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FOURTH
SECTION
CASE OF KWIATEK v. POLAND
(Application
no. 20204/02)
JUDGMENT
STRASBOURG
6 February
2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Kwiatek v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr G. Bonello,
Mr K. Traja,
Mr S.
Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović, judges,
and
Mr T.L. Early, Section Registrar,
Having
deliberated in private on 16 January 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 20204/02) 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 Dariusz Kwiatek (“the
applicant”), on 19 November 2001.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
4 May 2004 the Court declared the application partly inadmissible and
decided to communicate the complaint concerning the length of the
applicant’s pre-trial detention to the Government. Under the
provisions of Article 29 § 3 of the Convention, it decided
to examine the merits of the application at the same time as its
admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1970 and lives in Dąbrowa Górnicza.
- On
22 February 2000 the applicant was arrested by the police. On
23 February 2000 the Katowice District Court (Sąd
Rejonowy) ordered that he be detained on remand in view of the
reasonable suspicion that he had committed two burglaries.
- On
28 April 2000 the Katowice Regional Court (Sąd Okręgowy)
prolonged the applicant’s detention until 9 July 2000. It held
that there was a strong suspicion that he had committed the offences
with which he had been charged and that keeping him in custody was
necessary to secure the proper conduct of the proceedings. The
Katowice Court of Appeal (Sąd Apelacyjny) upheld
that decision on 24 May 2000. It found, invoking Article 258 §
2 of the Code of Criminal Procedure, that the applicant had been
charged with two burglaries committed as a recidivist offender and
thus he was liable to a statutory maximum sentence of at least
8 years’ imprisonment.
- On
3 July 2000 the Regional Court extended the applicant’s
detention until 22 August 2000. In addition to the grounds previously
invoked, it also relied on the severity of the anticipated penalty.
That decision was upheld on appeal on 2 August 2000.
- On
9 August 2000 the Court of Appeal prolonged his detention until
30 September 2000 pending the outcome of the investigation on
the grounds that there was a reasonable suspicion that he had
committed the offences in question and that he was potentially liable
to a severe penalty, which justified the fear that he would obstruct
the proper conduct of the proceedings. The court also held that due
to the close links between the suspects there was a risk that, if
released, they might interfere with the course of the investigation.
Thus it was justified to keep them in custody pending the termination
of the investigation. That decision was upheld on appeal by the
Supreme Court (Sąd Najwyższy) on 31 August
2000.
- The
investigation was terminated on 14 September 2000. On 15 September
2000 the prosecution filed a bill of
indictment with the Katowice Regional Court. The applicant was
charged with 2 burglaries. The bill of indictment comprised 19
charges (nearly each of them consisted of several counts of burglary)
brought against 11 defendants (including the applicant). Five of them
were remanded in custody. The prosecution asked the court to hear
evidence from 34 witnesses. The case file comprised at that time some
32 volumes. The prosecution had obtained voluminous evidence,
including various expert reports.
- On
25 September 2000 the Regional Court ordered that the applicant be
kept in custody until 23 February 2001, relying on the same grounds
as in the previous decisions.
- On
13 November 2000 the Regional Court ordered that the case be joined
to that of a certain M.K.
12. On
15 January 2001 the Katowice Regional Court prolonged the applicant’s
detention until 15 May 2001. It found that the nature of the offences
with which the applicant had been charged, the defendants’
modus operandi and the severity of the likely penalty justified the
prolongation of the detention. It further held that there was a risk
that the applicant would obstruct the proceedings, given, inter alia,
that he had not confessed. The Regional Court found that the
prolongation of the applicant’s detention was necessary in
order to secure the proper conduct of the proceedings for the time
needed for the examination of the case. It held that no other
measures could prevent the applicant from attempting to interfere
with the proceedings or even from going into hiding.
- The
first hearing was listed for 22 March 2001 but it was cancelled.
- On
14 May 2001 the Regional Court ordered that the applicant be held in
custody until 15 October 2001, relying on the same grounds as
previously. In addition, it observed that so far the trial court had
not commenced an examination of the merits due to reasons that were
beyond the court’s control, such as the failure of some of the
co-defendants or their counsel to appear before the court or the
police’s failure to bring the detained co-defendants from
prison for trial. The Regional Court noted that the continued
detention of the applicant and some of his co-defendants was
necessary in order to secure the proper conduct of the proceedings in
the case. That decision was upheld on appeal on 13 June 2001.
