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FOURTH
SECTION
CASE OF OCHLIK v. POLAND
(Application
no. 8260/04)
JUDGMENT
STRASBOURG
29 July
2008
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 Ochlik v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Giovanni Bonello, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Ledi
Bianku,
Mihai Poalelungi, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 8 July 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 8260/04) 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, Mr Aleksander
Ochlik (“the applicant”), on 17 February 2004.
- The
Polish Government were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
- The
applicant alleged in particular that his pre-trial detention had
exceeded a “reasonable time” within the meaning of
Article 5 § 3 of the Convention.
- On
8 January 2007 the
President of the Fourth Section decided to give notice of the
application to the Government. It was decided to examine the merits
of the application at the same time as its admissibility (Article 29
§ 3 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1970 and lives in Wrocław.
- On
19 July 2001 the applicant was arrested by the police on suspicion of
having committed several burglaries and robberies together with
several accomplices.
- On
20 July 2001 the Jawor District Court (Sąd Rejonowy)
decided to place the applicant in pre-trial detention on the basis of
a reasonable suspicion that he had committed the offences. The court
also considered that, given the likely severity of the penalty, it
was probable that the applicant would interfere with the course of
proceedings and he might go into hiding. Moreover, the court
considered that there was a risk that the applicant would bring
pressure to bear on witnesses or his accomplices.
- On
4 October and 20 December 2001 the Wrocław Regional Court (Sąd
Okręgowy) extended the applicant's detention, finding that
the original reasons for it were still valid. The court referred also
to the risk of his absconding, considering that the applicant rarely
stayed at his official place of residence and “had been
avoiding contact with the police officers, who were looking for him”.
- On
18 June 2002 the Wrocław Court of Appeal (Sąd
Apelacyjny), upon an application from the Wrocław Regional
Prosecutor (Prokurator Okręgowy), further extended the
applicant's pre trial detention.
- Subsequently,
the applicant and ten co-accused were indicted before the Wrocław
Regional Court (Sąd Okręgowy).
- On 19 September 2002 the Wroclaw Regional Court
extended the applicant's pre-trial detention. In a very brief
reasoning the court stated that there was a reasonable suspicion
against the applicant and that, given the likely heavy sentence and
the fact that the applicant had acted in a criminal group, only his
detention could secure the proper course of the proceedings.
- Subsequently,
as the length of the applicant's detention had reached the statutory
time-limit of two years laid down in Article 263 § 3 of the Code
of Criminal Procedure (Kodeks postępowania karnego), the
Regional Court applied to the Wrocław Court of Appeal for the
applicant's detention to be extended beyond that term.
- On
10 June, 18 September and 16 December 2003 the Wrocław Court of
Appeal extended the applicant's detention and that of his three
co accused. The court relied on the existence of a reasonable
suspicion that the applicant had committed the offences with which he
had been charged. Moreover, the court referred to the nature of the
offences and the risk that, given the likely severity of the penalty,
the applicant would obstruct the proceedings or go into hiding.
Lastly, the Court of Appeal examined the course of the proceedings
before the trial court and found that their length had not been
excessive, bearing in mind the number of accused involved and
complexity of the case. It also stated that despite the fact that
hearings had been held several times per week, over 130 witnesses
still had to be heard.
- On
25 February and 18 June 2004 the Wroclaw Court of Appeal further
extended the applicant's detention in two decisions. Both decisions
repeated the same grounds for the applicant's detention: the
reasonable suspicion against him, the severity of the likely sentence
and the need to secure the proper conduct of the proceedings. The
Court of Appeal stressed that it expected the trial court to finish
the proceedings soon, in particular given the length of time the
accused had spent in detention so far. In the second of the
above-mentioned decisions the court established that, although the
applicant's detention had been long, it was justified by the
particular circumstances of the case, in particular its complexity.
- The
applicant's numerous requests for release during his pre trial
detention were to no avail.
- On
13 August 2004 the Wroclaw Regional Court convicted the applicant and
sentenced him to seven years' imprisonment. The applicant appealed
against the judgment.
- On
11 May 2005 the Wroclaw Court of Appeal dismissed the applicant's
appeal. The court upheld the judgment in respect of nine accused and
quashed it as regards two others.
B. The monitoring of the applicant's correspondence
- On
16 February 2004 the applicant sent his first letter to the Court
indicating his intention to lodge an application. The top right
corner of the letter bears a red stamp “censored”
(cenzurowano). The envelope in which the letter was delivered
bears signs of opening after having been sealed: its left side has
been cut open and then resealed with sellotape. The envelope also
bears the stamp of the Wrocław Detention Centre and a
handwritten note: W[rocła] W R[egional] C[ourt].
- On
10 January 2005 the applicant sent a letter to the Court. The
envelope in which the letter was delivered bears a stamp “Wroclaw
Detention Centre 11 January 2005” and a blue stamp “Censored”
(ocenzurowano).
