PROCEDURE

The case originated in an application (no. 52479/99) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Andrzej Rybacki (“the applicant”), on 31 December 1998.

The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.

The applicant alleged, in particular, that his detention on remand had exceeded a “reasonable time” within the meaning of Article 5 § 3 of the Convention. He also complained under Article 6 § 1 in conjunction with Article 6 § 3 (c ) of the Convention that for a certain period during the investigation he had been unable to communicate with his defence counsel out of earshot of a person appointed by the prosecutor.

On 9 November 2004 the Court declared the application partly inadmissible and decided to communicate the complaints concerning the length of criminal proceedings, the length of detention, the alleged unfairness of the criminal proceedings and the refusal of access to the full statements made by anonymous witnesses. On 9 October 2007 the Court declared admissible the applicant’s complaints relating to the excessive length of his detention and the lack of unsupervised contacts with his lawyer at the investigation stage of the proceedings, and the remainder of the application inadmissible.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Detention on remand

The applicant was arrested on 8 May 1996 on suspicion of having committed an aggravated robbery while acting as a member of an organised criminal gang. On 9 May 1996 the District Prosecutor issued a detention order against him on charges of aggravated robbery involving use of a firearm and committed in conspiracy with other persons. The prosecutor referred to a reasonable suspicion, based on witnesses’ testimony, and the risk that the applicant might go into hiding or exert pressure on witnesses. Detention was imposed until 8 August 1996.

The applicant was detained on the same date as two other accused persons. Yet another suspect was detained on 23 August 1996. The investigation and subsequent court proceedings were conducted against five persons jointly, four of them detained and one at liberty.

On 10 May 1996 the applicant’s defence counsel appealed against the detention order. He challenged the credibility of the evidence in the applicant’s case, stating that it had been obtained illegally. In particular, he argued that the manner in which the applicant had been presented in an identification parade had not complied with the applicable procedural guarantees. This application was dismissed on 13 May 1996.

In the course of the investigation, the applicant’s detention was prolonged twice, on 1 August, until 31 October 1996, and on 24 October, until 31 December 1996. The courts relied on a reasonable suspicion that the applicant had actually committed the offence with which he was charged and on the need to ensure the proper conduct of the investigation. They further referred to the need to obtain experts’ reports on certain items of material evidence. In its decision of 24 October 1996, the court observed that the seriousness of the charges against the applicant substantiated an actual risk that he might “undertake dishonest actions aimed at obstructing the investigation”. It further pointed out the need for additional expertise, in particular with regard to fingerprints and mechanoscopy. An appeal lodged by the applicant against the decision of 1 August 1996 was unsuccessful.

On an unspecified date in November or December 1996 the investigation was completed. On 23 December 1996 the prosecutor filed a bill of indictment against the applicant and his co-accused with the Wrocław Regional Court. The bill of indictment listed thirty-nine witnesses to be questioned and one hundred and thirty-seven pieces of documentary evidence to be read out during the trial.

The first hearing in the case was held on 21 March 1997. A further hearing was held on 29 April 1997. The hearing fixed for 17 June 1997 was adjourned as one of the accused had been hospitalised.

On 7 August 1997 the Wrocław Regional Court dismissed an application for the applicant’s release, referring to a persistent reasonable suspicion that he had committed the offence. It further pointed out that the severe penalty that could be imposed on him justified the fear that he might go into hiding or otherwise obstruct the proceedings.

The court held subsequent hearings on 11 and 12 September and 18 November 1997, and 10 February and 3 March 1998. During a hearing held on 3 March 1998 the court heard evidence from two anonymous witnesses who answered questions which had previously been formulated in writing by the applicant’s lawyers. On 25 March 1998 they submitted to the court a list of further questions to be put to one of those witnesses. At a hearing held on 1 April 1998 the court questioned that witness again.

On 16 April 1998 the Wrocław Regional Court requested the Supreme Court to prolong the applicant’s detention, which was about to exceed two years. The court, when motivating the request, submitted that: “The evidence collected against the accused - in particular the testimony of anonymous witnesses - substantiated the suspicion that the applicant had committed the crime of aggravated robbery which as such [the crime] represented an extremely high danger to society. The proceedings before the first-instance court were at their final stage and - unless any unpredictable circumstances arose - would soon be completed. The Regional Court had already heard all witnesses for the prosecution and most of the defence witnesses (...). The Regional Court was still waiting for additional expert reports and data from the mobile telephone operator, requested by the defence (...). It should also be underlined that one of the accused persons deliberately contributed to the prolonging of the proceedings by consuming a poisonous substance.”

