CASE OF TRZASKA v. POLAND
Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Damage - finding of violation sufficient;Costs and expenses partial award
Elisabeth Palm
7. On 27 June 1991 the Jastrzębie Zdrój District Prosecutor issued a warrant of arrest against the applicant who was suspected of attempted manslaughter, robbery and rape. He was arrested on the same day. 8. On 23 September 1991 the Katowice Regional Court (Sąd Wojewódzki) prolonged the detention on remand until 30 November 1991 finding a reasonable suspicion that the applicant had committed the crimes in question. The Court considered that certain witnesses had to be heard and that expert opinions should be taken. 9. On 29 November 1991 the Katowice Regional Prosecutor transmitted the bill of indictment to the Katowice Regional Court. The applicant was charged with attempted manslaughter, assault, causing severe bodily harm, use of a dangerous weapon, aggravated theft, rape and theft. 10. On 14 January 1992 the applicant requested the Katowice Regional Court to release him. On 20 January 1992 the Court refused to order the applicant's release in view of the seriousness of the offences concerned. 11. On 4 March 1992 the first hearing was held before the Katowice Regional Court. The applicant requested that the case be transmitted to the Jelenia Góra Regional Court as most witnesses lived nearby. He requested access to the case-file in order to read it in a detailed manner. The Court refused the first request and complied with the second. 12. On 2 April 1992 the applicant failed to appear before the Court. It transpires from the minutes of the hearing that he had refused to leave the prison cell as he felt unwell. A prison physician stated that there were no medical objections to the applicant's participation in the hearing. The hearing set for 20 May 1992 was not held for the same reason. 13. On 30 June 1992 the Court heard the applicant, who denied his involvement in the crimes concerned, and another accused. The hearing was adjourned for 24 September 1992. At this date the court heard four witnesses and further questioned the applicant. On 25 September 1992 five further witnesses were heard. The hearing was adjourned until 18 November 1992. 14. Subsequently the judge rapporteur fell ill. He remained on sick leave from 10 November 1992 to 31 August 1994. The case was assigned to a new panel of judges. 15. On 16 April 1993 the applicant complained to the Minister of Justice about the length of the proceedings. 16. The hearing fixed on 18 June 1993 was adjourned as the applicant's officially appointed counsel requested that the case be assigned to another lawyer in view of his bad health. 17. On 2 August 1993 the hearing was recommenced in view of the change in the composition of the court. The court questioned the applicant and another co-accused. The hearing was adjourned for 8 and 14 September 1993. 18. On 5 August 1993 the officially appointed lawyer informed the court that the applicant had withdrawn his power of attorney. At the hearing set for 8 September 1993 this lawyer was not present. The Court adjourned the hearing until 14 September 1993 and assigned two new lawyers for the applicant's defence. As they failed to appear at the hearing on 14 September 1993, the Court adjourned the hearing until 4 October 1993. 19. On 4 October 1993 one of the officially appointed lawyers requested that the hearing be recommenced. The Court complied with this request and again questioned the applicant and another co-accused. 20. On 3 November 1993 the applicant complained to the Ombudsman (Rzecznik Praw Obywatelskich) about the length of the proceedings in his case and on 18 November 1993 to the Minister of Justice. 21. At the hearing on 19 and 22 November 1993 the court heard sixteen witnesses. At the hearing on 7 January 1994 only two out of fifteen witnesses who were to be heard on that day complied with the summonses. The Court imposed fines on some of them. 22. On 15 December 1993 the President of the Katowice Regional Court requested the President of the Criminal Division of that Court to follow closely the progress in the case and to prepare each month a progress report, with a first date set for 7 January 1994. 23. By a letter of 7 February 1994 the applicant requested the court to recall two of the counsel assigned to his case under the legal aid scheme and to assign the case to the lawyer who had been representing him at the beginning of the proceedings. On 21 February 1994 the court refused, having noted that the first officially appointed counsel had fallen ill; subsequently the applicant had withdrawn the power of attorney of the second counsel; and the third counsel had retired. The court further pointed out that granting the applicant’s request would have resulted in a fifth lawyer financed by the legal aid scheme representing the applicant in the proceedings. 24. On 23 February 1994 three witnesses were heard. On 28 February 1994 the hearing was adjourned as the president of the court fell ill. 25. On 14 March 1994 the President of the Katowice Regional Court reiterated his request to the President of the Criminal Division to supervise the proceedings and to present a first report on the progress by 10 May 1994. 26. On 30 March 1994 the Ombudsman requested the President of the Katowice Regional Court to inform him about the progress in the case. 27. At a hearing on 23 May 1994 five witnesses out of eighteen summoned for that date complied with the summonses. The applicant requested to be released. The court, having heard the prosecutor’s argument in reply, refused to release him in view of the seriousness of the crimes he was charged with. The court further considered that there was the risk of collusion. On 25 May 1994 the applicant lodged an appeal against this decision with the Katowice Court of Appeal. On 1 June 1994 the Katowice Court of Appeal upheld the contested decision. The Court observed that the applicant was suspected of serious crimes and that there was a risk of collusion. The Court noted that there was progress in the case as hearings were being held. Thus, even regard being had to the fact that the applicant had been detained on remand for three years, there were no reasons which would justify his release. 28. On 5 June 1994 the applicant again requested that his counsel be changed. 29. On 7 June 1994 the Ombudsman again requested the President to inform him about the progress in the case and to indicate whether there were still grounds for detention on remand. 30. On 20 June 1994 the Regional Court ordered that accused Z.P. be released in view of his poor health. 31. On 28 June 1994 the applicant requested his release, relying on his rights guaranteed by the European Convention on Human Rights. 