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FOURTH
SECTION
CASE OF KACHEL v. POLAND
(Application
no. 22930/05)
JUDGMENT
STRASBOURG
23
September 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 Kachel v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
David Thór Björgvinsson,
Ledi
Bianku,
Mihai Poalelungi, judges,
and Fatoş
Aracı, Deputy Section
Registrar,
Having
deliberated in private on 2 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 22930/05) 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 Jan Kachel
(“the applicant”), on 17 May 2005.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- The
applicant alleged, in particular, that his detention on remand had
exceeded a “reasonable time” within the meaning of
Article 5 § 3 of the Convention.
- On
13 September 2007 the
President of the Fourth Section decided to give notice of the
application to the Government. It was also decided to examine the
merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1960 and lives in Tarnów. He is
currently serving a sentence of imprisonment in Tarnów Prison.
Criminal proceedings against the
applicant and his detention on remand
- On 30 July 2002 the applicant was
arrested on suspicion of murder.
- On 31 July 2002 the Bytom
District Court (Sąd Rejonowy)
remanded him in custody. It justified the applicant’s pre trial
detention by the gravity of the offence, the existence of strong
evidence against him, the likelihood that a heavy penalty would be
imposed and by the need to ensure the proper conduct of the
proceedings.
- The applicant’s appeal
against the decision to remand him in custody was unsuccessful. On
4 September 2002 the Katowice Regional Court (Sąd
Okręgowy), relying on a
reasonable suspicion that the applicant had committed a serious
offence, upheld the Bytom District Court’s decision.
- The applicant’s pre trial
detention was subsequently extended by decisions of the Katowice
Regional Court of, inter alia,
21 October 2002, 2 December 2002, 31 March 2003
(upheld by the Katowice Court of Appeal on 7 May 2003), 29 July
2003 and 16 June 2004.
- Once the length of the
applicant’s detention had reached the statutory two year
maximum laid down in Article 263 § 3 of the Code of
Criminal Procedure (Kodeks
postępowania karnego), the
first instance court was no longer competent to extend it.
Consequently, it was the Katowice Court of Appeal (Sąd
Apelacyjny) which issued further
extensions on, inter alia,
14 July 2004, 8 December 2004, 6 April 2005 and 28 December
2005.
- The courts repeatedly justified
the applicant’s pre trial detention in the initial phase
by the existence of strong evidence against him, the likelihood that
a heavy penalty would be imposed and the reasonable risk that the
applicant would attempt either to induce witnesses to give false
testimony or
to obstruct the proper course of proceedings by other unlawful means.
They further stressed that it would be necessary to hear evidence
from a large number of witnesses and to obtain expert reports.
- In the latter stages of the
applicant’s detention, the courts additionally referred to the
complexity of the case and the fact that there was strong evidence
against him and other defendants.
- In the meantime, on 16 April
2003 the applicant was indicted on a charge of murder allegedly
committed with two accomplices, who were also on trial.
- On 4 July 2005 the Katowice
Regional Court convicted the applicant and his co defendants as
charged. The applicant was sentenced to 25 years’ imprisonment.
- The prosecutor and the lawyers
of all three defendants lodged appeals.
- On 25 January 2006 the Katowice
Court of Appeal upheld the substance of the first instance
judgment concerning the characterisation of the charges and the
sentence.
- On 8 November 2006 the Supreme
Court dismissed a cassation appeal lodged by the applicant.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The relevant domestic law and practice concerning the
imposition of detention on remand (aresztowanie tymczasowe),
the grounds for its prolongation and release from detention and the
rules governing other, so called “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 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 30 July 2002, when he was
arrested on suspicion of homicide. On 4 July 2005 the Katowice
Regional Court convicted him as charged.
Accordingly,
the period to be taken into consideration amounts to two years,
eleven months and seventeen days.
2. The parties’ submissions
(a) The Government
- The
Government considered that the applicant’s pre-trial detention
satisfied the requirements of Article 5 § 3. They submitted that
the detention had been justified and that during the entire period
the authorities had given relevant and sufficient reasons for
extending it. They further submitted that the domestic courts had
acted diligently and speedily, in particular taking into account the
complexity of the case, in which evidence from 39 witnesses had
had to be heard.
(b) The applicant
- The
applicant submitted in general terms that his application lodged with
the Court was justified.
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 were stated 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, relied principally on
three grounds in addition to a reasonable suspicion against the
applicant, namely (1) the serious nature of the offences with which
he had been charged, (2) the heavy penalty to which he was liable;
and (3) the need to ensure the proper conduct of the proceedings. As
regards the latter, they did not, however, specify any concrete
grounds justifying their opinion.
- The
Court accepts that the reasonable suspicion that the applicant had
committed a serious offence could initially warrant his detention.
Also, the need to determine the degree of alleged responsibility of
each of the three co-accused and the process of obtaining evidence
from witnesses 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
cited by the courts – namely, the heavy sentence faced and the
need to ensure the proper conduct of the proceedings – were
“relevant” and “sufficient” (see, Kudła
cited above, § 111).
According
to the authorities, the likelihood of a heavy sentence created a
presumption that the applicant would obstruct the proceedings.
However, the Court would reiterate that, while the length 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 Michta
v. Poland, no. 13425/02, §§ 49, 4 May 2006).
Moreover,
as noted above (paragraph 26), the domestic courts did not provide
any grounds to justify their concern that the applicant, if released,
would obstruct the proceedings.
- The
Court further notes that there is no specific indication that the
authorities, at any point during the applicant’s pre-trial
detention, considered the possibility of imposing on him other
preventive measures
– such as bail or police
supervision – expressly foreseen by Polish law to secure the
proper conduct of the criminal proceedings.
In
this context the Court would emphasise that under Article 5 § 3
the authorities, when deciding whether a person should be released or
detained, are obliged to consider alternative means of ensuring 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).
- 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. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
- Relying
on Article 6 §§ 1 and 2 of the Convention, the applicant
complained that the principle of presumption of innocence had been
violated, because “the first-instance court had sentenced him
in spite of the evidence gathered in the investigation”. He
also complained that he had been found guilty without sufficient
evidence.
- The Court has examined these complaints as submitted
by the applicant. However, having regard to all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court finds that the applicant has failed to
substantiate his complaints. Furthermore, the complaint concerning
the outcome of the relevant proceedings is clearly of a
fourth-instance nature. It follows that this part of the application
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 150,000 Polish zlotys (PLN) in
respect of pecuniary, and PLN 200,000 in respect of non-pecuniary,
damage.
- The Government did not comment.
- The Court does not discern any causal link between the
violation found and the pecuniary damage alleged; it therefore
rejects this claim. However, it awards the applicant EUR 1,000 in
respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant submitted no claim for costs and expenses.
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 excessive
length of the applicant’s 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 1,000 (one thousand euros) in respect of
non-pecuniary damage, plus any tax that may be chargeable, to be
converted into the currency of the Respondent State at the rate
applicable at the date of settlement;
(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 23 September 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
