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FOURTH
SECTION
CASE OF KASZA v. POLAND
(Application
no. 45668/06)
JUDGMENT
STRASBOURG
13 October
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 Kasza v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Mihai Poalelungi, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 22 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 45668/06) 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 Krzysztof
Kasza (“the applicant”), on 26 October 2006.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- The
applicant alleged that his detention pending trial had exceeded a
“reasonable time” within the meaning of Article 5 §
3 of the Convention and that the proceedings in his case have lasted
an excessively long time.
- On
6 November 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 1972 and lives in Kraków.
A. Criminal proceedings against the applicant and his
detention pending trial
- On
5 January 2000 the applicant was arrested by the police.
- On
7 January 2000 the Katowice District Court (Sąd
Rejonowy) ordered his detention pending trial on suspicion of
having committed, inter alia, several armed robberies while
acting in an organised armed criminal gang. The District Court relied
on a reasonable suspicion that the applicant had committed the
offences with which he had been charged and the likelihood of a
severe sentence of imprisonment being imposed on him. Moreover, the
court considered that the applicant might tamper with evidence.
- In
the course of the investigation, the applicant's detention was
extended several times. In their decisions, the courts relied on the
reasons previously given and the likelihood that he had committed the
offences while acting in an organised armed criminal gang. In this
respect, they referred, inter alia, to the testimony of a
crown witness (świadek koronny). Further, they referred
to the complexity of the case, the need to obtain further evidence
and the fact that some of the suspects had not yet been arrested.
- Simultaneously,
between 27 September 2000 and 27 September 2002, the applicant was
serving a prison sentence imposed on him in other criminal
proceedings.
- On
11 June 2001 the investigation was completed and on 18 June 2001 the
applicant was indicted before the Kraków Regional Court
(Sąd Okręgowy).
- Due
to the fact that some of the accused were detained in the Katowice
area, on 4 March 2002 the Kraków Regional Court asked the
Katowice Court of Appeal (Sąd Apelacyjny) to refer the
case to the Katowice Regional Court. On an unspecified date the
Katowice Court of Appeal refused. On 5 May 2002 the Supreme
Court, following a request by the Kraków Regional Court,
referred the case to the Katowice Regional Court.
- The
first hearing was scheduled for 23 January 2003, but it did not take
place because one of the defence lawyers was unwell.
- On
13 February 2003 the trial started. It was continued on 20 March,
10 April and 15 May 2003 when the trial court heard evidence
from the co accused. On 12 June 2003 the trial court heard
evidence from one witness but could not proceed with hearing other
evidence because a sworn interpreter had failed to appear.
- At a hearing held on 8 July 2003, out of fifteen
witnesses only three appeared before the trial court. Similarly, on
25 September 2003, the Katowice Regional Court took evidence from
only one witness, instead of four. At the subsequent hearing held on
26 September 2003, seven witnesses failed to appear at the trial, so
the court heard evidence from only three witnesses. The same happened
at the hearings held on 27 November and 18 December 2003, 6 June 2004
and 25 February 2005.
- Between
7 July 2004 and 20 January 2005 the trial court scheduled seven
hearings. Only one, scheduled for 29 October 2004, took place.
- In
sum, from 13 February 2003 to 25 May 2005, the Katowice Regional
Court heard evidence from only seven witnesses.
- It
appears that no hearing was scheduled between 15 July and 1 September
2006 because the hearing room was under renovation.
- Around
sixteen out of forty-five hearings scheduled by the first instance
court were cancelled for various reasons, such as: the absence of
some witnesses, defendants and interpreters; failure of the police to
bring certain accused to the court from detention centres; the summer
break; the resignation of one of the defence lawyers; the illness of
a lay judge and a professional judge; and the failure to notify one
of the defence lawyers of a hearing.
- The
term of the applicant's detention during the proceedings was
subsequently extended by the Katowice Regional Court on 25 June,
28 September and 28 December 2001 as well as later by the
Katowice Court of Appeal on 25 September, 27 October and 10
December 2003; 10 March, 30 June and 10 November 2004; 16
February, 25 May and 21 September 2005; and 11 January, 5 April,
7 June, 20 September 2006 and 19 December 2006. In addition to the
reasons specified in the decisions given during the investigation,
the courts vaguely referred to the continuing necessity to obtain
further witness evidence. They noted that it was not possible to
schedule hearings more often because only one hearing room meeting
the relevant safety requirements had been at the disposal of the
trial court. However, the Katowice Court of Appeal in its decisions
given in 2005 and 2006 extending the applicant's detention
acknowledged to a certain degree that the applicant's detention had
been excessive, criticised delays in the collection of the evidence
and ordered the trial court to speed up the proceedings and
discipline the defence lawyers.
