CASE OF BARANOWSKI v. POLAND
Violation of Art. 5-1;Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Elisabeth Palm
7. On 1 June 1993 the applicant was arrested by the police. On the next day the Łódź Regional Prosecutor (Prokurator Wojewódzki) charged him with fraud and detained him on remand on the grounds specified in Article 217 § 1 (2) and (4) of the Code of Criminal Procedure of 1969. On 25 June 1993 the Łódź Regional Court (Sąd Wojewódzki), ruling on the applicant's appeal, upheld the detention order. 8. On 10 August 1993 the Łódź Regional Court, at the prosecutor's request, prolonged the applicant's detention until 31 December 1993. The court based its ruling on the grounds originally given for his detention and the fact that the investigation had not been completed since further evidence needed to be obtained. 9. On 30 December 1993 the Łódź Regional Court, on a further request by the Łódź Regional Prosecutor, prolonged the applicant's detention on remand until 31 January 1994. The court relied on the same grounds as those mentioned in its decision of 10 August 1993. On 7 January 1994 the applicant lodged an appeal against the decision prolonging his detention. 10. Shortly afterwards, on an unspecified date, the investigation was completed. Subsequently, on 11 January 1994, the Łódź Regional Prosecutor lodged a bill of indictment with the Łódź Regional Court. 11. On 21 January 1994 the Łódź Regional Court referred the applicant's appeal of 7 January 1994 to the Łódź Court of Appeal (Sąd Apelacyjny). On 1 February 1994 the Court of Appeal held that it “was purposeless” to examine this appeal and decided that it should be deemed to be an application for release. The court observed that a decision on the prolongation of detention on remand was necessary only at the investigation stage. Therefore, after the investigation was completed and the bill of indictment was lodged, the applicant could simply file an application for release at any time with the court competent to deal with his case, pursuant to Article 214 of the Code of Criminal Procedure. As a consequence of that decision, the appeal was referred back to the Łódź Regional Court. The applicant was informed thereof on 18 February 1994. However, in the subsequent proceedings, the Łódź Regional Court did not examine the appeal in question either as an application for release under Article 214 of the Code of Criminal Procedure or under any other head. 12. Meanwhile, on 1 February 1994, the applicant had filed a formal petition with the Łódź District Prosecutor (Prokurator Rejonowy). He informed the prosecutor that the order for his detention had expired on 31 January 1994, so that his continued detention had become unlawful and unfounded. 13. Later, on 7 February 1994, the applicant lodged an application for release with the Łódź Regional Court, arguing, in particular, that he should be released in view of the bad state of his health. On 8 February 1994 the court, sitting in camera, ordered that the authorities of the prison hospital at the Łódź Remand Centre submit a medical report on the applicant's current state of health. It adjourned the examination of the application without fixing a date for a further session. 14. It appears that the applicant repeatedly complained to the authorities that his detention under the bill of indictment had become unlawful since, on 16 February 1994, in reply to those complaints, J.L., the President of the Criminal Division of the Łódź Regional Court, sent a letter to the applicant, the relevant part of which read as follows: “The Łódź Regional Court hereby informs the accused that, since the bill of indictment was submitted to the Łódź Regional Court, the Łódź Regional Prosecutor placed the detainee at the disposal of that court. ... From then on, the accused has been at the Łódź Regional Court's disposal [and will be] until the detention order is quashed (at the [applicant's] or his lawyer's request, or [at the request of] the Łódź Remand Centre's administration – for instance on the ground of his bad state of health). In case an application for release is not allowed, detention may continue until the first-instance judgment is delivered. In such cases, after the delivery of the judgment, the court makes a decision on whether detention shall continue further. Therefore, the accused's assertion that his detention [order] has expired is unjustified ...” 15. On 18 February 1994 doctors from the prison hospital submitted the report requested by the trial court. They stated that the applicant could undergo medical treatment in that hospital. They suggested, however, that he be examined by a cardiologist, a psychiatrist and a neurologist. 16. On 25 February 1994 the court again adjourned the examination of the application for release, finding that reports from the said medical experts had to be obtained to establish whether the applicant should be released on health grounds. 17. On 28 March 1994 the applicant filed another application for release with the Łódź Regional Court. 18. On 29 March 1994 an expert cardiologist submitted a report to the court. On 1 April 1994 the court found it necessary to place the applicant in the prison hospital but adjourned its decision on his applications for release until the expert psychiatrist and neurologist had submitted their joint report. The report was ready on 28 April 1994; however, on 6 May 1994, the court, at the request of the Łódź Regional Prosecutor, again adjourned the examination of the applications and ordered that certain – unspecified – evidence concerning the state of the applicant's health be obtained. 