CASE OF SALAPA v. POLAND
Violation of Art. 5-3;Violation of Art. 5-4;No violation of Art. 6-1;Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
Georg Ress
9. The applicant was born in 1955. He is currently serving a prison sentence. 10. On 26 February 1996 the Regional Prosecutor remanded the applicant in custody on suspicion of drug trafficking, committed from August until November 1995 in conspiracy with other persons. In the detention order the prosecuting authorities stressed that the testimony given during the investigations by the co-suspects strongly supported the suspicion against the applicant. 11. On 15 March 1996 the Jelenia Góra Regional Court (“the Regional Court”) dismissed the applicant's appeal against the detention order. On 25 March 1996 and on an unknown later date the applicant's requests for release were refused by the Wrocław Regional Prosecutor. On 29 March 1996 the Regional Prosecutor prolonged the applicant's detention until 30 June 1996, invoking the complexity of the case. On 2 and 22 April 1996 the applicant's appeals against these decisions were dismissed by the Appellate Prosecutor. On 16 May 1996 the Regional Court further prolonged the applicant's detention on remand until 31 August 1996. On 5 June 1996 the Wrocław Court of Appeal (“the Court of Appeal”) dismissed the applicant's appeal against this decision. 12. On 19 June 1996 the Regional Prosecutor prolonged the investigations in the case until 30 September 1996. 13. On 24 June 1996 the Regional Prosecutor refused the applicant's new request for release and to have the detention on remand changed for a more lenient preventive measure. On 26 August 1996 the Court of Appeal prolonged the applicant's detention until 30 September 1996. 14. On 25 September 1996 the Wrocław Regional Prosecutor prolonged the investigations until 31 December 1996. On 30 September 1996 the Court of Appeal prolonged the applicant's detention until the same date. On 14 November 1996 the Supreme Court upheld the decision of 30 September 1996, considering, inter alia, that applicable domestic law did not require that the evidence in support of his detention was such as to allow a conviction. It was sufficient that there were strong indications that the applicant had committed the offence in question. 15 16. On 10 February 1997 the Supreme Court upheld the decision of 19 December 1996. On 17 February 1997 it prolonged the applicant's detention until 30 April 1997. On 25 March and 7 April 1997 the Regional Prosecutor refused the applicant's further requests for release. The applicant appealed to the higher prosecutor. On 2 and 22 April 1997 the Appellate Prosecutor upheld these decisions, relying, inter alia, on the findings of the investigations that the applicant had had a leading role in the organisation of a drug trafficking network, and to the fact that the evidence included the applicant's forged passport. This revealed a risk of absconding if the applicant were to be released. 17. On 21 April 1997 the Wrocław Regional Prosecutor closed the investigations. On 24 April 1997 the Wrocław Regional Prosecutor submitted the bill of indictment against the applicant and nine other co-accused to the Regional Court. The indictment contained a list of twenty witnesses to be interviewed and two hundred and twenty-four items of evidence to be presented at the hearing. 18. On 28 May 1997 the Regional Court filed a motion with the Court of Appeal, requesting that the case be taken over for consideration by the Wrocław Regional Court. It was stressed that the Regional Prosecutor and most of the witnesses to be summoned resided in Wrocław. On 4 June 1997 the Court of Appeal dismissed the motion. 19. On 4 September 1997 the Regional Court ordered the Detention Centre in Wrocław to carry out a thorough medical examination of the applicant, including an examination by a neurologist. 20. On 30 October 1997, at the applicant's request, the Regional Court sent the files in the case, which by then numbered twenty-one volumes, to the Wrocław prison to make them available to the applicant. From 3 until 6 November 1997 the applicant was reading the case-file. On 7 November 1997 the applicant requested again to have the access to the case-file in order to be able to study it thoroughly. He was subsequently granted such access on four occasions. 21. The first hearing in the case was held on 17 November 1997. During the hearing the Regional Court dismissed a motion lodged by one of the co-accused to have the case returned to the prosecution to complete the investigations. The hearing was adjourned as one of the co-accused failed to comply with the summons. The court informed the applicant that it would consider his new request for release after conducting a social enquiry at his home. The court fixed dates for next hearings for 22 December 1997 and 5 January 1998. From 2 until 6 December 1997 the case-file was, at the applicant's request, sent to the prison so that the applicant could study it. 22. On 15 December 1997 the court held a hearing at which it refused the applicant's motion for release. Due to the absence of two co-accused the court adjourned the hearing. On 22 December 1997 the same two co-accused again failed to attend the hearing. A warrant of arrest had been issued in respect of one of them, a certain D. M. The defence counsel of another co-accused, I. M., requested that experts be appointed in order to establish her state of mental health after the suicide of her brother some days earlier. The hearing was adjourned until 19 January 1998. 