CASE OF JASIŃSKI v. POLAND
Violation of Art. 5-3;No violation of Art. 6-1;Pecuniary and non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
Nicolas Bratza
8. The applicant was born in 1958 and lives in Zabrze, Poland. 9. On 8 January 1994 the applicant was arrested by the police on suspicion of having committed burglary. On 10 January 1994 he was brought before J.K., a district prosecutor from the Pszczyna District Prosecutor’s Office (Prokuratora Rejonowa), charged with six counts of burglary and detained on remand. The prosecutor considered that there was a reasonable suspicion that the applicant had committed the offences in question because he had been arrested in flagrante delicto. He also relied on the serious nature of the offences in question. 10. On 12 February 1994 the Pszczyna District Prosecutor prolonged the applicant’s detention until 8 March 1994 on the ground that it was necessary to secure the proper conduct of the proceedings. The prosecutor stressed that in the light of evidence gathered during the investigation it was likely that the applicant had also committed other, similar offences and that, in turn, justified a risk that he might obstruct the process of obtaining evidence from witnesses. 11. On 25 February 1994 the District Prosecutor prolonged the applicant’s detention until 8 April 1994, considering that it was necessary to secure the conduct of the investigation, especially as fresh evidence needed to be obtained. 12. On 30 March 1994, on an application made by the Pszczyna District Prosecutor, the Pszczyna District Court (Sąd Rejonowy) prolonged the applicant’s detention until 8 June 1994 in view of the reasonable suspicion that he had committed the offences with which he had been charged and the fact that the investigation could not be completed because evidence from a fingerprint expert and yet another forensic expert needed to be obtained. 13. On 30 May 1994, on the subsequent application by the District Prosecutor, the Pszczyna District Court prolonged the applicant’s detention until 8 August 1994. It found that such further prolongation was necessary to secure the process of obtaining fresh evidence, especially as several new charges of burglary had in the meantime been laid against the applicant. Moreover, evidence from an expert-valuer needed to be obtained to determine the damage caused by the offences. 14. On 4 August 1994, on a further, similar application by the District Prosecutor, Z.R., a single judge sitting as the Pszczyna District Court, prolonged the applicant’s detention until 8 September 1994. The reasons for that decision read, in so far as relevant: “[The applicant] was charged with the offence defined in Article 208 read in conjunction with Article 60 § 1 of the Criminal Code. In the light of the material gathered in the case, that charge has a sufficient degree of verisimilitude (zarzut ten został w wystarczającym stopniu uprawdopodobniony). As it emerges from the case-file, new circumstances have arisen which might indicate that it would be necessary to obtain evidence from psychiatrists in order to establish the suspect’s criminal responsibility. That being so and since in this court’s opinion the grounds given for [the applicant’s] detention have not ceased to exist but new circumstances have appeared that make it impossible [for the prosecution] to terminate the investigation, it has been held as in the operative part of the decision.” 15. On 29 August 1994 the Pszczyna District Prosecutor lodged a bill of indictment with the Pszczyna District Court. The applicant was indicted on 22 charges of burglary. 16. On 19 September 1994 the applicant made an application for release to the Pszczyna District Court. On 20 September 1994 judge Z.R., sitting as the Pszczyna District Court, dismissed the application. The reasons for this decision read, in so far as relevant: “The accused, asking [the court] for the preventive measure [imposed on him] to be varied, submitted that the mother of his minor son was not providing the child with the proper care. This court dismisses his application since the actus reus of the accused is characterised by a high degree of danger to society (“zarzucany czyn oskarżonego charakteryzuje się wysokim stopniem społecznego niebezpieczeńtwa”) – the accused is amenable to the law under the rules governing relapse into crime defined in Article 60 § 1 of the Criminal Code. The likelihood of the facts adduced by the accused [in his application] has by no means been shown by him. The court could not, therefore, verify those facts. ...” 17. The applicant appealed. He maintained that he should be released in view of the difficult situation of his family. On 21 October 1994 the Katowice Regional Court (Sąd Wojewódzki) dismissed his appeal. It found that there were no valid reasons to release the applicant because his child had already been placed under the care of the grandparents. 18. The applicant’s trial was to begin on 7 December 1994 but it was postponed because the applicant, having found out that Z.R. had been appointed to sit as the presiding judge, challenged his impartiality. In the applicant’s submission, the judge – who had dealt with his applications for release at the investigation stage – had actively participated in the investigation, and had consequently become a party to the proceedings. In particular, the applicant stressed that Z.R. had made the decision of 4 August 1994 prolonging his detention. On 20 September 1994 he had also dealt with, and dismissed, his application for release. On these occasions the judge had evaluated the charges against him and concluded that they had been justified. He had also referred to such aggravating circumstances as the serious nature of the offences in question and the applicant’s criminal record. All those findings were closely related to the assessment of his guilt, criminal liability and to the anticipated sentence. In view of that, the applicant considered that it was clear that the judge had already formed a preconceived opinion on his guilt. 