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice concerning the imposition of
pre-trial detention (aresztowanie tymczasowe), the grounds for
its extension, release from detention and rules governing other
“preventive measures” (środki zapobiegawcze)
are set out 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
relevant domestic law concerning the censorship of prisoners'
correspondence is set out in the Court's judgment in the case of
Michta v. Poland, no. 13425/02, §§ 33-39, 4 May
2006.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the length of his pre-trial detention 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 19 July 2001, when he was arrested
on suspicion of having committed several burglaries. On 13 August
2004 the Wrocław Regional Court convicted him as charged.
Accordingly,
the period to be taken into consideration amounts to three years and
twenty-six days.
2. The parties' submissions
- The
applicant generally submitted that he had been kept in detention
pending trial for an unjustified period of time.
- The
Government considered that the applicant's pre-trial detention
satisfied the requirements of Article 5 § 3. It was justified by
“relevant” and “sufficient” grounds. Those
grounds were, in particular, the gravity of the charges against the
applicant and risk of his tampering with evidence and obstructing the
proper course of the proceedings. As regards the risk of absconding
the Government noted that the applicant “had rarely stayed at
his place of residence and had been avoiding contacts with the police
officers, who were looking for him, and had not confessed to his
crimes.” They further underlined that although the case had not
concerned an organised crime, nevertheless it had been very complex
because it had involved twenty co-accused, against whom eighty
charges had been laid.
The
Government argued that the domestic authorities had shown due
diligence, as required in cases against detained persons, and that
the length of the applicant's detention was attributable to the
exceptional complexity of the case.
3. The Court's assessment
(a) General principles
- The
Court reiterates 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, have been set out
in a number of its previous judgments (see, among many other
authorities, Kudła v. Poland [GC], no. 30210/96,
§ 110 et seq., ECHR 2000 XI, and McKay v. the
United Kingdom [GC], no. 543/03, §§ 41-44, ECHR
2006-..., with further references).
(b) 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 two
grounds: the severity of the penalty to which he was liable and the
need to secure the proper conduct of the proceedings given the risk
that the applicant might tamper with evidence or go into hiding. As
regards the latter, they relied on the fact that prior to his arrest
the applicant had rarely stayed at his place of residence and had
avoided the police (see paragraph 8 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 determine the degree of the alleged
responsibility of each of the defendants against whom numerous
charges of serious offences had been laid constituted valid grounds
for the applicant's initial detention. However, the applicant was
detained on charges of having committed several burglaries and
sentenced to seven years' imprisonment. Even though the applicant was
eventually found guilty of the numerous offences and the proceedings
were directed against eleven co-accused, there is no indication that
he was a member of an organised criminal group. It does not appear
therefore that his case presented particular difficulties for the
investigation authorities and for the courts to determine the facts
and mount a case against the perpetrator, as would undoubtedly have
been the case had the proceedings concerned organised crime (see
Celejewski, cited above, § 37, and Malik v.
Poland, no. 57477/00, § 49, 4 April 2006).
- According
to the authorities, the likelihood of a severe sentence being imposed
on the applicant created a presumption that he 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 reoffending, the gravity of
the charges cannot by itself justify long periods of pre-trial
detention (see Michta v. Poland, no. 13425/02, §§
49, 4 May 2006).
- The Court notes that the authorities justified a risk
of the applicant's going into hiding by the fact that he “had
rarely stayed at his official place of residence”. However, it
is not clear whether prior to his arrest the applicant had actually
gone into hiding and no arrest warrant had been issued against him.
Even assuming that this ground justified keeping him in custody in
the initial stages of the proceedings, it gradually lost its force
and relevance as the proceedings progressed. Given the absence of any
further attempt on the part of the applicant to obstruct the
proceedings, it is difficult to accept that it could justify the
conclusion that the risk of his tampering with evidence or going into
hiding persisted during the entire period that he spent in custody
(see Harazin v. Poland, no. 38227/02, § 42,
10 January 2006, and Duda v. Poland, no. 67016/01,
§ 41, 19 December 2006).
- Lastly,
the Court would emphasise that under Article 5 § 3 the
authorities, when deciding whether a person is to be released or
detained, are obliged to consider alternative means of guaranteeing
his appearance at the trial. Indeed, that Article lays down not only
the right to “trial within a reasonable time or release pending
trial” but also provides that “release may be conditioned
by guarantees to appear for trial” (see Jabłoński
v. Poland, no. 33492/96, § 83, 21 December 2000).
In
the present case the Court notes that there is no express indication
that during the entire period of the applicant's pre-trial detention
the authorities envisaged any other guarantees of his appearance at
trial. Nor did they give any consideration to the possibility of
ensuring his presence at trial by imposing on him other “preventive
measures” expressly foreseen by Polish law to secure the proper
conduct of criminal proceedings.
- Having
regard to the foregoing, the Court concludes that the grounds given
by the domestic authorities could not justify the overall period of
the applicant's detention. 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. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The Court raised of its own motion a complaint under
Article 8 of the Convention. 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 raised a preliminary objection that the applicant had
failed to exhaust domestic remedies. They refrained from expressing
their opinion on the merits of the complaint under Article 8.
