CASE OF KREPS v. POLAND
Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Georg Ress
8. On 13 January 1993 the applicant was detained on charges of armed robbery, burglary and assault occasioning bodily injuries. 9. On 13 April 1993 a bill of indictment was lodged with the Warsaw Regional Court (Sąd Wojewódzki). The applicant was indicted on the charges of armed robbery, burglary and assault committed together with six other persons. 10. The court listed hearings for 4, 5 and 6 May 1994 but subsequently cancelled all of them because one of the applicant’s co-defendants had failed to appear. On the last of those dates, the hearing was postponed because Z.K. (one of the co-defendants) was ill and the court considered it necessary to obtain a medical report determining whether or not he would be able to take part in the trial. The relevant report was received at the court’s registry on 13 June. 11. Two days later the Regional Court set the trial for 6 and 7 September but, on 6 September, it adjourned the hearings since a court interpreter had failed to appear (D.B., one of the co-defendants, was of Lithuanian nationality and therefore not able to follow the trial without the assistance of an interpreter). 12. The first hearing on the merits was held on 8 November 1994. The court heard evidence from four defendants. The trial continued on 9 and 14 November 1994. In the course of those two hearings, the court heard evidence from other defendants. 13. The next hearing took place on 16 January 1995. During that hearing the applicant unsuccessfully asked the court to remit the case to the Warsaw Regional Prosecutor and order a further investigation with a view of indicting his wife. On 17 January 1995, in the course of the next hearing, he made a similar application and stated that if it was not granted, he would not attend hearings. Later, he apologised for his behaviour. A hearing listed for 18 January started with a delay because it emerged from a medical certificate made by a prison doctor that the applicant was ill. On that day the court however decided to proceed with the trial in the applicant’s absence because, on the basis of another, subsequently obtained medical certificate, it came to the conclusion that he had misinformed the prison authorities as to the state of his health. The trial continued on 19 and 20 January and on 17, 20 and 23 March 1995. Further hearings were listed for 17, 18 and 19 May 1995. The hearing set for 18 May did not take place because one of the co-defendants had not appeared before the court. In the meantime, on 8 May 1995, the applicant, relying on his previous record of psychiatric treatment, asked the court to order that he be examined by a psychiatrist. 14. On 19 May 1995 the court ordered that evidence be obtained from psychiatrists to establish whether tempore criminis the applicant and two of his co-defendants had acted in a state of diminished responsibility. It adjourned the trial to 26 and 27 July 1995. 15. On 22 May 1995 the court requested the Department of Forensic Psychiatry of Warsaw-Mokotów Prison to place the applicant and his co-defendants under psychiatric observation. The applicant underwent that observation from 3 October 1995 to 15 January 1996. 16. On 29 December 1995, 13 January, 13 and 29 February, 4 March and 16 April 1996, the applicant asked the Warsaw Regional Court to release him. He submitted that his detention on remand had meanwhile exceeded two years and that it was putting a severe strain on his family, especially as his child was ill and his wife and mother needed his help. 17. The Warsaw Regional Court examined all those applications on 29 April 1996. It dismissed them, holding that the applicant’s detention should continue in view of the reasonable suspicion that he had committed the offences with which he had been charged and the need to secure the proper conduct of the proceedings. The court also considered that the length of the applicant’s detention could not in itself be a decisive factor militating in favour of his release. Finally, it added that there were no grounds for releasing him in view of his family situation, in particular under Article 218 of the Code of Criminal Procedure. In that respect, the court relied on a declaration made by the applicant’s wife (who stated that she did not wish to obtain any help from him). 18. The applicant appealed, stressing that his detention on remand had meanwhile exceeded three years but his trial had only just commenced. On 23 May 1996 the Warsaw Court of Appeal (Sąd Apelacyjny) dismissed the appeal in view of the serious nature of the offences with which the applicant had been charged and the need to secure the proper conduct of the proceedings. 19. Meanwhile, on 29 February 1996 and on an unknown date in April 1996, the psychiatric observations ordered with respect to the applicant’s co-defendants had been completed. The psychiatrists’ reports were received at the court’s registry on 21 March and 12 April 1996, respectively. 20. On 8 May 1996, the Regional Court scheduled hearings for 5 and 6 August 1996. It emerged from a subsequent decision of the Supreme Court (Sąd Najwyższy) of 13 February 1997 (see paragraph 26 below) that those hearings had been cancelled because the applicant’s co-defendants had “disorganised the trial”. In particular, one of them had inflicted injuries on himself. 21. On 28 May 1996 the applicant challenged the impartiality of the trial court. The challenge was dismissed on 3 June 1996. 22. On 18 June and 11 September 1996 the applicant made further applications for release. They were dismissed on 4 July and 19 September 1996 respectively. The applicant appealed and, on 28 September 1996, submitted a medical certificate stating that he suffered from gastric ulcers. Following inquiries into the applicant’s personal circumstances and his family’s situation made by the relevant courts, the contested decisions were eventually upheld on appeal. The courts reiterated the grounds previously given for the applicant’s continued detention. 23. On 8 November 1996 the Warsaw Regional Court held a hearing. However, the composition of the panel of the court had to be changed because one of the judges had meanwhile withdrawn from the case. In consequence, the newly-composed trial court had to rehear evidence that had to date been obtained. The trial continued on 12-13, 16 and 1819 December 1996. On 18 December 1996 the court, considering that the applicant behaved in a disorderly manner (he apparently interrupted the process of obtaining evidence from experts) ordered that he be temporarily removed from the court room. A hearing listed for 21 January 1997 was postponed to 4 February because one of the applicant’s co-defendants had failed to appear. In the course of the hearing held on 4 February 1997 the applicant for the second time challenged the impartiality of the trial court. 