19. On 9 December 1994 a panel of three judges, sitting as the Pszczyna District Court, dismissed the applicant’s challenge as being groundless. The court stressed that the taking decisions on prolongation of detention made at a prosecutor’s application was not tantamount to the taking part in an investigation. 20. Subsequently, the applicant again asked the Pszczyna District Court to release him under police supervision in view of the difficult situation of his family. He also complained that Z.R. lacked impartiality. On 12 December 1994 Z.R., sitting as the Pszczyna District Court, dismissed the application. The reason for that decision read, in so far as relevant: “The arguments presented by the accused in relation to his family situation are identical to those adduced in his application of 19 September 1994. They were already examined by the courts at first and second instance. The Regional Court, in its decision of 21 October 1994, indicated to the applicant the way in which care over his child could be secured. Since in this court’s opinion there are no circumstances listed in Article 218 of the Code of Criminal Procedure and the arguments relating to the disqualification of the presiding judge were already dealt with in the [District] Court’s decision of 9 December 1994 - it should be held as in the operative part of the decision.” 21. On 21 December 1994 judge Z.R., sitting as the Pszczyna District Court, dismissed the applicant’s fresh application for release on bail. The reasons for the decision read, in so far as relevant: “The accused has been charged with numerous counts of burglary committed in the circumstances of relapse into crime specified in Article 60 § 1 of the Criminal Code. The offence with which he was charged is characterised by a high degree of danger to society. Bail proposed by the accused cannot, in this court’s opinion, secure the proper conduct of the trial. It should be pointed out that both the fact that an offence has been committed in the circumstances of relapse into crime and the serious danger to society [represented by the offence] are autonomous prerequisites for imposing detention on remand (cf. Article 217 § 1 (3) and (4) of the Code of Criminal Procedure) - in respect of the accused those prerequisites exist cumulatively. ...” 22. On 13 January 1995, on the applicant’s appeal, the Katowice Regional Court upheld the above decision, finding that his detention was justified under Article 217 § 1 (3) and (4) of the Code of Criminal Procedure and that no special circumstances militated in favour of his release. 23. On 25 January 1995 the applicant asked the Pszczyna District Court to quash the detention order. In his view, his detention had become unlawful as the statutory-time limit of one year for detention on remand laid down in the Code of Criminal Procedure had expired. 24. On 31 January 1995 judge Z.R. dismissed the application as groundless and informed the applicant that the time-limits for detention on remand applied only to the investigative stage of criminal proceedings but there were no such statutory terms for detention pending trial. That decision was upheld on appeal on 1 March 1995. 25. On an unspecified date, the applicant again challenged the presiding judge. He repeated his previous arguments. The challenge was dismissed by the Pszczyna District Court on 13 February 1995. In the court’s opinion, the arguments adduced by the applicant did not justify disqualifying the presiding judge from dealing with the case. 26. Later, the applicant asked the District Court to quash the detention order made by the Pszczyna District Prosecutor on 10 January 1994. He argued that that decision was valid only for a period of one year. He also submitted that he should be released on account of the difficult situation of his family. 27. On 6 March 1995 judge Z.R. dismissed the application and upheld the impugned detention order. Referring to the applicant’s family situation, the judge observed that such arguments as the fact that the applicant’s son was not – allegedly – being provided with the proper care had to be rejected because the child was under the care of his grandmother. Finally, Z.R. stressed that the reasons previously given to justify the applicant’s detention were still valid. 28. On 15 March 1995 a panel consisting of Z.R., the presiding judge, and two lay judges, sitting as the Pszczyna District Court, opened a trial in the applicant’s case 29. On 14 April 1995 the final hearing was held. The prosecution was represented by J.K., who had detained the applicant on remand on 10 January 1994. After hearing the parties’ final submissions, the court gave judgment. It convicted the applicant of 23 counts of burglary and sentenced him to 4 years’ imprisonment and a fine of 2,000 Polish zlotys, convertible into 20 days’ imprisonment. 30. On 13 July 1995 the applicant’s lawyer appealed against that judgment. The appeal was directed against the sentence imposed and the conviction was not as such contested. 