ITEMID: 001-57842
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF SEKANINA v. AUSTRIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-2;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: N. Valticos;R. Pekkanen
TEXT: 6. Mr Karl Sekanina is an Austrian national and lives in Vienna.
On 1 August 1985 he was arrested by the police on suspicion of having murdered his wife. Mrs Sekanina had fallen from a window of their matrimonial home, on the fifth floor of a building in Linz, on 4 July 1985.
7. The day after his arrest he was questioned and remanded in custody. He remained in custody until 30 July 1986, his detention being extended on several occasions. The Linz Court of Appeal (Oberlandesgericht) ordered the last such extension on 30 April 1986; it ruled, pursuant to Article 193 paras. 3 and 4 of the Code of Criminal Procedure, that the applicant could be kept in detention until he had been in custody for a total of one year. In addition to the murder of his wife, the applicant was accused of having threatened a fellow detainee in connection with certain admissions relating to the murder charge. The decisions of the Austrian courts were based on various items of evidence and testimony.
8. On 30 July 1986 an assize court (Geschworenengericht) sitting at the Linz Regional Court (Landesgericht) acquitted the applicant on both the charges brought against him. The jury dismissed the first charge by seven votes to one and the second charge unanimously.
The operative provisions and grounds of the judgment read as follows:
"Pursuant to Article 259 para. 3 of the Code of Criminal Procedure, Karl Leopold Sekanina is acquitted on the charges brought against him, namely:
(1) that he did on 4 July 1985 intentionally kill his wife, Maria Sekanina, by hitting her with a plastic bucket, as a result of which she fell out of the open window of a fifth floor flat and sustained fatal injuries on striking the ground from a height of approximately 16.5 metres; and
(2) that he did at the beginning of August 1985, by making a death threat, namely that ‘he would catch his cell-mates outside and kill them’ if they ‘gave him away’, force Egon Werger to remain silent about the statements made by Karl Sekanina in his detention cell concerning the course of events on 4 July 1985.
...
GROUNDS
The acquittal is founded on the jury’s verdict."
9. With regard to the first charge, the record (Niederschrift) of their deliberations stated as follows:
"There is no conclusive evidence on which to convict Mr Sekanina of murder. According to the medical report by Professor Kaiser, Mrs Sekanina could still have called her husband a murderer. The testimony of certain witnesses appears to us to be unreliable."
On the second charge, they noted that the three other fellow detainees of the persons in question had denied hearing serious death threats.
Consequently, the applicant was immediately released. The prosecution did not appeal against the acquittal.
10. On the following day the applicant applied for a contribution from the State to the costs necessarily incurred in his defence, in accordance with Article 393a of the Code of Criminal Procedure (see paragraph 15 below), and for compensation for the pecuniary damage sustained on account of his being kept in detention.
On 4 November 1986 the public prosecutor’s office expressed the opinion that the costs sought were excessive and also opposed the claim for compensation, on the ground that the conditions laid down by section 2 (1) (b) of the 1969 Law on Compensation in Criminal Cases (Strafrechtliches Entschädigungsgesetz - the "1969 Law" - see paragraph 16 below) were not satisfied.
11. The Linz Regional Court gave two separate decisions.
On 12 December 1986 it awarded Mr Sekanina 22,546.50 schillings in respect of his necessary defence costs. His appeal against the amount awarded was dismissed by the Linz Court of Appeal on 15 January 1987.
12. On 10 December, on the other hand, the Regional Court had refused to award the compensation sought. In its opinion,
"A claim to compensation under section 2(1)(b) of the [1969] Law ... is conditional on the applicant’s being cleared of the suspicion of which he was the object in the criminal proceedings. A person who has been detained is so cleared only if all the suspicious circumstances telling against him have been satisfactorily explained, so that they cease to constitute an argument for the suspect’s guilt.
Regard having been had to the prosecution evidence considered as a whole, however, it was not possible to dispel all the suspicions concerning the commission of the offence. Serious grounds for suspecting Mr Sekanina still subsist, in particular his numerous and repeated threats, the acts of violence and aggressive behaviour which have come to light, his evident satisfaction at his wife’s death, the description of events given to a cell-mate, the different versions of how the accident happened, the fact that he was under severe financial pressure, his unsuccessful efforts to obtain care and custody of his two children and the consequent build-up of aggressiveness, and his hopes of receiving payment under a life-insurance policy taken out on his wife. In addition, the jurors’ voting shows that they decided to acquit him only by giving him the benefit of the doubt."
13. On 25 February 1987 the Linz Court of Appeal upheld this decision. It rejected the argument that section 2(1)(b) of the 1969 Law (see paragraph 16 below) was unconstitutional and in breach of Article 6 para. 2 (art. 6-2) of the Convention in that it required, in addition to an acquittal, the absence of all suspicion. The court held that the presumption of innocence had to be respected in the proceedings prior to the verdict, but did not confer on every detainee the right to compensation in the event of an acquittal. The impugned provision did not refer to guilt but to continuing suspicion. The finding by a court that suspicions subsisted did not conflict with the presumption of innocence. The Court of Appeal added:
"The appeal also fails on its merits. Contrary to what is argued by the appellant, it cannot be inferred merely from the voting of the jury ... that such a clear verdict meant that suspicion had been removed. In order to establish whether or not such suspicion subsists, it might be more useful to refer to the record of the jury’s deliberations. The content of this record ... suggests rather that in the jury’s opinion all suspicion had not been removed. However, as the court called upon to rule under the [1969] Law ... is not bound, in its assessment of the position as regards suspicion, by the verdict (of acquittal) at the trial, not even the record of the jury’s deliberations is of decisive importance.
It can hardly be denied that following the police inquiries and also after the judicial preliminary investigation there were strong grounds for suspecting the appellant. Indeed, the Linz Court of Appeal decided on 30 April 1986 ... that Sekanina could be kept in detention on remand for up to one year, thereby confirming the strength of the suspicion. In the appealed decision, the finding by the court below that suspicion subsisted was properly founded in particular on the numerous repeated threats made by Mr Sekanina, his acts of violence, his evident satisfaction at his wife’s death, the description of the events given to a cell-mate, the different versions of how the accident happened, the severe financial pressure, his unsuccessful attempts to obtain care and custody of his two children, and his hopes of receiving payment under a life-insurance policy taken out on his wife. With respect to the different versions of the accident related by the appellant to third parties, the Court of Appeal refers in particular to the evidence given at the trial of 28 to 30 July 1986 by the witnesses Gundula Sekanina (pp. 45, 50 and 51 of the transcript of the trial) and Johanna and Kurt Schöllnberger (pp. 105, 106, 117 and 119 of the transcript). The appellant told his fellow employee Siegfried Wurzinger that he had been in another room at the time of the fall (Wurzinger, pp. 126, 127), whereas Brigitte Grasböck noticed during the fall that the claimant - wearing a light-coloured vest - was already at the window, the entire upper part of his body being visible. He had been holding a bucket out of the window with outstretched arms and pouring water; in addition when he came down to his wife he had, she thought, been wearing a blue vest (Grasböck, pp. 65 and 66 of the transcript). During his interrogation (which was taken down in writing) by the Linz Federal Police on 2 August 1985 (p. 214, volume 1), the appellant placed on record that shortly before the fall his wife had quarrelled with him. According to the evidence of the witness Egon Werger, the appellant had told him that ‘during the quarrel he’ - Sekanina - ‘[had run] towards his wife in a rage’ (pp. 166 and 167 of the transcript). The appellant was described by several witnesses as quick-tempered and violent (pp. 44 and 82 of the transcript). He is said to have made death threats against his wife several times, the last occasion being about a week before her death (pp. 113 and 572 of volume 1, p. 216 of volume 2, and pp. 58, 75, 76, 102, 115, 142 and 143 of the transcript of the trial). Finally, it may also be noted that on 3 July 1985, the day before his wife’s death, the appellant pressed his tailor for a dark jacket he had ordered in 1983, as he now needed it."
