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FOURTH
SECTION
CASE OF MGŁOSIK v. POLAND
(Application
no. 8403/02)
JUDGMENT
STRASBOURG
16 July 2009
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 Mgłosik 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,
Päivi
Hirvelä,
Ledi
Bianku,
Nebojša
Vučinić,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 23 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 8403/02) 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 Rafal Mgłosik (“the applicant”),
on 4 February 2002.
- The
applicant was represented by Ms N. Ołowska-Zalewska, a lawyer
practising in Warsaw. 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 exceeded
a “reasonable time” within the meaning of Article 5
§ 3 of the Convention. He
also complained under Article 6 § 1 of the Convention of the
allegedly unreasonable length of the criminal proceedings against
him.
- On
19 November 2007 the
Court decided to give notice of the application to the
Government and to ask the parties whether the length of
detention in the present case revealed the existence of a structural
problem related to the application of that measure. 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 1976 and lives in Tychy. He is currently
serving a prison sentence.
A. The applicant's arrest in Germany and extradition to
Poland
- On
10 November 1998 the Katowice District Court (Sąd Rejonowy)
gave a decision to hold the applicant in pre-trial detention for
seven days from the day of arrest. He was
suspected of being a member of an organised criminal group and of
having committed several offences of battery and extortion. The
court relied on the reasonable suspicion that the applicant had
committed the offences with which he was charged and on the fact that
he was not living in his permanent place of residence and had
gone into hiding. The court also held that the decision on pre-trial
detention was indispensable in order to enforce the arrest warrants
which had been issued against the applicant.
- On
20 November 1998 the applicant was arrested in Oldenburg, Germany.
- On
21 January 1999 the Government of the Federal Republic of Germany,
applying the “rule of speciality” set forth in Article 14
of the European Convention on Extradition, consented to the
applicant's extradition.
- On
3 February 1999 the applicant was extradited to Poland.
B. The applicant's detention and criminal proceedings
against him
- On
5 February 1999 the Katowice District Court decided to hold
the applicant in pre-trial detention for three months. In its
eight-line reasoning, the court relied
on the reasonable suspicion that the applicant had committed the
offences with which he was charged. The court also found that the
fact that the applicant had been charged with participation in an
organised criminal group created the risk that the applicant would
unlawfully obstruct the investigation.
- The
applicant's detention was repeatedly extended by several decisions of
the Gliwice District Court and subsequently the Katowice Court of
Appeal. In
those decisions, the courts relied on the reasonable suspicion that
the applicant had committed the offences with which he was charged
and on the reasonable suspicion that he would obstruct
the proceedings.
- In
its decision of 27 April 1999 extending the applicant's detention the
Gliwice District Court also relied on the fact that “the
applicant had gone into hiding and thus he might try to abscond”.
- On
19 May 1999 the Gliwice District Court again extended the applicant's
detention, finding that the grounds previously given for his
detention were still valid.
- On
19 October 1999 the applicant was indicted. The bill of indictment
concerned six co-accused who were charged with a total of forty-one
offences. Five co-accused were remanded in custody. The applicant
was charged with several counts of extortion, several counts
of attempted extortion, issuing threats and participation in an
organised criminal group.
- On
16 December 1999 the proceedings were joined with another set of
proceedings and it was decided that the case be examined by a panel
of three professional judges, without the participation of lay
judges.
- On
2 February 2001 the length of the applicant's detention reached the
statutory two year time limit laid down in Article 263
§ 3 of the Code of Criminal Procedure (Kodeks
postępowania karnego) and
the first instance court was no longer competent to extend
it. Consequently, it was further extended by decisions of the
Katowice Court of Appeal (Sąd
Apelacyjny) of, inter
alia, 11 October 2000, 27 June and
30 October 2001 and 26 June 2002.
- The
applicant's appeals against decisions extending his detention were
unsuccessful. In one of his appeals, on 7 November 2001,
the applicant's lawyer raised the question of a violation of the
European Convention on Human Rights, arguing that the excessive
length of criminal proceedings did not justify the continued
detention of the applicant.