24. On 21 January 1997 the applicant asked the court to release him. On 6 February 1997 he lodged another application for release. The court dealt with his applications on 3 March 1997 and dismissed them, holding that there were no grounds for releasing him under Article 218 of the Code of Criminal Procedure 25. In the meantime, on 31 December 1996, the Warsaw Regional Court had made an application under Article 222 § 4 of the Code of Criminal Procedure to the Supreme Court, asking it to prolong the applicant’s and his co-defendants’ detention on remand until 30 May 1997, i.e. beyond the statutory time-limit set in such cases. The Regional Court considered that the prolonged psychiatric observation of three of the co-defendants, the need to obtain evidence and the fact that one co-defendant had gone on a hunger strike and had inflicted injuries on himself fully justified the opinion that the defendants had deliberately obstructed the termination of the proceedings within the statutory time-limit and, consequently, gave sufficient grounds for extending their detention. Referring to the applicant, the court held that he had, by his conduct, obstructed the termination of the proceedings. It did not specify how the applicant prevented completion of the trial. 26. The Supreme Court examined that application on 13 February 1997. It prolonged the applicant’s and his co-defendants’ detention on remand until 30 April 1997. 27. The trial was to continue on 7 March 1997 but – for unknown reasons – it was postponed to a later date. 28. On 21 March 1997 the applicant – again unsuccessfully – challenged the impartiality of the trial court. 29. The trial continued on 1, 4 and 16 April 1997. On 18 April 1997 the court gave judgment. The applicant was convicted as charged and sentenced to eleven years’ imprisonment and a fine of 3,000 Polish zlotys. 30. The applicant appealed against his first-instance conviction in July 1997. The Warsaw Court of Appeal dismissed the appeal on 2 December 1997. 31. 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) 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. 32. The Code listed as “preventive measures”, inter alia, detention on remand, bail and police supervision. Article 209 set out the general grounds justifying imposition of the preventive measures. This provision read: “Preventive measures may be imposed in order to ensure the proper conduct of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.” Article 217 § 1 defined grounds for detention on remand. This provision, in the version applicable until 1 January 1996, provided, 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 he has no fixed residence [in Poland] or his identity cannot be established; or (2) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means; or (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. ...” On 1 January 1996 sub-paragraphs 3 and 4 of Article 217 § 1 were repealed and the whole provision was redrafted. From that date onwards the relevant sub-paragraphs read: “(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent abode [in Poland]; or (2) [as it stood before 1 January 1996].” Paragraph 2 of Article 217 provided: “If an accused has been charged with a serious offence or an intentional offence [for the commission of which he may be] liable to a sentence of a statutory maximum of at least eight years’ imprisonment, or if a court of first instance has sentenced him to at least three years’ imprisonment, the need to continue detention in order to secure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed.” 33. The Code set out the margin of discretion in maintaining a specific preventive measure. Articles 213 § 1, 218 and 225 of the Code were based on the precept that detention on remand was the most extreme preventive measure and that it should not be imposed if more lenient measures were adequate. Article 213 § 1 provided: “A preventive measure [including detention on remand] shall be immediately lifted or varied, if the basis for it has ceased to exist or new circumstances have arisen which justify lifting a given measure or replacing it with a more or less severe one.” Article 225 stated: “Detention on remand shall be imposed only when it is mandatory; this measure shall not be imposed if bail or police supervision, or both of those measures, are considered adequate.” The provisions for “mandatory detention” (for instance, detention pending an appeal against a sentence of imprisonment exceeding three years) were repealed on 1 January 1996 by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes. Finally, Article 218 stipulated: “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 entail excessively burdensome effects for the accused or his family.” 34. Until 4 August 1996, i.e. the date on which the relevant provisions of the Law of 29 une 1995 (see also “Amendments to criminal legislation” above) entered into force, there were no time-limits for detention on remand in the court proceedings. From that date on, Article 222 of the Code of Criminal Procedure laid down such time-limits. It read, in so far as relevant: ”3. The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed one year and six months in cases concerning offences. In cases concerning serious offences [offences for the commission of which a person is liable to a sentence of a statutory minimum of at least three years’ imprisonment] this period may not exceed two years. 4. In particularly justified cases the Supreme Court may, on the application made by the court competent to deal with the case, ... prolong detention on remand for a further fixed period exceeding the time-limits set out in paragraphs 2 and 3, when it is necessary in connection with a suspension of the proceedings, a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in paragraph 3.” On 28 ecember 1996, by virtue of the Law of 6 ecember 1996, paragraph 4 of Article 222 was amended and the grounds for prolonging detention beyond the statutory time-limits included also: “ ... other significant obstacles, which could not be overcome by the authorities conducting the proceedings...”