The Court of Appeal concluded:
"Having had regard to all these circumstances, the majority of which were not disproved at the trial, the jury took the view that the suspicion was not sufficient to reach a guilty verdict; there was, however, no question of that suspicion’s being dispelled."
14. Under Article 259 of the Code of Criminal Procedure,
"The accused shall be acquitted by judgment of the court:
1. ... 2. ... 3. where the court finds that the act giving rise to the prosecution is not an offence under the law or that the alleged offence was not made out or that it has not been established that the accused committed the act of which he is accused or that circumstances exist which deprive the act in question of its criminal character or that the continuation of the prosecution is ruled out on grounds other than those set out in paragraphs 1 and 2."
15. According to Article 393a of the same code:
"(1) Where the prosecution is not brought solely on the basis of a private action seeking conviction or a private action for damages (Article 48), if an accused is acquitted ..., the federal authorities shall, on an application to this effect, make a contribution to the costs of the defence. The contribution shall cover the expenses necessarily and genuinely incurred by the accused and in addition, except in the case provided for in Article 41 para. 2, a flat-rate contribution to the costs of his defence lawyer ...
(2) ...
(3) A claim for compensation shall not be allowed where the accused has deliberately caused the suspicion which gave rise to the criminal proceedings or where the proceedings have come to an end solely because the accused carried out the act in question in a state in which he was not responsible for his actions or because the authorisation for the prosecution was withdrawn during the trial."
16. Entitlement to compensation for detention on remand during criminal proceedings in which the person concerned is acquitted is governed by section 2(1)(b) of the 1969 Law, which provides as follows:
"(1) A right to compensation arises:
(a) ...
(b) where the injured party has been remanded in custody or placed in detention by a domestic court on suspicion of having committed an offence which is liable to criminal prosecution in Austria ... and is subsequently acquitted of the alleged offence or otherwise freed from prosecution and the suspicion that he committed the offence is dispelled or prosecution is excluded on other grounds, in so far as these grounds existed when he was arrested;
..."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-2


ITEMID: 001-78602
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF PIOTR KUC v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;Remainder inadmissible;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1976 and lives in Mysłowice, Poland.
5. On 25 September 2000 the applicant was arrested by the police on suspicion of having committed burglary and having handled stolen goods. On 26 September 2000 the Katowice District Court (Sąd Rejonowy) ordered that he be remanded in custody in view of the reasonable suspicion that he had committed the offences in question while acting in an organised criminal group, the severity of the anticipated sentence and the need to secure the proper conduct of the proceedings. The latter ground was based on the risk that, once released, he might tamper with evidence. The applicant's appeal against the decision was dismissed on 11 October 2000 by the Katowice Regional Court (Sąd Okręgowy).
6. On 15 January 2001 the District Court prolonged the applicant's detention. It reiterated the grounds originally given for keeping him in custody.
7. On 12 March 2001 the applicant and 8 coaccused were indicted before the Katowice District Court. On 18 May 2001 the trial court held the first hearing.
8. Subsequently, the applicant's detention was on several occasions prolonged. The relevant decisions were given on, inter alia, 26 June, 28 September and 28 December 2001 and 29 January, 20 May and 10 September 2002. The court considered that the proper course of the proceedings could only be secured by keeping the applicant in detention given the fact that he had been charged with membership of an organised, armed criminal group. Furthermore, the trial court had actively been taking evidence from coaccused, witnesses and expert witnesses, the process of which could have been disturbed by the applicant's release.
9. During the proceedings the applicant made repeated, but unsuccessful, applications for release. He also appealed, likewise unsuccessfully, against refusals to release him and decisions prolonging his detention.
10. On 27 September 2002 the Katowice District Court informed the detention centre that it would not make an application to the Court of Appeal to prolong further the applicant's detention on the ground that it had found no exceptional circumstances under Article 263 of the Code of Criminal Procedure to justify such a request. The applicant, however, was not released as he was still required to remain in pre-trial detention on the charge of armed robbery (see below).
11. This set of proceedings is apparently still pending.
12. On 13 August 2001 the Katowice District Court ordered that the applicant be remanded in custody in view of the reasonable suspicion that he had committed armed robbery while acting in an organised criminal group. The court relied in particular on the gravity of the charges against the applicant and the likelihood that a heavy prison sentence might be imposed on him if found guilty.
13. The Katowice District Court and the Katowice Regional Court several times prolonged his detention pending the conclusion of the investigation. The relevant decisions were given on 16 September and 18 November 2002 and on 3 February 2003. The last of those decisions extended the applicant's detention until 31 May 2003. The courts considered that, given that there was a reasonable suspicion that the applicant had committed serious offences, voluminous expert evidence needed to be obtained. For that reason, he should be kept in detention in order to secure the proper conduct of the investigation. They also held that that measure was justified by the severity of the sentence that might be imposed and the complex nature of the charges.
14. Meanwhile, on 2 January 2003, the applicant had been indicted on charges of armed robbery, arson and burglary. The bill of indictment comprised more than 200 charges brought against 26 accused. The two main accused were charged with 124 and 99 offences respectively.
15. On 3 March 2003 the Regional Court severed the charges against the accused, holding that they should be determined in 2 separate trials. One of the reasons given was that the court did not have at its disposal a court room to try 26 accused at the same time. The charges concerning burglary and arson were examined by the Katowice District Court.
16. On 5 May 2003 the Regional Court made an application under Article 263 § 4 of the Code of Criminal Procedure (Kodeks postępowania karnego) to the Katowice Court of Appeal (Sąd Apelacyjny), asking that the applicant's detention be prolonged beyond the statutory timelimit of 2 years – until 31 December 2003. The Regional Court relied on the complexity of the case and the fact that, following the severance order, 12 accused were to be tried simultaneously.
17. The Court of Appeal granted that application on 14 May 2003, fully upholding the grounds given for it. It added that the applicant's detention was particularly justified by the severity of the sentence that might be imposed.
18. On 3 July 2003 the Katowice Regional Court held the first hearing.
19. On 1 September 2003 the Katowice Regional Court dismissed the applicant's request for release.
20. Subsequently, the applicant's pre-trial detention was prolonged on 17 December 2003.
21. On 24 May 2004 the applicant was convicted by the Katowice District Court in the proceedings concerning the charges of burglary and arson and was given a three-year prison sentence. On 4 June 2004 the Katowice Regional Court convicted the applicant of armed robbery and sentenced him to six and half years' imprisonment.
22. Afterwards the applicant's detention was prolonged. It appears that the he lodged appeals against both judgments. On 17 February 2005 the Katowice Court of Appeal dismissed his appeal against the judgment of 4 June 2004.