- On
8 October 2001 the Regional Court prolonged the applicant’s
detention until 17 January 2002. It reiterated the grounds given in
its previous decisions and stressed that since the principal
defendants (including the applicant) had not confessed, there was a
risk that, once released, they might interfere with the proceedings.
The Regional Court also noted that all of the 8 hearings scheduled to
date had had to be cancelled for various reasons such as: the illness
of the trial judge or one of the co-defendants, the unwarranted
absence of some of the co-defendants, the absence of the legal-aid
lawyer of one of the co-defendants, the fact that one of the lawyers
had left the courtroom when the bill of indictment was being read out
and the failure of the police to bring the detained co-defendants
from prison for trial. The applicant and two other co-defendants
appealed against that decision.
- On
30 October 2001 the Court of Appeal upheld the decision. It found
that there was a real risk that the defendants, including the
applicant, would obstruct the proceedings by exerting pressure on
P.S. (a co-defendant who had incriminated them), given the fact that
they had resorted to very aggressive language in their correspondence
when referring to P.S. Further, there was a risk of their going into
hiding.
- Two
hearings had to be cancelled due to the police’s failure to
bring the detained co-defendants from prison (18 October and 8
November 2001).
- On
22 November 2001 the trial began. However,
the Regional Court was only able to hear two defendants. Two
subsequent hearings had to be cancelled due to the absence of one of
the defence counsel (29 November 2001) and the illness of one of
the defence counsel (20 December 2001).
- On
28 December 2001 the Regional Court ordered that the applicant be
held in custody until 22 February 2002. It reiterated the grounds
given in its earlier decisions.
20. On
28 December 2001 the Regional Court made an application under Article
263 § 4 of the Code of Criminal Procedure to the Katowice Court
of Appeal for prolongation of the applicant’s detention until
15 June 2002, since the statutory 2-year time-limit of detention
pending trial was soon to be exceeded (Article 263 § 3 of the
CCP). It emphasised that the grounds originally given for his
detention were still valid and that the court was not able to proceed
with the hearing of evidence due to reasons that could not be
attributed to it. It noted that out of 13 hearings scheduled to date
12 had had to be cancelled. In addition to the reasons specified in
the decision of 8 October 2001, the Regional Court also
mentioned the illness of one of the defence counsel and the police’s
failure to bring the detained co-defendants from prison (on two
occasions). It also observed that the continued detention of the
applicant was necessary in order to secure the proper conduct of the
trial and that no other measures would prevent the applicant and his
co-accused from obstructing the proceedings or going into hiding.
- On
9 January 2002 the Court of Appeal granted the Regional Court’s
application. In addition to the reasons previously given, it held
that the case was particularly complex. It also emphasised that the
trial court should take all necessary measures to organise the
proceedings in a diligent manner so as to hold hearings at reasonable
intervals and terminate the trial by 15 June 2002. The applicant
appealed against that decision, but to no avail.
- On
20 May 2002 the Regional Court made another application to the
Katowice Court of Appeal, requesting an extension of the applicant’s
detention until 1 October 2002. It stressed that, despite some
progress in the trial (all the co-defendants and 23 out of 34
witnesses called by the prosecution had been heard), there were still
prosecution witnesses (11) and witnesses called by the co-accused
(20) to be heard.
- On
29 May 2002 the Court of Appeal granted that application. It held
that the applicant was charged with armed robbery, a serious offence
for the commission of which an offender was liable to a minimum
sentence of 3 years’ imprisonment; however, in reality the
charges of armed robbery were brought against other defendants and
the applicant had been, and still was, charged with 2 burglaries. The
Court of Appeal considered that the serious nature of the offences,
the complexity of the case as well as the fact that the original
grounds for keeping him in custody were still valid warranted a
further prolongation of his detention.
- On
16 September 2002 the trial court made yet another application to the
Court of Appeal for an extension of the applicant’s detention
until 4 November 2002. It referred to the necessity to hear
witnesses called by the co-defendants and to obtain an expert report
as to the mental health of one of the co-defendants. On 25 September
2002 the Court of Appeal granted that application. Another similar
application of the trial court of 18 October 2002 was granted by
the Court of Appeal on 30 October 2002. The latter court considered
that the proceedings had not been terminated due to reasons beyond
the trial court’s control. The applicant’s detention was
prolonged until 20 December 2002.
