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FOURTH
SECTION
CASE OF KLIZA v. POLAND
(Application
no. 8363/04)
JUDGMENT
STRASBOURG
6
September 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 Kliza v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza,
President,
Mr G. Bonello,
Mr K. Traja,
Mr L.
Garlicki,
Ms L. Mijović,
Mr J.
Šikuta,
Mrs P. Hirvelä, judges,
and
Mr T.L. Early, Section Registrar,
Having
deliberated in private on 10 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 8363/04) 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, Sebastian Kliza (“the
applicant”), on 20 February 2004.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affaires.
- On
7 April 2006 the President of the Fourth Section decided to give
notice of the application to the Government. Under the provisions of
Article 29 § 3 of the Convention, it was 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, Mr Sebastian Kliza, is a Polish national who was born in
1978 and lives in Mikołów, Poland.
A. The applicant's pre-trial detention
- The
applicant was arrested on 26 January 2001 on suspicion of having
committed a series of armed robberies as a member of an organised
criminal group. On 28 January 2001 the Tychy District Court (Sąd
Rejonowy) ordered that he be detained pending the outcome of the
investigation.
- On
9 April 2001 the Katowice Regional Court (Sąd Okręgowy)
prolonged his detention until 17 July 2001. It referred to the
likelihood of a severe sentence of imprisonment being imposed on the
applicant. It also stressed that his detention was justified by the
need to obtain further evidence.
- On
9 July 2001 the Katowice Regional Court prolonged his detention until
17 October 2001. It relied on the reasonable suspicion that the
applicant had committed the offences with which he had been charged,
which was supported by evidence from witnesses and experts. The court
further considered that the need to secure the proper conduct of the
investigation justified holding him in custody. It referred to the
likelihood of a severe sentence of imprisonment being imposed on the
applicant. It also relied on the risk that he might tamper with
evidence.
- On
8 October 2001 the Katowice Regional Court prolonged the applicant's
detention until 17 January 2002. It repeated the grounds previously
given for his detention.
- On
an unspecified date in January 2002, the applicant was indicted
before the Tychy District Court. The bill of indictment comprised 44
charges of armed robbery committed by an organised criminal group.
The charges in the bill of indictment concerned 4 co-accused.
- During
the proceedings the applicant's detention was extended on several
occasions. On 15 January 2002 the Tychy District Court prolonged his
detention until 17 July 2002. On 8 July 2002 the court ordered that
the term should be prolonged until 17 October 2002. On
16 October 2002 it ordered that the applicant be kept in
custody until 17 January 2003. It referred to the grounds
for detention listed in the previous decisions.
- On
2 January 2003 the Tychy District Court prolonged the applicant's
detention until 26 January 2003. It repeated the grounds that had
been given in the previous decisions and added that the case was
complex, given the number of accused and victims. It further observed
that the trial had not yet begun for reasons beyond the trial court's
control.
- On
22 January 2003 the Katowice Court of Appeal (Sąd
Apelacyjny), on an application from the trial court, prolonged
the applicant's detention until 26 June 2003. It repeated the
grounds previously given for the applicant's detention. It also found
that there were no special grounds, as specified in Article 259 § 1
of the Code of Criminal Procedure, that would justify lifting the
detention and imposing a less severe measure.
- On
25 June 2003, on an application from the Tychy District Court, the
Katowice Court of Appeal extended the applicant's detention until
26 October 2003. The court relied on a strong suspicion
that the applicant had committed the offences in question. The court
also considered that, given the severity of the likely sentence and
the fact that the applicant had been charged with acting in an
organised criminal group, there was a risk that he would obstruct the
proper course of the proceedings. It also acknowledged the delay in
the proceedings and asked the trial court to expedite the examination
of the case.
- On
22 October 2003 the Katowice Court of Appeal, on an application from
the Tychy District Court, prolonged the applicant's detention until
26 January 2004. It also stated that the proceedings were
inordinately lengthy.
