FIECEK v. POLAND
Inadmissible
Georg Ress
The applicant, Mieczysław Fiecek, is a Polish national, born in 1964 and living in Gliwice, Poland. In the proceedings before the Court, the applicant is represented by Mrs K. Wisłocka-Sieprawska, a lawyer practising in Cracow, Poland. The respondent Government are represented by their Agent Mr K. Drzewicki, of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 12 March 1987 the Gliwice District Court (Sąd Rejonowy) sentenced the applicant to five years and six months’ imprisonment. It deducted the period spent by the applicant in detention on remand from his sentence. In consequence, the applicant served that sentence during the following periods: from 23 April 1986 to 6 September 1988; from 2 to 16 November 1988; from 4 February 1993 to 8 October 1993 and from 26 November 1993 to 22 April 1996. On 5 October 1993 the Bielsko-Biała Regional Court (Sąd Wojewódzki) released the applicant on probation for one month. Shortly afterwards, the applicant asked the court to prolong his release for a further, unspecified term. On 24 November 1993 the applicant was arrested by the police on suspicion of having committed robbery. On 26 November 1993 he was brought before the Gliwice District Prosecutor (Prokurator Rejonowy), charged with robbery and detained on remand in view of the reasonable suspicion that he had committed the offence with which he had been charged. On the same day the Bielsko-Biała Regional Court rejected his application for the prolongation of his release, on the ground that he had been remanded in custody on suspicion of having committed a new, serious offence. On 6 December 1993 the Katowice Regional Court, on an appeal by the applicant, upheld the detention order of 26 November 1993 and the reasons therefor. On 13 December 1993 the applicant made an application for release, submitting that his detention lacked any basis because the investigating prosecutor had not admitted evidence proposed by him. That application was dismissed by the Gliwice District Prosecutor on 22 December 1993 and, on appeal, by the Katowice Regional Prosecutor (Prokurator Wojewódzki) on 8 January 1994. The authorities held that there was a reasonable suspicion that the applicant had committed the offence in question and that his detention was necessary in order to ensure the proper conduct of the proceedings. On 20 January 1994 the applicant filed a subsequent application for release. It was dismissed on 9 March 1994 by the Gliwice District Prosecutor and, on appeal, by the Katowice Regional Prosecutor on 30 March 1994. The prosecutors at both instances considered that the grounds originally given for his detention were still valid. On 16 February 1994 the Katowice Regional Court prolonged the applicant’s pre-trial detention until 23 March 1994. On 21 March 1994 the court extended his detention until 23 April 1994. Those decisions, on an appeal by the applicant, were upheld by the Katowice Court of Appeal on 27 April 1994. On 4 March 1994 the applicant complained to the investigating prosecutor that correspondence he received from the European Commission of Human Rights was being opened and censored. On 22 June 1994 the Gliwice District Prosecutor lodged a bill of indictment with the Katowice Regional Court. In the meantime, on an unspecified date, the applicant filed two further applications for release. They were dismissed on 24 October and 14 November 1994 by the Katowice Regional Court and on 30 November 1994 by the Katowice Court of Appeal (Sąd Apelacyjny). The courts held that the serious nature of the offences with which he had been charged justified the continued detention. On a later unknown date, the trial court granted the applicant’s application for an officially-appointed lawyer. On 6 February 1995 the Katowice Regional Court dismissed the applicant’s subsequent application for release. That decision was upheld on appeal on 22 March 1995. The courts reiterated the previous grounds given for the applicant’s detention. On 9 May 1995 the Katowice Regional Court convicted the applicant as charged and sentenced him to four years and six months’ imprisonment, a fine and deprivation of his civic rights for four years. In the meantime, on an unspecified date, the applicant again asked the court to release him. The application was dismissed on 27 September 1995 in view of the fact that his detention pending appeal was mandatory under Article 222 of the Code of Criminal Procedure because the first-instance sentence exceeded 3 years’ imprisonment. On 10 October 1995 the Katowice Court of Appeal, on an appeal by the applicant, quashed the first-instance judgment and remitted the case. On 12 February 1996 the applicant’s case was transferred to the Gliwice District Court because, under amendments to the Code of Criminal Procedure, as from 1 January 1996 a district court was competent to deal with such cases. The trial was held on 25 and 26 March 1996. On 27 June 1996 the Gliwice District Court convicted the applicant of robbery and sentenced him to four years and six’ months imprisonment, a fine and deprivation of his civic rights for four years. The court deducted the period of the applicant’s detention on remand from 22 April 1996 and 27 June 1996 from his sentence. The applicant appealed. On 23 July 1996 the applicant asked the Gliwice District Court to quash the order for his detention. The application was dismissed on 31 July 1996. On 3 December 1996 the Katowice Regional Court heard the applicant’s appeal and upheld the first-instance judgment. On 10 December 1996 the applicant lodged a notice of a cassation appeal with the Regional Court. On 12 December 1996 he asked that court to appoint a lawyer for him in order to assist him in cassation proceedings. He submitted that he had no occupation and income, and that he could not bear the costs of his