23. On 9 December 2002 the applicant complained that a letter from the Court, dated 21 October 2002, which included an application form, had been opened and controlled by the Katowice Regional Prosecutor. That letter had been delivered to him at the end of November 2002. The front part of the envelope provided by the applicant bears a handwritten note: “censored” (cenzurowano) and an illegible signature.
24. The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the socalled “preventive measures” (środki zapobiegawcze).
Article 249 § 5 provides that the lawyer of a detained person should be informed of the date and time of court sessions at which a decision is to be taken concerning the prolongation of detention on remand.
25. A more detailed rendition of the relevant domestic law provisions is set out in the Court's judgment in Kudła v. Poland [GC], no. 30210/96, § 75, ECHR 2000XI, Celejewski v. Poland, no. 17584/04, §§ 22 and 23, 4 May 2006.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-61589
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF G.K. v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;No violation of Art. 6-1;Violation of Art. 8;Not necessary to examine Art. 34;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 9. The applicant was born in 1967 and lives in Wrocław, Poland.
10. On an unknown date in 1995 the Wrocław District Prosecutor (Prokurator Rejonowy) issued a warrant to search for the applicant by “wanted” notice on suspicion of his having committed fraud.
11. On 3 March 1995 the police arrested the applicant under that warrant.
12. On 10 March 1995 the applicant was brought before the Wrocław Stare Miasto District Prosecutor (Prokurator Rejonowy). The prosecutor charged him with several counts of aggravated fraud and ordered that he be remanded in custody until 2 June 1995. The detention order was based on Articles 210 § 1 and 217 § 1(2) and (4) of the Code of Criminal Procedure. As to the grounds for the applicant’s detention, the prosecution first relied on the reasonable suspicion that he had committed the offence with which he had been charged. They also considered that the offence in question represented a serious danger to society (wysoki stopień społecznego niebezpieczeństwa czynu) and considered that there was a risk that the applicant might induce witnesses to give false testimony or obstruct the criminal proceedings against him by other unlawful means.
13. On 26 May 1995, on an application made by the Wrocław District Prosecutor, the Wrocław-Śródmieście District Court (Sąd Rejonowy) prolonged the applicant’s detention until 31 August 1995 in view of the reasonable suspicion that he had committed the offence with which he had been charged and the serious nature of that offence. The court also found that, in the light of the material collected in the investigation, there was a high risk that the applicant would obstruct the proper conduct of the proceedings. Finally, the court held that the interests of the investigation, such as the need to obtain and secure evidence, militated in favour of keeping him in custody.
14. Subsequently, the Wrocław Regional Prosecutor (Prokurator Wojewódzki) took over the investigation from the District Prosecutor.
15. On 24 August 1995 the Wrocław Regional Court (Sąd Wojewódzki), on an application made by the Wrocław Regional Prosecutor, prolonged the applicant’s detention until 30 November 1995, finding that it was necessary because there was a reasonable suspicion that the applicant had committed the serious offence. Furthermore, the court found that the need to secure the proper conduct of the proceedings militated against releasing him since, at the current stage of the investigation, it was necessary to hear evidence from all the injured parties, to carry out confrontations between witnesses and defendants and to lay further charges of dealing in stolen goods against several other persons who had not to date been involved in the proceedings.
16. On 24 November 1995, on the subsequent application from the Wrocław Regional Prosecutor, the Wrocław Regional Court prolonged the applicant’s detention until 31 December 1995, holding that there was a reasonable suspicion that he had committed the serious offence with which he had been charged. The court also stressed that the applicant should be kept in custody in order to secure the proper conduct of the proceedings, especially as the charges originally laid against the suspects needed to be supplemented.
17. On 27 December 1995 the Wrocław Regional Prosecutor completed the investigation and, on 30 December 1995, lodged a bill of indictment with the Wrocław Regional Court. The applicant was indicted on several counts of aggravated fraud. The bill of indictment comprised charges against 13 co-defendants. The prosecution asked the court to hear evidence from 9 expert witnesses and 104 lay witnesses, and to consider 400 pieces of documentary evidence.
18. The first hearing was to be held on 15 April 1996. Yet it was eventually cancelled because one of the applicant’s co-defendants, who had already been released under police supervision, was absent.
19. Subsequently, between 15 April 1996 and 28 August 1997, the Wrocław Regional Court listed 12 hearings for various dates but cancelled all of them because several of the applicant’s co-defendants who had already been released under police supervision had repeatedly failed to appear before it. They had submitted medical certificates to the effect that they could not participate in the trial because of their poor health and asked the court to adjourn the proceedings.
20. During that time the applicant made numerous unsuccessful applications for release on bail or under police supervision. He submitted that even though his detention pending trial had exceeded any reasonable limits, not a single hearing on the merits had so far been held. He also asked the Regional Court to order, under Article 24 § 3 of the Code of Criminal Procedure, that the charges against the released co-defendants be severed from the case so as to ensure that the trial proceeded without any further impediment.
21. In the meantime, on 31 December 1996, the Wrocław Regional Court had released A.A., one of the thirteen co-defendants, under police supervision. From then on, only the applicant and two other co-defendants (D.P. and W.K.) were still kept in detention pending trial.
22. On the same day the Regional Court held a session in camera at which the Regional Prosecutor was present. It made an application under Article 222 § 4 of the Code of Criminal Procedure to the Supreme Court (Sąd Najwyższy), asking it to prolong the applicant’s and his two co-defendants’ detention for six further months. That application was prepared in view of the fact that on 1 January 1997 the amendments to the Code of Criminal Procedure were to take effect. The new provisions set statutory time-limits for detention pending trial and, in consequence, in all cases where detention had already exceeded, or was about to exceed, the relevant terms, the courts had either to release the person concerned or to ask the Supreme Court to prolong his detention (see also “B. Relevant domestic law and practice” below).
The reasons for the Regional Court’s application read, in so far as relevant:
“[In respect of the applicant and two other co-accused] the [maximum] time-limits for detention on remand laid down in Article 222 § 3 of the Code of Criminal Procedure have expired and 31 December 1996 is the deadline for lodging a request for further prolongation of their detention on remand.
During the period following the date on which the bill of indictment was lodged with this court, it scheduled numerous hearings; however, the trial has not yet began as this court, for valid reasons [,such as the fact that the defendants, one after another, had failed to appear before us,] could not proceed with the trial. In this connection, this court has, in accordance with the suggestion of the Wrocław Court of Appeal, considered whether it would be sensible to sever the charges laid against the co-defendants concerned, pursuant to Article 24 § 3 of the Code of Criminal Procedure. Yet, as all the charges in the present case are interrelated, this court finds that there is no just cause to proceed in this way.
The detained defendants have repeatedly asked this court to lift or vary the preventive measure imposed on them. This court has dismissed their applications and in doing so it has had [particular] regard to the serious nature of the offences, the likelihood that a severe penalty would be imposed and, more particularly, to the conduct of the defendants during the investigation, that is to say [the fact that they had had to be] searched for by a “wanted” notice and that there had been problems in the course of their arrest [which had justified the risk that] they might go into hiding. The [Wrocław] Court of Appeal, which has dealt with the defendants’ appeals [against decisions refusing to release them], expressed the same opinion.