- The
trial court held hearings on the following dates: 31 January, 15 and
21 March, 11 and 25 April, 16 May 2002, 3 and 27 June, 31 July,
29 August and 12 September 2002. Four hearings were cancelled
for the following reasons: the absence of some of the co-defendants
and defence counsel (24 January 2002); the trial judge’s
illness (22 February 2002); the failure of one of the co-defendants
to appear (26 September 2002) and the failure of the defence counsel
to appear (17 October 2002).
- All
of the applicant’s applications for release on bail or under
police supervision, likewise his appeals against decisions prolonging
his detention, were to no avail.
- On
3 December 2002 the Regional Court closed the trial. On 10 December
2002 it gave judgment. The applicant was convicted of one burglary
and sentenced to 2 years’ and 10 months’ imprisonment,
which was nearly (less 12 days) the period he had spent in detention
on remand. In sentencing the applicant the trial court took into
account his two earlier convictions for similar offences.
- The
applicant appealed against the first-instance judgment. On 23 October
2003 the Katowice Court of Appeal upheld the Regional Court’s
judgment in respect of the applicant.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law and practice concerning the imposition of
detention on remand (tymczasowe aresztowanie), the grounds for
its prolongation, release from detention and rules governing other,
so-called “preventive measures” (środki
zapobiegawcze) are stated in the Court’s judgments in the
cases of Gołek v. Poland, no. 31330/02, §§
27-33, 25 April 2006 and Celejewski v. Poland, no.
17584/04, §§ 22-23, 4 August 2006.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the length of his detention on remand had
been excessive. He relied on Article 5 § 3 of the Convention,
which 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. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Period to be taken into consideration
- The
Court observes that the applicant was arrested on 22 February
2000 and remanded in custody on 23 February 2000. On 10 December 2002
the Katowice Regional Court convicted the applicant and sentenced him
to 2 years’ and 10 months’ imprisonment. As from
that date he was detained “after conviction by a competent
court”, within the meaning of Article 5 § 1 (a)
and therefore that period of his detention falls outside the scope of
Article 5 § 3 (cf. Kudła v. Poland [GC], no.
30210/96, § 104, ECHR 2000 XI). Consequently, the
period to be taken into consideration under Article 5 § 3 lasted
2 years, 9 months and 18 days.
2. The reasonableness of the length of detention
(a) The parties’ arguments
- The
Government argued that there had been valid reasons for holding the
applicant in detention for the entire period in question. They
stressed that the applicant’s detention had been justified by
the persistence of a reasonable suspicion that he had committed the
offences with which he had been charged and the fact that the charges
against him attracted a heavy sentence. The domestic courts had also
relied on the risk that the applicant and other defendants might
interfere with the proceedings. The Government further justified the
length of the applicant’s detention by the particular
complexity of the case. They submitted that the investigation
concerned several counts of burglary and armed robbery which the
applicant and other suspects had allegedly committed in various
locations throughout the country to the detriment of 30 victims. They
also referred to the significant volume of evidence obtained and
examined in the course of the proceedings. Lastly, the Government
maintained that the authorities displayed adequate diligence in
dealing with the applicant’s case.
- The
applicant expressed his wish to pursue the examination of the case,
but did not submit any comments.
(b) The Court’s assessment
(i) Principles established under the
Court’s case-law
- The
presumption is in favour of release. As established in Neumeister
v. Austria (judgment of 27 June 1968, Series A no. 8, p.37, §
4), the second limb of Article 5 § 3 does not give judicial
authorities a choice between either bringing an accused to trial
within a reasonable time or granting him provisional release pending
trial. Until conviction, he must be presumed innocent, and the
purpose of the provision under consideration is essentially to
require his provisional release once his continuing detention ceases
to be reasonable (see McKay v. the United Kingdom [GC],
no. 543/03 , § 41, ECHR 2006-...).
- Continued
detention therefore can be justified in a given case only if there
are specific indications of a genuine requirement of public interest
which, notwithstanding the presumption of innocence, outweighs the
rule of respect for individual liberty laid down in Article 5 of the
Convention (see, among other authorities, Kudła v. Poland
[GC], no. 30210/96, §§ 110-111 with further
references, ECHR 2000-XI).
