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FOURTH
SECTION
CASE OF MARZEC v. POLAND
(Application
no. 42868/06)
JUDGMENT
STRASBOURG
9 June
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 Marzec 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,
Ján
Šikuta,
Mihai
Poalelungi,
Nebojša
Vučinić,
judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 19 May 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 42868/06) 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 Paweł
Marzec (“the applicant”), on 17 October 2006.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr Jakub Wołąsiewicz of the Ministry of
Foreign Affairs.
- The
applicant alleged that his detention on remand exceeded a “reasonable
time” within the meaning of Article 5 § 3 of the
Convention.
- On
10 October 2007 the
President of the Fourth Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1973 and lives in Zabrze. He is currently
detained in Włocławek Prison.
- On
29 September 2003 the applicant was arrested on suspicion of drug
trafficking, committed while acting in an organised criminal gang.
- On
1 October 2003 the Bytom District Court remanded him in custody,
relying on the reasonable suspicion that he had committed the offence
in question. It also considered that keeping the applicant in
detention was necessary to secure the proper conduct of the
proceedings, given the risk that he might induce witnesses to give
false testimony. The court pointed out that other persons involved in
the crime were still at large. The court also stressed the severity
of the anticipated sentence.
- Later,
several other members of the same criminal gang were detained and
charged in connection with the investigation against the applicant.
- The
applicant's appeal against the detention order, like his further
appeals against decisions prolonging his detention and all his
subsequent numerous applications for release and appeals against
refusals to release him, were unsuccessful. In his applications and
appeal, he argued that the authorities had failed to justify his
continued detention by relevant and sufficient reasons. He stressed
that the measure complained of should be imposed only at the initial
stage of the proceedings and that his continued detention constituted
in practice deprivation of liberty. He also relied on his personal
circumstances, in particular on the difficult financial situation of
his family.
- In
the course of the investigation, the applicant's detention was
prolonged on 3 December 2003, 8 March 2004, 3 June 2004 and 22
September 2004. In all their detention decisions the authorities
repeatedly relied on the original grounds given for the applicant's
detention.
- On
22 December 2004 a bill of indictment was lodged with the Katowice
District Court. The applicant was charged with drug trafficking,
illegal arms trading, unlawful possession of a firearm and acting in
an organised criminal gang. There were fifteen defendants in the
case, all charged with numerous counts of drug trafficking committed
in an organised criminal gang.
- On
25 August 2005 the trial court held the first hearing. It
subsequently held some sixty-one hearings in the case.
- During
the court proceedings the authorities further prolonged the
applicant's detention (on 30 December 2004, 17 March 2005,
14 June 2005, 24 August 2005, 8 March 2006, 17 August 2006,
20 December 2006 and 23 March 2007). The courts repeated the
grounds previously given for his continued detention.
- On
15 May 2007 the Katowice District Court gave judgment. The applicant
was convicted of drug trafficking, unlawful possession of a firearm
and acting in an organised criminal gang and sentenced to nine years'
imprisonment.
- The
applicant appealed against that judgment.
- On
7 May 2008 the Katowice Regional Court heard the applicant's appeal.
It partly quashed the first-instance judgment and remitted the case
in respect of the charges concerning drug trafficking and acting in
an organised criminal gang. The court upheld the first-instance
judgment in respect of the charge concerning unlawful possession of a
firearm for which the applicant had been sentenced to three years'
imprisonment. It held that the applicant's detention from 29
September 2003 to 29 September 2006 should be counted towards his
sentence.
- The
retrial started on 13 June 2008. On 30 June 2008 the Katowice
Regional Court ordered that the applicant's detention should continue
until 15 January 2009.
- In
the retrial proceedings the applicant made numerous unsuccessful
applications for release and appealed, likewise unsuccessfully,
against the decision of 30 June 2008 prolonging his detention.
- The
applicant was released on 17 February 2009. The Katowice Regional
Court prohibited him from leaving the country and placed him under
police supervision. The proceedings are currently pending before the
Katowice Regional Court.
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, 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.
III. RELEVANT COUNCIL OF EUROPE DOCUMENTS
A. The Committee of Ministers
- On 6 June 2007 the Committee of Ministers adopted
on the Interim Resolution concerning the judgments of the European
Court of Human Rights in 44 cases against Poland relating to the
excessive length of detention on remand (“the 2007
Resolution”). Noting that the number of cases in which the
European Court had found similar violations was constantly
increasing. It concluded that the number of the Court's judgments
finding Poland in violation of Article 5 § 3 of the
Convention revealed a structural problem. A more detailed rendition
of the 2007 Resolution can be found in the Court's judgment given in
the case of Kauczor v. Poland (see Kauczor v. Poland,
no. 45219/06, § 34, 3 February 2009; not
final).
B. The Council of Europe's Commissioner for Human
Rights
- On
20 June 2007 the Council of Europe's Commissioner for Human Rights
released the Memorandum to the Polish Government concerning, among
other issues, the use of the detention measure in Poland, stressing
that examples of cases lodged with the Court where pre-trial
detention had lasted between 4 to 6 years were not uncommon. The
Commissioner urged the Polish authorities to review the application
and functioning of pre-trial detention in Polish law. A more detailed
rendition of the relevant parts of the memorandum can be found in the
above mentioned Kauczor
judgment (§ 35).