That being so, and there being other serious obstacles [to the proper course of the trial] the present application for the defendants’ detention to be prolonged must be submitted to the Supreme Court.”
23. The application was posted to the Supreme Court on 13 January 1997.
24. On 24 January 1997, a panel of three judges, sitting in camera as the Criminal Chamber of the Supreme Court, after obtaining oral comments from the State Prosecutor (Prokurator Krajowy), who had been summoned to the session and represented the prosecution, dealt with, and granted, the application. The Supreme Court prolonged the applicant’s and his co-defendants’ detention “from 24 January 1997 to 24 July 1997”. The defendants were not present. Nor were they legally represented since, under Polish law as it stood at that time, defendants or their counsel were not entitled to participate in court sessions held in camera (see also paragraphs 65-66 below).
25. The Supreme Court’s decision contained exhaustive reasons, the relevant part of which may be summarised as follows:
The Supreme Court, noting that the application was filed on 31 December 1996 but posted as late as 13 January 1997, first considered what was the proper date of “lodging” such an application for the purposes of Article 222 § 4 of the Code of Criminal Procedure.
The Supreme Court next observed that, depending on the answer to this question, it would have to determine the legal consequences of a potential failure on the part of the Wrocław Regional Court to respect the rule laid down in Article 10 (a) § 2 of the Interim Law of 1 December 1995, which stated that in cases where no request for a further prolongation of detention on remand had been “lodged”, the detention on remand had to be lifted and the person concerned released not later than on 1 January 1997.
The Supreme Court considered that it should also deal with the question of whether it was competent to rule on the application if it had been “lodged” after the expiry of the term referred to in Article 10 (a) of the Interim Law of 1 December 1995, i.e. after 1 January 1997.
Referring to the first question, the Supreme Court held that the proper date of “lodging” an application under Article 222 § 4 of the Code of Criminal Procedure had to be deemed either the date of posting the request or the date of submitting it to the registry of the Supreme Court since to hold otherwise would mean leaving a detainee without any guarantee that the Supreme Court was properly supervising his detention. Moreover, if the requesting court was not bound by any time-limits for submitting its application, detention, the most severe among the preventive measures, might continue for an unspecified and unlimited time outside the Supreme Court’s supervision. In consequence, an application under Article 222 § 4 of the Code of Criminal Procedure, a mere “proposal” to continue detention, would, for all practical purposes, transform into a basis for continuing detention. Clearly, that was not the intention of the legislator.
The Supreme Court therefore concluded that since in the applicant’s case no application for a further prolongation of his detention was “lodged” before 1 January 1997, the applicant’s (and his co-defendants’) detention from that date to the date of its present decision lacked any legal basis and was, accordingly, unlawful.
It went on to find that it was, nevertheless, competent to deal with the application lodged outside the relevant date. It considered that a lower court’s obligation to release a detainee in case of its failure properly to lodge an application under Article 222 § 4 of the Code of Criminal Procedure was one thing, but its right to make such an application at any time was another. In the Supreme Court’s opinion, the application in question should be deemed a “fresh application” and be examined as such.
It considered that further prolongation of the applicant’s detention was necessary. In essence, it repeated the arguments adduced by the Wrocław Regional Court and stressed the complexity of the case.
26. On 9 July 1997 the Wrocław Regional Court made another application under Article 222 § 4 of the Code of Criminal Procedure. It asked the Supreme Court to prolong the applicant’s, W.K.’s and D.P.’s detention until 31 December 1997. The Regional Court submitted that regardless of its consistent efforts to proceed with the trial, it could not begin the main hearing because several released co-accused had repeatedly failed to appear before it. However, the applicant had to be kept in custody since there was still a risk that he might go into hiding because at the initial stage of the proceedings he had had to be searched for by a “wanted” notice and, likewise his two detained co-defendants, had obstructed his arrest. Finally, the court relied on the complexity of the case and the fact that evidence gathered in the investigation sufficiently supported the charges laid against him.
27. In the meantime, in July and August 1997, the applicant repeatedly complained to the Wrocław Regional Prosecutor, the Wrocław Regional Court, the Supreme Court, the Minister of Justice and the Ombudsman (Rzecznik Praw Obywatelskich) that, from 1 to 24 January 1997, he had been kept in detention without any legal basis. He also asked for release.
28. On 28 August 1997 a panel of three judges, sitting in camera as the Criminal Chamber of the Supreme Court, after obtaining oral comments from the State Prosecutor, prolonged the applicant’s, W.K.’s and D.P.’s detention pending trial until 31 December 1997. The Supreme Court fully upheld the arguments adduced by the Wrocław Regional Court in its application. However, it expressed the opinion that, for the sake of the proper conduct of the trial, the charges against the released co-defendants should be severed from the case.
29. On 8 September 1997 the Wrocław Regional Court held the first hearing. It did not deal with the merits of the case but ordered that the charges against three of the released co-defendants be severed from the case and adjourned the trial until 13 October 1997. The applicant asked for release. The court refused, holding that the reasons for his continued detention, as cited in the Supreme Court’s decision of 28 August 1997, were still valid.
30. In August, September and October 1997 the applicant sent numerous petitions, letters and applications to, inter alia, the Minister of Justice, the Supreme Court, the Ombudsman, the Wrocław Regional Court, the Wrocław Regional Prosecutor and the Wrocław District Prosecutor. He complained about the unlawfulness and length of his detention, the slow conduct of his trial and asked the authorities to release him and to institute criminal proceedings against the persons who had kept him in unlawful custody. He invoked Article 5 § 4 of the Convention, submitting that he had no remedy whereby he could challenge the lawfulness of his detention from 1 to 24 January 1997 and obtain release. He also relied on Article 5 § 3 of the Convention and maintained that his right to trial within a reasonable time or to release pending trial was not respected.
31. On 15 September 1997 the applicant made an application for release to the Wrocław Regional Court. He asserted that there was no risk of his going into hiding. He admitted that it was true that, nearly three years previously and before he had been detained, he had used a false identity card. However that single fact could not justify holding him in custody for such a long time. At that point, he added, his detention had already exceeded thirty months. The applicant further complained that there had been an exceptional delay in the proceedings which, in his opinion, had resulted solely from the fact that the Regional Court had failed to ensure the presence of the released co-defendants at the trial. He also maintained that, following his arrest, there had been no single attempt on his part to obstruct the proper course of the proceedings. In his view, there was no evidence whatsoever to demonstrate that, had he been released, he would have evaded justice or any sentence that might be imposed.
32. That application was dismissed on 9 October 1997. The Regional Court repeated the reasons previously given to justify the applicant’s detention. It was stressed that he should be kept in detention to secure the proper conduct of the proceedings. Moreover, the court considered that the applicant had failed to adduce any arguments militating in favour of his release. On 13 October 1997 the court cancelled a hearing since one of the released co-defendants had failed to appear before it and submitted a medical certificate stating that he was ill.
33. On 28 October 1997 the Wrocław Regional Court held the first hearing on the merits. Since some of the co-defendants decided not to give any oral evidence at the trial stage, the court read out the record of evidence given by them in the investigation.
34. The next hearing was to be held on 18 November 1997 but was cancelled because one of the released co-defendants had submitted a medical certificate stating that he was ill.