- On
28 November 2001 the Katowice Court of Appeal upheld the challenged
decision. The court held that the reasons for the applicant's
detention had not changed and that, considering the serious nature of
the offences, the applicant should be treated as a “particularly
dangerous criminal”. Referring to the alleged violation of the
Convention, the court found that this objection was ill-founded
because “in the legal systems of the Council of Europe's
member States the perpetrators of serious crimes are also treated
severely”.
- On
an unspecified date the applicant requested the court to release him
from detention.
- On
13 March 2002 the Tychy District Court dismissed his request.
- On
19 February 2003 the Tychy District Court gave judgment.
The applicant was convicted as charged and sentenced to eight
years' imprisonment.
- After
his conviction by the first-instance court the applicant continued to
be held in detention.
- On
30 June 2003 the applicant again requested the court to release him
from detention.
- On
28 July 2003 the Tychy District Court dismissed his request.
- On
26 September 2003 the applicant's lawyer lodged an appeal against the
District Court's judgment arguing, inter alia, that the
first-instance court had violated provisions of the Code of Criminal
Procedure and the 1957 European
Convention on Extradition, because the applicant had been convicted
of offences which had not originally been listed in the applicant's
extradition documents issued by the German authorities.
- On
5 March 2004 the Katowice Regional Court heard the appeal, partly
amended the first-instance judgment and reduced the applicant's
sentence to seven years. Referring to the arguments raised in the
applicant's appeal the Regional Court declared them ill-founded
because during the proceedings the prosecutor had produced
documents containing the German authorities' consent to extend
the scope of the charges against the applicant.
- On
22 March 2004 the applicant requested the court to appoint a lawyer
in order to lodge a cassation appeal on his behalf.
- On
10 August 2004 the Katowice Regional Court informed the applicant
that, on 2 August 2004, his court-appointed lawyer had found
no grounds to lodge a cassation appeal on his behalf.
- On
an unspecified date the applicant lodged a cassation appeal himself.
- On
10 August 2004 the Katowice Regional Court requested the applicant
to rectify the procedural shortcomings of his cassation appeal within
seven days (the cassation appeal should have been lodged by a lawyer
of the applicant's choice).
- The
applicant failed to rectify the shortcomings. Consequently, on 30
September 2004, the Katowice Regional Court refused to hear the
applicant's cassation appeal.
- On
18 October 2004 the applicant appealed against that decision.
- On
15 February 2005 the Katowice Regional Court requested the applicant
to rectify, within seven days, the procedural shortcomings of his
appeal, either by having a lawyer of his choice sign it or by lodging
a request with the court to appoint a lawyer for him.
- It
appears that the applicant failed to rectify the shortcomings of his
appeal and that the decision refusing to hear his cassation appeal
became enforceable.
C. Monitoring of the applicant's correspondence
- On
17 July 2002 and on 24 July 2002 the Court received the applicant's
letters. The envelopes bear the following stamps: “Tychy
District Court. Censored” (Sąd
Rejonowy w Tychach. Cenzurowano).
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Preventive measures, including pre-trial detention
- 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. Censorship of detainees' correspondence
- The
relevant domestic law concerning the censorship of detainees'
correspondence is set out in the Court's judgment in the case of
Michta v. Poland,
no. 13425/02, §§ 33-39, 4 May 2006.
C. Measures designed to reduce the length of pre-trial
detention
- The
relevant statistical data, recent amendments to the Code of Criminal
Procedure designed to streamline criminal proceedings and references
to the relevant Council of Europe Documents can be found in the
Court's judgment in the case of Kauczor (see Kauczor v.
Poland, no. 45219/06, §§
27-28 and and 30-35, 3 February 2009.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the length of his 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
Government submitted that the applicant had not exhausted all the
remedies provided for by Polish law in that he had failed to appeal
against five decisions of 1999 extending his detention.
