CASE OF GASIOROWSKI v. POLAND
Violation of Art. 5-3;Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
Nicolas Bratza
4. The applicant was born in 1960 and lives in Warsaw. 5. On 10 December 1999 the applicant was arrested by the police on suspicion of having committed armed robbery against a lorry driver. On 11 December 1999 the Żyrardów District Court (Sąd Rejonowy) ordered that the applicant be detained on remand for 3 months. It found that in the light of the evidence obtained, in particular from his accomplices, there was a strong likelihood that the applicant had committed that offence. The court further observed that the applicant had not confessed and found that there was a risk that he might obstruct the investigation. Having regard to the severity of the penalty that could be expected, the court held that keeping the applicant in custody was necessary in order to secure the proper conduct of the proceedings. That decision was upheld on appeal on 7 January 2000. 6. On 8 March 2000 the Skierniewice Regional Court (Sąd Okręgowy) prolonged the applicant’s detention until 10 June 2000, finding that, given that the applicant had been caught in flagrante delicto, there was a strong likelihood that he had committed the offence in question. The court stressed that the applicant had – like his 3 detained co-suspects – given contradictory evidence and had not confessed, which gave sufficient reasons to believe that, once released, he would obstruct the proper course of the proceedings. The applicant’s continued detention was also justified by the severity of the penalty that could be expected. Moreover, evidence from ballistics and fingerprint experts – which was crucial for the determination of the role played by each co-suspect – needed to be obtained. 7. On 6 June 2000 the Łódź Court of Appeal (Sąd Apelacyjny) ordered that the applicant be held in custody until 10 September 2000, reiterating the grounds previously given for his detention. It further held that the gravity of the charges and the severity of the likely penalty justified the prolongation of the most severe preventive measure. 8. On 25 August 2000 a bill of indictment was filed with the Skierniewice Regional Court against the applicant and his 3 accomplices. The applicant was charged with attempted armed robbery and unlawful possession of a firearm. The bill of indictment specified that the applicant had been previously sentenced for similar offences. The prosecution asked the court to hear evidence from 23 witnesses. 9. On 30 August 2000 the Skierniewice Regional Court prolonged the applicant’s detention until 31 March 2001, repeating the grounds that had been given in the previous decisions. It also held that the value of the goods that the accused had planned to steal and the previous criminal records of some of them made it likely that they would be given a heavy sentence. 10. Subsequently, apparently in November 2000, the Skierniewice Regional Court referred the case to the Płock Regional Court, finding that the latter court should deal with the matter. The ensuing jurisdictional dispute was determined on an unspecified later date by the Warsaw Court of Appeal. The latter court ordered that the case be referred to the Warsaw Regional Court since the Skierniewice Regional Court had in the meantime been closed down. On 18 June 2001 the bill of indictment was transmitted to the Warsaw Regional Court. 11. Meanwhile, on 22 March 2001, the Płock Regional Court had prolonged the applicant’s detention until 30 June 2001, finding that the reasons previously given for holding him in custody were still valid. 12. On 25 June 2001 the Warsaw Regional Court prolonged the applicant’s detention until 30 October 2001. On 25 October 2001 the Regional Court ordered the applicant’s continued detention until 10 December 2001. In both decisions the court relied primarily on the severity of the sentence that could be expected. 13. On 23 November 2001 the Court of Appeal dismissed the applicant’s appeal against the decision of 25 October 2001 prolonging his detention. It found that the applicant’s continued detention on the basis of Article 258 § 2 of the Code of Criminal Procedure remained valid. Having regard to the nature of the alleged offences, the circumstances in which they had been committed and the fact that the applicant had committed similar offences in the past, the Court of Appeal found that there was a very strong likelihood that he would be given a heavy sentence. It further held that Article 258 § 2 of the Code of Criminal Procedure established a kind of presumption to the effect that the likelihood of a severe penalty being imposed on an accused might induce him to obstruct the proceedings. 14. Since on 10 December 2001 the length of the applicant’s pre-trial detention reached the statutory 2-year time-limit laid down in Article 263 § 3 of the Code of Criminal Procedure, all further decisions prolonging his detention on remand were given by the Warsaw Court of Appeal. 15. The relevant decisions were taken on the following dates: on 7 December 2001 (extending his detention until 28 February 2002), 26 February 2002 (ordering his continued detention until 30 April 2002 and having regard to the particular complexity of the case) and on a later unspecified date in April 2002 (extending his detention for a further period). In its decision of 7 December 2001, the Court of Appeal found that prolongation of the applicant’s detention beyond the statutory 2-year time-limit was justified under Article 263 § 4 on account of major insurmountable difficulties, referring in this connection to the above-mentioned jurisdictional dispute. 16. The Regional Court listed the first hearing for 7 October 2001 but the trial could not be started since the case file was with another court. Two hearings listed for 7 and 16 November 2001 were adjourned due to the change of the applicant’s counsel and the need for the latter to prepare for the hearing. Two further hearings listed for 10 December 2001 and 11 January 2002 were also adjourned (at the defendants’ request and because of the absence of the applicant’s counsel respectively). As a result, the trial started on 15 January 2002. Further hearings were held on 31 January, 21 February, 12 and 24 April, 29 May and 10 June 2002. 