35. On 20 November 1997 the Regional Court, at the Minister of Justice’s request, submitted to the Ministry a report on the progress of the proceedings. Further similar reports were submitted on 23 and 30 March, 25 May, 26 August and 9 December 1998.
36. On 25 November 1997 the court held a hearing and had the record of evidence taken from other five co-defendants in the investigation read out. The court then started to hear witnesses. After hearing evidence from two of them, it adjourned the trial in order to hear six other witnesses.
37. In the meantime, in November 1997, the applicant had again filed several petitions with the Ombudsman, the Minister of Justice and the Division of Judicial Supervision (Wydział Wizytacyjny) of the Wrocław Regional Court. He complained that the overall period of his detention had meanwhile amounted to nearly thirty-three months but the determination of the charges against him had merely begun. He asked the authorities concerned to react, in an appropriate manner, to the fact that he had been unlawfully detained in January 1997, a fact that had already been confirmed by the highest national court.
38. On 11 December 1997 the Wrocław Regional Court dismissed a further application for release which had been filed by the applicant on an unknown date. The court held that all the legal and factual grounds previously given for his detention were still valid. It also considered that since there were no circumstances justifying release, as listed in Article 218 of the Code of Criminal Procedure, his detention should continue to ensure the proper conduct of the proceedings.
39. On 19 December 1997 the court held a hearing. It heard evidence from three witnesses and adjourned the trial until 30 January 1998 because other witnesses had not appeared.
40. On the same day the Regional Court made a fresh, and third, application under Article 222 § 4 of the Code of Criminal Procedure to the Supreme Court, asking for the applicant’s, D.P.’s and W.K.’s detention to be prolonged until 31 March 1998. It stressed that it had eventually been able to begin the trial. It considered that, given that evidence had already been taken from all the co-defendants, it could not be said that the court had not handled the case efficiently. While it was true that the process of obtaining evidence had not come to an end, that was not due to any fault on the part of the trial court but had arisen out of other factors. There were still valid reasons justifying the defendants’ continued detention, notably the well-founded suspicion that they had committed the offences with which they had been charged and the risk that they might abscond or go into hiding.
41. From 19 December 1997 to the beginning of January 1998 the applicant filed numerous petitions with the Minister of Justice, the Supreme Court and the Wrocław Regional Court, submitting that his constitutional right to personal liberty, as well as his rights secured by Article 5 §§ 3 and 4 of the Convention, had been violated. He maintained that he had spent nearly three years in detention because the trial court had – wrongly – concluded that there was a risk of his absconding even though, after his arrest, there had never been a single basis for such a finding. Whatever his arguments, the court had never believed him and never given him a chance to prove that his release would not have obstructed the course of the trial. In fact, the applicant claimed, the proper conduct of the proceedings had constantly been impeded by his seven released co-defendants.
42. On 15 January 1998 a panel of three judges, sitting in camera as the Criminal Chamber of the Supreme Court, after obtaining oral comments from the State Prosecutor, prolonged the applicant’s, W.K.’s and D.P.’s detention until 31 March 1998. The Supreme Court fully upheld the reasons given by the Wrocław Regional Court to justify its application.
43. On 30 January 1998 the Wrocław Regional Court held a hearing but the trial was again adjourned since, in the applicant’s words, “one of the defence counsel [had] left the courtroom”.
44. On 20 March 1998 the court released the applicant, D.P. and W.K. under police supervision. In its decision, the court conceded that the period of nearly three years that the applicant had spent in detention had been nearly as long as the anticipated penalty and that, in consequence, his continued detention would amount to serving a sentence of imprisonment.
45. Between 20 March 1998 and 4 February 1999 the Regional Court held eleven hearings. At the hearings held on 30 November and 1 December 1998 the court heard evidence from thirty-one witnesses. On 5 January 1999 the court heard fifteen witnesses. The applicant twice failed to appear before the court.
46. Further hearings were held on 4 February, 11 March, 14 April, 7 and 28 May and 9 June 1999. During that time the court heard evidence from 8 witnesses and read out records of evidence taken from 11 witnesses.
47. At a hearing held on 15 December 1999 the court heard evidence from 3 witnesses and read out records of evidence taken from 5 witnesses. The trial continued on 14 and 21 January 2000.
48. On 21 January 2000 the Regional Court gave judgment. It convicted the applicant as charged and sentenced him to 4 years and 6 months’ imprisonment and a fine. The applicant did not appeal against his conviction. Accordingly, the judgment became final on 29 January 2000.
49. On 16 January 2001 the Court’s registry received the applicant’s declaration of means filed on 12 December 2000. It was delivered in an envelope bearing two stamps. The first of them read:
“Wrocław Remand Centre – Department of Records and Employment.
Received on [handwriting] 2000-12-13. No. 651/099”
The second stamp read “cenzurowano” (censored).
The envelope itself bore traces of opening after being sealed: its right side had been cut open and then resealed with six white self-sticking paper slips.
It was postmarked 8 January 2001.
50. Over the period to which the facts of the present case relate, i.e. from March 1995 to the beginning of 1999, Polish criminal legislation was amended on several occasions.
51. In so far as the present case is concerned, there were two relevant amendments to the Code of Criminal Procedure (“the 1969 Code”), a law which is no longer in force as it was repealed and replaced by the so-called “New Code of Criminal Procedure” of 6 June 1997 (“the 1997 Code”), which entered into force on 1 September 1998.
The first such amendment was made by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes which entered into force on 1 January 1996, except the amendments relating to the imposition of detention on remand (in particular, those stating that only a judge was empowered to detain a suspect on remand); the entry into force of the latter amendments being postponed until 4 August 1996 (see paragraphs 53-54 below).
The second amendment, effected by the Law of 1 December 1995 on Amendments to the Law of 29 June 1995 (“the 1995 Interim Law”) came into force on 1 January 1996. Section 10(a) of the Law introduced special interim rules governing the prolongation of detention on remand beyond the statutory time-limits laid down in Article 222 §§ 2 and 3 of the 1969 Code in cases where such detention had been imposed before 4 August 1996 (see paragraph 62 below).
52. At the material time the 1969 Code listed as “preventive measures” (środki zapobiegawcze), inter alia, detention on remand, bail and police supervision.
53. Article 210 § 1 of the 1969 Code read (in the version applicable until 4 August 1996):
“Preventive measures shall be imposed by the court; before a bill of indictment has been lodged with the competent court, the measures shall be imposed by the prosecutor.”
54. Article 222 (in the version applicable until 4 August 1996) stated, in so far as relevant:
“1. The prosecutor may order detention on remand for a period not exceeding three months.
(1) the court competent to deal with the case, upon the prosecutor’s request, for a period not exceeding one year;
(2) the Supreme Court, upon request of the Prosecutor General, for a further fixed term required to terminate the investigation.”
55. Under Article 212 § 2 a detainee could appeal against a detention order made by a prosecutor to the court competent to deal with his case; however, he was not entitled to be brought before the judge dealing with his appeal.
56. Article 209 of the 1969 Code set out general grounds justifying imposition of preventive measures. That provision (as it stood at the material time) provided:
“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.”
57. Article 217 § 1 defined grounds for detention on remand. That provision, in the version applicable until 1 January 1996 provided, in so far as relevant:
“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 conduct 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.”
58. On 1 January 1996 paragraphs (3) and (4) were repealed. From that date on that provision 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 then read:
“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.”
