CASE OF MIGON v. POLAND
Violation of Art. 5-4;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed
Nicolas Bratza
8. In 1992 the Tarnów Regional Prosecutor instituted criminal proceedings against the applicant on suspicion of aggravated fraud, falsification of documents and issuing bad cheques. By a letter of 6 October 1993 the Tarnów Regional Prosecutor informed the applicant that the fact that summonses for questioning had been sent both to his new and to his old address did not in any way infringe his defence rights. 9. On 13 October 1993 the applicant informed the Tarnów Regional Prosecutor of a change of his address. On 15 October 1993 the Tarnów Regional Prosecutor issued a warrant for the applicant’s arrest, considering that there were strong grounds for believing that he had committed an offence constituting a serious danger to society, and that there was a risk of collusion and absconding as the applicant had failed to comply with certain summonses and had changed his address several times. On the same day the applicant was remanded in custody. 10. The applicant appealed against that decision. He submitted that the nature of the offence was such that all the evidence was contained in documents belonging to his company, which had already been seized by the prosecutor or kept by the banks. The witnesses in the case had already been heard by the prosecuting authorities. Thus, there was no risk of collusion as the applicant was not in a position to alter or suppress evidence. The applicant had usually complied with summonses except on the rare occasions when he had been unwell and had submitted relevant medical certificates, including a certificate drawn up by the Kraków Forensic Medicine Institute. There was no risk of his absconding as he had informed the prosecutor of his change of address and could not leave the country as his passport had been confiscated by virtue of a decision given in November 1991. The applicant further submitted that the amount he was accused of embezzling was so high solely as a result of the high rate of interest at a time of hyperinflation and that the amount could not be used as an argument in support of the seriousness of the offence concerned. 11. On 25 October 1993 the Tarnów Regional Court dismissed the applicant’s appeal against the detention order. The court first observed that the applicant had on several occasions failed to comply with the summonses without justification. In particular, the case file did not contain any documents showing that there had been justified medical grounds for his absence. Even though he had informed the prosecutor of his change of address, the address he had given appeared to be false as there was a convent at that address. Moreover, it seemed that the applicant did not live there. The court considered that in the light of the financial documents in the case file, the offence of which the applicant was suspected was serious enough to warrant detention on remand, the more so as the value of the embezzled property had been assessed without regard to the sums of statutory interest, contrary to the applicant’s submissions in his appeal. 12. On 6 November 1993 the prosecutor appointed an expert in accountancy to analyse certain financial documents belonging to the applicant’s companies that related to his credit applications in order to assess the damage caused by the offences with which the applicant had been charged. 13. On 8 November 1993 the applicant submitted medical certificates stating that he had been ill from 1 August 1993 to 10 September 1993. On the same date he also requested to be granted access to the case-file. 14. On 15 November 1993 the Tarnów Regional Prosecutor refused to authorise the applicant to meet his counsel in the absence of a police officer, considering that the applicant had had an opportunity to see his lawyer in the presence of a police officer each time he had requested to do so. There were no grounds on which to accept that this amounted to an undue restriction on the exercise of his defence rights. The fact that the applicant had not been communicative when talking to his lawyer seemed to stem from the defence tactics which he had adopted in the proceedings. 15. On the same date the prosecutor refused to allow the applicant’s lawyer access to the case-file. 16. The applicant filed an appeal, arguing, inter alia, that his defence rights had been unduly limited, in particular by the fact that neither he nor the lawyer had had any, albeit limited, access to the case-file, or to any of the evidence gathered so far in the proceedings. The only part of the file to which the applicant had been given access was the statement of charges and the arrest warrant. As a result, the role of his defence counsel had been rendered meaningless. 17. On 3 December 1993 the Tarnów Regional Prosecutor rejected the appeal, finding that no appeal lay against the contested decision, and considering that in any event this decision did not infringe the applicant’s defence rights, given that he would be granted access to the case-file later in the proceedings, at the stage specified in Article 277 of the Code of Criminal Procedure. 