19. On 24 May 1994 the court ruled on the applications for release dated 7 February and 28 March 1994 respectively. It held that no circumstances justified altering the preventive measure in issue. The decision was based on Articles 209 and 217 § 1 (2) and (4) of the Code of Criminal Procedure. On 5 July 1994 the Łódź Court of Appeal, ruling on the applicant's appeal, upheld that decision. 20. In the meantime, since 16 February 1994, the applicant had been requesting the Łódź Regional Court to give an interpretation of the detention order of 30 December 1993, in particular as to whether or not that order had remained enforceable after its expiry. He lodged these requests under Article 14 of the Code of Execution of Criminal Sentences on the following dates: 16 and 25 February, 4 March, 8 and 18 April, 20 and 30 May, and 25 October 1994. The applicant argued that the fact that the indictment had been lodged with the court did not mean that his detention automatically continued after 31 January 1994. He further submitted that no provision of the Code of Criminal Procedure provided that detention was prolonged as a result of the transfer of the case to the court. He asserted that the order of 30 December 1993 was not enforceable as he had lodged an appeal against it. The applicant concluded that he should have been released immediately after 31 January 1994 because his detention as from that date lacked any legal basis. 21. On 21 December 1994 the Łódź Regional Court sitting with a single judge rendered a decision on all the above requests. The court held that the decision of 30 December 1993 to prolong the applicant's detention until 31 January 1994 was enforceable, despite the fact that the applicant had lodged an appeal against it. The judge further reiterated the arguments set out in the letter to the applicant of 16 February 1994. 22. On 29 December 1994 the applicant appealed. He submitted that the court should have been composed of three judges in accordance with the relevant provisions of the Code of Criminal Procedure. He again argued that there was no legal basis for keeping him in detention after 31 January 1994. On 3 January 1995 a panel of three judges of the Łódź Regional Court quashed the contested decision. The court found that the firstinstance court should have been composed of three judges, as submitted by the applicant. However, it also held that Article 14 of the Code of Execution of Criminal Sentences was not applicable in the applicant's case since that provision applied only to cases involving doubts concerning the execution of the sentence or the calculation of the penalty imposed and not to the execution of detention orders. 23. On 10 January 1995 the applicant appealed. On 16 January 1995 the President of the Criminal Division of the Łódź Regional Court issued an order refusing to allow the applicant's appeal on the basis that it was inadmissible in law. The applicant filed a further appeal against that decision. On 17 February 1995 the Łódź Regional Court upheld the decision of 16 January 1995, considering that it had been open to the applicant to file an appeal against the decision of 21 December 1994, but that any further appeal was inadmissible in law since Article 14 of the Code of Execution of Criminal Sentences did not apply to a detainee. 24. On 22 October 1996 the Łódź Regional Court quashed the detention order and released the applicant under police supervision. The criminal proceedings against the applicant are still pending in the court of first instance. 25. At the material time the domestic provisions governing detention on remand were contained in the Code of Criminal Procedure of 1969, which is no longer in force as it was repealed and replaced by the Code of Criminal Procedure of 6 June 1997 (currently referred to as the “New Code of Criminal Procedure”). 26. The Code of Criminal Procedure of 1969 listed detention among the so-called “preventive measures” (those measures including, inter alia, detention on remand, bail and police supervision). Until 4 August 1996 (that is, the date on which the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes came into force) a prosecutor was empowered to order all preventive measures as long as the investigation lasted. Also, at the time the national law did not set out any statutory timelimits concerning the length of detention on remand in court proceedings; however, under Article 210 § 1 of the Code of Criminal Procedure a prosecutor was obliged to determine in his decision the period for which detention was ordered. That Article stated (in the version applicable at the material time): “Preventive measures shall be ordered by the court; before a bill of indictment has been lodged with the competent court, those measures shall be ordered by the prosecutor.” The relevant part of Article 222 of the Code of Criminal Procedure (in the version applicable at the material time) stated: “1. The prosecutor may order detention on remand for a period not exceeding three months. (1) the court competent to deal with the case, at the prosecutor's request, for a period not exceeding one year; (2) the Supreme Court, at the request of the Prosecutor General, for such further fixed term as is required to terminate the investigation.” 