59. The 1969 Code set out the margin of discretion as to maintaining a specific preventive measure. Articles 213 § 1, 218 and 225 of the Code were based on the precept that detention on remand, the most extreme among the preventive measures, 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 therefore 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 these measures, are considered adequate.”
The provisions of the Code providing for “mandatory detention” (for instance, pending an appeal against a sentence of imprisonment exceeding three years) were repealed on 1 January 1996 by the Law of 29 June 1995 referred to above.
Finally, Article 218 provided:
“If there are no special reasons to the contrary, detention on remand should be lifted, in particular, if:
(1)o it may seriously jeopardise the life or health of the accused; or
(2) oit would entail excessively burdensome effects for the accused or his family.”
60. Until 4 August 1996, i.e. the date on which the relevant provisions of the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes entered into force, the law did not set out any time-limits on detention on remand in court proceedings; it did so only in respect of the investigative stage (see above, 2a) Imposition of detention on remand; Article 222 in the version applicable until 4 August 1996).
61. Article 222 of the 1969 Code in the version applicable after 4 August 1996 provided, 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 was liable to a sentence of a statutory minimum of at least 3 years’ imprisonment] this period may not exceed two years.
4. In particularly justified cases the Supreme Court may, on an 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 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.”
62. On 28 December 1996, by virtue of the Law of 6 December 1996, paragraph 4 of that Article 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...”
However, as already mentioned (see paragraph 51 above), under section 10(a) of the 1995 Interim Law, different rules applied to persons whose detention on remand started prior to 4 August 1996. That section provided:
“1. In cases where the total period of detention on remand which started prior to 1 August 1996 exceeds the [maximum] time-limits referred to in Article 222 §§ ... and 3 of the Code of Criminal Procedure [as amended by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes], the accused shall be kept in detention until the Supreme Court gives a decision on an application for prolongation of his detention under Article 222 § 4 of the Code of Criminal Procedure.
2. In cases mentioned in paragraph 1, if no [such] application has been lodged, detention shall be lifted not later than 1 January 1997.”
63. In cases where the Supreme Court dismissed an application under Article 222 § 4, a detainee had to be released. As long as it had not given its ruling, the application of the relevant court – which had the form of a decision (“postanowienie”) – was deemed to be a legal basis for the continued detention.
64. At the material time there were three different legal avenues enabling a detainee to challenge the lawfulness of his detention: appeal to a court against a detention order made by a prosecutor; proceedings in which courts examined applications for prolongation of detention made by a prosecutor at the investigation stage; and proceedings set in motion by a detainee’s application for release.
As regards the last of these, Article 214 of the 1969 Code stated that an accused could at any time apply to have a preventive measure lifted or varied. Such an application had to be decided by the prosecutor or, after the bill of indictment had been lodged, by the court competent to deal with the case, within a period not exceeding three days.
65. Under Article 88 of the 1969 Code the participation of the parties at judicial sessions other than hearings was a matter for discretion of the court. Sessions concerning an application for release, a prosecutor’s application for prolongation of detention or an appeal against a decision on detention on remand were held in camera. If the defendant asked for release at a hearing, the court made a decision either during the same hearing or at a subsequent session in camera.
66. At the material time the law did not give the detainee the right to participate – either himself or through his counsel – in any court session concerning his detention on remand. In practice, only the prosecutor was notified of, and could participate in, those sessions. If he was present, he was entitled to adduce arguments before the court. The prosecutor’s submissions were put on the record of the session (see also Włoch v. Poland, no. 27785/95, judgment of 19 October 2000, §§ 69-73).
67. Under all the relevant provisions read together a detainee was entitled to appeal against any decision prolonging his detention on remand, regardless of whether it had been made at the investigative or trial stage. However, no appeal laid in law either against a decision whereby the trial court applied, under Article 222 § 4, for prolongation of detention beyond the statutory time-limit, or against a decision of the Supreme Court prolonging detention under that provision.
Under the present criminal legislation (as amended on 20 July 2000), a detainee may appeal against a decision whereby a trial court has asked the higher court to prolong his detention beyond the statutory terms.
68. 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) of 1 September 1998.
Article 103 of that Code, which is contained in Chapter IV entitled “Rights and duties of convicted persons”, provides as follows:
“Convicted persons, their counsel, representatives and the relevant non-governmental organisations have a right to lodge complaints with institutions set up by international treaties ratified by the Republic of Poland concerning the protection of human rights. In those cases, correspondence of persons deprived of their liberty shall be sent to the addressee without delay and shall not be censored.”
69. Provisions relating to the execution of detention on remand (Articles 207-223) are contained in Chapter XV entitled “Detention on remand”.
Article 217 § 1 reads, in so far as relevant:
“... a detainee’s correspondence shall be censored by [the authority at whose disposal he remains], unless the authority decides otherwise.”
Pursuant to Article 214 § 1,
“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.”
70. Article 242 § 5, which is contained in Chapter XXI entitled “Definitions”, provides:
“The prohibition of censorship shall also mean the prohibition of acquainting oneself with the content of a letter.”
VIOLATED_ARTICLES: 5
8
VIOLATED_PARAGRAPHS: 5-1
5-3
5-4
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-113296
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF SEFILYAN v. ARMENIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life)
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
TEXT: 5. The applicant was born in 1967 and lives in Yerevan.
6. The applicant is an active member of civil society who holds leading positions in several NGOs, including the Unity of Armenian Volunteers, the Defence of Liberated Lands and AraksKur charity fund. He is of an Armenian origin and since 1992 has apparently been permanently resident in Armenia where he has a family and owns an apartment.
7. The applicant appears to be a critic of the Armenian authorities. He alleges that in this connection he has been invited to visit the National Security Service (NSS) on several occasions, where he was ordered to stop his cooperation with the opposition and his criticism of the government.
8. On an unspecified date the Head of the Principal Department for Safeguarding the Constitutional Order and Fight Against Terrorism of the NSS filed a motion, seeking to carry out secret surveillance and recording of the applicant’s telephone and other conversations.
9. On 15 August 2006 the Kentron and Nork-Marash District Court of Yerevan examined the motion, finding:
“It is evident from the materials submitted to the court and the motion that the Principal Department for Safeguarding the Constitutional Order and Fight Against Terrorism of the NSS has sufficient grounds to believe that [the applicant], born in 1967 in Lebanon, a Lebanese national, residing at 17 Lepsius Str, apt 42, Yerevan, leader of the Armenian Volunteers Unity organisation, is carrying out activities aimed to destabilise the internal political situation in Armenia and to create a situation of civil disobedience, thereby creating a basis for the change of government in Armenia through unconstitutional means by making public calls.”
10. The District Court decided to grant the motion, authorising the interception and recording of the applicant’s telephone and other conversations made to and from the applicant’s three mobile and three landline numbers for a period of six months, taking into account that they might contain information substantiating the above-mentioned circumstances, the use of which would facilitate the disclosure of a crime and obtaining evidence, since there were elements of an offence prescribed by Article 301 of the Criminal Code (CC) in the applicant’s actions. In doing so, the District Court referred to, inter alia, Articles 281 and 284 of the Code of Criminal Procedure (CCP).