- Subsequently,
on 7 January 2004 the Katowice Court of Appeal, on an application
from the trial court, prolonged the applicant's detention until
26 March 2004. On 17 March 2004 the Katowice Court of Appeal, on
an application from the trial court, prolonged the applicant's
detention until 26 May 2004. It stated that the delays in the
proceedings were to a large extent caused by the failure to escort
the accused to the court and the lack of discipline on the part of
the parties to the proceedings.
- In
the meantime, the District Court had proceeded with the trial.
Hearings listed for 10 May and 3 July 2002 were postponed. A hearing
scheduled for 20 August 2002 was adjourned upon the request of one of
the lawyers.
- Of
17 hearings held between 30 January 2003 and 19 December 2003
10 were adjourned.
- From
23 January to 2 April 2004 the court held 7 hearings. One of them was
adjourned on account of the absence of one of the lawyers.
- In
the course of the proceedings the applicant made numerous,
unsuccessful applications for release and appealed, likewise
unsuccessfully, against refusals to release him and decisions
extending his detention.
- On
9 April 2004 the Tychy District Court convicted the applicant as
charged and sentenced him to 8 years' imprisonment. He appealed.
- The
applicant's detention was subsequently prolonged on several
occasions.
- On
11 February 2005 the Katowice Regional Court amended the trial
court's judgment, acquitted the applicant of the charge of acting in
an organised criminal group and reduced the applicant's sentence to 6
years' imprisonment.
- The
applicant did not lodge a cassation appeal with the Supreme Court
(Sąd Najwyższy).
- In
the meantime, between 13 September 2001 and 10 November 2002
and, subsequently, between 11 June 2003 and 11 November 2003 the
applicant served prison sentences which had been imposed on him in
other criminal proceedings.
B. Monitoring of the applicant's correspondence
- On
1 March 2004 the Court received the applicant's first letter of
8 February 2004. The letter was sent while the applicant was
detained in the Zabrze Detention Centre. The envelope bears the
following stamps: “Zabrze Detention Centre received on
16.02.2004” (Areszt Śledczy w Zabrzu Wpłynęło
dnia 16.02.2004) and “District Court in Tychy, censored”
(Sąd Rejonowy w Tychach, cenzurowano), a hand-written
sentence: “Z: without censorship” (Z: bez cenzury),
a hand-written date: “18.2.4”, and an illegible
signature.
- On
27 April 2004 the Court received the applicant's application form.
The envelope in which the application form was delivered bears the
following stamps: “Zabrze Detention Centre received on
8.04.2004” (Areszt Śledczy w Zabrzu Wpłynęło
dnia 8.04.2004) and “District Court in Tychy, censored”
(Sąd Rejonowy w Tychach, cenzurowano), and an illegible
signature.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Preventive measures, including detention on remand
- The
relevant domestic law and practice concerning the imposition of
detention on remand (aresztowanie tymczasowe), 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.
B. Remedies against unreasonable length of the
proceedings
- The
relevant domestic law and practice concerning remedies for the
excessive length of judicial proceedings are stated in the Court's
decisions in the cases of Charzyński v. Poland no.
15212/03 (dec.), §§ 12 23, ECHR 2005-V and
Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005 VIII.
C. Censorship of correspondence
- Rules
relating to the control of correspondence of persons involved in
criminal proceedings are set out in the Code of Execution of Criminal
Sentences (Kodeks karny wykonawczy) (“the 1997 Code”)
which entered into force on 1 September 1998.
- The
relevant part of Article 103 § 1 of the Code provides
as follows:
“Convicts ... have a right to lodge complaints
with institutions established by international treaties ratified by
the Republic of Poland concerning the protection of human rights.
Correspondence in those cases ... shall be sent to the addressee
without delay and shall not be censored.”
- Article 214 § 1 reads as follows:
“Unless exceptions are provided for in the present
Chapter, a detainee shall enjoy at least the same rights as are
secured to a convicted person serving a sentence of imprisonment
under the ordinary regime in a closed prison. No restrictions shall
be applied to him except such as are necessary to secure the proper
conduct of criminal proceedings, to maintain order and security in a
remand centre and to prevent demoralisation of detainees.”
