention about the allegedly excessive length of the criminal proceedings against him.   He also complains under Article 8 of the Convention that a letter from the European Commission of Human Rights to the applicant was intercepted, opened and read. B.     Relevant domestic law 1.   Act of 17 June 2004 On 17 June 2004 the Polish Parliament adopted a new law 'on a complaint about a breach of a right to have one's case heard within a reasonable time'. The Act entered into force on 17 September 2004. Article 2 of the Act provides for a special action by which a party can seek a declaration that his or her right to have the case heard within a reasonable time has been breached. The court shall take into consideration the following criteria: the conduct of the court before which the case is pending; the character of the case and the complexity of legal and factual issues involved therein; what was at stake for the complainant, and the conduct of the parties. The length complaint must be lodged when the proceedings concerned are still pending. The complainant shall submit, apart from the request for a declaration that the proceedings exceeded a reasonable time, the evidence to substantiate this complaint. The complaint shall be examined by a court composed of three professional judges. The court shall give its decision within two months from the date on which the complaint has been lodged. Pursuant to Article 12, if the court finds that the length complaint is well-founded, it shall give a ruling to this effect. If the complainant so requests, the court can also recommend that the court before which the case is pending takes certain procedural measures in the impugned proceedings.   The court may also, award an appropriate amount of money to the complainant, in an amount not exceeding PLN 10,000. Under Article 18,   within six months after the entry into force of this Act, anyone who has lodged an application with the European Court of Human Rights in due time complaining of a violation of the 'reasonable time' requirement contained in Article 6 § 1 of the Convention shall be entitled to lodge a length complaint under the Act, if the application to the Court was lodged when the proceedings were still pending and if it has not by then been declared admissible by the European Court. 2.   Correspondence of detained persons Article 102 of this Code under the 1997 Code of Enforcement of Criminal Sentences provides that convicted persons are entitled to unhindered correspondence with the State authorities and with the Ombudsman. Article 103 of the Code further provides that convicted persons and their lawyers may lodge complaints with the international agencies established under international treaties on the protection of human rights, ratified by Poland. Prisoners' correspondence in such cases shall be dispatched without delay, shall not be intercepted and is not subject to censorship. Pursuant to Article 512 of the Code, the rights of persons detained on remand shall, in principle, be the same as those of persons convicted by a final judgment. THE LAW 1.   The applicant complains under Article 5 of the Convention that his detention was excessively long. Article 5 § 3 of the Convention reads: “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 submit that there were valid reasons for the applicant's detention throughout his stay in prison: the serious suspicion of his having committed a criminal offence and the risk of colluding with other unidentified parties. His health was carefully monitored throughout this detention, and the lawfulness of his detention was at regular intervals examined by the courts which gave amply reasoned decisions as to the applicant's further detention. The applicant reiterates his complaint. The Court recalls that the persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita v. Italy [GC], no. 26772/95, §§   152-53, ECHR 2000-IV; Hamanov v. Bulgaria , no. 39270/98, 8 April 2004, § 74). The Court observes that the applicant was apprehended at the very moment of his attempt of extortion, and that he pleaded guilty. There were, therefore, serious indications of his guilt. The courts, when re-examining the lawfulness of his continued detention, relied, inter alia, on the fact that the offence had been apparently committed in collusion with other persons who had escaped and whose identity had not been established. The Court considers that that the courts had therefore sound grounds on which to believe that the applicant's release might jeopardise the proper conduct of the investigations. The Court further observes that the applicant's condition was carefully monitored throughout his detention and that he was placed in the detention centre equipped with medical facilities adequate for the monitoring of his health.   It was in part the measures undertaken in the framework of this monitoring which delayed the progress in the investigations. The Court finally observes overall that the applicant remained in custody for a period nine months, which, viewed on its own and also in the specific context of the case, does not appear excessive. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 2.   The applicant also complains under Article 6 of the Convention about the allegedly excessive length of the criminal proceedings against him. Article 6 § 1 of the Convention, insofar as relevant, reads: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” The Court considers that it cannot, at the present state of the file, determine the admissibility of this complaint.   The Court therefore considers that this part of the application must be adjourned. 3.   The applicant also complains under Article 8 of the Convention that a letter of the European Commission of Human Rights was intercepted, opened and read. Article 8 of the Convention, insofar as relevant, reads: “1.     Everyone has the right to respect for his ... correspondence. 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” The Government submit that it has not been confirmed that the impugned letter was indeed intercepted, and if so, whether it was intercepted and opened by the prison authorities. They refer to the fact that the notice on the envelope which points to the letter having been opened and read has not been signed. Should the Court accept that this was indeed the case, the Government decline to take a stand as to whether this amounted to an interference with the applicant's right to respect for correspondence within the meaning of Article 8 of the Convention.   The applicant reiterates his complaint. The Court considers, in the light of the parties' submissions, that the complaint 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 complaint 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 Decides to adjourn the examination of the applicant's complaint concerning the length of criminal proceedings; Declares admissible, without prejudging the merits, the applicant's complaint concerning the opening of his correspondence with the European Commission of Human Rights (Article 8); Declares the remainder of the application inadmissible.   Michael O'Boyle   Nicolas Bratza   Registrar   President