EUROPEAN COURT OF HUMAN RIGHTS

FIRST SECTION

CASE OF KLAMECKI v. POLAND (N°. 2)

(Application n°. 31583/96)

JUDGMENT

STRASBOURG

03 avril 2003

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Klamecki v. Poland (n°. 2),

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Mr C.L. Rozakis, President,

Mrs F. Tulkens,

Mr G. Bonello,

Mrs S. Botoucharova,

Mr A. Kovler,

Mrs E. Steiner,

Mr L. Garlicki, judges,

and Mr S. Nielsen, Deputy Section Registrar,

Having deliberated in private on 13 March 2003,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 31583/96) against the Republic of Poland lodged with the European Commission of Human Rights ("the Commission") under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Polish national, Mr Ryszard Klamecki ("the applicant"), on 6 December 1995.

2. The applicant, who had been granted legal aid, was represented by Mr Z. Cichon, a lawyer practising in Krak*w. The Polish Government ("the Government") were represented by their Agent, Mr K. Drzewicki, of the Ministry of Foreign Affairs.

3. The applicant alleged, in particular, that, after having been arrested, he had not been brought before a judge; that his detention pending trial had exceeded a "reasonable time"; that the proceedings designed to review the lawfulness of his detention had not been adversarial; and that his right to respect for his correspondence and his family life had been violated.

4. The application was declared partly admissible by the Commission on 20 October 1997 and transmitted to the Court on 1 November 1999 in accordance with Article 5 § 3, second sentence, of Protocol No. 11 to the Convention, the Commission not having completed its examination of the case by that date.

5. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

6. By a decision of 30 April 2002, the Court declared the remainder application admissible.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Criminal proceedings against the applicant and his detention

7. On 22 November 1995 the Wroclaw-Stare Miasto District Prosecutor (Prokurator Rejonowy) charged the applicant with fraud committed together with several accomplices and detained him on remand for three months in view of the reasonable suspicion that he had committed the offence in question and the risk that he might obstruct the proper course of the proceedings.

8. On an unknown later date the applicant appealed to the Wroclaw-Sródmiescie District Court (Sad Rejonowy) against the order for his detention. On 27 November 1995 he lodged a pleading supplementing his appeal. In that pleading, he submitted that his detention had been imposed by a prosecutor, a party to the proceedings, whereas under the Convention detention had to be ordered either by a judge or by another officer exercising judicial power.

9. On 5 December 1995 a single judge, sitting as the Wroclaw-Sródmiescie District Court, dismissed the appeal, finding that the applicant's detention had an adequate legal basis. The applicant did not participate in the court session, whereas the Wroclaw-Stare Miasto District Prosecutor did.

10. On 28 November and 14 December 1995 the applicant asked the Wroclaw-Sródmiescie District Court to appoint a defence lawyer for him. That application was granted on 19 January 1996.

11. On 11 December 1995 the applicant asked the Wroclaw-Stare Miasto District Prosecutor to release him. The application was dismissed on 12 December 1995 by the prosecutor at first instance and on 30 December 1995 on appeal. The authorities held that there was a reasonable suspicion that the applicant had committed the offence with which he had been charged. They also considered that holding him in detention was necessary to secure the proper conduct of the proceedings.

12. On 21 December 1995 the applicant made a further application for release. He complained about the prison conditions and maintained that his continued detention had severely affected his health. The prosecution asked medical experts to examine the applicant. The doctors made their report on 22 December 1995. They concluded that the applicant could receive adequate medical treatment in prison.

Basing themselves on that report, the authorities refused to release the applicant. The relevant decisions were made on 2 January 1996 by the prosecutor at first instance and on 24 January 1996 on appeal. The prosecutors, referring to the experts' report, held that the applicant's health did not militate decisively against his being kept in detention.

13. In the meantime, the Wroclaw Regional Prosecutor (Prokurator Wojewódzki) took over the investigation from the Wroclaw-Stare Miasto District Prosecutor.

