CZERBINSKI v. POLAND
Inadmissible
Nicolas Bratza
The applicant, Mr Jan Czerbiński, was born in 1962. He has two nationalities: Polish and German. He lives in Gliwice, Poland. The facts of the case, as submitted by the parties, may be summarised as follows. In 1994 a cheque drawn on the applicant's closed account was cashed in a Polish bank. Subsequently, the police started to investigate the case and interviewed the applicant. In 1998 the applicant moved to Germany. In February 1999 the police summoned the applicant, however, the summons was returned undelivered as the applicant had moved. On 2 June 1999 the prosecution service filed with the Zgorzelec District Court (Sąd Rejonowy) a bill of indictment against the applicant. He was charged with drawing and cashing the cheque on 30 November 1994. On 29 June 1999 a hearing was held. The applicant, despite having been properly summoned, failed to attend it. The court was informed that the applicant did not live at the address provided by him. On 1 July 1999 the Zgorzelec District Court ordered that the applicant be detained on remand for a period of two months. The decision was reasoned as follows: “The pre-trial detention is justified by Article 258 § 1 (2) of the Code of Criminal Procedure since the accused is avoiding the criminal justice system.” On 1 July 1999 a “wanted” notice was issued concerning the applicant. On 19 March 2003 the applicant was taken into custody by the Polish police while crossing the German-Polish border. On 20 and 28 March 2003 the District Courts in Gliwice and Kędzierzyn-Koźle decided that the applicant should be remanded in custody in connection with three other criminal proceedings pending against him. The applicant appealed against the decision of 1 July 1999 ordering his pretrial detention but his appeal was dismissed on 10 April 2003 by the Jelenia Góra Regional Court (Sąd Okręgowy). The court gave the following reasons for its decision: “Among the complaints made in the appeal only one, concerning the wrong legal basis of the impugned decision is right. Admittedly, in the present case [the decision] should be based on Article 258 § 1 (1) of the Code of Criminal Procedure since the accused did not have his permanent place of residence in the country and anyway he did not properly inform the person conducting the investigation of his address but instead gave an address where he was not present and subsequently – despite being instructed to do so – did not notify his actual place of residence. Therefore, it was justified to consider that it was probable that the accused was hiding (Article 258 § 1 (1) of the Code of Criminal Procedure). However, this mistake in the impugned decision did not have any influence on its contents as in fact the District Court had based the decision on the risk that the accused would go into hiding. As for the accused's claim that the impugned decision did not refer to any evidence supporting the charges against him, it is not true since the reasoning of the impugned decision point to such evidence. It is obvious to everybody that in a situation where the pre-trial detention is based on the risk of flight, detention constitutes the only effective preventive measure. Therefore, the accused's allegation concerning the failure to explain why a different preventive measure could not be applied is groundless. As for the accused's submissions made under Article 259 § 1 (2) of the Code of Criminal Procedure (provision of care to his brother, renovation of a hotel and the risk of losses in the hotel) they are groundless and unconfirmed. Therefore, they cannot justify release from pre-trial detention. Taking the above into account and in view of the fact that the pre-trial detention of Jan Czerbiński is justified, and since his case does not disclose any grounds for release from pre-trial detention listed in Article 259 § 1 of the Code of Criminal Procedure, the impugned decision is upheld.” On 9 May 2003 the Zgorzelec District Court dismissed an application for release from detention made by the applicant on 7 May 2003. The decision dismissing the application referred to the fact that the criminal proceedings against the applicant had reached only “the stage of jurisdictional proceedings”. Moreover, the evidence collected in the case showed a significant probability that the applicant had committed the act with which he was charged. The detention was justified by Article 258 § 1 (1) of the Code of Criminal Procedure as the applicant had moved to Germany and had not notified his actual place of residence. There existed in his case a risk of flight. In addition, only detention on remand would “secure the proper conduct of the proceedings”. The applicant's case did not disclose any of the grounds for release from pre-trial detention listed in Article 259 § 1 of the Code of Criminal Procedure relating to the hardship suffered by the applicant or his family. Finally, certain effects of the applicant's pretrial detention “constituted the normal consequences of such a preventive measure”. The applicant's appeal against this decision was dismissed on 10 May 2003. On 11 May 2003 the applicant attempted to commit suicide. On 20 May 2003 the applicant's pretrial detention was prolonged until 20 August 2003. The decision repeated the grounds for pre-trial detention given in the decision of 9 May 2003. The applicant appealed against this decision, but his appeal was dismissed on 10 June 2003. On 24 June 2003 the applicant made a fresh application for release from detention to the Zgorzelec District Court but it was dismissed on 1 July 2003. The decision dismissing the applicant's application repeated the grounds of the decision of 9 May 2003. On 15 July 2003 the applicant's counsel applied to the Zgorzelec District Court for the applicant's release from detention and asked that it be replaced with police supervision and seizure of his passport. On 17 July 2003 the court dismissed the application. The decision dismissing the application repeated the grounds given in the decision of 9 May 2003. On 20 August 2003 the applicant's pretrial detention was further extended until 20 November 2003. The reasons given for the extension repeated those in the decision of 9 May 2003. On 27 August 2003 the applicant was hospitalised in the Bytom hospital. On 6 and 9 October 2003 the applicant made new applications for release from detention to the Zgorzelec District Court but they were dismissed on 10 October 2003. The reasons given for the dismissal of the applications repeated those in the decision of 9 May 2003. On 21 November 2003 the Zgorzelec District Court gave a judgment. The applicant was convicted as charged and sentenced to 8 months' imprisonment, suspended for two years. On the same date the Zgorzelec District Court decided to release the applicant. The applicant remained in detention on remand ordered by the Gliwice District Court in connection with another set of criminal proceedings against him. On 27 April 2004 he was released. Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads: “1. Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused's committing another, serious offence; they may be imposed only if the evidence gathered shows a significant probability that an accused has committed an offence. Article 258 lists grounds for detention on remand. It provides, in so far as relevant: “1. 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 when he has no permanent abode [in Poland]; (2) there is a reasonable risk that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means; 2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years' imprisonment, or if a court of first instance has sentenced him to at least 3 years' imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.” The Code sets out the margin of discretion as to the continuation of a specific preventive measure. Article 257 reads, in so far as relevant: “1. Detention on remand shall not be imposed if another preventive measure is sufficient.” Article 259, in its relevant part, reads: “1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would: (1) seriously jeopardise his life or health; or (2) entail excessively harsh consequences for the accused or his family.” The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue. Article 263, in a version applicable at the material time, sets out timelimits for detention. “§ 1. During investigation the court which decides about detention on remand shall impose it for a period not longer than 3 months. § 2. If the special circumstances of a case make it impossible to conclude the investigation within the time-limit provided in § 1, detention on remand may be prolonged, at the request of the prosecutor and when it is necessary, by the trial court, for up to 12 months. § 3. The length of detention on remand until the delivery of a first judgment by the trial court shall not exceed 2 years. § 4. Detention on remand may be prolonged for a fixed period exceeding the periods provided in §§ 2 and 3 by the appellate court (...) at the request of the court dealing with a case (...) – if it is necessary because of the suspension of criminal proceedings, the prolonged psychiatric observation of an accused, the prolonged preparation of an expert opinion, the collection of evidence in a particularly complicated case or abroad, a delay in the proceedings caused by an accused as well as other obstacles which could not be overcome”.