27. The courts, when ruling on a prosecutor's request under Article 222 § 2 of the Code, were obliged to determine the precise period for which detention should be prolonged. If they refused to prolong detention or if the prosecutor failed to submit a request for a further prolongation before or on the expiry of the last detention order (regardless of whether it had been made by him or by a court), the detainee had to be released immediately. 28. Article 213 § 1 of the Code of Criminal Procedure provided: “A preventive measure (including detention on remand) shall be immediately quashed or altered if the basis therefor has ceased to exist or new circumstances have arisen which justify quashing or replacing a given measure with a more or less severe one.” 29. Article 217 § 1 (2) and (4) (in the version applicable at the material time) provided: “1. Detention on remand may be imposed if: ... (2) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the due course of proceedings by any other unlawful means; ... (4) an accused has been charged with an offence which creates a serious danger to society.” 30. At the relevant time there was no specific provision governing detention on remand after the bill of indictment had been lodged with the competent court. Since 4 August 1996, the date of entry into force of the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes and under the present criminal legislation, the courts have been and are bound by the maximum statutory time-limits for which detention on remand can be imposed during the entire course of the proceedings. In particular, at the material time, there was no provision stating that the lodging of a bill of indictment automatically prolonged or replaced a previous detention order, or that this event itself resulted in detention which had originally been prolonged by a court for a fixed period at the investigation stage being continued either for an unlimited period or until a judgment at first instance was given. Nor was there any case-law to that effect. Nevertheless, according to domestic practice, once a bill of indictment had been lodged with the court competent to deal with the case, detention was assumed to be prolonged pending trial without any further judicial decision being given. 31. It was as late as 6 February 1997 that the Supreme Court, referring to the historical background to the amended criminal legislation, mentioned the practice of keeping an accused in detention under the bill of indictment. It did so in a ruling on the interpretation of the Code of Criminal Procedure. That ruling did not, however, concern criminal legislation as it stood at the material time but related to the Code as amended with effect from 4 August 1996, when Article 222 (as amended) set out maximum time-limits for detention on remand not only at the investigation stage but at the whole pre-trial stage. In its resolution (no. I KZP 35/96) the Supreme Court replied – in the affirmative – to the question whether, after the lodging of a bill of indictment with the court competent to deal with the case, that court was obliged to give a decision prolonging detention on remand which had meanwhile exceeded the period fixed (or further prolonged) at the investigation stage. The relevant parts of the resolution read as follows: “Under the provisions of the Code of Criminal Procedure which applied before [4 August 1996, when] the amendment of 29 June 1995 took effect, an obligation to determine the period of detention imposed by a prosecutor at the investigation stage was laid down in Article 211 § 2. However, it did not emerge explicitly from Article 222 §§ 1 and 2 (1) of the Code that, at the investigation stage, a prosecutor or the court competent to deal with the case had each time to determine the point until which detention should last. It was deemed to be obvious that, when prolonging detention at the investigation stage, both the prosecutor and the court competent to deal with the case had to determine the time until which detention was to last under a given decision. It was therefore assumed that the obligation to determine the period of detention arose if a decision on that matter was given before the expiry of the maximum statutory terms applicable at a given stage of the proceedings. Comparing the old legislation with the present one leads [this Court] to the conclusion that the legislator, when amending the Code in June 1995, simply extended [the scope of] the rules applicable to continuing and prolonging detention on remand – which had previously applied only at the investigation stage – to the phase of court proceedings. Before the amendment, the legislation was based on the precept that a suspect should not be detained indefinitely as long as his case was not being dealt with by an independent court. Now, the starting-point is that a suspect (and an accused) should not be detained indefinitely as long as a first-instance judgment is not rendered. Under the previous legislation there was no need to determine the period of detention after a bill of indictment had been lodged with the court because at this point proceedings reached the phase in which there was no statutory time-limit [on this measure]. For this reason, the court concerned had no interest in [knowing] until when detention had been prolonged under the last decision[;] detention could continue because 'detention of limited duration' had become 'detention of