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FOURTH
SECTION
CASE OF SCHMALZ v. POLAND
(Application
no. 19177/03)
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 Schmalz 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 10 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 19177/03) 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 Hari Schmalz (“the
applicant”), on 2 June 2003.
- The
Polish Government were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
- The
applicant alleged, in particular, that the length of his detention on
remand had been unreasonable.
- On 26
September 2005 the President of the Fourth Section decided to
communicate to the Government the applicant's complaints concerning
the length of his detention on remand and the fairness of the
criminal proceedings against him. 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 was born in 1953 and lives in Kozubnik, Poland.
- On
24 February 2001 the applicant was arrested by the police.
- On
28 February 2001 the Żywiec District Court (Sąd
Rejonowy) decided to detain the applicant on remand in view of
the reasonable suspicion that he had been involved in drug
trafficking and drug production as a member of an organised gang.
- On
21 May and 18 August 2001 the Bielsko-Biała Regional Court
decided to prolong the applicant's pre-trial detention. The court
relied on the reasonable suspicion against the applicant and on the
severity of the penalty that might be imposed, which made it probable
that he would obstruct the proceedings.
- In
2001 the applicant on at least four occasions unsuccessfully
requested the prosecutor to release him from detention.
- On
20 December 2001 the applicant's pre-trial detention was prolonged by
the Katowice Regional Court (Sąd Okręgowy). The
court relied on the severity of the sentence that might be imposed
and held that keeping the applicant in detention was justified by the
need to secure the proper conduct of the investigation.
- On
13 February and 17 April 2002 the Regional Court further prolonged
the applicant's detention reiterating the grounds originally given
for his detention and adding that the measure was necessary given the
complexity of the case.
- The
applicant's appeals against both decisions were dismissed on 27 March
and 22 May 2002 respectively.
- Subsequently,
on 24 July and 25 September 2002, the Katowice Court of Appeal
prolonged the detention of the applicant and 12 co accused.
The court considered that the strong suspicion against the accused of
having committed serious offences while acting in an organised gang
made it probable that they would obstruct the course of the
proceedings. It found that Article 258 § 2 of the Code
of Criminal Procedure established a presumption to the effect that
the likelihood of a severe penalty being imposed on the accused might
induce them to obstruct the proceedings. With regard to the
applicant, the court underlined the risk of a heavy sentence being
imposed on him.
- On
22 November 2002 the applicant and 15 co accused were indicted
before the Bielsko-Biała Regional Court.
- On
27 November 2002 the pre-trial detention of the applicant and
14 other persons was further extended. The Katowice Regional
Court considered the risk of the accused tampering with evidence
high, basing itself on the fact that they had been charged with being
members of an organised criminal gang.
- The
applicant appealed against this decision but on 8 January 2003
the Katowice Court of Appeal (Sąd Apelacyjny) dismissed
his appeal.
- As
the length of the applicant's detention had reached the statutory
time limit of 2 years laid down in Article 263 § 3 of
the Code of Criminal Procedure (Kodeks postępowania karnego)
the District Court made several applications to the Katowice Court of
Appeal for the applicant's detention to be prolonged beyond that
term. On 8 January 2003 the Court of Appeal granted the application.
The court justified its decision with reference to the reasonable
suspicion that the accused had committed the offences and the
complexity of the case which concerned an organised criminal gang.
The court also held that the measure was justified by the severity of
the sentence to which the accused were liable and by the risk that
they would interfere with the course of the proceedings.
- On
17 March 2003 the applicant, again unsuccessfully, requested the
court to lift his pre-trial detention.
- On
6 August 2003 the Court of Appeal prolonged the applicant's
detention on remand. The court noted, however, that although the bill
of indictment had been lodged eight months previously, the trial
court had not yet started to examine the merits of the case. As
regards the need to prolong the applicant's detention, the court
noted as follows:
“...The [Regional Court] rightly pointed to
Articles 249 § 1 and 258 § 2 of the Code of Criminal
Procedure to justify the continuation of the detention on remand in
order to secure the proper conduct of the proceedings, and there is
no need to discuss that further.
It should be underlined that, given the number of
co-accused and the type of offences they had been charged with, the
present case is particularly complex. Therefore, it is necessary to
prolong further the detention in order to carry out the proceedings,
in particular to take evidence from 16 accused and 11
witnesses...
It should also be noted that, as the proceedings
advance, the Regional Court should consider whether it was still
necessary to extend the [detention on remand] with respect to all the
accused.”
- The
first hearing was held on 13 November 2003. In total, the trial court
held 36 hearings.