18. The applicant appealed, arguing that the decisions infringed his defence rights. The case-file, which so far numbered thirteen volumes, had not been made accessible to him or to his lawyer. Any knowledge that they had about the investigations stemmed from the decision to bring the charges against the applicant and from the decision to appoint the expert. This was clearly insufficient to enable them to conduct any effective defence. 19. On 8 December 1993 the Tarnów Regional Court quashed the refusal to allow the applicant to meet the counsel in the absence of a police officer. The court considered that the applicant had not given any ground on which to accept that he was seeking, by any unlawful methods, to jeopardise the investigations against him. Consequently, the contested decision had unduly limited his defence rights. 20. On 16 December 1993 the Tarnów Regional Prosecutor declined to consider the applicant’s request to be released, holding that the grounds on which the detention warrant had been issued were still valid, and that no new grounds such as to justify his release had been invoked by the applicant. 21. On 21 December 1993 the Kraków Appellate Prosecutor, having regard to the proper conduct of the investigations, which concerned charges of a large-scale fraud and in which new charges had been brought against new suspects and further developments were to be expected, upheld the refusal to allow access to the case-file. 22. On 31 December 1993 the Regional Prosecutor prolonged the investigations as, in view of new circumstances which were coming to light, further evidence had to be taken. 23. On 10 January 1994 the Tarnów Regional Court prolonged the applicant’s detention until 30 March 1994, considering, firstly, that the grounds on which the applicant had been detained were still valid, and, secondly, that a psychiatric examination had to be carried out, and an expert opinion had to be drafted by a certified accountant. The applicant appealed. 24. On 1 February 1994 the Kraków Court of Appeal dismissed the applicant’s appeal. The court considered that, in the light of the material gathered so far during the investigations, there were serious grounds for believing that the applicant had committed the offences in question. It was emphasised that the applicant had not questioned this in his appeal. The court also had regard to the fact that the offences in which the applicant seemed to have been involved had been committed on a large scale. Moreover, the offences were serious enough to warrant detention on remand. There was also a risk of collusion. 25. On 25 March 1994 the Tarnów Regional Court further prolonged the applicant’s detention until 31 May 1994. The court stated in its decision that neither the expert opinion nor the psychiatric report had yet been completed. The expert opinion had to be supplemented by further financial details, which would make it possible to assess the scale of the applicant’s fraudulent banking operations. The court considered that the risk of collusion persisted as the applicant had on several occasions failed to comply with the summonses. The court referred in this connection to its own decision of 25 October 1993. The court further commented unfavourably on the considerable delays that had occurred in interviewing the witnesses, as between 8 December 1993 and 25 March 1994 only four witnesses had been interviewed, whereas the prosecutor estimated in his submissions to the court that between one hundred and three hundred witnesses would have to be heard. 26. The applicant appealed, submitting, inter alia, that in the course of the preliminary investigations he had twice changed his address and had on the second occasion informed the prosecutor of the change, and that he in fact had complied with the summonses. 27. On 11 April 1994 the Tarnów Regional Prosecutor supplemented the charges against the applicant with further multiple charges of obtaining credit under false pretences, forgery of financial documents and issuing of bad cheques. 28. On 20 April 1994 the Kraków Court of Appeal dismissed the applicant’s appeal against the decision of 25 March 1994 as it found that the Regional Court had been justified in reaching the conclusion that there had been a risk of absconding and collusion. The court pointed out that the applicant had changed his address and that he had been trying to obtain a passport from various passport offices. Thus, his past conduct suggested that, if released, he would jeopardise the proper course of the investigations. The court also noted that the serious number of charges brought so far against the applicant and the scale of the offences with which he had been charged, argued in favour of his continued detention. Those factors indicated that in his actions the applicant had overstepped the border between taking a justified business risk and carrying out fraudulent financial operations, punishable under criminal law. 29. On 28 April 1994 the applicant requested access to the case-file and to the expert opinion prepared by a certified accountant. 