FOURTH SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 36246/97
by Edmund RUSIECKI
against Poland
The European Court of Human Rights (Fourth Section), sitting on 25 November 2008 as a Chamber composed of:
and ,
Having regard to the above application lodged with the European Commission of Human Rights on 1 September 1994,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the partial decision of 15 March 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Edmund Rusiecki, is a Polish national who was born in 1946. The Polish Government (“the Government”) were represented by their Agents, Mr K. Drzewicki and subsequently Mr J.Wołąsiewicz of the Ministry of Foreign Affairs.
A.  The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1.  The first period of detention
On 29 April 1994 the applicant was arrested on charges of three counts of assault and serious fraud and detained under an arrest warrant issued by the Łódź District Prosecutor. The prosecuting authorities referred to three concrete occurrences on precise dates and relied on evidence gathered in the course of the investigation which sufficiently supported a suspicion that the applicant had committed the offences concerned. On 13 May 1994 the Łódź Regional Court dismissed the applicant’s appeal against the detention order, having regard to the evidence in the case file and to the serious character of the charges. Later on, as new charges against the applicant and other co-suspects emerged, the case was taken over by the Regional Prosecutor.
On 26 September 1994 the applicant was admitted to a psychiatric ward of the prison hospital in Łódź for observation in order to establish whether he could be held criminally responsible.
On 10 November 1994 the Łódź Regional Court extended the applicant’s detention for three months. On 24 January 1995 the Łódź Regional Prosecutor refused to release him. On 3 February 1995 an appeal by the applicant against that decision was dismissed.
 On 21 April 1995 the applicant was released. On 29 June 1995 a bill of indictment against him and his five co‑accused was lodged with the Łódź Regional Court. Judgment in the case was given on an unspecified later date.
2.  The second period of detention
 On 6 December 1995 L.T. who had been wounded by a gunshot, requested that a criminal investigation be instituted concerning this assault. Consequently, an investigation in rem was instituted by the district prosecutor. On 13 December 1995 it was taken over by the regional prosecutor. Subsequently, several suspects were arrested. On 14 December 1995 the regional prosecutor ordered the identity of one of the witnesses interviewed during the investigation to be kept secret. That witness was subsequently referred to as anonymous witness no. 1.
 On 15 January 1996 the Łódź Regional Prosecutor ordered that the identities of two further witnesses, subsequently referred to as anonymous witnesses nos. 2 and 3, should not be disclosed either. Various documents contained in the investigation file and containing the testimony of those two witnesses were to be removed from the file and stored in the manner set out in the provisions concerning official secrecy. Copies of those documents were to be made in such a way as to make it impossible to make out the identities of those witnesses. The copies were to be included in the investigation file. The prosecutor observed that the investigation concerned activities of an organised group of a criminal character and related to, inter alia, charges of murder and other violent crimes. The nature of the offences and the violent character of the offences with which the suspects had been charged justified the conclusion that there was a genuine threat to life and limb of all direct witnesses and that their identities should therefore not be disclosed.
On 17 January 1996 the applicant was arrested in connection with the new investigation. On 18 January 1996 the Łódź Regional Prosecutor imposed pre-trial detention on him and on three other suspects on charges of acting in an organised criminal group and on several counts of aggravated assault. The prosecutor considered that the evidence had rendered plausible the charges against the applicant, who was also suspected of being a leader of the criminal group. It was further noted that other members of the group had not been arrested yet. There was therefore a serious risk of collusion and suppression of evidence. Furthermore, there were grounds for believing that the applicant had ordered someone to murder L.T. The applicant appealed.
On 22 January 1996 the prosecutor served the applicant with a written statement of the charges laid against him. This document referred to the investigation concerning the attempted murder of L.T. The prosecutor observed that the evidence gathered in this investigation had given rise to a suspicion that that attempt had been made by an organised group of a criminal character engaged in assaults and racketeering. Evidence given by witnesses nos. 2 and 3, who were to remain anonymous in accordance with the decisions of 15 January 1996 pursuant to Article 164 (a) of the Code of Criminal Procedure of 1969, had unequivocally demonstrated that the applicant was a member of that group. Hence, charges in respect of criminal offences punishable under Article 276 § 1 of the Criminal Code had to be laid against him.
On 23 January 1996 the Łódź regional prosecutor refused the applicant’s lawyer access to the file, considering that this would jeopardise the proper conduct of the investigation. The prosecutor referred to the fact that certain suspects had gone into hiding.
On 24 January 1996 the applicant complained to the prosecutor that he did not have access to the case file.
 On 23 and 25 January the Łódź regional prosecutor ordered that the identities of two further witnesses, subsequently referred to as anonymous witnesses nos. 3 and 4 were to be kept secret and that the testimony of these witnesses was to be removed from the case file and stored in the manner set out in the provisions concerning official secrecy. Copies of these documents were to be made in the same manner as in respect of witness no. 2 (see the decision of 15 January 1996 above). Identical decisions were given on 27 January and 2 and 7 February in respect of witnesses nos. 5, 6, and 7.