23. On 31 December 1997 the Regional Court requested the Warszawa-Praga District Police to conduct an enquiry at the applicant's home as to his family situation. As the results of the enquiry showed that the situation of the applicant's family was not such as to require that he be released, on 14 January 1998 the court refused his request of 17 November 1997. On 9 and 10 January 1998 the expert reports were submitted to the court, confirming the capacity of I. M. to take part in the hearings before the court. 24. At a hearing held on 19 January 1998 the co-accused D.M. failed to attend. The court did not allow the applicant's request for release and adjourned the hearing. 25. On 10 February 1998 the Supreme Court prolonged the applicant's detention until 31 July 1998. On 20 February and 9 March 1998 the applicant requested to be allowed access to the case-file. On 9 March 1998 during the subsequent hearing the applicant filed a motion that the case-file be remitted to the prosecutor to supplement investigation with regard to the circumstances and conditions in which two of the witnesses had made statements in their cases before the German courts. The applicant also challenged the judges of the panel examining the case and all judges of the Regional Court. He also requested a stay on the proceedings until D. M. was arrested and that the file from Germany be sent to the Regional Court and translated. He also requested his release. During the same hearing the court rejected all the applicant's requests. The applicant immediately filed appeals against these refusals and requested an adjournment of the hearing in order to have the case-file sent to the Court of Appeal for his appeals to be considered. The court refused to do so. The cases of the two absent co-accused were separated from the applicant's case. 26. On 20 March 1998 the applicant again requested that the proceedings be stayed. On 24 March 1998 the Court of Appeal upheld the decision of 9 March 1998 refusing the applicant's motion. On 23 March 1998 the applicant requested to be allowed access to the case-file and filed six new procedural motions with the court. During the next hearing held on 30 March 1998 the applicant filed five other procedural motions, including a new motion to stay the proceedings. 27. At the beginning of April 1998 the applicant challenged the prosecutor conducting his case and requested that another one be appointed. On 6 April 1998 the applicant filed a complaint with the court, alleging inadequate access to the case-file which had not allowed him to prepare his defence properly. 28. On 7 April 1998 the Court of Appeal upheld the refusal to stay the proceedings of 30 March 1998. On 16 April 1998 the Wrocław Regional Prosecutor dismissed the applicant's challenge to the prosecutor, finding that it did not satisfy the applicable legal requirements. On 11 May 1998 the applicant complained to the Regional Court against his allegedly insufficient access to the case-file and requested permission to consult the records of the hearings. On 21, 22, 27, 28 and 29 May 1998 the applicant had access to the case-file in the detention centre. 29. During the hearing held on 1 June 1998 the applicant filed a motion for release and requested that the proceedings be stayed. He also requested that the case against D.M., which had been previously separated from his case, be examined together with his case. He further complained that his procedural rights had not been observed by the court, in particular that he had no proper access to all the volumes of the case-file at the same time and that he had not been given sufficient time for meetings with his defence counsel. His requests and complaints were dismissed by the court. 30. On 17 June 1998 the Appeal Court upheld the refusal to stay the proceedings of 1 June 1998. On 22 June 1998 the hearing was adjourned until 17 August 1998 due to the illness of one of the co-accused I.M. 31. On 30 July 1998 the Supreme Court, at the Regional Court's request of 3 July 1998, decided to prolong the applicant's detention until 31 December 1998. A hearing fixed for 17 August 1998 was adjourned due to the absence of three defendants, and the subsequent hearings were held on 24 August, 14 September, 5 and 19 October 1998. The applicant was again allowed access to the case-file from 28 September until 2 October 1998. 32. During the hearing held on 26 October 1998, the court questioned four witnesses. Two other witnesses failed to appear. The hearing was adjourned until 9 November 1998. During that hearing five witnesses were interviewed and three other witnesses failed to comply with the summons. The hearing was adjourned until for 30 November 1998. 33. On 30 November 1998 four witnesses were interviewed. Seven other witnesses failed to attend the hearing. The court dismissed the applicant's new request for release and decided to admit evidence from the testimony of some police officers, concerning the conduct of the investigation in the case. 34. Next hearings were fixed for 14 December 1998 and 4 January 1999. On its session held in camera on 7 December 1998 the Regional Court decided to request the Supreme Court to prolong the applicant's detention until 30 June 1999. 35. On 14 December 1998 next hearing was held. Three witnesses were heard and one failed to attend. On 30 December 1998 the Regional Court requested the District Police in Brzeg Dolny to establish the whereabouts of witness D. M. At the hearing held on 4 January 1999 the court questioned one witness, whereas four others were absent. The applicant submitted a request to adjourn the questioning of the witnesses, relying on the absence of his defence counsel. 