- It
falls in the first place to the national judicial authorities to
ensure that, in a given case, the pre-trial detention of an accused
person does not exceed a reasonable time. To this end they must,
paying due regard to the principle of the presumption of innocence,
examine all the facts arguing for or against the existence of the
above-mentioned requirement of public interest justifying a departure
from the rule in Article 5 and must set them out in their decisions
on the applications for release. It is essentially on the basis of
the reasons given in these decisions and of the established facts
stated by the applicant in his appeals that the Court is called upon
to decide whether or not there has been a violation of Article 5 §
3 (see, for example, Labita v. Italy [GC], no. 26772/95, §
152, ECHR 2000-IV, and Kudła, cited above, § 110).
- The
persistence of a reasonable suspicion that the person arrested has
committed an offence is a condition sine qua non for the lawfulness
of the continued detention, but after a certain lapse of time it no
longer suffices. The Court must then establish whether the other
grounds given by the judicial authorities continued to justify the
deprivation of liberty. Where such grounds were “relevant”
and “sufficient”, the Court must also be satisfied that
the national authorities displayed “special diligence” in
the conduct of the proceedings. The complexity and special
characteristics of the investigation are factors to be considered in
this respect (see, for example, Scott v. Spain, judgment of 18
December 1996, Reports 1996-VI, pp. 2399-2400, § 74,
and I.A. v. France, judgment of 23 September 1998,
Reports 1998-VII, p. 2978, § 102).
- In
sum, domestic courts are under an obligation to review the continued
detention of persons pending trial with a view to ensuring release
when circumstances no longer justify continued deprivation of
liberty. For at least an initial period, the existence of reasonable
suspicion may justify detention but there comes a moment when this is
no longer enough. As the question whether or not a period of
detention is reasonable cannot be assessed in the abstract but must
be assessed in each case according to its special features, there is
no fixed time-frame applicable to each case (see McKay, cited
above, § 45).
(ii) Application of the principles to the
circumstances of the present case
- The
Court observes that the judicial authorities, in addition to the
reasonable suspicion against the applicant, relied principally on two
grounds, namely (1) the severity of the penalty to which he was
liable, given the serious nature of the charges against him and (2)
the risk of obstruction of the proceedings. In respect of the latter,
they referred to the fact that the applicant had not confessed and to
the close links between the co-defendants. The domestic courts
further considered that there had been a risk that the applicant, if
released, might exert pressure on P.S., a co-defendant who had
incriminated him (see paragraph 16 above). They also invoked the risk
of the applicant going into hiding, without however specifying the
grounds for such suspicion. Lastly, the judicial authorities referred
to the complexity of the case and the significant volume of evidence
to be examined at the trial.
- The
Court accepts that the reasonable suspicion that the applicant had
committed the offences with which he had been charged may have
warranted his detention in the early stage of the proceedings.
However, with the passage of time that ground inevitably became less
relevant. In particular, the Court considers that that ground cannot
suffice to justify the entire period in issue. It must then establish
whether the other grounds advanced by the judicial authorities were
“relevant” and “sufficient” to continue to
justify the deprivation of the applicant’s liberty.
- The
Court notes that the judicial authorities continuously relied on the
likelihood that a heavy sentence might be imposed on the applicant
given the serious nature of the offences with which he had been
charged and the fact that he had been a recidivist offender. In this
respect, the Court recalls that the severity of the sentence faced is
a relevant element in the assessment of the risk of absconding or
re-offending. It acknowledges that in view of the seriousness of the
charges against the applicant the authorities could justifiably
consider that such a risk existed. However, the Court has repeatedly
held that the gravity of the charges cannot by itself serve to
justify long periods of detention on remand (see Ilijkov v.
Bulgaria, no. 33977/96, §§ 80-81, 26 July
2001).
Furthermore,
the Court observes that a hypothetical sentence ranging from 1 to 10
years’ imprisonment must, with the passage of time, inevitably
have called for a reassessment of the applicant’s detention in
the light of the evidence that was progressively obtained by the
trial court (see Klamecki v. Poland (no. 2),
no. 31583/96, § 111, 3 April 2003). In reality,
the applicant was convicted of one burglary and the actual sentence,
which was 2 years’ and 10 months’ imprisonment (see
paragraph 27 above), was at the lower end of the applicable scale.