On 2 February 1996 the Łódź Regional Court upheld the applicant’s detention order of 18 January 1996. It noted that the evidence gathered sufficiently supported the charges against him. It indicated that the applicant was likely to be a member of an organised criminal group, committing aggravated assaults with the use of firearms. The evidence given by anonymous witness no. 2, in particular in the light of the statements given by other anonymous witnesses and other ordinary witnesses, and various documents and the results of the inspection of a car, had rendered the charges against the applicant plausible. The character of these charges, involving violent crimes, justified the decisions to impose and maintain detention, the more so as other members of the group still remained at liberty. The applicant’s release would endanger the purpose of the ongoing investigation.
On the same day the Łódź Regional Court examined appeals by the applicant against the decisions concerning the non-disclosure of the identities of witnesses who were to remain anonymous. The court upheld those decisions. The available evidence allowed for the conclusion that the witnesses were under a genuine threat to life, limb or property, given the violent character of the offences with which the applicant and other accused had been charged. The court also had regard to the fact that certain members of the group remained at liberty. It was only the anonymity which gave the witnesses a certain guarantee of safety. It was up to the court competent to deal with the merits of the case to ensure that the procedural rights of the accused were properly safeguarded at the judicial stage of the proceedings.
On 8 and 19 March and 5 April 1996 the regional prosecutor gave identical decisions in respect of three further witnesses, referred to as witnesses nos. 8, 9 and 10.
The applicant subsequently appealed against the other decisions not to disclose the identity of the witnesses. The court dismissed his appeals on 6 and 20 February, 2 April, 25 June and 10 July 1996, essentially relying on the same grounds as in its decision of 2 February 1996.
On 29 February 1996 the Łódź Regional Prosecutor ordered that an expert opinion be prepared for the purposes of the further investigation. Altogether, fifteen expert opinions were prepared during the investigation.
On 2 March 1996 the Łódź Regional Prosecutor refused the applicant’s new application for release, considering that the evidence gathered in the case, in particular the statements made by the anonymous witnesses, indicated that it was necessary to maintain him in custody.
 On 12 April 1996 the Łódź Regional Court extended the applicant’s detention until 28 June 1996, having regard, in particular, to the evidence given by anonymous witnesses nos. 1 to 9. It observed that new developments were to be expected regarding new offences which had come to light, including a crime of manslaughter which appeared to have been committed with the applicant’s involvement. Moreover, new witnesses were to be questioned and further expert evidence had to be gathered, following sixteen expert reports which had been prepared for the purposes of the investigation.
The court referred to the evidence gathered in the case and considered that there was a reasonable suspicion that the applicant had committed the offence concerned, in particular in the light of the evidence given by the anonymous witnesses. The court also took into account that the applicant had been charged with serious crimes committed by an organised criminal gang. It further referred to the need to continue the process of gathering evidence.
On an unspecified later date in June the applicant’s detention was further extended.
Subsequently, on 24 September 1996, the Łódź Court of Appeal held a session during which it extended the applicant’s pre-trial detention until 29 December 1996. On 25 September this decision was served on the applicant’s first lawyer S.O., on 26 September on the applicant himself and on 1 October 1996 on his second lawyer R. Ł.
On 21 October 1996 the applicant was granted full access to the file and arrangements were made for him to study it. He examined the file daily from 21 to 31 October and subsequently from 4 until 25 November 1996. Later on, the applicant read the file on 28 and 29 November and from 2 to 8 December 1996.
On 26 November 1996 the Łódź Court of Appeal extended the applicant’s detention until 17 January 1997. It observed that the investigation was coming to an end and that the prosecuting authorities had begun to acquaint the suspects with the files. However, it seemed that the suspects, while availing themselves of their procedural rights in this respect, were at the same time trying to prolong the proceedings by various delaying tactics. Thus, it was also necessary to extend their detention.
On 20 December 1996 a bill of indictment against the applicant and his ten co‑defendants was lodged with the Łódź Regional Court. The applicant was charged with eleven criminal offences. The bill of indictment concerned fifty various crimes. The case file numbered thirty‑one volumes.
On 17 January 1997 the Supreme Court refused to entertain an appeal by the applicant against the decision of 26 November 1996, considering that in any event the time-limits for detention as specified in Article 222 of the Code of Criminal Procedure had ceased to apply after the bill of indictment had been lodged with the court.
The first hearing in the case was held on 24 February 1997. From February 1996 until February 1999 the court held seventy-nine hearings. On 25 January 1999 the first-instance court sentenced the applicant to eight years’ imprisonment on various charges.
The applicant appealed. On 4 April 2000 the Łódź Court of Appeal quashed the judgment in part and remitted this part of the case to the first‑instance court. It upheld it in so far as it related to the charge of intimidating witnesses with recourse to physical violence. It upheld the applicant’s conviction in respect of that charge and imposed on him a sentence of four years’ imprisonment. It ordered that the period of detention pending trial be counted towards the sentence. Accordingly, the applicant’s sentence had expired on 18 January 2000.