11. On 2 December 2006 the applicant gave a speech at an assembly organised by the Unity of Armenian Volunteers. The assembly took place in the hall of the Yerevan State Choreography College and was attended by about 150 people. The applicant called on the participants of the assembly to get organised, otherwise nothing would move forward. It was not enough to keep telling the President and the Prime Minister to resign; they would never do that. Peaceful assemblies would not make them resign. Nor would external pressure. He called on the participants to create a significant force, in order to make the authorities resign, stating that the main and only objective was to get rid of them. He further stressed that they should not allow those in power to multiply, otherwise the future plans of the participants of the assembly would encounter serious obstacles. The applicant called the authorities “monsters” who would become even more dangerous if they were allowed to multiply. The applicant agreed with other speech makers that any means were acceptable for achieving their goals.
12. On 8 December 2006 the Investigative Department of the National Security Service decided to institute criminal proceedings under Article 301 of the CC on the ground that public calls for a violent overthrow of the government had been made during the speeches given at the above assembly.
13. On 9 December 2006 at 10.30 p.m. the applicant was arrested and taken to the NSS.
14. On the same date the applicant’s office was searched, as a result of which a revolver and various types of bullets were found.
15. On 10 December 2006 at 3.45 p.m. the relevant arrest record was drawn up. It stated that the applicant was suspected of offences under Articles 235 § 1 and 301 of the CC. It appears that his passport was seized.
16. On the same date the applicant was questioned as a suspect. He refused to give testimony, stating that the criminal proceedings against him were politically motivated.
17. On 12 December 2006 the applicant was formally charged under Articles 235 § 1 and 301 of the CC. He was accused of making calls for a violent overthrow of the government and of not handing in, and illegally keeping, his weapon after his demobilisation in 1998. Another person, V.M., who had also given a speech at the above assembly, was accused together with the applicant under Article 301 of the CC. Their speeches had been recorded.
18. On the same date the investigator filed a motion with the Kentron and Nork-Marash District Court of Yerevan, seeking to have the applicant detained for a period of two months and arguing that, if at large, he could abscond and obstruct the investigation. It appears that on the same date three members of the parliament filed a statement with the District Court, giving their personal guarantees for the applicant’s proper conduct and requesting that no detention be imposed.
19. On the same date the District Court examined the investigator’s motion, including the charge and the circumstances surrounding it. The District Court decided to grant the motion, taking into account the nature and degree of dangerousness of the imputed offence and the fact that it was at the top of the list of offences directed against state power and finding that the materials of the case provided sufficient reasons to believe that the applicant could abscond and obstruct the investigation by exerting unlawful influence on persons involved in the proceedings.
20. On 19 December 2006 the applicant lodged an appeal, arguing, inter alia, that there was no reasonable suspicion of his having committed an offence and that the District Court had failed to provide reasons justifying the necessity of his placement in detention. He submitted, in particular, that the investigating authority had a recording of his speech at its disposal, so the allegation that he could unlawfully influence witnesses was unfounded. Furthermore, the allegation that he could abscond was not supported by any arguments or evidence, while the court did not take into account the fact that he was a permanent resident in Armenia, with two minor children and an elderly, sick mother who were dependent on him.
21. On 27 December 2006 the Criminal and Military Court of Appeal dismissed the applicant’s appeal. In dismissing the applicant’s argument about the lack of a reasonable suspicion, the Court of Appeal found that his involvement in the imputed acts, which included features of offences envisaged by Articles 235 § 1 and 301 of the CC, was substantiated by evidence, such as various records and expert opinions, produced by the investigator and examined in court. As to the reasons given by the District Court, the Court of Appeal found these to be justified.
22. On the same date the applicant filed a motion requesting to be released on bail. He submitted that he was known to the investigating authority and the court, he had a clear and concrete place of residence and he had never attempted to abscond. He asked the court to fix the amount of bail.
23. On 30 December 2007 another person, V.A., who was the applicant’s friend, was also charged under Article 235 § 1 of the CC with illegal possession of firearms and ammunition in the context of the same criminal proceedings.
24. On 7 January 2007 the District Court refused the applicant’s request for bail, citing the same grounds as those justifying his detention.
25. On 22 January 2007 the Court of Appeal upheld this decision, adding that the applicant was a foreign national and therefore could abscond. Furthermore, it was unacceptable to release the applicant on bail in view of the fact that his co-accused, V.A., who was also charged with illegal possession of firearms and ammunition, was in detention.
26. On 1 February 2007 the investigator filed a motion with the District Court seeking to have the applicant’s detention period, which was to expire on 10 February 2007, extended by two months. The investigator argued that the applicant could abscond because he was a foreign national. He further argued that on 15 January 2007 the applicant had transmitted through his lawyer a short note to co-accused V.A. which said “be strong”. This suggested that he was attempting to exert unlawful influence on the participants in the proceedings.
27. On 7 February 2007 the District Court, having examined the investigator’s motion and other materials, granted this motion, finding that there was a need to carry out further investigative measures and citing the same grounds as before in justifying the applicant’s continued detention.
28. On 8 February 2007 the applicant lodged an appeal. In his appeal he argued, inter alia, that the extension of his detention had been effected in violation of the time-limits prescribed by Article 139 § 1 of the CCP.
29. On 23 February 2007 the Court of Appeal dismissed the appeal, finding that the District Court, taking into account the circumstances mentioned in the investigator’s motion, had taken a reasoned decision, since the grounds for the applicant’s detention had not ceased to exist. As to the violation of the time-limits, the Court of Appeal considered this not to be of such gravity as to have affected the correct outcome of examination of the investigator’s motion.
30. On 30 March 2007 the investigator filed a motion with the District Court seeking to have the applicant’s detention period, which was to expire on 10 April 2007, extended by two months on the same grounds.
31. On 4 April 2007 the District Court examined and granted this motion on the same grounds. In the proceedings before the District Court the applicant’s lawyer asked the court whether any evidence had been submitted by the investigator in support of his motion which would be examined in court. The presiding judge replied that the materials of the criminal case related to the motion had been submitted by the investigator during the examination of his previous motion. These materials had been examined and returned by the court. The criminal procedure rules did not allow the lawyers access to the materials of a criminal case before the completion of the investigation.
32. Following this announcement the applicant’s lawyer challenged the judge’s impartiality, inter alia, on the ground that the judge had not disclosed the materials in question to the defence during the previous proceedings. The judge dismissed this challenge with reference to, inter alia, Article 73 § 1 (12) of the CCP.
33. On 19 April 2007 the applicant lodged an appeal, raising similar arguments as previously.
34. The applicant alleged that his lawyers had not been notified of the hearing to take place upon his appeal and were therefore not able to appear.
35. The Government contested this allegation and alleged that on 11 May 2007 the Court of Appeal had sent notifications to both the General Prosecutor’s Office and the applicant’s lawyers, which were received by them, informing them that the hearing on the applicant’s appeal would take place on 14 May 2007.
36. On 14 May 2007 the applicants lawyers filed a challenge with the Chairman of the Court of Appeal, contesting the impartiality of the judges who were assigned to examine the appeal. The lawyers stated in their challenge that they had been informed on 11 March that the case had been assigned to a judge rapporteur.