- Article 217a § 1 reads, in so far as relevant, as
follows:
“... detainee's correspondence shall be censored
by [the authority at whose disposal he remains], unless the authority
decides otherwise.”
- Article
242 § 6 reads as follows:
“The supervision of correspondence shall mean the
opening of the letter and controlling its content.”
- Article
242 § 7 reads as follows:
“The censorship of correspondence shall mean
acquainting oneself with its wording and expunging part of the text
or making it [the text] illegible.”
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, in so far as relevant, reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
- The
Government contested that argument.
A. 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
applicant's detention started on 26 January 2001, when he was
arrested on suspicion of having committed a series of armed robberies
as a member of an organised criminal group. On 9 April 2004 the Tychy
District Court convicted him as charged.
As
from that date he was detained “after conviction by a competent
court”, within the meaning of Article 5 § 1 (a) and,
consequently, that period of his detention falls outside the scope of
Article 5 § 3 (cf. Kudła v. Poland [GC], no.
30210/96, § 104, ECHR 2000 XI).
- However,
between 13 September 2001 and 10 November 2002, as well as
between 11 June 2003 and 11 November 2003, the applicant served
prison sentences which had been imposed on him in other criminal
proceedings. This term, being covered by Article 5 § 1 (a), must
therefore be subtracted from the period of the applicant's pre-trial
detention for the purposes of Article 5 § 3 (see
paragraph 24 above).
Accordingly,
the period to be taken into consideration amounts to 1 year, 7 months
and 15 days.
2. The parties' submissions
(a) The applicant
- The
applicant submitted that the length of his detention had been
unreasonable. He stressed that he had not contributed to the length
of the proceedings and that the authorities had failed to exercise
all due diligence when dealing with his case. Furthermore, he
stressed that he had been acquitted of the charge of acting in an
organised criminal group.
(b) The Government
- The
Government submitted that the applicant's pre-trial detention
satisfied the requirements of Article 5 § 3. They stressed
that the applicant's detention had been justified by the persistence
of a reasonable suspicion that he had committed the offences in
question and by the complexity of the case as demonstrated by the
volume of evidence obtained in the investigation, the number of
accused and the gravity of the charges against them.
- They further argued that the applicant's detention had
been justified in order to secure the proper conduct of the
proceedings, as there had been a risk that he would obstruct the
proceedings by influencing witnesses. This risk stemmed from the fact
that the charges against the applicant concerned numerous offences
committed by an organised criminal group and the fact that he was a
recidivist offender.
Lastly, they maintained that the authorities had displayed adequate
diligence with dealing with the applicant's case.
(c) General principles
- The
Court recalls that the general principles regarding the right “to
trial within a reasonable time or to release pending trial, as
guaranteed by Article 5 § 3 of the Convention, were stated in a
number of its previous judgments (see, among many other authorities,
Kudła v. Poland, cited above, § 110 et seq,
ECHR 2000 XI; and McKay v. the United Kingdom [GC], no.
543/03, §§ 41-44, ECHR 2006-..., with further references).
(d) Application of the above principles
in the present case
- In
their detention decisions, the authorities, in addition to the
reasonable suspicion against the applicant, relied principally on
four grounds, namely (1) the severity of the penalty to which he was
liable; (2) the complexity of the case; (3) the need to secure
the proper conduct of the proceedings; and (4) the risk that the
applicant might tamper with evidence (see paragraphs 6, 7, 11 and 13
above).
- The
applicant was charged with numerous counts of armed robbery committed
while acting as a member of an organised criminal group (see
paragraph 5 above).
In
the Court's view, the fact that the case concerned a member of a
criminal gang should be taken into account in assessing compliance
with Article 5 § 3 (see Bąk v. Poland, no. 7870/04,
§ 57, 16 January 2007).
In
addition, the Court considers that some weight should be attached to
the fact that the applicant's detention consisted not of one
uninterrupted period, but of three separate periods (see paragraphs
24 and 39 above).