30. On 29 April 1994 the Tarnów Regional Prosecutor refused the applicant access to the expert opinion, stating that the conclusions of the opinion indicated that certain witnesses should be interviewed in connection with further possible offences which, according to the expert report, were likely to have been committed. It would also be essential to question the expert. Therefore, granting the applicant access to the report would be premature as it would be prejudicial to the interests of the investigations. The prosecutor also refused the applicant access to the case-file. 31. On 11 May 1994 the applicant filed an appeal against this decision, contending, inter alia, that the prosecuting authorities had not been expeditious enough in questioning the witnesses, and that his defence rights had been breached in that the opinion, which seemed at that stage of the proceedings to constitute an essential piece of evidence, had not been communicated to him. On 16 May 1994 the Tarnów Regional Prosecutor rejected this appeal on the ground that no appeal lay against the contested decision. 32. On 20 May 1994 the Regional Prosecutor refused to release the applicant, pointing out that he had been arrested as he had failed to comply with the summonses and had tried to obtain a new passport after the old one had been invalidated in connection with the criminal proceedings. The taking of evidence had not been completed and certain evidence essential for the case had still to be taken. 33. On 21 May 1994 the applicant’s lawyer was served with the completed opinion of the accountancy expert. 34. On 26 May 1994 the Tarnów Regional Court prolonged the applicant’s detention until 15 August 1994, holding in particular that the grounds on which the detention had been ordered and maintained, still applied. The court noted that 80 witnesses had to be interviewed and that documents relating to over 100 various bank loans, taken out by the applicant’s companies had to be examined. The applicant appealed. 35. On 30 May 1994 one of the applicant’s lawyers was granted access to the expert opinion. 36. On 13 June 1994 the Tarnów Regional Prosecutor refused access to the case-file, which numbered over 50 volumes, considering inter alia that the investigations were coming to end. 37. On 22 June 1994 the Kraków Court of Appeal dismissed the appeal against the decision of 26 May 1994, considering that the charges against the applicant had been sufficiently substantiated by the evidence that had been gathered both at the time of the applicant’s arrest and later in the course of the proceedings. It was true that the investigations had not been conducted speedily enough, given that the applicant was in detention, which necessitated special diligence on the part of investigating authorities. That had also been the result of the particularly serious nature of the offence in question. However, the investigations had been unable to proceed for almost four months, while the proceedings concerning the review of the lawfulness of the applicant’s detention had been conducted. The court further stressed that new evidence was coming to light gradually, revealing new aspects of the case and thereby prolonging the investigations. Had the applicant cooperated with the prosecuting authorities, the proceedings would have progressed more quickly. He was not under such an obligation, but he had to be aware that his failure to do so had further prolonged the proceedings. 38. On 5 July 1994 the Tarnów Appellate Prosecutor gave his permission to the applicant to access the case-file of the investigations, considering that this would undoubtedly contribute to the acceleration of the proceedings and would make it possible for the suspect to formulate possible requests for further evidence to be taken. 39. On 5 August 1994 the Tarnów Regional Court again prolonged the applicant’s detention. The court noted that on 14 July 1994 certain evidence, concerning fraudulent transactions by the applicant’s company had been obtained from one of the banks. New witnesses would have to be heard in connection with these transactions. As new evidence had come to light, prolongation of his detention was necessary. Moreover, new charges had been brought against the applicant, which made it necessary to prolong his detention. The court further disagreed with the arguments advanced by the applicant that the charges against him had not been credible and considered that, quite to the contrary, the charges against him had been sufficiently substantiated to justify his further detention, which was also necessary to ensure the proper course of the proceedings. The court further noted that, contrary to the applicant’s assertions, further documentary evidence had been taken in July 1994, even though it was true that no further witnesses had been interviewed. 40. On 18 August 1994 the Regional Prosecutor refused to release the applicant. 41. On 15 August 1994 the Kraków Court of Appeal upheld the decision of 5 August 1994. 