A. Admissibility (exhaustion of domestic remedies)
- The
Government submitted that the applicant had not exhausted all
available domestic remedies. He had failed to bring an action under
Article 24 in conjunction with Article 448 of the Civil Code.
These provisions would have allowed him to assert that by censoring
his correspondence the authorities had breached his personal rights
protected by the Civil Code and claim non-pecuniary damages.
- In
this connection, the Government relied on the Warsaw Regional Court's
judgment of 27 November 2006 in which a prisoner had been awarded
5,000 Polish zlotys (PLN) in damages from the State Treasury for a
breach of secrecy of his correspondence with the Central Board of the
Prison Service and the Central Electoral Office. The Regional Court
held that secrecy of correspondence was one of the personal rights
protected under Article 24 of the Civil Code and that in the
event of its breach a claimant may be entitled to an award of
non-pecuniary damages.
- The
applicant did not comment.
- The
Court notes that the complaint under Article 8 of the Convention
concerning the alleged censorship of the applicant's correspondence
was raised of its own motion. The letter at issue was sent by the
applicant to the Court and he could not have been aware that it had
been censored by the authorities. In those circumstances, the
applicant cannot be required to bring any domestic proceedings in
order to obtain redress for the alleged breach of his right to
respect for his correspondence.
- Even
assuming that the applicant did complain about the censorship of his
letter to the Court, it has to be noted that the alleged interference
with the applicant's correspondence occurred in 2004, whereas the
Government relied on the Warsaw Regional Court's judgment of 27
November 2006. Any relevance that the latter judgment might possibly
have in respect of the present case is therefore reduced by the fact
that it was given after the relevant time (see, for example, V. v.
the United Kingdom [GC], no. 24888/94, § 57, ECHR
1999 IX).
- For
these reasons, the Government's plea of inadmissibility on the ground
of non-exhaustion of domestic remedies must be dismissed (see
Lewak v. Poland, no. 21890/03, § 26, 6 September
2007).
- 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 on 16 February 2004 the applicant sent his first
letter to the Court from the Wrocław Detention Centre. The
letter bears a red stamp “censored” (cenzurowano)
on its top right corner. The envelope bears signs of opening after
having been sealed and also bears the stamp of the Wrocław
Detention Centre and a handwritten note: W[rocła] W
R[egional] C[ourt].
Moreover,
the envelope in which the applicant's letter of 10 January 2005 was
sent to the Court from the same detention centre bears a stamp
“Wroclaw Detention Centre 11 January 2005” and a blue
stamp “Censored” (ocenzurowano).
- As
regards the applicant's letter of 16 February 2004, the Court notes
it was stamped “censored” right on the first page. With
respect to the second letter, of 10 January 2005, the Court considers
that, even if there is no separate stamp on the letter as such, there
is a reasonable likelihood that the envelope had been opened by the
domestic authorities. 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; Pisk-Piskowski
v. Poland, no. 92/03, § 26, 14 June 2005; and Michta,
cited above, § 58).
It
follows that in respect of both of the applicant's letters there has
been an “interference” with his 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 observes
that, pursuant to Article 214 of the Code of Execution of
Criminal Sentences, persons in pre-trial detention should enjoy the
same rights as those convicted by a final judgment. Accordingly, the
prohibition of 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
detained persons (see Michta, cited above, § 61,
and Kwiek v. Poland, no. 51895/99, § 44, 30 May
2006). Thus, censorship of the applicant's two letters to the Court
was contrary to the domestic law. It follows that the interference in
the present case 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.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant raised a complaint under Article 6 § 1 of the
Convention that the length of the proceedings in his case had
exceeded a “reasonable time” within the meaning of this
provision.
- 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 present application was lodged with the Court
when the relevant proceedings were pending before the domestic court.
It
was thus open to the applicant to lodge a complaint about the
unreasonable length of the proceedings with the relevant domestic
court in accordance with the general provisions of the Law of 17 June
2004 on complaints about a breach of the right to a trial within a
reasonable time (Ustawa o skardze na naruszenie prawa strony do
rozpoznania sprawy w postępowaniu sądowym bez
nieuzasadnionej zwłoki).
- The
Court has already examined that remedy for the purposes of Article 35
§ 1 of the Convention and found it effective in respect of
complaints about the excessive length of judicial proceedings in
Poland. In particular, it considered that it was capable both of
preventing the alleged violation of the right to a hearing within a
reasonable time or its continuation, and of providing adequate
redress for any violation that has already occurred (see Charzyński
v. Poland (dec.), no. 15212/03, §§ 36 42).
However,
in the present case there is no indication that the applicant availed
himself of this remedy.
- It
follows that this part of the application must be rejected under
Article 35 §§ 1 and 4 of the Convention for
non-exhaustion of domestic remedies.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- The
applicant did not submit a claim for just satisfaction.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the
unreasonable length of the applicant's pre-trial detention and the
interference with the applicant's correspondence admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds that there has been a violation of Article
8 of the Convention.
Done in English, and notified in writing on 29 July 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Giovanni Bonello
Registrar President