- Requests
by the applicant for release and appeals against the extensions of
his detention were to no avail. The courts held that the reasons for
his detention were still valid.
- On
13 March 2007 the applicant was released. The court prohibited him
from leaving the country and confiscated his passport.
- The
proceedings are pending before the first-instance court.
B. Proceedings under the 2004 Act
- On 23 May 2005 the applicant
lodged with the Katowice Court of Appeal a complaint under section 5
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 2004 Act”).
- The applicant sought a ruling
declaring that the length of the proceedings before the Katowice
Regional Court had been excessive and an award of just satisfaction
in the amount of 10,000 Polish zlotys (PLN) (approx. EUR
2,500 euros (EUR)).
- On 13 July 2005 the Katowice
Court of Appeal dismissed the applicant's complaint. To a certain
extent it acknowledged that the proceedings had been lengthy.
However, in the opinion of the court that was due to objective
reasons, namely the factual and legal complexity of the case, such as
the significant number of accused, the nature of the charges against
them, the fact that they were dangerous criminals and the necessity
to ensure that the trial was conducted safely. The court explained
that as the applicant had been serving another sentence between 27
September 2000 and 27 September 2002, those two years should not
be taken into account when assessing the overall length of his
detention.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice concerning the imposition of
detention during judicial proceedings (aresztowanie tymczasowe),
the grounds for its extension, release from detention and rules
governing other “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.
- The
relevant statistical data, recent amendments to the Code of Criminal
Procedure designed to streamline criminal proceedings and references
to relevant Council of Europe materials including the 2007 Resolution
of the Committee of Ministers can be found in the Court's judgment in
the case of Kauczor (see Kauczor v. Poland,
no. 45219/06, §§ 27-28 and 30-35, 3
February 2009).
- The
relevant domestic law and practice concerning remedies for the
excessive length of judicial proceedings, in particular the
applicable provisions of the 2004 Act, are described in the Court's
decisions in the cases of Charzyński
v. Poland (dec.),
no. 15212/03, §§ 12-23, ECHR 2005 V and
Ratajczyk v. Poland (dec.),
no. 11215/02, ECHR 2005-VIII, and its judgment in the case of
Krasuski v. Poland,
no. 61444/00, §§ 34-46, ECHR 2005-V.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the length of his detention pending trial
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 decided to refrain from commenting on this complaint.
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 5 January 2000, when he was arrested
on suspicion of having committed several armed robberies while acting
in an organised criminal gang. On 19 March 2007 the applicant was
released.
- However,
between 27 September 2000 and 27 September 2002 the applicant served
a prison sentence which had been imposed on him in other criminal
proceedings. This term, being covered by Article 5 § 1 (a), must
therefore be subtracted from the period of the applicant's detention
pending trial for the purposes of Article 5 § 3.
Accordingly,
the period to be taken into consideration amounts to five years,
two months and fourteen days.
2. The parties' submissions
(a) The applicant
- The
applicant submitted that the length of his detention had clearly been
unreasonable and that it could not be justified on the grounds relied
on by the authorities.
(b) The Government
- The
Government submitted that, having regard to the Court's case law
concerning the question of the length of detention pending trial,
they had decided to refrain from taking a position on the matter.
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 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; and (3) the risk that the applicant might tamper with
evidence. As regards the latter, they relied on
the complexity of the case and the large number of co defendants
and victims involved in the proceedings.
- The
applicant was charged with several counts of armed robbery committed
while acting in an organised and armed criminal group (see paragraph
7, above).
In
the Court's view, the fact that the case concerned a member of such a
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 need to obtain voluminous evidence and to
determine the degree of the alleged responsibility of each of the
defendants who had acted in a criminal group and against whom
numerous charges of serious offences were laid as well as 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.
- Indeed,
in cases such as the present one concerning organised criminal
groups, the risk that a detainee, if released, might bring pressure
to bear on witnesses or other co-accused or might otherwise obstruct
the proceedings is often, by the nature of things, high. However, the
Court notes in this respect that the courts extending the detention
did not refer to any particular examples of attempts by the applicant
to intimidate witnesses or any other obstructive behaviour. 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 detention
pending trial (see Michta v. Poland, no. 13425/02,
§§ 49, 4 May 2006).
- 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 extend this measure. In particular, it has not been explained to
the Court why it was only on 13 March 2007 that the court considered
that it was safe to free the applicant against the surrender of his
passport (see paragraph 21 above).