42. On 2 September 1994 the Regional Prosecutor again refused to release the applicant. On an unspecified date in September 1994 the applicant’s lawyer was informed that he could not have access to the case-file as it had been sent to the Supreme Court for the purposes of a decision to be given as to the prolongation of the applicant’s detention. 43. On 30 September 1994 the prosecutor appointed an expert to examine further accounting documents in the case-file. 44. On 6 October 1994 the applicant’s detention was prolonged by the Supreme Court. 45. On 14 October 1994 the Tarnów Regional Prosecutor informed the applicant’s lawyer that from 21 October 1994 the applicant would be brought from prison to the prosecutor’s office every day in order to have access to the case-file. The lawyer’s attention was drawn to the fact that the lawyer had so far failed to make use of his right to consult the file. 46. On 24 October 1994 the Regional Prosecutor permitted the applicant to make copies of and take notes from numerous documents in the case-file. On 29 December 1994 the Regional Prosecutor refused to give the applicant the copies of the prosecutor’s requests to have the applicant’s detention prolonged which had so far been examined in the proceedings, considering that those documents had not been included into the principal case-file, and that the applicant’s argument that he had to have access to them in order to exercise his defence rights was ill-founded. 47. On 11 January 1995 the bill of indictment was lodged with the Tarnów Regional Court. The applicant was charged with embezzling a sum of 80,000,000,000 (old) Polish zlotys to the detriment of six banks, issuing bad cheques and with other economic offences. 48. On 15 June 1995 the applicant was released. 49. The 1969 (“old”) Polish Code of Criminal Procedure applicable at the relevant time, listed as “preventive measures”, inter alia, detention on remand, bail and police supervision. 50 51. Article 217 §§ 1 (2) and (4) of the Code of Criminal Procedure, as applicable at the material time, provided that detention on remand could be imposed if, inter alia, there was a reasonable risk that an accused would attempt to abscond or to induce witnesses to give false testimony or to obstruct the due course of proceedings by any other unlawful means, or if an accused had been charged with an offence creating a serious danger to society. 52. At the material time there were three types of proceedings enabling a detainee to challenge the lawfulness of his or her detention and thus, possibly, to obtain release. Under Article 221 § 2 of the 1969 Code of Criminal Procedure he could appeal to a court against a detention order made by a prosecutor. Under Article 222 §§ 2(1) and 3 he could appeal against a further decision by that court prolonging his detention at the prosecutor’s request. Lastly, under Article 214 an accused could at any time request the competent authority to quash or alter the preventive measure applied in his case. Such an application had to be decided by the prosecutor or, after the bill of indictment had been lodged with the court competent to deal with the case, by that court, within three days. 53. Under all the relevant provisions of the Code of Criminal Procedure of 1969 read together, a detainee was entitled to appeal against any decision prolonging his or her detention on remand, regardless of whether it had been made at the investigative or judicial stage of proceedings. 54. The imposition and prolongation of preventive measures, including detention on remand, were examined by the courts in the course of proceedings held in camera. The presence of the parties at court sessions other than hearings, including sessions held in the proceedings concerning review of detention on remand, was governed by Articles 87 and 88 of the Code of Criminal Procedure, which, in so far 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 so provides.” 55. Access to the case file in the course of preliminary investigations was governed by Article 143 § 3 of the Code of Criminal Procedure, which provided, in so far as relevant, that permission to have access to and make copies of the documents in the case file in the course of preliminary investigations was granted only with the consent of the authority conducting the investigations. 56. Under Article 277 of the Code, after the preliminary investigations were completed and it was decided that there were grounds on which to prepare the bill of indictment, the prosecutor was to grant the suspect access to the case-file, inform him that he was entitled to avail himself of this right personally, and allow his counsel to have access to the file. 57. Until 4 August 1996, the date on which the 1973 Code of Criminal Procedure was extensively amended by the Law of 29 June 1995 on amendments to the Code of Criminal Procedure and other criminal statutes, the law did not fix any time-limits concerning detention on remand in judicial proceedings. During investigations, the prosecutor could order detention for up to three months. Prolongation of this period was possible by a court order, for a period not exceeding one year, and for any further periods, by a decision of the Supreme Court given at the request of the Prosecutor General.