17. On 13 June 2002 the Warsaw Regional Court convicted the applicant of attempted armed robbery and, having regard to his previous criminal record, sentenced him to seven years’ imprisonment. It acquitted the applicant of the charge of unlawful possession of a firearm. It also prolonged his detention until 30 September 2002. 18. The prosecutor and all the defendants appealed. 19. On 19 December 2002 the Warsaw Court of Appeal quashed the first-instance judgment and remitted the case. It ordered that the applicant be kept in detention pending the retrial until 30 March 2003 in view of the reasonable suspicion that he had committed the offence with which he had been charged and the severity of the likely sentence. 20. On 6 March 2003 the Warsaw Regional Court extended the applicant’s detention until 30 June 2003, holding that the grounds originally given for his detention were still valid. It further held that keeping him in detention was sufficiently justified by the severity of the likely sentence and the need to secure the proper conduct of the trial. Subsequent decisions prolonging the applicant’s detention were given by the Regional Court on the following dates: 26 June 2003 (ordering his continued detention until 30 September 2003), 1 September 2003 (extending his detention until 31 October 2003) and 23 October 2003 (ordering his continued detention until 31 January 2004). The court held that the grounds previously given for his continued detention were still valid. 21. On 13 January 2004 the Regional Court prolonged the applicant’s detention until 30 April 2004, relying on the severity of the likely sentence and the associated risk that the applicant might obstruct the proceedings. The applicant appealed. On 10 February 2004 the Court of Appeal ordered the applicant’s release and placed him under police supervision. It held that further prolongation of the applicant’s detention was unjustified, since the Regional Court had not put forward any arguments warranting the continued application of the most severe preventive measure. In particular, the Regional Court had not indicated any concrete grounds which would justify the risk that the applicant might obstruct the proceedings. The applicant was released on the same day. 22. Prior to 10 February 2004, the applicant made numerous, unsuccessful applications for release and appealed, likewise unsuccessfully, against refusals to release him and decisions extending his detention. 23. On 5 May 2004 the Warsaw Regional Court convicted the applicant of attempted armed robbery and sentenced him to seven years’ imprisonment. The applicant appealed. 24. On 28 September 2004 the Warsaw Court of Appeal upheld the first-instance judgment. The applicant’s legal aid lawyer declined to file a cassation appeal against the Court of Appeal’s judgment since he had not found any grounds on which an appeal could be based. 25. The applicant submits that during his detention his correspondence was censored by the authorities. 26. On 12 March 2002 the Registry sent the applicant a letter in reply to his first letter setting out his Convention complaints. That letter, with which an application form and accompanying documents were enclosed, was delivered to the applicant after having been controlled by the authorities. The Court’s envelope bears a stamp that reads “Censored. Judge” (“Ocenzurowano. Sędzia.”), followed by a date “12 [April 20]02” and an illegible signature. There are two other stamps that read: “Warsaw-Białołęka Detention Centre. Received 2002-04-05” (“Areszt Śledczy. Wpłynęło 2002-04-05) and “Warsaw-Białołęka Detention Centre. Received 2002-04-15” (Areszt Śledczy. Wpłynęło 2002-04-15). 27. 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). 28. Article 249 § 1 sets out the general grounds for imposition of 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.” 29. 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.” 30. The Code sets out the conditions governing 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.” 31. The 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. When 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.” 32. 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. In addition, new paragraph 5 was added. It provides: “A decision of the Court of Appeal taken pursuant to paragraph 4 may be appealed against to the Court of Appeal sitting in a panel of three judges.” 33. Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) which entered into force on 1 September 1998. 34. The relevant part of Article 103 § 1 of the Code provides as follows: “Convicted persons (...) have a right to lodge complaints with institutions established by international treaties ratified by the Republic of Poland concerning the protection of human rights. Correspondence in those cases (...) shall be sent to the addressee without delay and shall not be censored.” 35. Article 214 § 1 reads as follows: “Unless exceptions are provided for in the present Chapter, a detainee shall enjoy at least the same rights as are secured to a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison. No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings, to maintain order and security in a remand centre and to prevent demoralisation of detainees.” 36. Article 217 § 1 reads, in so far as relevant, as follows: “(...) detainee’s correspondence shall be censored by [the authority at whose disposal he remains], unless the authority decides otherwise.” Article 242 § 5 reads as follows: “The prohibition of censorship shall also mean the prohibition of acquainting oneself with the content of the letter.” 37. On 1 September 1998 the Rules of Detention on Remand (Rozporządzenie Ministra Sprawiedliwości w sprawie regulaminu wykonywania tymczasowego aresztowania) entered into force. § 36 of the Rules provides: “The detainee’s correspondence, including the correspondence with the international institutions for the protection of human rights, which act on the basis of international agreements ratified by the Republic of Poland, with the Ombudsman and public and local government institutions, is mailed through the intermediary of the organ at whose disposal he remains.”