- The
Court accepts that the reasonable suspicion against the applicant of
having committed serious offences could initially warrant his
detention. Also, the need to obtain voluminous evidence constituted
valid grounds for the applicant's initial detention.
- However,
with the passage of time, those grounds became less and less
relevant. The Court must then establish whether the other grounds
adduced by the courts – namely, the severity of the anticipated
sentence, the need to secure the proper conduct of the proceedings
and the risk that the applicant would tamper with evidence were
“relevant” and “sufficient” (see Kudła,
cited above, § 111).
- According
to the authorities, the likelihood of a severe sentence being imposed
on the applicant created a presumption that the applicant would
obstruct the proceedings. However, the Court would reiterate that,
while the severity of the sentence faced is a relevant element in the
assessment of the risk of absconding or re-offending, the gravity of
the charges cannot by itself justify long periods of detention on
remand (see, for instance, Ilijkov v. Bulgaria, no. 33977/96,
§§ 80-81, 26 July 2001).
- As
regards the risk of pressure being brought to bear on witnesses or of
the obstruction of the proceedings by other unlawful means, the Court
notes that at the initial stages of the proceedings the judicial
authorities presumed that such risks existed on the ground that the
applicant had been a member of an organised criminal group. The Court
accepts that, in the special circumstances of the case, the risk
flowing from the nature of the applicant's criminal activities
existed and justified holding him in custody for the relevant period.
- Taking
into account the particular circumstances of the instant case, the
Court considers there were “relevant” and “sufficient”
grounds to justify holding the applicant in detention for the entire
period.
- It
remains for the Court to ascertain whether the authorities, in
dealing with the applicant's case, displayed the necessary diligence
required under Article 5 § 3. In this regard, it would observe
that the proceedings were of considerable complexity, regard being
had to the number of defendants and the amount of evidence involved.
The
Court observes that at the initial stage of the proceedings there
were some periods of inactivity on the part of the District Court.
The trial started 4 months after the applicant had been indicted and
a significant number of hearings were adjourned. However, after the
Court of Appeal had pointed to the delay in the proceedings, the
trial court expedited the examination of the case. During the four
subsequent months the court held 6 hearings and terminated the
first-instance proceedings (see paragraphs 13, 14 and 18 above). The
appeal proceedings were processed relatively quickly. For these
reasons, the Court considers that the domestic authorities handled
the applicant's case with acceptable expedition.
There
has accordingly been no violation of Article 5 § 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
the length of the criminal proceedings had exceeded a “reasonable
time” within the meaning of this provision and that he had not
had a “fair trial”.
- However,
pursuant to Article 35 § 1 of the Convention:
“The Court may only deal with the matter after all
domestic remedies have been exhausted, according to the generally
recognised rules of international law...”
- The
Court observes that the applicant failed to avail himself of any of
the following remedies provided for by Polish law (see paragraph 28
above). When the proceedings were pending he could have made a
complaint under sections 5 and 18 of the 2004 Act. After the
termination of the trial, he could have brought a civil action under
Article 417 of the Civil Code read together with section 16 of the
above-mentioned Act (as to the effectiveness of the latter remedy,
see Krasuski v. Poland, judgment of 14 June 2005,
no. 61444/00, § 72, ECHR 2005 V (extracts)).
- It
follows that this complaint must be rejected under Article 35 §§
1 and 4 of the Convention for non-exhaustion of domestic
remedies.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
Court raised of its own motion an issue under Article 8 of the
Convention on account of the fact that the applicant's correspondence
with the Court had been censored. This provision, in its relevant
part, reads:
“1. Everyone has the right to respect
for ... his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
Government maintained that, in their opinion, the relevant letters
did not bear any traces of having been opened. The presence on the
envelopes of a stamp “censored” and an illegible
signature did not necessarily mean that the applicant's
correspondence had been intercepted and read by the authorities.