What is more, the sentence imposed on the applicant was nearly
equivalent to the period which he had spent in pre-trial detention.
That practice, i.e. of holding an accused in pre-trial detention for
a period which practically corresponds to the sentence subsequently
imposed on him appears questionable for the Court. In this respect,
it recalls that continuation of detention cannot be used to
anticipate a custodial sentence (Letellier v. France, judgment
of 26 June 1991, Series A no. 207, § 51).
- As
regards the risk of the obstruction of the proceedings, the Court
notes that in its decisions of 15 January and 8 October 2001 the
Katowice Regional Court held that such risk was justified by the fact
that the applicant had not confessed. In so far as the domestic
courts appear to have drawn adverse inferences from the fact that the
applicant had not confessed, the Court considers that their reasoning
showed a manifest disregard for the principle of the presumption of
innocence and cannot, in any circumstances, be relied on as a
legitimate ground for deprivation of the applicant’s liberty
(see Górski v. Poland, no. 28904/02, § 58, 4
October 2005; Leszczak v. Poland, no. 36576/03, §
48, 7 March 2006). Secondly, the judicial authorities considered that
there had been a risk that the applicant might interfere with the
course of the proceedings by exerting pressure on P.S., a
co-defendant who had testified against them. The Court observes that
it was legitimate for the authorities to consider that factor as
capable of justifying the applicant’s detention at the initial
stages of the proceedings. However, the Court considers that that
ground gradually lost its force and relevance as the proceedings
progressed and it cannot accept it as a justification for holding the
applicant in custody for the entire pertinent period.
- In
the circumstances of the present case, the Court finds that the
severity of the likely sentence and the risk of interfering with the
proceedings alone, or in conjunction with the other grounds relied on
by the authorities, cannot constitute a “relevant and
sufficient ground” for holding the applicant in detention for a
period of 2 years, 9 months and 18 days.
- The
Court further observes that the applicant was detained on charges of
burglary (2 counts) committed together
with a number of accomplices. The defendants had not been
formally charged with acting in an organised criminal group. In these
circumstances, the Court is not persuaded that the instant case
presented particular difficulties for the investigation authorities
and for the courts to determine the facts and mount a case against
the perpetrators as would undoubtedly have been the case had the
proceedings concerned organised crime (see Celejewski v. Poland,
no. 17584/04, § 37, 4 May 2006).
- The
Court would also emphasise that under Article 5 § 3
the authorities, when deciding whether a person should be released or
detained, are obliged to consider alternative measures of ensuring
his appearance at trial. Indeed, that provision proclaims not only
the right to “trial within a reasonable time or to release
pending trial” but also lays down that “release may be
conditioned by guarantees to appear for trial” (see Neumeister,
cited above, p. 36, § 3; and Jabłoński v.
Poland, no. 33492/96, § 83, 21 December 2000).
- In
the present case the Court notes that there is no specific indication
that during the entire period in question the authorities gave
consideration to the possibility of ensuring the applicant’s
presence at trial by imposing on him other “preventive
measures” expressly foreseen by Polish law to secure the proper
conduct of criminal proceedings.
- What
is more, it is not apparent from the relevant decisions why the
judicial authorities considered that those other measures would not
have ensured the applicant’s appearance before the court or in
what way the applicant, had he been released, would have obstructed
the course of the trial. In that regard the Court would also point
out that, although such a potential danger may exist where an accused
is charged with a serious offence and where the sentence faced is a
long term of imprisonment, the degree of that risk cannot be gauged
solely on the basis of the severity of the offence and the
anticipated sentence (see Muller v. France, judgment of
17 March 1997, Reports 1997-II, p. 388, § 43).
- The
Court accordingly concludes that the reasons relied on by the courts
in their decisions were not sufficient to justify the applicant’s
being held in custody for 2 years, 9 months and 18 days. In these
circumstances it is not necessary to examine whether the proceedings
were conducted with special diligence.
- There
has accordingly been a violation of Article 5 § 3 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicant did not submit a claim for just satisfaction.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the remainder of the application
admissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention.
Done in English, and notified in writing on 6 February 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