- The
applicant's lawyer submitted that the lawyer who had represented the
applicant before the domestic courts had considered that it was
not advisable to appeal against every single decision extending the
detention, especially at the early stage of the proceedings, in order
not to slow down the proceedings. She further submitted that the
applicant had appealed several times against decisions extending his
detention at a later stage of the proceedings but those appeals had
been of a rather illusory nature, because the courts which dismissed
them had relied each time on the same ground, namely the severity of
the anticipated penalty.
- The
Court observes that the applicant did not challenge every decision
extending his detention. However, he did lodge several appeals
against decisions extending his pre-trial detention at the later
stage of proceedings. He also unsuccessfully requested that his
detention be lifted. The Court has already considered that those
remedies, namely an appeal against a detention order or a request for
release, whether submitted to the prosecutor or to the court,
depending on the stage of the proceedings, and also an appeal against
a decision to extend detention, serve the same purpose under Polish
law. Their objective is to secure a review of the lawfulness of
detention at any given time in the proceedings, both in their
pre-trial and trial stage, and to obtain release if the circumstances
of the case no longer justify continued detention (see Iwańczuk
v. Poland (dec.), no. 25196/94, 9 November 2000, and
Wolf v. Poland, nos. 15667/03 and 2929/04, § 78,
16 January 2007). It follows from the Court's case-law that the
applicant is not required to appeal against each and every decision
extending his detention (see, by contrast, Bronk v. Poland
(dec.), no. 30848/03, 11 September 2007).
- It
follows that this complaint cannot be rejected for non-exhaustion of
domestic remedies. The Court further notes that it is not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention and 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 5 February 1999, when he was
arrested in Poland (see paragraph 10 above) on suspicion of, inter
alia, several counts of kidnapping, robbery and battery,
committed in an organised criminal group. On
19 February 2003 the Tychy District Court convicted him as
charged.
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 (see Kudła, cited above, § 104).
Accordingly,
the period to be taken into consideration amounts to four years and
thirteen days.
2. The parties' submissions
(a) The Government
- The
Government submitted that the applicant's detention had been duly
justified over the entire period. They emphasised that, apart from
the reasonable suspicion that he had committed the offences with
which he had been charged, the applicant's detention had been
justified by the severity of the likely penalty and the risk of
the applicant's going into hiding and obstructing the proceedings.
- The
Government further invited the Court to assess the length of the
applicant's detention in the light of the fact that he had been
charged with serious crimes committed when acting as part of an
organised criminal group and that the proceedings, which were very
complex, concerned six members of the group.
- The
Government asserted that the necessity for the applicant's continued
detention had been thoroughly examined by the courts, which on each
occasion had given sufficient reasons for their decisions. They
submitted, lastly, that the authorities had displayed due diligence
in the conduct of the proceedings.
(b) The applicant
- The
applicant's lawyer argued that the length of the applicant's
detention had been clearly unreasonable. She submitted that the
courts had justified his detention by repeatedly relying on the same
grounds; the reasonable suspicion that he had committed the
homicide with which he had been charged, the severity of the
anticipated penalty, the risk of obstruction of the proceedings
and of absconding. The applicant's lawyer further submitted that the
applicant had not contributed to the overall length of the
proceedings; on the contrary, he had always been at the disposal
of the domestic courts.
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, in addition to the
reasonable suspicion against the applicant, relied principally on
three grounds, namely (1) the serious nature of the offences with
which he had been charged, (2) the severity of the penalty to which
he was liable; (3) the risk that the applicant might tamper with
evidence or go into hiding. As regards the latter, they relied
on the fact that the applicant had already gone into hiding and had
been arrested abroad.
- In
the Court's view, the fact that the case concerned a member
of an organised criminal group should be taken into account
in assessing compliance with Article 5 § 3 (see Bąk v.
Poland, no. 7870/04, § 57, 16 January 2007).