32. On 4 July 1994 the Katowice Regional Court refused to release the applicant. The Court noted that the applicant was suspected of dangerous crimes. It also considered that there was a risk of collusion and that, if released, the applicant would jeopardise the criminal proceedings by trying to bear pressure on witnesses and by contacting another co-accused who was not detained. 33. On 16 July 1994 the applicant complained to the Minister of Justice about the length of the proceedings. 34. From June to September 1994 the Court composed a list of the addresses of witnesses who had failed to appear on 23 May 1994. In particular, the court had to establish the address of the rape victim. 35. On 11 October 1994 three witnesses out of the eighteen summoned for that date complied with the summonses. The applicant requested a medical examination in view of his gastrological problems. The court ordered the medical services of the Krakow Detention Centre to submit a medical opinion as to their gravity. Another coaccused, who had been released on 23 June 1994 in view of his illhealth, failed to appear. 36. On 28 October 1994 the applicant refused to leave the prison cell. A medical opinion of 14 November 1994 stated that he suffered from chronic gastritis, but could be treated in the prison. 37. In a letter of 10 November 1994 the applicant challenged the judges. He referred to the fact that on 11 October 1994 the court had ordered the police to force him to leave his cell in order to attend the hearing. On 12 December 1994 the Katowice Regional Court refused to comply with this request. 38. At the hearing on 10 January 1995 two out of ten witnesses appeared before the court. On 31 January 1995 three witnesses were heard. On 7 February 1995 the applicant refused to leave the prison cell, declaring that he felt unwell and he had not received the summons. The court adjourned the hearing in order for a physician to established whether the applicant’s condition prevented him from attending the hearing. Having examined the applicant, the physician stated that there were no medical objections to the applicant’s participation in the hearing. 39. Further hearings were held on 7 March and 22 March 1995. On 22 March 1995 the Court convicted the applicant of attempted manslaughter, rape and aggravated theft and sentenced him to twentyfive years' imprisonment. 40. On 19 October 1995, following the applicant’s appeal, the Katowice Court of Appeal in part quashed the first-instance judgment and ordered that the case be reconsidered. On 27 May 1997 the Katowice Regional Court again convicted the applicant and imposed a sentence of twenty-five years’ imprisonment. 41. The Polish Code of Criminal Procedure, enacted in 1969 applicable at the material time, listed as so-called “preventive measures”, inter alia, detention on remand, bail and police supervision. The authorities competent to decide on detention on remand were provided for in Articles 210 and 212 of the Code, which read as follows: "1. Preventive measures [i.e. detention on remand, bail and police supervision] shall be imposed by the court; before a bill of indictment is lodged with the court, they shall be ordered by the prosecutor (...)." "1. A decision concerning preventive measures may be appealed [to a higher court] .... 2. A prosecutor's order on detention on remand may be appealed to the court competent to deal with the merits of the case...." 42 43. The courts, when ruling on the prosecutor’s request submitted in pursuance of Article 222 of the Code, were under an obligation to determine the period for which detention could be prolonged. If the court refused to grant the prosecutor’s request for prolongation of detention or if the prosecutor had failed to submit a request for such prolongation before or on the expiry of the last detention order, the detained person had to be released. 44. Article 213 of the Code provided that a preventive measure should be immediately quashed or altered if the basis therefor had ceased to exist or if new circumstances had arisen which justified quashing or replacing a given measure which a more or less lenient one. 45. Under Article 217 § 1 (2) and (4) of the Code, detention on remand could be imposed if there was a reasonable risk that an accused would attempt to induce witnesses to give false testimony or to obstruct the due course of the proceedings by any other unlawful means, or if the accused had been charged with an offence posing a serious danger to society. 46. Under the provisions of the 1969 Code there were three different legal avenues whereby a detained person could challenge the lawfulness of his or her detention and thus possibly obtain release. Under Article 212. § 2 of the Code of Criminal Procedure he could appeal to a court against a detention order given by a prosecutor (see § 41 above). Under Article 222 §§ 2(1) and 3 he could lodge an appeal against a further decision by that court prolonging his detention at a prosecutor's request. Finally, Article 214 of the Code stated that an accused could at any time apply to the authority conducting the criminal proceedings, i.e. the prosecutor or the court, depending on the stage the proceedings had reached, to have a preventive measure quashed or altered. 47. Imposition and prolongation of preventive measures, including detention on remand, were examined by the courts in proceedings held in camera. The presence of the parties at court sessions other than hearings, including sessions held in proceedings concerning review of detention on remand, was regulated in Articles 87 and 88 of the Code of Criminal Procedure, which, insofar as relevant, provided: "The court pronounces its decisions at a hearing if the law provides for it; and otherwise, at a court session held in camera. ..." "A court session in camera may be attended by a prosecutor (...); other parties may attend if the law provides for it." 48. A new Code of Criminal Procedure was enacted by the Sejm (Parliament) on 6 June 1997. It entered into force on 1 September 1998. Pursuant to Article 249 of the new Code, before deciding on the application of the preventive measures, the court shall hear the person charged with offence. The lawyer of the detainee should be allowed to attend in the court session, if he or she is present. It is not mandatory to inform the lawyer of the date and time of the court session, unless the suspect so requests and if it will not hinder the proceedings. 49. The court shall inform the lawyer of a detained person of the date and time of court sessions at which a decision is to be taken concerning prolongation of detention on remand, or an appeal against a decision to impose or to prolong detention on remand is to be considered.