31. On 18 July 1995 the applicant appealed. In his appeal, he alleged, among other things, that the trial court had violated the principles of the presumption of innocence and in dubio pro reo because the presiding judge Z.R. had considered him guilty and had had a preconceived view on his criminal liability long before the end of the trial, i.e. already on 4 August 1994, when he had prolonged his detention at the District Prosecutor’s request. 32. The appeals were heard on 3 October 1995 before the Katowice Regional Court. On the same day the Regional Court upheld the firstinstance judgment. 33. At the material time the rules governing detention on remand were contained in Chapter 24 of the Law of 19 April 1969 Code of Criminal Procedure (“the Code”) (Kodeks postępowania karnego) entitled “Preventive measures” (Środki zapobiegawcze). The Code is no longer in force. It was repealed and replaced by the Law of 6 June 1997 (commonly referred to as the “New Code of Criminal Procedure”), which entered into force on 1 September 1998. 34. Until 4 August 1996 (i.e. the date on which the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes (“the 29 June 1995 Law”) entered into force) at the investigation stage of criminal proceedings detention on remand was imposed by a prosecutor. 35. Article 210 §§ 1 and 2 of the Code (in the version applicable at the material time) stated: “1. Preventive measures shall be imposed by the court; before a bill of indictment has been lodged with the competent court, the measures shall be imposed by the prosecutor. 2. A prosecutor may impose a preventive measure only with respect to a person who has been questioned in the case as a suspect. Before ordering detention on remand or deciding on bail the prosecutor shall personally hear the suspect.” 36. Under Article 212 § 2 of the Code a detainee could appeal against a detention order made by a prosecutor to the court competent to deal with his case; however, he was not entitled to be brought before the judge dealing with his appeal. 37. Chapter III of the Code entitled: “Parties to proceedings, defence counsel, representatives of the victims and representatives of society” described a prosecutor as a party to criminal proceedings. Under all the relevant provisions of the Code taken together, a prosecutor performed investigative and prosecuting functions in the course of criminal proceedings. As regards the general position of the prosecution, at the material time they were not independent from the executive since the Minister of Justice carried out the duties of the Prosecutor General. 38. Article 217 § 1 defined grounds for detention on remand. The relevant part of that provision, in the version applicable at the material time, provided: “1. Detention on remand may be imposed if: ... (3) an accused has been charged with a serious offence or has relapsed into crime in the manner defined in the Criminal Code; or (4) an accused has been charged with an offence which creates a serious danger to society. ...” 39. Article 218 stated: “If there are no special reasons to the contrary, detention on remand should be lifted, in particular, if: (1) it may seriously jeopardise the life or health of the accused; or (2) it would have serious repercussions for the accused or his family.” 40. At the material time Chapter VIII of the Criminal Code of 1969 (which was repealed on the same date as the 1969 Code of Criminal Procedure referred to above), entitled “Relapse into crime” (Powrót do przestępstwa), contained special rules relating to sentencing repeat offenders (in Poland, they are more commonly referred to as “recidivists”, i.e. “recydywiści”). The finding that a person “relapsed into crime” within the meaning of Articles 60 and 61 of the Criminal Code (provisions which constituted, for all practical purposes, sentencing guidelines in respect of recidivists), inevitably resulted in the sentence of imprisonment to which the accused was liable being increased. 41. Article 60 § 1 of the Criminal Code, in the version applicable at the material time, provided: “1. If an offender, who has already been convicted of an intentional offence and, as a result, has served a sentence of at least six months’ imprisonment, commits another similar offence within five years following [the date on which] he has ended the service of the whole or part of his previous sentence of imprisonment, the court shall impose on him a sentence of imprisonment of between twice the minimum and oneand-a-half times the maximum sentence applicable.” 42. The term was (and still is) related to the assessment of the gravity of criminal offences. If the “danger to society” represented by a given offence was considered by the court to have been “serious” or “of a high degree”, the court had to take that factor into account as an aggravating circumstance when imposing a sentence under the general rules of sentencing set out in Article 50 of the Criminal Code. That provision, in its relevant part, read: “1. The court shall impose the punishment at its discretion, within the limits set out by the law, assessing the degree of danger to society [represented by] an offence and taking into account the purposes of the punishment in the sphere of retribution as well as the preventive and reformative purposes it is to achieve in respect to the convicted person. 2. Following the guidelines mentioned in paragraph 1, the court shall particularly take into account the kind and amount of damage caused by an offence, the intentions and the manner of acting of an offender, his personal qualifications and situation, as well as the way he lived before, and the behaviour after, the commission of an offence and [as the case may be], complicity with a minor person in the commission of an offence. ...”