- The
Court accepts that the reasonable suspicion against the applicant of
having committed serious offences could initially warrant his
detention. Also, the serious nature of the offences with which the
applicant had been charged, the need to obtain voluminous evidence
and to determine the degree of the alleged responsibility of each of
the defendant, who had acted in a criminal group and against whom
numerous charges of serious offences were laid and the need to secure
the proper conduct of the proceedings, in particular 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 adduced by
the courts – namely, the risk of the applicant's going into
hiding and that he would tamper with evidence and the severity of the
anticipated penalty – were “relevant” and
“sufficient” (see Kudła, cited above, §
111).
- The
Court is not persuaded by the Government's argument that the risk
that the applicant might go into hiding or tamper with evidence
constituted a valid ground for the more than four-year period of
detention of the applicant. In this respect the domestic courts
relied on the ground that the applicant had already gone into hiding
and that he had been arrested abroad. The Court accepts that these
reasons might justify the detention in its initial phase. It
would add, however, that at no stage of the proceedings was
any consideration given to the possibility of imposing on the
applicant alternative, less severe, preventive measures. In this
connection, the Court would reiterate that Article 5 § 3 of the
Convention not only lays down 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 Jabloński v. Poland,
no. 33492/96, § 83, 21 December 2000).
The
Court cannot therefore accept that ground as a justification for
holding the applicant in custody for the entire period.
- 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 reoffending, the gravity of
the charges cannot by itself justify long periods of detention (see
Michta v. Poland, no. 13425/02, § 49, 4 May 2006)).
Having regard to the above, the Court cannot accept the position
adopted by the judicial authorities in the present case, namely
that the presumption referred to above was by itself sufficient,
after a certain lapse of time, to justify the applicant's continued
detention, without the need to indicate any concrete facts supporting
the supposed risk of obstruction of the proceedings (see Szydłowski
v. Poland, no. 1326/04, § 55; Malikowski v. Poland,
no. 15154/03, § 54; and Osiński v. Poland, no.
13732/02, § 53, all judgments delivered on 16 October
2007).
- While
all the above factors could justify even a relatively long period of
detention, they did not give the domestic courts an unlimited power
to prolong this measure. In this context, the Court would observe
that until the date of his first-instance conviction the applicant
had already spent four years and thirteen days in pre-trial
detention.
- Having
regard to the foregoing, even taking into account the fact that the
courts were faced with the particularly difficult task of trying a
case involving an organised criminal group, 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.”
A. Admissibility
1. The Government's objection as to non-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 § 2 read in conjunction with Article 448 of the
Civil Code. These provisions would have allowed him both to assert
that by censoring his correspondence the authorities had breached his
personal rights protected by the Civil Code, and to claim
compensation for non-pecuniary damage.
- 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 the secrecy of his correspondence with the
Central Board of the Prison Service and the Central Electoral Office.
The Regional Court held that the secrecy of an individual's
correspondence was one of the personal rights protected under
Article 23 of the Civil Code and that in the event of a breach
a claimant could be entitled to an award of compensation for
non pecuniary damage.
- The
applicant's lawyer did not comment.
2. The Court's assessment
- 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 to
obtain redress for the alleged breach of his right to respect for his
correspondence.
- Even
assuming that the applicant had complained about the censorship of
his letters to the Court, it has to be noted that the alleged
interference with the applicant's correspondence occurred in July
2002, 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.
3. Conclusion as to 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. Whether there was interference
- The
Court notes that the envelopes in which the applicant's letters were
sent to the Court bore stamps that read: “Tychy District Court.
Censored”.
- The
Court has held on many occasions that as long as the Polish
authorities continue the practice of marking detainees' letters with
a “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 v. Poland, cited
above, § 58). It follows that in respect of the
applicant's letters there was “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 specific legal basis in domestic law
for the impugned interference. The Court notes that the interference
took place while the applicant was in detention.