14. On 5 February 1996 the applicant asked the Regional Prosecutor to release him in view of his bad health. He stressed that he was suffering from diabetes, high blood pressure and arteriosclerosis. He maintained that he did not receive proper medical treatment and diet in prison. The application was dismissed on 7 February 1996 by the prosecutor at first instance and on 21 February 1997 on appeal. The main ground on which the authorities relied was that, according to a medical report obtained on 6 February 1996, the applicant's general condition was not an obstacle to keeping him in detention.

15. On 15 February 1996, on an application made by the Wroclaw Regional Prosecutor, the Wroclaw-Sródmiescie District Court prolonged the applicant's detention until 30 June 1996. The applicant appealed on 26 February 1996. He argued that he had never been brought before a judge at any stage of the proceedings relating to the lawfulness of his detention. On 1 March 1996 the Wroclaw Regional Court (Sad Wojewódzki) upheld the first-instance decision. The Wroclaw Regional Prosecutor participated in the court session but neither the applicant nor his lawyer did.

16. On 18 March 1996 the applicant asked the Wroclaw-Sródmiescie District Court to release him under police supervision. The matter was referred to the Wroclaw Regional Prosecutor because at the investigation stage only a prosecutor could deal with an application for release (see also paragraph 82). That application was rejected on 3 June 1996 at first instance and on 28 June 1996 on appeal. The prosecution considered that there was a reasonable suspicion that the applicant had committed the offence with which he had been charged. They also pointed out that there were no particular circumstances militating in favour of his release, as defined in Article 218 of the Code of Criminal Procedure.

17. On 6 May and 3 June 1996 the applicant again asked the Wroclaw-Sródmiescie District Court to release him under police supervision. Those applications, after having been referred to the Wroclaw Regional Prosecutor, were dismissed by that prosecutor on 28 June 1996 and, on appeal, on 14 July 1996. The authorities considered that the original grounds given for the applicant's detention were still valid.

18. On 25 June 1996, on an application by the Wroclaw Regional Prosecutor, the Wroclaw-Sródmiescie District Court prolonged the applicant's detention until 30 September 1996.

19. On 25 July and 5 August 1996 the applicant made further applications for release under police supervision to the Wroclaw Regional Court, claiming a breach of Article 5 § 3 of the Convention in that he was neither tried within a reasonable time nor released pending trial.

20. On 30 August 1996 the court held a session and, after having heard the submissions of the Wroclaw Regional Prosecutor, dismissed the applications in view of the reasonable suspicion that the applicant had committed the offence with which he had been charged and the need to ensure the proper conduct of the proceedings.

21. The applicant appealed on 5 September 1996. He submitted that the proceedings concerning his applications for release were not adversarial because he could not take part in any court session at which those applications were examined, whereas the prosecution could put forward any arguments they wished in his absence. On 16 September 1996 the Wroclaw Court of Appeal (Sad Apelacyjny), after having heard the prosecutor's submissions, upheld the first-instance decision and the reasons given therefor.

22. Meanwhile, on 9 August 1996, the Wroclaw-Sródmiescie District Court had considered the applicant's request for release, in which he had alleged a breach of Article 5 § 3 of the Convention in that after having been arrested he had not been brought before a judge. The court dismissed the request and held, inter alia, that the fact that the detention had been imposed by the prosecutor, i.e. a party to the proceedings, was not a factor that would justify releasing him. On 31 October 1996, on an appeal filed by the applicant, the Wroclaw Regional Court quashed the decision of 9 August 1996 and held that, in accordance with the Law of 4 August 1996 on Amendments to the Code of Criminal Procedure (see also "Relevant domestic law and practice" below), only a regional court was competent to deal with the applicant's application for release.

The Regional Court further examined that application and rejected it on the ground of the reasonable suspicion that the applicant had committed the offence with which he had been charged. It also considered that the need to ensure the proper course of the proceedings and the likelihood of a severe sentence to be imposed on the applicant justified his being held in custody. The Wroclaw Regional Prosecutor participated in the court session but neither the applicant nor his lawyer did.