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. Existence of an interference
- The
Court notes that the envelope in which the applicant's letter of
8 February 2004 was sent to the Registry of the Court from the
Zabrze Detention Centre bore the following stamps: “Zabrze
Detention Centre received on 16.02.2004” (Areszt Śledczy
w Zabrzu Wpłynęło dnia 16.02.2004) and
“District Court in Tychy, censored” (Sąd Rejonowy
w Tychach, cenzurowano), a hand-written sentence: “Z:
without censorship” (Z: bez cenzury), a hand-written
date: “18.2.4”, and an illegible signature (see paragraph
25 above).
- The Court cannot speculate why the authorities put two
contradictory marks on the applicant's letter. However, the hand
written note “without censorship” rebuts the presumption
(see paragraph 62 below) that the authorities had opened and read the
applicant's letter.
- A
stamp “censored” and an illegible signature also appear
on the envelope dated 27 April 2004 in which the application form was
delivered to the Court's Registry (see paragraph 26 above).
- The
Court considers that it is irrelevant that there is no separate stamp
on the application form. The Court has held on many occasions that as
long as the Polish authorities continue the practice of marking
detainees' letters with the “censored” stamp, the Court
has no alternative but to presume that those letters have been opened
and their contents read (see Matwiejczuk v. Poland,
no. 37641/97, § 99, 2 December 2003 and Pisk-Piskowski
v. Poland, no. 92/03, § 26, 14 June 2005;
Michta v. Poland, no. 13425/02, § 57, 4 May
2006).
- It
follows that in respect of the letter of 27 April 2004 addressed to
the Court there was an “interference” with the
applicant's right to respect for his correspondence under Article 8.
2. Whether the interference was “in accordance
with the law”
- The
Government did not indicate a concrete legal basis in the domestic
law for the impugned interference. The Court notes that the
interference took place in March and April 2004 when the applicant
had been detained pending trial.
- The
Court observes that, according to Article 214 of the Code of
Execution of Criminal Sentences, persons detained on remand should
enjoy the same rights as those convicted by a final judgment.
Accordingly, the prohibition on censorship of correspondence with the
European Court of Human Rights contained in Article 103 of the same
Code, which expressly relates to convicted persons, was also
applicable to the applicant (see Michta v. Poland, cited
above, Kwiek v. Poland, no. 51895/99, § 44,
30 May 2006). Thus, the interference with the applicant's
correspondence with the Court was not “in accordance with the
law“.
- Having
regard to that finding, the
Court does not consider it necessary to ascertain whether the other
requirements of paragraph 2 of Article 8 were complied with.
Consequently, the Court finds that there has
been a violation of Article 8 of the Convention as regards the
applicant's letter of 27 April 2004 addressed to the Court.
IV. 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.”
A. Damage
- The
applicant claimed 6,000 Polish zlotys (PLN) in respect of
non-pecuniary damage.
- The
Government did not comment on the applicant's claim.
- The
Court awards the applicant EUR 500 in respect of non-pecuniary
damage.
B. Costs and expenses
- The
applicant also claimed PLN 5,500 for the costs and expenses incurred
before the domestic courts.
- The
Government contested the applicant's claim.
- According to the Court's case-law, an applicant is
entitled to reimbursement of his costs and expenses only in so far as
it has been shown that these have been actually and necessarily
incurred, and are reasonable as to quantum. The Court reiterates
further that costs incurred before national courts may only be taken
into account if they were incurred in seeking redress for the
violations of the Convention found, which was not so in the instant
case (see Nikolova v. Bulgaria [GC], no. 31195/96, § 79,
ECHR 1999-II).
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning the length of
the applicant's pre-trial detention and the monitoring of the
applicant's correspondence admissible and the remainder of the
application inadmissible;
- Holds that there has been no violation of
Article 5 § 3 of the Convention;
- Holds that there has been a violation of Article
8 of the Convention only as regards the applicant's letter of 27
April 2004 addressed to the Court;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 500 (five
hundred euros) in respect of non-pecuniary damage, to be converted
into Polish zlotys at the rate applicable at the date of settlement,
plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 6 September 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