- The
Court observes that, by virtue of Article 214 of the Code
on Execution of Criminal Sentences, persons in 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, is also
applicable to detained persons (see Michta, cited above, §
61, and Kwiek v. Poland, no. 51895/99, § 44,
30 May 2006).
Consequently, censorship of the applicant's letters to the Court
was contrary to 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. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Article 6 § 1 of the Convention
that the proceedings against him were both unfair and excessively
long. He also raised a complaint that his court-appointed lawyer had
refused to lodge a cassation appeal on his behalf.
- As
regards the length complaint, the Court notes that the impugned
proceedings came to an end less than three years before
17 September 2004, the date on which 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 2004 Act”)
came into force.
- It
further observes that, pursuant to section 16 of the 2004 Act, it was
open to persons such as the applicant to seek compensation in tort
from the State Treasury, relying on Article 417 of the Civil
Code for damage caused by allegedly excessive length of proceedings
in which a judicial decision on the merits of the case has
already been given (see Turzyński v. Poland (dec.),
no. 10453/03, 22 November 2005).
- The Court has already examined whether a civil action
for damages brought under section 16 of the 2004 Act read together
with Article 417 of the Civil Code was an effective remedy
in respect of the length of judicial proceedings. It held, having
regard to the characteristics of these remedies and notwithstanding
the absence of established judicial practice in respect of such
claims, that these remedies were effective in respect of persons who,
on 17 September 2004, when the 2004 Law entered into force, could
still lodge such an action with the competent domestic court (see
Krasuski v. Poland, judgment of 14 June 2005,
§§ 69-72).
- It
follows that this complaint must be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
- As
regards the complaint concerning the alleged unfairness of the
proceedings, the Court considers that it is clearly of a
fourth-instance nature and must be declared inadmissible as
manifestly ill-founded in accordance with Article 35 §§ 3
and 4 of the Convention.
- The
complaint concerning the applicant's lawyer's refusal to lodge
a cassation appeal also must be declared inadmissible for
failure to exhaust the domestic remedies. The Court observes that the
applicant failed to rectify the procedural shortcomings of his
appeal of 18 October 2004. Accordingly he did not make use of the
legal avenue which entitled him to be granted legal aid and have
his cassation appeal eventually lodged. The complaint is therefore
inadmissible under Article 35 §§ 1 and 4 of the Convention
for non-exhaustion of domestic remedies.
IV. APPLICATION OF ARTICLE 46 OF THE CONVENTION
- Article
46 of the Convention provides:
“1. The High Contracting Parties
undertake to abide by the final judgment of the Court in
any case to which they are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise
its execution.”
- The
parties' submissions
A. The parties' submissions
1. The Government
- The
Government submitted that the length of the applicant's detention did
not reveal the existence of a structural problem but was rather the
result of the particular circumstances of the present case and that
there were no grounds to apply Article 46 of the Convention. It
further stressed that Polish law is compatible with Article 5 § 3
of the Convention. Firstly, because the Polish Code of Criminal
Procedure contains provisions according to which detention may be
applied only if all remaining preventive measures which do not
contain the element of deprivation of liberty, are insufficient
and that each decision extending detention must be sufficiently
reasoned. Secondly, the Code of Criminal Procedure contains
provisions which aim at facilitating and accelerating the criminal
proceedings and thus shortening the period of detention.
- Maintaining
that the number of cases in which the domestic courts had ordered
detention on remand lasting from twelve months to two years or longer
was decreasing, the Government made reference to the statistical data
for 2005-2007 which they submitted to the Court. They further
stressed that the awareness of courts of the standards concerning the
length of the detention on remand was growing.
- They
also suggested that the fact that the Court had already given many
judgments finding a violation of Article 5 § 3 of the Convention
should not lead to the automatic application of Article 46, as had
occurred in the case of Scordino v.
Italy. The Polish authorities had
taken many general and individual measures based on the conclusions
stemming from the Court's judgments finding that the length of the
detention on remand had been excessive. In particular, on 17 May 2007
the Cabinet adopted the “Plan of Actions of the Government for
the execution of judgments of the European Court of Human
Rights in respect of Poland”.