23. The applicant appealed. On 22 November 1996 the Wroclaw Court of Appeal held a session and, after having heard the prosecutor's opinion, upheld the first-instance decision and the reasons given therefor.

24. In the meantime, on 30 September 1996, the Wroclaw Regional Prosecutor had lodged a bill of indictment with the Wroclaw-Sródmiescie District Court. The applicant was indicted together with 10 other persons on charges of aggravated fraud, appropriation of public property, receiving stolen goods, making a false declaration, and forgery. The case-file comprised 19 volumes.

25. The trial was listed for 18 and 19 December 1996. Meanwhile, on 21 November 1996 the court appointed a new lawyer for the applicant.

26. On 1 December 1996 the applicant asked the District Court to release him. He maintained that his detention had lasted an excessively long time and, what was more, he had previously been detained in other criminal proceedings for some two years. He had accordingly spent in custody in all more than three years. That, he stressed, had in reality amounted to serving a prison sentence. He relied on Article 5 § 3 of the Convention.

27. On 4 December 1996 his application was dismissed at first instance and on 31 December 1996 on appeal. The courts considered that the applicant should still be kept in custody in view of the severity of the sentence which might be imposed and the need to ensure the proper conduct of the proceedings.

28. On 18 December 1996 the court postponed the trial to 29 January 1997 because one of the applicant's co-defendants was ill.

29. On 19 December 1996 and, subsequently, on 13, 15 and 29 January 1997 the applicant made complaints about the conduct of his officially-appointed counsel and asked the trial court to appoint a new lawyer for him.

30. On 31 December 1996 the applicant again asked the court to release him under police supervision. On 7 January 1997 the application was dismissed in view of the need to ensure the proper conduct of the trial and the severity of the sentence that might be imposed on him.

31. On 15 January 1997 the applicant appealed, submitting that neither he nor his lawyer had been informed of, or summoned to, the court's session at which his application for release had been examined and that the relevant procedure did not comply with the requirements of Article 5 § 4 of the Convention. On the same day he asked the Regional Court to allow him to attend the session at which that court would deal with his appeal so that he could put forward his arguments.

32. On 17 January 1997 the Wroclaw-Sródmiescie District Court refused to proceed with the appeal since, under the recently amended provisions of the Code of Criminal Procedure, no appeal lay in law against a court decision on an application for release.

33. On 29 January 1997 the court postponed the trial to 20 February 1997 because a certain J.F., one of the applicant's co-defendants had failed to appear. The court severed the charges against J.F.

34. On 10 February and on 3, 10, 17 and 25 March, and on 1, 8 and 17 April 1997 the applicant made further unsuccessful applications for release under police supervision to the Wroclaw-Sródmiescie District Court. The applications were dismissed on 12 February and on 10, 12, 20 and 28 March, and on 4, 11 and 22 April 1997 respectively. The court considered that the applicant should still be kept in custody in view of the need to secure the proper conduct of the trial and the severity of the sentence which might be imposed, a sentence that ranged from 1 to 10 years' imprisonment.

35. On 20 February 1997 the trial was to start but the applicant made yet another complaint about the conduct of his officially-appointed counsel and the court adjourned the hearing, finding it necessary to appoint a new defence lawyer for him.

36. On 5 March 1997 the court adjourned the next hearing since E.Cz., one of the applicant's co-defendants, had failed to appear. The court ordered that E.Cz. would be brought by the police to the next hearing, which was listed for 19 March 1997. Yet on the latter date the trial was postponed because the presiding judge was ill.

37. The trial began on 10 April 1997. On 10 and 21 April 1997 the court heard evidence from the applicant.

38. At the hearing of 10 April 1997 the applicant again asked the court to release him under police supervision. The court rejected his application. It found that keeping him in custody was necessary to secure the proper conduct of the trial. The court also stressed that the severity of the sentence that might be imposed on the applicant was an important factor that argued against releasing him.