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FOURTH
SECTION
CASE OF TERESZCZENKO v. POLAND
(Application
no. 37326/04)
JUDGMENT
STRASBOURG
3 April
2007
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 Tereszczenko v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr G. Bonello,
Mr K. Traja,
Mr S.
Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović, judges,
and
Mr T.L. Early, Section Registrar,
Having
deliberated in private on 13 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 37326/04) 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”) on 15 September 2004 by Mr W. Tereszczenko (“the
applicant”).
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
9 September 2005 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1956 and lives in Warszawa.
- On
19 November 2002 the applicant was placed in police custody on
suspicion of drug trafficking. On 20 November 2002 the Częstochowa
District Court ordered that the applicant be detained on remand.
- The
court based its detention order on a reasonable suspicion that the
applicant had committed the offence of drug trafficking and the
severity of the likely penalty, which gave rise to a fear that the
applicant would obstruct the proceedings. Moreover, the court took
into account that other suspects had remained at large, which would
pose a risk of collusion if the applicant were released.
- Subsequent
decisions on the extension of the applicant's pre-trial detention
were taken on 11 February 2003, 8 May 2003, 3 October 2003,
31 December 2003, 29 March 2004 and 29 June 2004.
- The
courts referred to the complexity of the case, the need to conduct
further investigations, the probability of collusion between the
applicant and other suspects and exertion of unlawful pressure on
witnesses by the applicant. They stressed that the fact that the
applicant had not pleaded guilty posed an additional risk of his
influencing other persons involved in the proceedings. In their
opinion no other preventive measure could ensure the proper conduct
of the proceedings.
- The
applicant appealed on several occasions against the decisions
extending his detention and requested release from detention or the
imposition of a more lenient preventive measure, drawing the court's
attention to his poor state of health.
- On
27 November 2002 a telephone company was requested to provide an
itemised bill of the applicant's telephone calls to other suspects.
- On
18 December 2002 and 29 January 2003 confrontations of witnesses and
suspects took place.
- On
19 December 2002 the prosecutor ordered an expert opinion of a heart
specialist with a view to establishing the applicant's state of
health. No grounds for the applicant's release from detention were
found.
- On
19 March 2003 an expert opinion was ordered with a view to
determining whether the substance found in the course of police
operations had been an illegal drug. The opinion was submitted on 15
May 2003.
- On
30 April 2003 and 8 June 2003 expert opinions concerning a weapon
which had been found by the police were submitted.
- On
5 May 2003 another expert opinion of a heart specialist was ordered.
Again, the applicant was found to be fit for detention.
- On
25 June 2003 a bill of indictment against the applicant and ten other
co-accused was lodged with the court. The applicant did not plead
guilty.
- On
15 September 2003 the court decided to transfer the case file to the
Prosecutor's Office so that shortcomings in the investigation could
be corrected.
-
On 24 December 2003 two expert opinions were ordered with a view to
establishing the applicant's mental health.
- On
9 February 2004 expert opinions on cardiology and diabetology were
ordered. The experts did not find any grounds for the applicant's
release.
- Hearings
were held on the following dates: 27 November 2003, 25 March
2004, 15 April 2004, 13 May 2004, 17 June 2004, 8 July 2004,
12 August 2004, 9 September 2004 and 27 September 2004. Over
thirty-five witnesses were examined by the court.
- On
17 June 2004 the court ordered that witnesses who had previously
failed to appear at hearings be escorted to the court.
- On
5 July 2004 an expert opinion on neurology was submitted. No grounds
for the applicant's release were found, although it was stated in
this opinion that his prolonged detention might pose some future risk
to his health and he was referred to a prison hospital for
observation. The date of his admission to hospital was fixed for 1
July 2004.
- On
30 September 2004 the Częstochowa District Court gave a
judgment. The applicant was found guilty of drug trafficking and
sentenced to three years' imprisonment. The court ordered that the
applicant remain in custody until the prison sentence could be
enforced.
- On
1 October 2004 the applicant appealed against the decision of
30 September 2004 on the extension of his detention.
- On 21 October 2004 the Częstochowa Regional Court
allowed the applicant's appeal of 1 October 2004 and on the same day
he was released from detention.
- On
6 December 2004 two appeals against the judgment of 30 September
2004 were lodged by the applicant's lawyers.
- On
22 June 2005 the Częstochowa Regional Court quashed the judgment
and remitted the case. The proceedings are pending.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law 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) is set out in the Court's judgments in the cases
of Gołek v. Poland (no. 31330/02, §§ 27-33, 25
April 2006) and Celejewski v. Poland (no. 17584/04, §§
22-23, 4 August 2006).
- The
relevant domestic provisions and practice concerning the State's
liability for a tort committed by its official, in connection with a
right to a trial within a reasonable time, have already been cited in
previous cases against Poland (see, for example, Rybczyńscy
v. Poland, no. 3501/02, 3 October 2006, and Białas
v. Poland, no. 69129/01, 10 October 2006).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the length of his pre-trial detention was
in breach of Article 5 § 3, which provides:
“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 Government accepted that the applicant had exhausted domestic
remedies.
