CASE OF LESZCZAK v. POLAND
Violation of Art. 5-3;Non-pecuniary damage - financial award
Nicolas Bratza
4. The applicant was born in 1982 and lives in Siecie, Poland. 5. On 15 April 2000 the applicant was arrested. On the following day the Słupsk District Court remanded him in custody until 15 May 2000 on suspicion of homicide and attempted burglary. It relied on the evidence given by the applicant’s co-suspect. In addition, the court held that his detention was justified in order to secure the proper conduct of the proceedings and referred to the severity of the anticipated penalty. Furthermore, having regard to the fact that the applicant had not confessed, the court considered that there was a reasonable risk that he would attempt to induce witnesses to give false testimonies or otherwise interfere with the proceedings. 6. On 11 May 2000 the District Court prolonged the applicant’s detention until 15 July 2000. It referred to the reasonable suspicion of his having committed the offences in question and the severity of the anticipated penalty. The court further held that there was a reasonable risk that the applicant would unlawfully obstruct the proceedings, having regard to the fact that his co-suspect had not been detained at the time. Additionally, it relied on the need to obtain further expert evidence. Lastly, the court considered that other preventive measures would not secure the proper conduct of the proceedings. 7. On 11 July 2000 the Słupsk Regional Court dismissed the prosecutor’s request for prolongation of the applicant’s detention and ordered his release. It found that there had been no other evidence of the applicant’s alleged involvement in the offences in question than the statements of his co-suspect. In addition, the statements of that co-suspect had not been consistent as at the earlier stage of the investigation he had excluded a possibility of the applicant’s involvement in the offences. The applicant was released on 11 July 2000. 8. On 11 July 2000 the Regional Court ordered the applicant to undergo a six-week psychiatric examination in order to determine whether he could be held criminally responsible. 9. On 17 July 2000 the prosecutor appealed against the decision refusing his request for prolongation of the applicant’s detention. On 26 July 2000 the Gdańsk Court of Appeal quashed the contested decision for failure to assess all the evidence in favour and against holding the applicant in custody and remitted the case. 10. Between 10 August and 4 September 2000 the applicant underwent examination in a psychiatric hospital. 11. On 17 August 2000 the Słupsk Regional Court again refused the prosecutor’s request for prolongation of the applicant’s detention. The prosecutor’s request was based on the evidence given by the applicant’s co-suspect. The Regional Court, however, found it to be unreliable. The prosecutor appealed against the decision of 17 August 2000. On 30 August 2000 the Gdańsk Court of Appeal quashed the impugned decision on procedural grounds and remitted the case. 12. On 18 September 2000 the Słupsk Regional Court ordered the applicant’s detention for a period of 2 months. It held that the period of the applicant’s examination in a psychiatric hospital should count towards his detention on remand. The Regional Court relied on the statements of the applicant’s co-suspect, which it had found to be consistent. Further, it had regard to a report by the smell recognition expert (opinia osmologiczna) of 10 September 2000 and medical evidence concerning the victim of the homicide. It also relied on the severity of the anticipated penalty. The applicant was re-detained on 22 September 2000. 13. On 19 October 2000 the bill of indictment against the applicant and three of his co-accused was submitted to the Słupsk Regional Court. 14. On 20 October 2000 the Regional Court extended the applicant’s detention until 28 January 2001. In addition to the grounds invoked in its previous decision, the court considered that the applicant’s continued detention was necessary in order to secure the proper conduct of the proceedings, given the serious nature of the offences with which the applicant had been charged. 15. The trial court held hearings on 22, 23 and 24 November and 8 December 2000. 16. On 15 December 2000 the Słupsk Regional Court convicted the applicant of aggravated homicide and attempted burglary and sentenced him to 15 years’ imprisonment. The applicant appealed against that judgment. 17. On 22 March 2001 the Gdańsk Court of Appeal quashed the judgment of the Regional Court and remitted the case for retrial. It found that the trial court had exceeded its discretion as to the assessment of relevant evidence, in particular in respect of that given by the applicant’s principal co-accused and the findings of the smell recognition expert. 18. On the same date the Court of Appeal ordered that the applicant be kept in custody until 30 June 2001. It noted, having regard to the statements of the applicant’s principal co-accused and the report by the smell recognition expert, that there was a strong likelihood that the applicant had committed the offences in question. Furthermore, it relied on the severity of the anticipated penalty. 19. The applicant’s detention was subsequently prolonged by the Regional Court on five occasions: on 28 June 2001 (until 30 October 2001), on 29 October 2001 (until 30 January 2002), on 15 January 2002 (until 30 April 2002), on 18 April 2002 (until 30 June 2002) and on 14 June 2002 (until 30 August 2002). In all those decisions, the Regional Court reiterated the grounds given in the Court of Appeal’s decision of 22 March 2001. In addition, it referred to the circumstances in which the offences in question had been committed and the need to obtain further expert evidence. 20. The Regional Court held hearings on 11, 12 and 13 December 2001 and 13 February, 18 March, 18 April and 10 May 2002. 21. On 10 July 2002 the Słupsk Regional Court convicted the applicant and his co-accused of aggravated homicide and attempted burglary and sentenced him to 15 years’ imprisonment. The applicant appealed against that judgment. On the same date the Regional Court prolonged the applicant’s detention until 30 October 2002. 22. On 30 January 2003 the Court of Appeal quashed the first-instance court judgment in respect of the applicant on the same grounds as previously and remitted the case. 23. Subsequently, the applicant’s detention was extended by the Regional Court on five occasions: on 28 April 2003 (until 30 July 2003), on 17 June 2003 (until 30 October 2003), on 10 October 2003 (until 30 December 2003), on 12 December 2003 (until 31 January 2004) and on 15 January 2004 (until 31 March 2004). The Regional Court reiterated the grounds previously given for his detention. In addition, the court held that the applicant’s continued detention was justified by the gravity of the offences with which he had been charged. In the court’s view, the applicant’s detention was the only measure which could secure the proper conduct of the proceedings. In the decision of 17 June 2003 the Regional Court noted that his continued detention was necessary in order to obtain another report of the smell recognition expert. 24. The applicant’s numerous appeals against the prolongation of his detention and requests to be released were to no avail. 25. The Regional Court held hearings on 17, 18, 20, 21 November, 10, 12 December 2003 and 15 January and 20 February 2004. In September and November 2003 respectively two reports of the smell recognition experts were submitted to the trial court. 26. On 27 February 2004 the Regional Court gave judgment and acquitted the applicant. He was released on the same day. On 8 July 2004 the Gdańsk Court of Appeal upheld the judgment of the Regional Court. The prosecution filed a notice of cassation appeal, but subsequently withdrew it. 27. In February 2005 the applicant filed an application for compensation in respect of his manifestly unjustified detention with the Słupsk Regional Court. These proceedings are pending. 28. The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the so-called “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition on leaving the country (zakaz opuszczania kraju). 29. 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.” 30. 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.” 31. 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.” 32. 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 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided: “1. Imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months. 3. The whole period of detention on remand until the date of the first conviction at first instance may not exceed 2 years. 4. Only the Supreme Court may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, for the purpose of a prolonged psychiatric observation of the accused or a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad or when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.” 33. On 20 July 2000 paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs 2 and 3 has been vested in the court of appeal within whose jurisdiction the offence in question has been committed.