From 4 April 2000 the applicant was again detained pending trial.
The applicant lodged a cassation appeal with the Supreme Court against the judgment of 4 April 2000 in so far as the latter court had upheld the judgment of 25 January 1999. On 3 December 2002 the Supreme Court dismissed the appeal.
On 21 November 2000 the Łódź Regional Court started to hold hearings in the part of the case which had been remitted for re‑examination. Between November 2000 and March 2001 it held fourteen hearings.
On 12 April 2002 the Łódź Regional Court convicted the applicant of various criminal charges and sentenced him to ten years’ imprisonment.
COMPLAINTS
In his letter of 5 February 1997 and his application form of 26 March 1997 the applicant submitted that his detention imposed by the order of 18 January 1996 was unjustified, arbitrary and based on insufficient evidence, contrary to the requirements of Article 5 of the Convention.
In a letter dated 23 August 2000 the applicant complained under Article 5 § 3 of the Convention that in January 1996 he had been deprived of his liberty by a decision of the prosecutor who was not a judge or other officer authorised by law to exercise judicial power as required by this provision. The prosecutor, under Polish law as it stood at that time, was also investigating the case and was later to represent the prosecution in the judicial stage of the proceedings.
In the application form, dated 26 March 1997, the applicant complained under Article 5 § 4 of the Convention that in the proceedings held in 1996 concerning his detention his procedural rights had been breached in that the prosecuting authorities had decided that the identity of certain witnesses should remain unknown to the suspects and that he and his lawyer had been denied access to the file.
The applicant also complained that his pre-trial detention had lasted too long.
THE LAW

In his letter of 5 February 1997 and his application form of 26 March 1997 the applicant submitted that his detention imposed by the order of 18 January 1996 was unjustified. In a letter dated 23 August 2000 the applicant complained under Article 5 § 3 of the Convention that in January 1996 he had been deprived of his liberty by a decision of the prosecutor who was not a judge or other officer authorised by law to exercise judicial power as required by this provision. In the application form, dated 26 March 1997, the applicant complained under Article 5 § 4 of the Convention that in the proceedings held in 1996 concerning his detention his procedural rights had been breached.
Under Article 35 § 1 of the Convention the Court may only deal with the matter within a period of six months from the date on which the final decision was taken.
The Court notes that the applicant complained to the Court on 5 February 1997 that his detention pending trial, imposed by the order of 18 January 1996, was unjustified.
 The applicant further complained that he had been deprived of his liberty by the decision of 18 January 1996 given by the prosecutor who was not a judge or other officer authorised by law to exercise judicial power. In this connection, the Court observes that on 2 February 1996 the Łódź Regional Court upheld the detention order issued by the prosecutor. It further notes that the applicant raised the present complaint for the first time on 23 August 2000.
Lastly, the Court observes that the complaint relating to the proceedings held in 1996 and concerning the applicant’s detention was submitted to the Court in the application form dated 26 March 1997. The last set of proceedings concerning his detention in which he did not have access to the file was held on 24 September 1996. On 25 September 1996 the applicant’s lawyer was served with the decision given on that date.
It follows that this part of the application has been introduced outside the six-month time-limit and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

The applicant complained that the length of his detention pending trial had been excessive. He relied on Article 5 § 3 of the Convention, which, in so far as relevant, reads as follows:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
The Government contested that argument.
a)  The Court first notes that the first period of the applicant’s detention started on 29 April 1994. The applicant was subsequently released on 30 March 1995. The first period of his detention therefore lasted eleven months.
In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that this complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

 b)  The Court further observes that on 17 January 1996 the applicant was remanded in custody again, for the purposes of another criminal case. On 25 January 1999 the Łódź Regional Court convicted him on various charges and sentenced him to eight years’ imprisonment. As from that date he was detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a) and, consequently, that period of his detention falls outside the scope of Article 5 § 3 (see Kudła v. Poland [GC], no. 30210/96, § 104, ECHR 2000‑XI).
On 4 April 2000 the Łódź Court of Appeal partly quashed the first‑instance judgment and remitted certain charges to the first-instance court. However, it upheld the applicant’s conviction in its part concerning charges of intimidation of witnesses with the use of violence. It imposed a sentence of four years’ imprisonment on him in respect of these charges and ordered that the period of the applicant’s detention should be counted towards the sentence. As that period had come to end on 18 January 2000, four years after his arrest on 17 January 1996, after 4 April 2000 the applicant was again detained pending trial until the judgment given by the Łódź Regional Court on 12 April 2002.
Hence, the period to be examined lasted from 17 January 1996 until the first-instance judgment given on 25 January 1999, that is, three years and eight days, and from 4 April 2000 until 12 April 2002, that is two years and eight days. The overall period of the applicant’s detention during the judicial proceedings therefore lasted five years and sixteen days.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously
Declares  admissible, without prejudging the merits, the applicant’s complaint concerning the excessive length of his detention during the judicial proceedings,
Declares  inadmissible the remainder of the application.
	Lawrence EarlyNicolas Bratza 
	Registrar	President