- On
17 December 2003 the Court of Appeal further prolonged the
applicant's detention. The court pointed to the complexity of the
case and the advanced stage of the proceedings before the trial
court.
- On
18 March 2004 the applicant repeated his request to lift the
detention on remand.
- On
23 June 2004 the Katowice Court of Appeal further prolonged the
applicant's pre-trial detention relying in particular on the
complexity of the case and the large number of co-accused.
- On
24 August and 13 October 2004 the court dismissed subsequent requests
to lift the applicant's pre-trial detention.
- On
16 December 2004 the Bielsko-Biała Regional Court gave judgment.
It convicted the applicant and sentenced him to 4 years and
6 months' imprisonment. On the same date the court decided to
lift the applicant's detention.
- The
applicant lodged an appeal.
- On
26 January 2006 the Katowice Court of Appeal upheld the judgment as
regards the sentence of imprisonment imposed on the applicant. It
appears that the applicant did not lodge a cassation appeal. The
judgment is final.
II. RELEVANT DOMESTIC LAW
- The
Code of Criminal Procedure of 1997, which entered into force on
1 September 1998, defines detention on remand as one of the
so called “preventive measures” (środki
zapobiegawcze).
- 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 2000 XI, Celejewski
v. Poland, no. 17584/04, §§ 22 and 23, 4 May
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 unreasonable. 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. Firstly, they noted that the
applicant had not appealed against all the decisions to prolong his
detention. Secondly, they stated that the applicant's pre-trial
detention satisfied the requirements of Article 5 § 3. It
was justified by “relevant” and “sufficient”
grounds. These grounds were, in particular, the gravity of the
charges against the applicant as well as the complexity of the case
which concerned an organised criminal gang. The Government further
argued that the domestic authorities had shown due diligence, as
required in cases against detained persons.
A. Admissibility
- As
to the Government's preliminary objection that the applicant had
failed to exhaust the remedies provided for by Polish law, the Court
reiterates that it is well established in its case-law that an
applicant must make normal use of those domestic remedies which are
likely to be effective and sufficient. When a remedy has been
attempted, use of another remedy which has essentially the same
objective is not required (see Yaşa v. Turkey judgment
of 2 September 1998, Reports of Judgments and Decisions
1998-VI, § 71).
- In
the present case the applicant lodged appeals against some of the
decisions prolonging his detention, including three decisions taken
in 2002 (see paragraphs 12 and 16 above). He also lodged
multiple requests for the detention order to be lifted or for a more
lenient preventive measure to be imposed (see paragraphs 9, 18, 22
and 24 above). The Court considers that the purpose of the remedies
used by the applicant was to obtain a review of his detention pending
trial. In the circumstances of the case these remedies constituted
adequate and effective remedies within the meaning of Article 35
of the Convention as their aim was to obtain his release.
- The
Court further notes that the non-exhaustion arguments raised by the
Government are similar to those already examined and rejected in
previous cases against Poland (see Buta v. Poland,
no. 18368/02, §§ 24-28, 28 November 2006; Duda
v. Poland, no. 67016/01, §§ 26-31, 19
December 2006) and that the Government have not submitted any new
circumstances which would lead the Court to depart from its previous
findings.
- It
follows that this complaint cannot be rejected for non exhaustion
of domestic remedies. The Court further notes that it is not
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. Principles established under the Court's case-law
- Under
the Court's case-law, the issue of whether a period of detention is
reasonable cannot be assessed in abstracto. Whether it is
reasonable for an accused to remain in detention must be assessed in
each case according to its special features. Continued detention 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 (see, among other authorities, W. v.
Switzerland, judgment of 26 January 1993, Series A
no. 254 A, p. 15, § 30, and Kudła v.
Poland [GC], no. 30210/96, § 110, ECHR 2000 XI)
- 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-...).
- 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
examine all the facts arguing for or against the existence of a
genuine requirement of public interest justifying, with due regard to
the principle of the presumption of innocence, a departure from the
rule of respect for individual liberty and set them out in their
decisions dismissing the applications for release. It is essentially
on the basis of the reasons given in these decisions and of the
established facts mentioned 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 of the Convention (see
McKay, cited above, § 43).
- 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. In such cases, the Court must 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 ascertain whether the competent national authorities displayed
“special diligence” in the conduct of the proceedings
(see Labita v. Italy [GC], no. 26772/95, § 153,
ECHR 2000 IV, and Jabłoński v. Poland, no.
33492/96, § 80, 21 December 2000).
