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FOURTH
SECTION
CASE OF WOJCIECH
KOWALSKI v. POLAND
(Application
no. 33734/06)
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 Wojciech Kowalski
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. 33734/06) 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 Wojciech Kowalski
(“the applicant”), on 24 March 2006.
- The
applicant was represented by Ms N. Klima, a lawyer practising in
Katowice. 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 applicant and the Government each filed
observations on the merits (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1968 and lives in Kraków.
A. Criminal proceedings against the applicant and his
detention pending trial
- On
3 April 1997 the applicant was arrested by the police. On the same
day the Kraków District Court (Sąd
Rejonowy) ordered his detention for
three months on suspicion of having committed several armed
robberies. Simultaneously, an investigation was opened into the
charges against the applicant.
- Between
3 and 11 April 1997 the applicant served a prison sentence imposed on
him in another set of proceedings.
- On
1 July 1997 the applicant was released.
- On
2 September 1997 the investigation was stayed because one of the
suspects had gone into hiding.
- On
10 January 2000 the applicant was arrested again. On the following
day the Katowice District Court ordered his detention pending trial
until 9 April 2000 on suspicion of having committed, inter
alia, several armed robberies while
acting in an organised armed criminal gang. It 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 and go into
hiding.
- 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
connection, they referred, inter alia, to the testimony of a
crown witness (świadek koronny). They also 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 22 September 2000 and 22 March 2001, 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).
- In
a decision of 28 September 2001 extending the applicant's detention
the Kraków Regional Court held that “a wanted notice had
been put out in respect of some of the co-defendants and one of them
was not a Polish citizen and had no domicile in Poland; therefore
there was a real risk of absconding and going into hiding not only as
regards that defendant but also as regards the remainder of them”.
- In
its decision of 28 December 2001 the Kraków Regional Court
repeated the same argument.
- 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 2006, 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.
- For
example, 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.
- At
the hearing on 25 October 2005 the applicant and his co-accused
challenged the trial judges and called for their disqualification.
The challenge was dismissed on an unspecified date in 2006.
- 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
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 26 June and 18 December 2002; 23 April, 17 September
and 10 December 2003; 10 March, 30 June and 10 November 2004;
16 February, 25 May and 21 September 2005; 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 as only one hearing room
meeting the relevant safety requirements had been at the disposal of
the trial court. However, in its decisions given in 2005 and 2006
extending the applicant's detention the Katowice Court of Appeal
acknowledged to a certain degree that the applicant's detention had
been excessive, criticised delays in the collection of 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
the term 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 from detention. The court
prohibited the applicant from leaving the country and confiscated his
passport.
- The
proceedings are pending before the first-instance court.
B. Proceedings under the 2004 Act
- On
5 September 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
28 September 2005 the Katowice Court of Appeal dismissed the
applicant's complaint. It acknowledged that the proceedings
had been lengthy. However, in the opinion of the court that was due
to the factual 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 also observed that the trial
court had at its disposal only one hearing room adapted for trials
against organised armed gangs and that this was not the fault of the
trial court itself. Similarly, the trial court could not be held
wholly responsible for witnesses' failure to appear at hearings.
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.”
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 3 April 1997, when he was arrested
on suspicion of having committed several armed robberies while acting
in an organised criminal group. Subsequently, on 1 July 1997, he was
released. On 10 January 2000 the applicant was arrested again and, on
13 March 2007, was released from detention.
- However,
between 3 and 11 April 1997 and between 29 September 2000
and 22 March 2001 the applicant served prison sentences which had
been imposed on him in other sets of criminal proceedings. These
terms, 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 six years,
ten months and twenty-four days.
2. The parties' submissions
(a) The applicant
- The
applicant's lawyer submitted that the length of the applicant's
detention had clearly been unreasonable and that the grounds relied
on by the authorities which had extended the period of detention had
never been clearly explained; each time the authorities had simply
repeated the grounds originally given to justify the applicant's
detention pending trial.
(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 or obstruct the proper conduct of proceedings in some other
unlawful way. 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 numerous counts of armed robbery committed
in an organised and armed criminal group (see paragraph 6, 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 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 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. In any
event, the Court considers that the grounds referred to by the Kraków
Regional Court in its decision of 28 September 2001 relating to
other co-accused who had gone into hiding and had no domicile in
Poland (see paragraph 14 above) could not be applied to the
applicant.
Furthermore,
according to the authorities, the serious nature of the charges and
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, the Government have failed to
explain why it was only on 13 March 2007 that the authorities finally
considered that it was safe to release the applicant against the
surrender of his passport (see paragraph 27 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 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 on 3
April 1997 and has not yet ended. It has thus lasted over
twelve years 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 twelve 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 pre-trial detention 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” (see
paragraph 31 above).
- 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 excessively long 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 42-47 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 65,705.20 Polish zlotys (PLN) plus income tax in
respect of pecuniary damage and PLN 50,000 in respect of
non pecuniary damage.
- The
Government considered the applicant's claim in respect of pecuniary
damage “highly speculative” and his claim in respect of
non pecuniary damage far too high, and requested that they 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 awards the applicant EUR 10,000 in respect of
non pecuniary damage.
B. Costs and expenses
- The
applicant's lawyer did not make any 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 10,000 (ten thousand euros), plus any tax that may be
chargeable to the applicant, in respect of non pecuniary damage,
to be converted into Polish zlotys 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