- The
Government concluded that, bearing in mind the efforts of the Polish
authorities and the legislative reforms which were and had been
undertaken by them to solve the problem of the length of detention
on remand, Poland could not be said to have failed to comply
with its obligations under Article 46 of the Convention to obey the
Court's judgments.
2. The applicant
- The
applicant's lawyer did not submit any comments in this respect.
B. The Court's assessment
- Recently,
in the case of Kauczor v. Poland (see Kauczor, cited
above, § 58 et seq. with further references) the Court held that
the 2007 Resolution of the Committee of Ministers taken together with
the number of judgments already delivered and of the pending
cases raising an issue of excessive detention incompatible with
Article 5 § 3 demonstrated that the violation of the applicant's
right under Article 5 § 3 of the Convention had originated in a
widespread problem arising out of the malfunctioning of the Polish
criminal justice system which had affected, and may still affect in
the future, an as yet unidentified, but potentially considerable
number of persons charged in criminal proceedings.
- It
is true that the present case concerns a person involved
in an organised criminal group. However, as stated above,
while this element is to be taken into account in assessing
compliance with Article 5 § 3 and may justify a
longer period of detention than in a case concerning an individual
offender, a member of an organised criminal group is entitled to the
protection against unreasonably lengthy detention afforded by this
provision (see paragraphs 52 and 58 above). As in other numerous
similar detention cases, the authorities did not justify the
applicant's continued detention by relevant and sufficient reasons
(see paragraphs 53 57 above). Moreover, as
demonstrated by the ever increasing number of judgments in which the
Court has found Poland to be in breach of Article 5 §
3 in respect of applicants involved in organised crime, the
present case is by no means an isolated example of the
imposition of unjustifiably lengthy detention but a confirmation
of a practice found to be contrary to the Convention (see,
among many other examples, Celejewski v. Poland, no. 17584/04,
4 May 2006; Kąkol v. Poland, no. 3994/03, 6
September 2007; Malikowski v. Poland, no. 15154/03,
16 October 2007 and also Hilgartner v. Poland, no. 37976/06,
§§ 46-48, 3 March 2009). Consequently, the Court sees
no reason to diverge from its findings made in Kauczor as
to the existence of a structural problem and the need for the Polish
State to adopt measures to remedy the situation (see Kauczor,
cited above, §§ 60-62 ).
V. 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 105,299.60 euros (EUR) in respect of pecuniary
and EUR 14,772.59 in respect of non pecuniary damage.
- The
Government considered the applicant's claims “groundless”,
far too exorbitant, and requested that they be rejected.
- The
Court does not discern any causal link between the violations found
and the pecuniary damage alleged; it therefore rejects this claim.
On the other hand, it awards the applicant EUR 2,000 in respect
of non pecuniary damage.
B. Costs and expenses
- The
applicant, who was represented by a lawyer, also claimed PLN 12,000
for the costs of legal representation before the Court and PLN 500
for other costs and expenses incurred before the Court. The applicant
produced a copy of the contract signed with his lawyer for legal
representation before the Court for the amount of PLN 12,000 as well
as two invoices for PLN 1,000 each, confirming that so far he
had paid the lawyer PLN 2,000.
- The
Government submitted that the invoices produced by the applicant were
not sufficient evidence that the costs and expenses referred to by
the applicant were necessary and actually incurred.
- 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. In the present case, regard being had to the
information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 2,000 for the
proceedings before the Court.
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 under Article 5 § 3
and Article 8 of the Convention 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;
- 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 the following
amounts, to be converted into Polish zlotys at the rate applicable at
the date of settlement:
(i) EUR
2,000 (two thousand euros) in respect of non-pecuniary damage plus
any tax that may be chargeable and
(ii) EUR
2,000 (two thousand euros) in respect of costs and expenses plus any
tax that may be chargeable to the applicant;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 16 July 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