On 24 April 1998 the applicant’s lawyer filed pleadings in which he commented on the court’s request to authorise the further detention. He challenged the credibility of the evidence against the applicant, pointed out the numerous shortcomings in the process of taking evidence and disputed the finding that the accused persons had substantially contributed to the length of the proceedings. He stated that the proceedings were lengthy because of the long intervals between the hearings.

On 15 May 1998 the Supreme Court extended the applicant’s detention until 31 October 1998. It found that apart from the reasonable suspicion that he and the two co-accused persons had committed the offence at issue, there existed an actual risk that they would obstruct the proceedings if released. The assumption of that risk was based on the severity of the potential sentence, and the fact that not all witnesses had yet been heard by the court and that other defendants had indeed attempted to contact witnesses who appeared at the trial in order to intimidate them. Thus, only the applicant’s continued detention could guarantee the proper conduct of the proceedings. Nevertheless, the Supreme Court also recommended that the trial court should “schedule the hearings in a more rational way so as to avoid further intervals of several months in the instant case”.

Subsequent hearings were held on 9 July, 16 September, 1 October and 3 November 1998.

On 1 October 1998 the Wrocław Regional Court again requested the Supreme Court to extend the detention, relying on the fact that at that time it was still waiting for additional data from the mobile telephone operator to be submitted in evidence. On 13 October 1998 the Supreme Court extended the applicant’s detention until 30 November 1998. It found that the trial court had “effectively used the time since the previous extension of the detention by the Supreme Court in this particularly complex case”.

Upon another request from the trial court, on 17 November 1998, the Supreme Court again extended the detention, until 31 December 1998. It observed that the additional evidence had not yet been obtained “for reasons beyond the trial court’s control” and that the other premises for detention remained valid.

The next hearing was held on 7 December 1998. Following a further request from the trial court, on 30 December 1998 the Supreme Court again extended the detention, until 28 February 1999, referring this time to “considerable obstacles which arose in the taking of evidence, namely the need to examine contradictory data obtained from the mobile telephone operator”.

Subsequent hearings were held on 29 January and 16 February 1999. On the latter date the Wrocław Regional Court closed the trial and rendered its judgment. It found the applicant and his co-accused guilty of robbery committed by an organised criminal gang. The applicant was sentenced to seven years’ imprisonment and a fine.

On 28 June 1999 the applicant’s lawyers filed an appeal. They referred, inter alia, to procedural shortcomings and expressed the view that the proceedings had, as a whole, been unfair. On 27 October 1999 the Wrocław Court of Appeal upheld the first‑instance judgment. On 4 January 2000 the applicant’s lawyer lodged an appeal on points of law with the Supreme Court. On 16 November 2001 that court dismissed the appeal as manifestly unsubstantiated.

B. The applicant’s contacts with his defence counsel

On 9 May 1996, a day after the applicant was arrested, his wife retained a lawyer to represent him.

In the first week following his arrest, the applicant had unrestricted access to his lawyer. On 9 May 1996 the lawyer was present when the applicant was questioned by the prosecutor. He also submitted applications for evidence to be taken and to put certain questions to the applicant.

On 17 May 1996 the prosecutor issued a decision whereby he reserved the right to be present whenever the applicant saw his defence counsel, referring to Article 64 of the Code of Criminal Procedure. The applicant’s lawyer complained that such a restriction impaired the applicant’s defence rights and made it impossible for the defence to agree upon a defence strategy. He requested that the decision be quashed. On 4 June 1996 his request was refused.

On 12 June 1996 the prosecutor gave a new order that the applicant’s contacts with his lawyer were to be supervised.

On 24 June 1996 the lawyer renewed his request to see the applicant without any supervision.

On 4 July 1996 his request was refused. The applicant’s lawyer appealed. This appeal was dismissed by the Wrocław Regional Court on 15 July 1996. The court noted that the applicant could at that time see his lawyer whenever he requested. The restrictions imposed on his contacts with his lawyer did not impair his defence rights. The only restriction imposed on the applicant concerned the possibility of having unsupervised contacts with his lawyers. The fact that a prosecutor was to be present during these visits did not affect the applicant’s defence rights at that stage, the more so as the restriction was to apply only during the investigations. The court further stated that the defence strategy could also be discussed in accordance with the law in the presence of a person appointed by the prosecutor.

On 4 November 1996 the applicant’s lawyers requested permission to see the applicant without other persons being present. On 7 November 1996 their request was granted.