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 29 September 2003, when he was
arrested on suspicion of drug trafficking, committed in an organised
criminal gang. On 15 May 2007 the Katowice District Court convicted
him of drug trafficking, unlawful possession of a firearm and acting
in an organised criminal gang and sentenced him to nine years'
imprisonment.
As
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 (cf. Kudła v. Poland [GC],
no. 30210/96, § 104, ECHR 2000 XI).
- On
7 May 2008 the Katowice Regional Court partly quashed the applicant's
conviction. Following that date his detention was again covered by
Article 5 § 3. It continued until 17 February
2009.
Accordingly,
the period to be taken into consideration amounts to four years, four
months and twenty-eight days.
2. The parties' submissions
(a) The applicant
- The
applicant submitted in general terms that his application lodged with
the Court was justified.
(b) The Government
- The
Government considered that the applicant's detention had satisfied
the requirements of Article 5 § 3. The Government emphasised
that the serious nature of the charges as well as the fact that there
had been fifteen defendants charged with numerous offences required
the authorities to take all necessary measures to secure the proper
conduct of the trial. The necessity of the applicant's continued
detention had been thoroughly examined by the courts which on each
occasion had given sufficient reasons for their decisions. The
applicant's case had been extremely complex on account of the number
of charges (40) and defendants (15), and by reason of the volume of
evidence. The Government further submitted that the domestic courts
had acted diligently and speedily, in particular taking into account
the complexity of the case, the number of witnesses to be heard (74)
and the number of co-accused, most of whom had been suspected of
acting in an organised criminal group.
3. The Court's assessment
(a) General principles
- The
Court recalls 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
four 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 need to secure the proper conduct of the
proceedings, particularly the risk that he might tamper with
evidence, and (4) the complexity of the case.
- The
applicant was charged with drug trafficking, unlawful arms trading,
unlawful possession of a firearm and acting in an organised criminal
gang.
In
the Court's view, the fact that the case concerned a member of a such
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 a large volume of evidence and 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 often is, by the nature of things, high. In this
respect, the Court notes, however, that in all the decisions
extending the applicant's detention, no specific substantiation of
the risk that the applicant would tamper with evidence, intimidate
witnesses or attempt to otherwise disrupt the trial emerged. In the
absence of any other factor capable of showing that the risk relied
on actually existed, this argument cannot be accepted in the context
of the whole period.
- Furthermore,
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
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).
-
As regards the complexity of the case, the Court's attention has been
drawn to the nature of the charges, the number of accused (fifteen)
and the voluminous documentation. It appears, however, that the
authorities referred to the complexity of the case in a very general
manner. There is no indication that the nature of the case required
the applicant's continuous detention for such a long period.
- While
all those 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 original first instance
conviction the applicant had already been in pre-trial detention for
three years, ten months and six days. Following the quashing of that
conviction on appeal, he was kept in custody for a further eight
months and eight days (see paragraphs 16 and 26 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. 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.”
- Recently
in the case of Kauczor v. Poland (cited above, paragraph
58 et seq, with further references, the Court referred to the
above mentioned 2007 Resolution of the Committee of Ministers taken
together with the number of judgments recently delivered and
concluded:
“60. The Court thus concludes, as the
Committee of Ministers did, that for many years, at least as recently
as in 2007, numerous cases have demonstrated that the excessive
length of pre-trial detention in Poland reveals a structural problem
consisting of “a practice that is incompatible with the
Convention” (see mutatis mutandis Broniowski
v. Poland [GC], no. 31443/96, §§ 190-191,
ECHR 2004-V; Scordino v. Italy (no. 1) [GC], no. 36813.
- It
is true that the present case concerns a person involved in an
organised criminal gang. 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
gang is entitled to the protection against unreasonably lengthy
detention afforded by this provision (see paragraphs 34, 37 and 38
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 32-37 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). 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
).
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Article 6 of the Convention about the
excessive length of his pre-trial detention.
The Court considers that the applicant's complaint is that the length
of criminal proceedings is incompatible with the “reasonable
time” requirement provided in Article 6 § 1 of the
Convention. The proceedings in question are currently pending before
the Katowice Regional Court (see paragraph 19 above).
With
respect to the requirement of exhaustion of domestic remedies, the
Court notes that the applicant did not avail himself of the remedy
provided for by the Law of 17 June 2004 on complaints about a breach
of the right to a trial within a reasonable time.
Accordingly,
this part of the application must be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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 EUR 80,000 in respect of non-pecuniary damage
and EUR 150,000 in respect of pecuniary damage.
- The
Government did not express an opinion on the matter.
- 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 2,000 under this head.
B. Costs and expenses
- The
applicant also claimed EUR 70,000 for the costs and expenses
incurred before the domestic courts and before the Court.
- The
Government did not express an opinion on the matter.
- 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 were reasonable as to
quantum. The Court awards the applicant, who was not represented by a
lawyer, EUR 100.
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 length of
the applicant's detention admissible and the remainder of the
application inadmissible;
2. 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 2,000 (two
thousand euros) in respect of non-pecuniary damage, plus any tax that
may be chargeable, together with EUR 100 (one hundred euros), 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 9 June 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