37. On the same date the Court of Appeal examined the applicant’s appeal in the absence of both parties. The Court of Appeal decided to dismiss the appeal with the same reasoning as on 23 February 2007. This decision stated that the parties had been duly notified of the hearing but failed to appear. The same follows from the transcript of the court hearing, in which it was stated that the parties had also been informed by a judge’s assistant by telephone. It appears that a copy of this decision was received by the applicant’s lawyers on 18 May 2007.
38. In May 2007 the investigation was over and from 15 to 29 May the applicant was granted access to the case file. He submits that only then did he find out about the decision of 15 August 2006 authorising the secret surveillance of his telephone communications.
39. On 5 June 2007 the prosecutor approved the indictment and the case was sent to court.
40. On 7 June 2007 Judge M. of the Kentron and Nork-Marash District Court of Yerevan decided to take over the applicant’s criminal case.
41. On 10 June 2007 the applicant’s detention period, authorised by the decision of 4 April 2007, expired.
42. On 12 June 2007 the applicant complained to the General Prosecutor and the Minister of Justice that his detention authorised by a court had expired on 10 June 2007 and that his continued detention was unlawful. He sought to be released.
43. On 22 June 2007 Judge M. decided to put the applicant’s criminal case down for trial. This decision stated that the preventive measure imposed on the applicant was to remain unchanged.
44. On 6 August 2007 the Kentron and Nork-Marash District Court of Yerevan found the applicant guilty under Article 235 § 1 and acquitted him under Article 301. The District Court, having examined the statements the applicant had made in his speech, found that they could not be qualified as calls for a violent overthrow of the government. As to the charge of illegal possession of a weapon, the District Court found that the applicant had kept the weapon and the ammunition without a permit after his demobilisation. The applicant was sentenced to one year and six months’ imprisonment. The applicant’s two co-accused were found guilty as charged.
45. On 25 September 2007 the Criminal Court of Appeal upheld this judgment on appeal.
46. The relevant provisions of the CC provide:
“1. Illegal acquisition, sale, possession, transportation or carrying of firearms, except for smooth-bore firearms and their bullets, ammunition, sawn-off firearms, bullets and explosive materials or devices shall be punishable by detention of up to three months or by imprisonment for a period not exceeding three years.”
“Public calls aimed at violently seizing State power and violently changing the constitutional order of Armenia shall be punishable by a fine of between 300 and 500 times the minimum wage or by detention of between two and three months or by imprisonment for a period not exceeding three years.”
47. For a summary of the relevant provisions see the judgment in the case of Poghosyan v. Armenia (no. 44068/07, §§ 26-41, 20 December 2011). The provisions of the CCP which were not cited in that judgment read as follows.
48. According to Article 135, the court, the prosecutor, the investigator or the body of inquest can impose a preventive measure only when the materials obtained in the criminal case provide sufficient grounds to believe that the suspect or the accused may: (1) abscond from the authority dealing with the case; (2) hinder the examination of the case during the pre-trial or court proceedings by exerting unlawful influence on persons involved in the criminal proceedings, by concealing or falsifying materials significant for the case, by failing to appear upon the summons of the authority dealing with the case without valid reasons or by other means; (3) commit an act prohibited by criminal law; (4) avoid criminal liability and serving the imposed sentence; and (5) hinder the execution of the judgment. When deciding on the necessity of imposing a preventive measure or choosing the type of preventive measure to be imposed on the suspect or the accused, the following should be taken into account: (1) the nature and degree of danger of the imputed offence; (2) the personality of the suspect or the accused; (3) age and state of health; (4) sex; (5) occupation; (6) family status and dependants, if any; (7) property situation; (8) whether he has a permanent residence; and (9) other important circumstances.
49. According to Article 139 § 1, if it is necessary to extend the accused’s detention period, the investigator or the prosecutor must submit a well-grounded motion to the court not later than ten days before the expiry of the detention period. The court, agreeing with the necessity of extending the detention period, shall adopt an appropriate decision not later than five days before the expiry of the detention period.
50. According to Article 285 § 1, the prosecutor or the investigator shall file a motion with a court seeking to have detention imposed as a preventive measure or the period of detention extended, if such a necessity arises. The motion must indicate the reasons and grounds necessitating the suspect’s detention. Materials substantiating the motion shall be attached to it. if such is engaged in the case, about the place and time of the court hearing.
51. According to Article 288 § 3, judicial control of detention by the court of appeal shall be carried out in camera in the presence of the prosecutor and defence counsel. Failure to appear of a party who has been notified of the day of the hearing beforehand shall not obstruct the judicial examination.
52. According to Article 65 § 2(16), the accused has the right to familiarise himself with all the materials of the case upon the completion of the investigation.
53. According to Article 73 § 1(12), defence counsel is entitled to familiarise himself with all the materials of the case, to make copies of and to take notes on any information contained in the case and in any volume, after the completion of the investigation.
54. According to Article 201, materials of the investigation may be made public only with the permission of the authority dealing with the case.
55. According to Article 265, the investigator, finding that the collected materials are sufficient to draw up the bill of indictment, informs the accused of this and decides on the location and time for his familiarising with the materials of the case.
56. According to Article 281, operative and search activities which restrict the right to secrecy of correspondence, telephone conversations, postal, telegraphic and other communications of citizens shall be carried out only upon a judicial warrant. The types of operative and search activities carried out upon a judicial warrant shall be defined by the Operative and Search Activities Act.
57. According to Article 284, operative and search activities which restrict the right to secrecy of correspondence, telephone conversations, postal, telegraphic and other communications of persons may be carried out only upon a judicial warrant, save in cases where one of the interlocutors has agreed beforehand that his conversations be intercepted or monitored. This Article further prescribes the procedure for the judicial examination of motions seeking authorisation to carry out secret surveillance of telephone conversations filed by the head of the authority charged with carrying out operative and search activities. The motion must indicate the grounds justifying such activity, the information sought to be obtained through such activity, the place and time-limit for such activity, as well as all other relevant elements. The materials substantiating the need to carry out such activity must be attached to the motions. The court must indicate the reasons for granting or refusing the motion. The period during which the judicial warrant is effective shall be calculated from the date of its adoption and may not exceed six months, unless decided otherwise by the warrant. The period of an operative and search activity may be extended upon a reasoned motion by the authority carrying out the operative and search activity in accordance with the procedure prescribed by this Article.
58. The Operative and Search Activities Act prescribes the notion of operative and search activities, their objectives and principles, bodies carrying out such activities, their rights and obligations, types of such activities and control and supervision over them.
59. Article 14 prescribed the types of operative and search activities which included surveillance of telephone conversations.
60. Article 26 prescribed certain technical aspects of secret surveillance of telephone conversations, including of landline, mobile and internet conversations.
61. Article 31 prescribed that secret surveillance of telephone conversations as an operative and search activity may be authorised only if a person is suspected of a grave or particularly grave crime and if there is sufficient evidence that it is impossible to obtain the information sought by the authority carrying out the activity through other means.
62. According to Article 39, the overall period of secret surveillance of telephone conversations may not exceed twelve months.
63. According to Article 68 § 4, if a rule prescribed by a legal act can be implemented only by adopting another legal act envisaged by the first legal act or if its implementation is directly dependent on the adoption of another legal act, then the legal act in question in its part concerning that rule shall be effective from the date on which the other legal act enters into force.
VIOLATED_ARTICLES: 5
8
VIOLATED_PARAGRAPHS: 5-1
5-3
5-4
8-1