CASE OF OLSTOWSKI v. POLAND
Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed
Georg Ress
8. The facts of the case, as submitted by the parties, may be summarised as follows. 9. On 14 December 1993 the applicant was arrested by the police. On 16 December 1993 the Starogard Gdański District Prosecutor (Prokurator Rejonowy) charged the applicant with the commission of robbery together with three accomplices and remanded him in custody. The charges related to a brutal assault of a businessman who had been attacked with a baseball bat and tear gas and robbed of 122,864 zlotys. 10. On 22 February 1994 the Gdańsk Regional Court (Sąd Wojewódzki) decided to extend the applicant’s detention. On 1 March 1994 the applicant appealed against that decision to the Gdańsk Court of Appeal (Sąd Apelacyjny). On 16 March 1994 the appellate court dismissed the appeal. It rejected the applicant’s contention that the Regional Court’s decision referred only in general terms to the reasons justifying his detention. In addition, the appellate court considered that the evidence taken from one of the witnesses gave rise to reasonable suspicion that the applicant had committed the robbery. 11. On 24 May 1994 the Gdańsk Regional Court decided to extend the applicant’s detention until 1 September 1994. It considered that the evidence showed that the applicant had probably committed the criminal offence with which he was charged. The court pointed out that several pieces of evidence remained to be taken, including the psychiatric examination of the applicant. It also considered that the fact that the investigation in the case was not concluded at that stage could not be attributed to the inactivity of the prosecuting authorities. On 27 May 1994 the applicant appealed to the Gdańsk Court of Appeal against that decision. On 15 June 1994 his appeal was dismissed. 12. On 29 August 1994 the Gdańsk District Prosecutor filed with the Gdańsk Regional Court a bill of indictment. However, the Regional Court returned it to the District Prosecutor instructing him to elaborate its reasoning. 13. On 10 November 1994 the Gdańsk Regional Court dismissed an application for release made by the applicant. The court noted, inter alia, that the evidence gave rise to reasonable suspicion that the applicant had committed a criminal offence, which constituted a significant danger to society (znaczny stopień społecznego niebezpieczeństwa). It also observed that the applicant’s son was cared for by his cohabitee, who was assisted by her parents and the applicant’s mother. The applicant appealed that decision. 14. On 15 and 21 November 1994 the applicant applied to the Gdańsk Regional Court for release from detention. 15. On 28 November 1994 the Gdańsk District Prosecutor re-submitted a bill of indictment to the Gdańsk Regional Court. 16. On 5 December 1994 the applicant again applied to the Gdańsk Regional Court for release from detention but his application was dismissed on 6 December 1994. 17. On 14 December 1994 the Gdańsk Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 10 November 1994. 18. The applicant made a fresh application for release but it was on 17 January 1995 dismissed by the Gdańsk Regional Court. The court noted that the evidence gave rise to reasonable suspicion that the applicant had committed a criminal offence, which caused the significant danger to society. It also rejected the applicant’s contention that he should be released because he had already spent a long period of time in detention waiting for a hearing and pointed out that a hearing in his case was fixed for 23 February 1995. 19. On 25 January 1995 the Gdańsk Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 17 January 1995. The appellate court referred to several pieces of evidence collected in the case, which in its opinion pointed to the applicant’s guilt. It also recalled the significant danger to society caused by the criminal offence with which the applicant was charged and observed that, in view of the length of a sentence, which could be imposed on him for the commission of that offence, his detention was not excessively long. 20. On 23 February 1995 the Gdańsk Regional Court dismissed an application for release made by the applicant. On the same date the first hearing in the case was held. It was adjourned until 24 April 1995. 21. On 1 March 1995 the Gdańsk Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 23 February 1995 rejecting his application for release from detention. The appellate court referred, inter alia, to the significant danger to society caused by the criminal offence with which the applicant was charged and the fact that it carried a penalty exceeding five years’ imprisonment. The court further noted that the applicant had not submitted any evidence showing that the situation of his family called for his release. It also pointed out that the length of the proceedings before the Regional Court was excessive. In that connection, the appellate court recalled that a period of three months had elapsed between the date on which the bill of indictment had been submitted to the trial court and the date of the first hearing. In addition, the first hearing had been adjourned for two months and only one day was reserved in the Regional Court’s calendar for the second hearing which, in the appellate court’s opinion, would result in a further adjournment as it would be impossible to take evidence from all four suspects in the case on a single day. The Gdańsk Court of Appeal finally recommended that the proceedings in the case be expedited. 22. On 24 April 1995 a hearing was held before the trial court. 23. On 19 May 1995 the Vice-President of the Gdańsk Court of Appeal replied to the applicant’s letter of 8 April 1995 in which he had complained, inter alia, about a delay in the proceedings. The Vice-President advised the applicant that he was not in position to interfere with the proceedings and that only an independent court was competent to decide whether his detention on remand was justified. Furthermore, the Vice-President observed that a hearing held on 23 February 1995 had been adjourned because of the absence of counsel. In addition, during a hearing held on 24 April 1995 evidence was taken from the defendants and eight witnesses. The inability to hold hearings at shorter intervals resulted from the heavy workload of judges and the lack of courtrooms. The Vice-President considered that, although the applicant’s case disclosed a certain delay, it was not significant. He also advised the applicant that the President of the Gdańsk Regional Court had been informed about the necessity to expedite proceedings in criminal cases. 