- 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 6 §
1 OF THE CONVENTION ON ACCOUNT OF THE EXCESSIVE LENGTH OF THE
CRIMINAL PROCEEDINGS
- The applicant further complained
that the length of the proceedings had been incompatible with the
“reasonable time” requirement, laid down in Article 6 §
1 of the Convention, which reads as follows:
“In the determination .... of any criminal charge
against him ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- In their observations the
Government decided to refrain from taking a position on the matter,
noting however the exceptional complexity of the case and problems
with transport of the accused who at the same time had been involved
in several other sets of proceedings. The Government also submitted
that at the relevant time the trial court had had only one hearing
room at its disposal that met the safety requirements concerning the
proceedings against a criminal group.
- The
period to be taken into consideration began at the latest on
5 January 2000, when the applicant was arrested, and has not yet
ended. It has thus lasted over nine years and six months and the
proceedings are still pending before the first-instance court.
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
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
arguments presented by the Government that is the complexity of the
case as well as problems relating to transport and availability of an
adequate hearing room cannot justify the excessive length of
proceedings which, so far, have lasted for over nine years and are
still pending before the first-instance court. In
this connection, it recalls that persons kept in detention pending
trial are entitled to “special diligence” on the part of
the authorities as regards timing and organisation of hearings.
Consequently, in cases where a person is detained pending the
determination of a criminal charge against him, the fact of his
detention is itself a factor to be considered in assessing whether
the requirement of a decision on the merits within a reasonable time
has been met (see, for example, Abdoella
v. the Netherlands, judgment of
25 November 1992, Series A no. 248-A, p. 17, § 24;
Jabłoński v. Poland, no. 33492/96,
§ 102, 21 December 2000; Mõtsnik v. Estonia,
no. 50533/99, § 40, 29 April 2003). The Court has
frequently found violations of Article 6 § 1 of
the Convention in cases raising issues similar to the one in the
present case (see Frydlender, cited above).
- Having
examined all the material submitted to it, the Court finds no
argument capable of persuading it to reach a different conclusion in
the present case.
- In
view of the above considerations, the Court concludes that there has
been a breach of Article 6 § 1 of the Convention.
III. 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.”
A. The parties' submissions
1. The applicant
- The applicant did not submit any
observations concerning this provision.
2. The Government
- The
Government submitted that there were no grounds to apply Article 46
of the Convention and that the proceedings in the applicant's case
had exceptional features that distinguished it from other cases of
detention pending trial. Consequently, the length of the applicant's
detention pending trial did not reveal the existence of a structural
problem. They referred further to problems concerning cases involving
organised criminal groups, such as complexity of the case, the
necessity to obtain expert reports or intentional prolongation of
proceedings by the accused themselves or their representatives.
Turning to the circumstances of the present case, the Government
pointed to its exceptional complexity and submitted that it fully
justified the length of detention and trial.
- The
Government further stressed that Polish law was compatible with the
standards of Article 5 § 3 of the Convention.
- Maintaining
that the number of cases in which the domestic courts had ordered
detention pending trial lasting from twelve months to two years or
longer was decreasing, the Government made reference to statistical
data for 2002-2007 which they submitted to the Court. They further
stressed that the courts' awareness of the standards concerning the
length of detention pending trial 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 detention pending trial had been excessive. In particular,
on 17 May 2007, the Cabinet had 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
pending trial, Poland could not be said to have failed to comply with
its obligations under Article 46 of the Convention to abide by the
Court's judgments.
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
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. As in other numerous
similar detention cases, the authorities did not justify the
applicant's continued detention by relevant and sufficient reasons
(see paragraphs 37-42 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).
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 150,000 Polish zlotys (PLN)
without specifying what part of it should cover pecuniary and
non-pecuniary damage. However, he claimed that his claim in respect
of pecuniary damage should cover loss of profit in the amount of PLN
1,500 for each month of his detention.
- The
Government considered that there was no causal connection between the
alleged violation of the Convention and the applicant's claim in
respect of pecuniary damage. As regards the applicant's claim in
respect of non-pecuniary damage, the Government considered it
“excessive and irrelevant” and requested that it be
rejected.
- 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, it considers that the applicant has suffered
non-pecuniary damage which is not sufficiently compensated by the
finding of a violation of the Convention. Considering the
circumstances of the case and making its assessment on an equitable
basis, the Court awards the applicant EUR 7,200 under this head.
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 application admissible;
- Holds
that there has been a violation of Article 5 § 3 of the
Convention;
- Holds
that there has been a violation of Article 6 § 1 of the
Convention on account of the excessive length of the criminal
proceedings;
- 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 7,200
(seven thousand two hundred 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 13 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