36. On 6 January 1999 the Supreme Court prolonged the applicant's detention until 30 April 1999. The Court observed that a number of hearings had been adjourned due to the failure of certain accused and of a number of witnesses to attend the hearings as summoned. It also had regard to the applicant's motions to take additional evidence. At the hearing held on 11 January 1999 witness G.D. was questioned. Three other persons summoned as witnesses failed to comply with the summonses. 37. At a subsequent hearing held on 18 January 1999 one of the co-accused was absent following an accident. The applicant and another co-accused requested that three new defence witnesses be heard in the case. The court adjourned the hearing. The subsequent hearing in the case was held on 25 January 1999 and two witnesses were questioned. 38. At the hearing held on 8 February 1999 the applicant requested access to the case-file, alleging that before the hearing his access had been insufficient to prepare his defence properly because he had never had access to all of the twenty volumes of the case-file at the same time. The applicant's counsel requested appointment of an expert in graphology in order to examine the authenticity of the signature of the co-accused S. P. on a certain document. The court adjourned the hearing. 39. On 15 February 1999 the applicant requested the Regional Court to grant him access to the entire case-file. On 1 March 1999 the court continued the hearing. Two witnesses were interviewed and one was absent. The court allowed the cross-examination of three witnesses and questioned another one. 40. At the next hearing held on 8 March 1999 one witness failed to appear. The court appointed an expert in graphology in order to examine the authenticity of the signature of the co-accused S.P. The court allowed the applicant's request that a new witness be interviewed and dismissed other requests concerning the taking of further evidence. 41. On 15 March 1999 the hearing was continued and one witness was heard. The court decided to impose fines on two absent witnesses. It also allowed the applicant's lawyer's request to examine a file of another criminal case and adjourned the hearing. On 17 March 1999 a lawyer of one of the co-accused requested to have three new witnesses questioned and the court granted that request. 42. At the hearing on 22 March 1999 the court heard four witnesses. On 29 March 1999 the court decided to hold the hearing despite the fact that two of the co-accused failed to comply with the summonses. The court, at the applicant's request, called two new witnesses since the applicant's lawyer had not agreed that their testimony be read out in the court. The court adjourned the hearing and fixed the dates for the next hearings. 43. On 6 April 1999 the court held the hearing, despite the absence of the co-accused I. M. Four witnesses summoned for that date failed to comply with the summonses. The applicant and another co-accused requested to accept as disclosed the testimony of two witnesses living abroad without their being read out in court. 44. On 12 April 1999 a next hearing was held. The court read out the testimony of the co-accused D. M, whose whereabouts remained unknown, and two further witnesses were questioned. 45. At a next hearing, held on 13 April 1999, one witness refused to answer questions. One of the co-accused was absent, but the court decided to continue the hearing. The court dismissed a request to admit evidence from the file of another criminal case, related to the present case and terminated by the German courts. The court also refused to allow the applicant's motion for a fresh expert report on the signature of the accused S. P. and to enclose a file of another case against persons who had been witnesses in the case against the applicant and to hear two new witnesses. 46. At the hearing held on 14 April 1999 the Regional Court requested the Supreme Court to prolong the applicant's detention until 15 June 1999 so that further witnesses could be heard. The Regional Court observed that the proceedings had essentially come to a close, but that it was impossible to hear one witness who was detained in another case, and one of the accused, who was ill. 47. A new witness was interviewed on 19 April 1999. One co-accused, who was ill, did not attend the hearing. The court decided to summon a subsequent witness and fixed dates for the next hearings. On 26 April 1999 the court adjourned the hearing due to the absence of one of the lawyers. The presence of the lawyer was mandatory and the co-accused had not consented to the hearing being held in his absence. On 29 April 1999 the Supreme Court prolonged the applicant's detention until 15 June 1999, having regard to such essential obstacles as the illness of the co-accused I. M., new circumstances which were coming to light during the court proceedings and new evidence allowed by the court. 48. At a hearing before the Regional Court held on 30 April 1999 a new witness was present, but the hearing had to be adjourned due to the absence of the applicant's lawyer. The applicant did not agree that the hearing be continued. The court fixed dates for eight subsequent hearings until 1 June 1999. 49. On 4 May 1999 the hearing was adjourned, due to absence of the lawyers of three of the accused, including the applicant's. On 17 May 1999 the court decided to continue the hearing despite the absence of the accused I.M. who had submitted a sick leave certificate. One witness was questioned. The court ordered I. M.'s lawyer to submit I. M. sick leave certificate issued by a physician authorised to give certificates to justify the absence before a court on medical grounds. 