24. The next hearings in the case took place on 25 May and 5 July 1995. The Government submitted that on the latter date the applicant’s cohabitee recanted her testimony and explained that she had been persuaded by the applicant to testify that he had been with her when the robbery had been committed. 25. On 25 July 1995 the Gdańsk Regional Court rejected as unsubstantiated the applicant’s challenge to one of the judges considering his case. 26. On 28 September and 16 November 1995 the Regional Court held hearings in the case. 27. On 16 November 1995 the Gdańsk Regional Court rejected an application for release made by the applicant. On 29 November 1995 the Gdańsk Court of Appeal dismissed the applicant’s appeal against that decision. The appellate court observed that the proceedings in the applicant’s case had been expedited and that they should end before 21 December 1995. It also recalled the significant danger to society caused by the criminal offence with which the applicant was charged. 28. On 7 and 21 December 1995 hearings in the case took place. 29. The applicant made a further application for release but it was dismissed on 4 January 1996 by the Gdańsk Regional Court. On 17 January 1996 the Gdańsk Court of Appeal dismissed the applicant’s appeal against that decision. The appellate court referred, inter alia, to the fact that the evidence collected in the course of the proceedings showed that charges laid against the applicant were sufficiently justified. In addition, the alleged criminal act was drastic and involved the theft of a significant sum of money. The court noted that the proceedings had been recently expedited and pointed out that a hearing scheduled for 24 January 1995 had been adjourned “for objective reasons”. Moreover, the next hearing was fixed for 24 January 1996. 30. The next hearings were held on 24 January and 2 February 1996. 31. On 2 February 1996 the Gdańsk Regional Court rejected an application for release lodged by the applicant. On 14 February 1996 the Gdańsk Court of Appeal dismissed the applicant’s appeal against that decision. It considered that the evidence in the case pointed at the applicant and his co-defendants. Furthermore, the court agreed with the applicant’s submission that the proceedings in his case had already taken a significant period of time. However, it considered that, in view of the nature of the charges laid against the applicant, that period was not excessive. The appellate court further noted that only two witnesses remained to be heard in the case. 32. On 21 March, 9 and 26 April 1996 hearings were held before the Regional Court. 33. On 28 April 1996 the Gdańsk Regional Court rejected an application for release made by the applicant. On 15 May 1996 the Gdańsk Court of Appeal dismissed the applicant’s appeal against that decision. The appellate court recalled the significant danger to society caused by the criminal offence with which the applicant was charged. It also pointed out that although the detention had lasted already thirty months, the trial court had not failed to try to expedite the proceedings. In that connection, it observed that five hearings had been held since the beginning of 1996 and that the trial court was not responsible for the failure to conclude the proceedings. Furthermore, the Court of Appeal was of the opinion that the worsening financial situation of the applicant’s family did not constitute a ground for his release and observed that the applicant’s wife was helped by social services. 34. Between 30 April and 12 July 1996 six hearings took place before the trial court. 35. On 25 July 1996 the Gdańsk Regional Court rejected an application for release made by the applicant together with his counsel. On unspecified dates the applicant and his counsel lodged separately appeals against that decision. 36. On 7 August 1996 the Gdańsk Court of Appeal dismissed the appeal lodged by the applicant’s counsel against the Regional Court’s decision of 25 July 1996. The court pointed out that the applicant was charged with a criminal offence, which carried “a heavy load of social harmfulness” (wysoki ładunek społecznej szkodliwości), especially in view of the manner in which it had been committed. Moreover, a severe penalty, which could be imposed for the commission of such an offence, justified the detention. The court also stated that although the judicial proceedings in the case were substantially delayed, they would be probably concluded shortly. 37. On 28 August 1996 the Gdańsk Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 25 July 1996. The appellate court referred to the grounds for its decision of 7 August 1996. In addition, it pointed out that the proceedings in the case had reached the final stage, as there had been a hearing fixed for 2 September 1996 and only two witnesses had been called to testify on that date. 38. On 7 November 1996 a hearing took place. 39. On 23 November 1996 the Gdańsk Regional Court rejected an application for release made by the applicant. 40. The next hearings were held on 26 November, 6 and 11 December 1996. 41. On 30 December 1996 the Gdańsk Regional Court transmitted the case-file to the Supreme Court (Sąd Najwyższy), together with a request that the applicant’s detention on remand be extended. 