unlimited duration'. There was therefore only a need to ascertain whether there were grounds for continuing detention under Article 213 of the Code.” 32. In its further resolution (no. I KZP 23/97) of 2 September 1997, the Supreme Court confirmed that: “If the case, in which detention on remand had been ordered, has been referred to a court with a bill of indictment and the period of detention which had previously been fixed expires, the court has a duty to consider whether detention needs to be continued and to give an appropriate decision on this matter.” Referring to the resolution of 6 February 1997, it also stressed that: “ ... the ratio legis of the amendments to criminal legislation is based on the precept that a suspect (accused) should in no case be detained indefinitely until the first-instance judgment is rendered in his case ... It should be noted that, from the point of view of procedural safeguards for an accused, what is material is not how long his detention at the investigation stage has lasted and how long it has lasted at the stage of the court proceedings, but the total period of his detention and whether his detention and its length are subject to review. If there is such a review at the investigation stage (Article 222 §§ 1 and 2), there is no reason why there should not be one at the stage of the court proceedings ...” 33. Articles 295 and 296 of the Code of Criminal Procedure of 1969, referring to the formal requirements for a bill of indictment, stipulated that it should contain the first name and surname of the accused and information as to whether a preventive measure had been imposed on him, a statement of the offence with which he had been charged, a detailed description of the facts of the case along with a statement of reasons for the charges, an indication of the court competent to deal with the case and evidence on which the charges were based. 34. Once the bill of indictment had been lodged with the court, the president of the court carried out preparations for the main trial. Article 299 § 1 (6) of the Code of Criminal Procedure provided: “1. The president of the court, ex officio or at the request of a party, shall refer the case to a court session if he finds that its resolution lies beyond his own competence, in particular: ... (6) when there is a need to issue an order on a preventive measure.” 35. However, at the material time, according to the relevant domestic practice in respect of detention continuing after the last detention order had expired and after a bill of indictment had been lodged with a court, the courts did not make use of the procedure prescribed by the above-mentioned provision as it was presumed that the detention continued solely due to the fact that a bill of indictment had been lodged and, therefore, there was no need to issue a separate decision prolonging the detention. 36. Also, at the time, the Code set out three different legal avenues whereby a detainee could challenge the lawfulness of his detention: an appeal to a court against a detention order made by a prosecutor; proceedings in which courts examined requests for prolongation of detention submitted by a prosecutor; and proceedings relating to a detainee's application for release. 37. As regards the last of these, Article 214 of the Code of Criminal Procedure (in the version applicable at the material time) stated: “An accused may at any time apply to have a preventive measure quashed or altered. Such an application shall be decided by the prosecutor or, after the bill of indictment has been lodged, by the court competent to deal with the case, within a period not exceeding three days.” No provision of the Code stipulated that exceeding the time-limit laid down in that Article would have any legal consequence. 38. The interpretation of enforceable decisions in criminal proceedings was at the relevant time governed by the provisions of the Code of Execution of Criminal Sentences of 1969. 39. Article 14 of that Code provided: “1. The authority executing a decision, as well as everyone whom such a decision concerns, may request the court which has dealt with the case to rule on any doubts concerning the execution of that decision or the calculation of the penalty imposed. 2. Everyone whom the decision on interpretation referred to in paragraph 1 concerns may appeal against such a decision.” 40. According to Article 205 of the Code of Execution of Criminal Sentences, provisions of the Code referring to a “convicted person” applied by analogy to a “detainee”. However, in the light of domestic practice and legal theory, it was considered doubtful whether Article 14 of the Code applied to cases in which a person detained on remand challenged the lawfulness of his detention since such a challenge was normally examined in the proceedings prescribed by the Code of Criminal Procedure (see paragraphs 36-37 above). 41. Proceedings relating to a request under Article 14 of the Code of Execution of Criminal Sentences were designed to obtain an interpretation of an enforceable decision which had not been formulated with adequate precision. The court which was called upon to interpret the decision in question was not competent to amend or supplement its operative part (see the decision of the Supreme Court (no. VI KRN 14/76) of 2 March 1976, OSNPG 1976/6/59). That being so, the person concerned could not obtain his release by lodging a request under Article 14 of the Code.