defence. He also stressed that under the relevant provisions of the Code of Criminal Procedure a cassation appeal had to be filed and signed by an advocate. On 2 January 1997 the applicant made yet another application for legal assistance. On 15 January 1997 the court rejected the application, finding that the applicant had not proved that he could not afford legal assistance, namely, that the costs of legal assistance would entail a substantial reduction of his and his family’s standard of living, as defined in Article 69 of the Code of Criminal Procedure. On 23 May 1997 the applicant made a subsequent application for legal assistance. He submitted documentary evidence showing his difficult financial situation. On 25 July 1997 the Regional Court granted the application and, on 6 August 1997, appointed a lawyer for the applicant. On a later unknown date in August or September 1997, the applicant’s officially-appointed lawyer filed a cassation appeal. On 14 January 1999 the Supreme Court (Sąd Najwyższy) heard the appeal and rejected it as obviously lacking any basis. 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 (Kodeks postępowania karnego) (“the Code”) – 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. Pursuant to Article 210 of the Code (in the version applicable at the material time), the prosecutor was authorised to detain a suspect on remand, provided that such person had previously been charged and heard by that prosecutor. At the relevant time the Code set out three different legal avenues whereby a detainee could challenge the lawfulness of his detention and obtain release: an appeal to a court against a detention order made by a prosecutor; proceedings in which courts examined applications for prolongation of detention made by a prosecutor during an investigation; and proceedings relating to the detainee’s applications for release. As regards the last of these, Article 214 of the Code provided the following: “An accused may at any time apply to have a preventive measure lifted or varied. 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.” Under Article 69 of the Code, an accused who had proved that he could not afford legal assistance (i.e. that the costs of such assistance “would entail a substantial reduction in his and his family’s standard of living”) might apply to a court and ask to appoint him a defence counsel. Article 71 laid down the principle known as “compulsory assistance of an advocate” (przymus adwokacki). That Article provided, in so far as relevant: “An accused must have a defence counsel [of his own choice or officially appointed] when a regional court is competent to deal with his case as a court of first instance. The counsel must take part in the main hearing; he must also take part in any appellate hearing if the president of the court or the court itself has found this necessary.” Under Article 75 § 1, the official appointment of a lawyer was valid as long as the proceedings lasted and, subject to explicit exceptions, an officially-appointed lawyer was also obliged to act on behalf of his client after the judgment became final. However, according to domestic practice which started after 1 January 1996 (the date on which a new cassation appeals procedure was introduced into the system of criminal justice), a lawyer had again to be officially appointed in cassation proceedings. As from 1 January 1996, i.e. the date on which the relevant provisions of the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes entered into force, a party to criminal proceedings might lodge a cassation appeal with the Supreme Court against any final decision of an appellate court which had terminated criminal proceedings. Article 463a § 1 of the Code provided, in so far as relevant: “A cassation appeal may be lodged only on the grounds referred to in Article 388 [these included a number of procedural irregularities, such as, for instance, incorrect composition of the trial court; lack of legal assistance in cases where such assistance was compulsory; breach of the rules governing jurisdiction in criminal matters; trying a person in absentia in cases where his presence was obligatory and thus depriving him of an opportunity to defend himself, etc.] or on the ground of another flagrant breach of law provided that the judicial decision in question was affected as a result of such a breach. No cassation appeal may be directed against the disproportionality of the penalty imposed.” Article 464 of the Code stipulated: “1. Parties to criminal proceedings shall be entitled to lodge a cassation appeal. 2. A cassation appeal, which has been lodged by a party other than a prosecutor, shall be filed and signed by an advocate. 3. Notice of a cassation appeal must be lodged with the court which has given the [relevant] decision within seven days from the date on which such decision was pronounced. The appeal itself must be lodged within thirty days from the date on which the decision, together with the reasons therefor, was served on the party concerned.” Under Article 467 § 2, the court which gave the decision appealed against was competent to decide whether the formal requirements for a cassation appeal had been complied with. If an accused’s appeal was not filed and signed by an advocate, it had to be rejected on formal grounds. If such an appeal complied with the formal requirements, the case was referred to the Supreme Court. At the relevant time, under Article 89 of the Code on Execution of Criminal Sentences of 19 April 1969 (Kodeks karny wykonawczy), all correspondence of a person detained on remand was censored, unless a prosecutor or a court decided otherwise. No provision of the Code provided for a remedy enabling a detainee to contest the manner or scope of the application of that measure (see, for reference, Niedbała v. Poland, no. 27915/95, § 33, 4 July 2000).