42. On 16 January 1997 the Supreme Court decided to extend the applicant’s detention until 30 April 1997. The court firstly observed that there existed in the applicant’s case general legal grounds for detaining him on remand. It considered that, although the question of guilt would be decided by the trial court, the evidence collected in the course of the proceedings pointed towards the applicant’s guilt. Moreover, the Supreme Court pointed out that although the proceedings in the case had lasted so far more than three years, they had reached the final stage already in 1995. However, thirteen out of twenty hearings scheduled in 1996 had been adjourned for reasons over which the trial court had no influence. In addition, the counsel acting in the case were responsible for eleven adjournments. The Supreme Court based its decision to extend the applicant’s detention on Article 222 § 4 of the Code of Criminal Procedure which provided for the prolongation of detention because of “other significant circumstances, which could not be overcome by the organs conducting the proceedings”. It also pointed out that the proceedings could end in the near future after just a few additional hearings. Finally, the court recommended that additional defence lawyers be appointed in the case in order to avoid adjournments of hearings caused by the ill-health of counsel. 43. On 27 and 28 February 1997 hearings were held before the Regional Court. 44. On 3 March 1997 the Gdańsk Regional Court convicted the applicant of robbery and sentenced him to eight years’ imprisonment, a fine and disenfranchisement for a period of six years. The applicant appealed against that judgment to the Gdańsk Court of Appeal. 45. On 12 November 1997 a hearing took place before the appellate court. 46. The next hearing was held on 27 November 1997. The Government asserted that on that occasion one of the most important witnesses testified that the applicant’s mother had put on her pressure to submit false evidence. 47. On 28 November 1997 the applicant made a new application for release but it was on 3 December 1997 dismissed by the Gdańsk Court of Appeal. 48. On 5 January 1998 the court received an expert opinion. On 13 January 1998 the applicant’s legal aid counsel asked the court to exempt him from defending the applicant. 49. On 17 June 1998 the Gdańsk Court of Appeal quashed the judgment of the trial court and remitted the case to the prosecution service instructing it to carry out further investigation. On the same date the applicant was released from detention. 50. The Government submitted that on 3 December 1998 the victim of the robbery informed the Gdańsk Regional Court that he would not take part in the crime scene reconstruction because he had received threats to his life and family and was therefore afraid of the perpetrators of the crime. 51. On 17 March 1999 the Starogard Gdański District Prosecutor filed with the Gdańsk Regional Court a new bill of indictment against the applicant. 52. The hearing held on 30 July 1999 before the Gdańsk Regional Court was adjourned. The Government submitted that the adjournment resulted from the applicant’s failure to attend the hearing. 53. On 16 August 1999 the applicant withdrew a power of attorney from his counsel. 54. On 3 September, 8 October and 26 November 1999 hearings took place. On two latter occasions they were adjourned because of the absence of some of the accused. 55. The next hearings were held on 11 January, 25 February and 24 March 2000. The Government submitted that the first and the third of those hearings were adjourned because the applicant failed to appear before the court. The applicant averred that he attended all hearings except for two occasions, when he was prevented from appearing before the court by ill-health. 56. The proceedings are still pending. 57. At the material time, the Code of Criminal Procedure 1969 (“the Code”) listed as preventive measures, inter alia, detention on remand, bail and police supervision. Article 209 of the Code provides as follows: “Preventive measures may be imposed in order to secure the proper course of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.” 58. Furthermore, the Code allowed authorities a margin of discretion as to whether to continue the enforcement of preventive measures. Detention on remand was regarded as the most severe preventive measure. Article 213 of the Code provides as follows: “A preventive measure shall be immediately quashed or changed if the grounds therefor have ceased to exist or if new circumstances have arisen, which justify quashing a given measure or replacing it with one that is either more or less severe.” 59. Article 225 of the Code provides: “Detention on remand shall be imposed only when it is mandatory; this measure shall not be imposed if bail or police supervision, or both of these measures, are considered adequate.” 60. Article 217 of the Code, before it was amended on 1 January 1996, provided in so far as relevant: “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 domicile, or 2. there is a reasonable risk that he will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means, or 3. the accused was charged with a commission of a criminal offence or acted as a habitual offender, as provided for by the Criminal Code, or 4. the accused was charged with the commission of an act which constituted a significant danger to society.” 61. Article 218 provides: “If there are no special reasons to the contrary, detention on remand should be quashed, in particular, when: (1) it may seriously jeopardise the life or health of the accused; or (2) it would entail hardship for the accused or his family.” 62. Until 4 August 1996, when the Code was amended, Polish law did not set out any statutory time-limits concerning detention on remand in court proceedings but only in respect of the investigative stage. 63. Article 222 of the Code, as applicable after 4 August 1996, provides in so far as relevant: “3. The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed one year and six months in cases concerning ordinary offences. In cases concerning serious offences this period may not exceed two years. 4. In particularly justified cases the Supreme Court may, upon the request of the court competent to deal with the case (...) prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a suspension of the proceedings, a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in paragraph 3.” 64. Subsequently, paragraph 4 was extended to include also “other significant circumstances, which could not be overcome by the organs conducting the proceedings”.