2. Application
of the principles to the circumstances of the present case
- The
Court firstly notes that the applicant was arrested on 24 February
2001 and that on 16 December 2004 the trial court gave a judgment in
his case convicting him as charged and sentencing him to a term of
imprisonment. His detention thus lasted 3 years, 9 months and
22 days.
- The
Court further observes that the present case concerned a serious
crime, namely drug trafficking and drug production committed together
with 15 other persons. Thus it was a classic example of organised
crime, by definition presenting more difficulties for the
investigation authorities and, later, for the courts in determining
the facts and the degree of responsibility of each member of the
group. It is obvious that in cases of this kind, continuous control
and limitation of the defendants' contact among themselves and with
other persons may be essential to avoid their absconding, tampering
with evidence and, most importantly of all, influencing, or even
threatening, witnesses. Accordingly, longer periods of detention than
in other cases may be reasonable (see, Bąk v. Poland,
no. 7870/04, § 56, 16 January 2007).
- The
Court will therefore take into account in assessing the conduct of
the authorities in the present case the special circumstances
deriving from the fact that it concerned a member of a criminal gang
(see Celejewski v. Poland, no. 17584/04, 4 May 2006).
- In
their decisions to remand the applicant in custody the authorities
initially relied on the reasonable suspicion that the applicant had
committed the offences with which he had been charged and the risk
that he might go into hiding or interfere with the conduct of the
proceedings.
In addition, the authorities relied heavily on the severity of the
sentence that might be imposed, which according to them created a
presumption that the applicant and other accused would obstruct the
criminal proceedings. The domestic courts also considered that in
view of the complexity of the case the applicant's detention was
necessary to secure the proper conduct of the proceedings.
- The judicial authorities appear also to have presumed
the risk of pressure being exerted on witnesses or of obstruction of
the proceedings based on the severity of the anticipated penalty,
given the serious nature of the offences at issue and the fact that
the applicant had been charged with being a member of an organised
criminal gang. In this respect, the Court reiterates that the
severity of the sentence faced is a relevant element in the
assessment of the risk of absconding or re offending (see,
Górski v Poland, no. 28904/02, § 57, 4
October 2005). It acknowledges that in view of the seriousness of the
accusations against the applicant, the authorities could justifiably
have considered that such an initial risk was established. 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). In the circumstances of the present case, the
Court finds that the severity of the anticipated penalty 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 considerably long period.
- In
these circumstances, even taking into account the particular
difficulty in dealing with a case concerning an organised criminal
gang, the Court concludes that the grounds given by the domestic
authorities were not “relevant” and “sufficient”
to justify holding the applicant in detention for 3 years and
almost 10 months.
- Although
the above finding would normally absolve the Court from assessing
whether the proceedings were conducted with special diligence, in the
present case the Court cannot but note that even though the applicant
was indicted in November 2002, it took the trial court exactly one
year to hold the first hearing (see paragraphs 14 and 20 above). The
Government failed to provide an explanation for the trial court's
inactivity during this period. Moreover, on 6 August 2003 the Court
of Appeal criticised the inactivity of the District Court (see
paragraph 19 above). That delay should be considered significant
and it cannot therefore be said that the authorities displayed
“special diligence” in the conduct of the criminal
proceedings against the applicant.
There
has accordingly been a 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
he had not had a “fair trial”.
- The
Court notes that it appears that the applicant did not lodge a
cassation appeal with the Supreme Court. However, even assuming that
the applicant had exhausted domestic remedies, the Court reiterates
that it is not called upon to deal with errors of fact and law
allegedly committed by a national court unless and in so far as they
may have infringed rights and freedoms protected by the Convention
(see García Ruiz v. Spain [GC], no. 30544/96,
§ 28, ECHR 1999-I).
- The
Court observes that the applicant does not allege any particular
failure to respect his right to a fair hearing. Assessing the
criminal proceedings against the applicant as a whole, it finds no
indication that they were unfairly conducted.
It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
III. 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 137,700 Polish zlotys (PLN) in respect of pecuniary
damage and 45,000 euros (EUR) under the head of non pecuniary
damage.
- The
Government considered these claims excessive.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, and bearing in mind that the applicant spent over
three years in detention whereas his prison sentence amounted to four
and a half years, it awards the applicant EUR 2,000 in respect of
non pecuniary damage.
B. Costs and expenses
- The
applicant also claimed PLN 9,700 for the costs and expenses incurred
before the domestic courts.
- The
Government contested the 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 were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court rejects the claim
for costs and expenses in the domestic proceedings.
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 complaint concerning the
unreasonable length of the applicant's pre-trial detention admissible
and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- 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 2,000 (two
thousand 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