50. On 20 May 1999, at the request of one of the lawyers, the court adjourned the oral pleadings of the parties until 24 May 1999. On 24 May 1999 the last hearing was held. 51. On 31 May 1999 the court gave a judgement in the case. The applicant was convicted of drug trafficking and forgery of documents and sentenced to ten years' imprisonment and a fine of 250,000 PLN. The court prolonged the applicant's detention until 30 September 1999 and the applicant appealed against the decision. 52. The applicant requested that written grounds for the judgment be prepared. On 2 July 1999 the Regional Court informed him that the case-file had been sent to the Court of Appeal as the complaints against the decision concerning prolongation of detention had to be considered and therefore the written grounds for the judgment could only be drawn up after the return of the case-file. On 9 July 1999 the Regional Court prolonged the time-limit for the grounds of the judgment to be prepared until 31 August 1999. The court stressed that the case was particularly complex and voluminous and that the case-file had meanwhile had to be sent to the Court of Appeal. 53. On 28 July 1999 the court informed the applicant about the new time-limit fixed for the preparation of the written grounds of the judgment. On 31 August 1999 the Regional Court again prolonged the time-limit in respect of the written grounds of the judgment until 10 September 1999, having regard to the complexity of the case. On 21 September 1999 the reasoned judgement, numbering sixty-four pages, was served on the applicant. 54. On 15 October 1999 the applicant lodged an appeal against the first-instance judgment with the Court of Appeal. On 16 February 2000 the Court of Appeal dismissed the applicant's appeal. 55. On 28 April 2000 the applicant lodged a cassation appeal against the second-instance judgement with the Supreme Court. He argued that the appellate court had failed to rectify errors of law committed by the first-instance court. The first-instance court had in particular failed to address correctly the complaints relating to certain refusals to take evidence and to the fact that some evidence was not taken in an adversarial manner as the court had only decided to include it in the case-file. The applicant had thus been deprived of the possibility of questioning certain witnesses. On 2 April 2000 the Appellate Prosecutor in Wrocław filed his reply to the cassation appeal with the Supreme Court. On 7 June 2000 the Supreme Court dismissed the applicant's request to stay execution of his sentence. 56. On 30 October 2001 the Supreme Court dismissed the applicant's cassation appeal and the appeals filed by the two co-accused, the applicant's brother A.S. and A.M. 57. The letters from the applicant to the Secretariat of the European Commission of Human Rights, dated 29 April 1997, 13 May 1997, 14 May 1997 (2 letters) and 17 June 1997, were intercepted by prison guards. They opened and apparently forwarded them to the prosecuting authorities, who in turn later read and forwarded them to the addressee. The envelopes of these letters bear stamps of the Wrocław Detention Centre, together with the stamps “censored” (“ocenzurowano”). 58. The 1973 Code of Criminal Procedure, applicable at the relevant time, listed as "preventive measures", inter alia, detention on remand, bail and police supervision. 59 60. After the bill of indictment was transmitted to the court, orders relating to detention were to be made by the court. A decision concerning preventive measures could be appealed to a higher court. 61. At the material time there were three types of proceedings enabling a detainee to challenge the lawfulness of his detention. Under Article 221 § 2 of the Code of Criminal Procedure he could appeal to a court against a detention order given by a prosecutor (see above). Under Article 222 §§ 2 (1) and 3 he could appeal against a further decision by that court prolonging his detention at a prosecutor's request. Under Article 214 the detainee could at any time request the competent authority to quash or alter the decision concerning the preventive measure imposed 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. 62. The situation of persons detained on remand was at the relevant time governed by the Code of Execution of Criminal Sentences of 1969. Under Article 89, all correspondence of each detainee was to be opened, read and, if need be, subjected to censorship, unless a prosecutor or a court decided otherwise. No provision of the Code provided for any remedy to contest the manner or scope of the censorship of a detainee's correspondence. 63. The rights of persons detained on remand as regards their correspondence were further set out in Rule 33 of the Rules of Detention on Remand. These Rules provided that the correspondence of persons detained on remand was subject to screening by the authority conducting the criminal proceedings, i.e. either a public prosecutor or a court, depending on the stage reached in the proceedings. 64. On 6 July 1997 a new Code of Enforcement of Criminal Sentences was enacted by parliament. Article 102 of this Code, which entered into force on 1 January 1998, provides that convicted persons are entitled to non-screened correspondence with the State authorities, including the Ombudsman. Article 103 of the Code further provides that convicted persons and their lawyers may lodge complaints with the international agencies established under international treaties on protection of human rights, ratified by Poland. Prisoners' correspondence in such cases shall be dispatched with no delay and shall not be subjected to screening. 65. Pursuant to Article 512 of the new Code, the rights of persons detained on remand shall, in principle, be at least equal to those of persons convicted by a final judgment.