- 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. Arguments before the Court
- The
Government observed that the applicant's pre-trial detention had
lasted from 19 November 2002 to 30 September 2004 (one year, ten
months and twelve days).
- The
Government maintained that the whole period of the applicant's
detention had been justified by the existence of a genuine public
interest, which had outweighed the presumption of innocence.
- They
stressed that the domestic courts dealing with the applicant's case
had found his detention to be compatible with the provisions of
Article 258 of the Code of Criminal Procedure and that no grounds
warranting the applicant's release from detention as provided for by
Article 259 of the Code had been established.
- The
Government maintained that the evidence obtained in the proceedings
had indicated that there had been a reasonable suspicion that the
applicant had committed the offence of drug trafficking. They
emphasised the serious nature of the charge and the fact that the
applicant had been sentenced to three years' imprisonment by the
first-instance court.
- They
also submitted that the applicant's detention had been aimed at
securing the proper conduct of the investigations, as there had been
a risk that he would obstruct the proceedings and influence witnesses
and other co-accused.
- The
Government drew the Court's attention to the fact that the applicant
had been a recidivist offender. He had already been convicted of
robbery on three occasions (in 1983, 1986 and 1989) and sentenced to
five, two and two years' imprisonment, respectively.
- With
regard to the review of the applicant's detention, the Government
pointed out that it had been subject to regular supervision by the
courts and on each occasion the decisions had been reasoned in a
relevant and sufficient manner.
- With
regard to the proceedings on the merits, the Government highlighted
their complexity. They submitted that several co-accused had been
involved in the proceedings. They further submitted that nine
hearings had been held at regular and brief intervals and the court
had taken disciplinary measures to expedite the proceedings (e.g. it
had ordered that witnesses who had previously failed to appear be
escorted to a hearing). They also pointed out that the court had
encountered some difficulties as a number of witnesses had changed
their addresses and could not easily be contacted.
- The
applicant maintained that his detention had lasted two years. He
contested the Government's arguments and stated that the grounds for
his detention had ceased to exist with the passage of time and that
his poor health had constituted grounds for his release. He specified
the illnesses from which he suffered, inter alia, heart
problems and diabetes.
2. The Court's assessment
(a) Principles established under the
Court's case-law
- Under
the Court's case-law, the issue of whether a period of detention is
reasonable cannot be assessed in abstracto. Whether it is
reasonable for an accused to remain in detention must be assessed in
each case according to its special features. Continued detention can
be justified in a given case only if there are specific indications
of a genuine requirement of public interest which, notwithstanding
the presumption of innocence, outweighs the rule of respect for
individual liberty (see, among other authorities, the W. v.
Switzerland judgment of 26 January 1993, Series A
no. 254-A, p. 15, § 30).
- It
falls in the first place to the national judicial authorities to
ensure that, in a given case, the pre-trial detention of an accused
person does not exceed a reasonable time. To this end they must
examine all the facts arguing for or against the existence of a
genuine requirement of public interest justifying, with due regard to
the principle of the presumption of innocence, a departure from the
rule of respect for individual liberty and set them out in their
decisions dismissing the applications for release. It is essentially
on the basis of the reasons given in these decisions and of the
established facts stated by the applicant in his appeals that the
Court is called upon to decide whether or not there has been a
violation of Article 5 § 3 of the Convention (see
the Contrada v. Italy, judgment of 24 August 1998,
Reports 1998-V, p. 2185, § 54; McKay v. the United
Kingdom [GC], no. 543/03, § 43, ECHR 2006- ).
- The
persistence of a reasonable suspicion that the person arrested has
committed an offence is a condition sine qua non for the
lawfulness of the continued detention, but after a certain lapse of
time it no longer suffices. In such cases, the Court must establish
whether the other grounds given by the judicial authorities continued
to justify the deprivation of liberty. Where such grounds were
“relevant” and “sufficient”, the Court must
also ascertain whether the competent national authorities displayed
“special diligence” in the conduct of the proceedings
(see Labita v. Italy [GC], no. 26772/95, ECHR 2000 IV,
§ 153).
(b) Application of those principles to the
circumstances of the present case
- The
Court notes that the applicant's pre-trial detention lasted from 19
November 2002 to 30 September 2004, when the applicant was convicted
by the first-instance court, which amounted to one year, ten months
and twelve days.
- The
Court is of the opinion that the case was rather complex. The charge
was of a serious character as the applicant risked up to ten years'
imprisonment, there were eleven accused involved in the proceedings
and over thirty-five witnesses were examined. Moreover, the domestic
courts had had regard to the fact that the applicant was a recidivist
offender. He had been convicted of robbery on three occasions.
- The
Court observes that the investigative phase of the proceedings was
conducted very speedily, bearing in mind that numerous expert
opinions were ordered, including expert opinions on whether the
applicant's state of health allowed for his detention. Many other
measures were taken by the authorities in this phase of the
proceedings such as the organisation of two confrontations of
witnesses and suspects.
- Furthermore,
the applicant's detention was supervised by the courts at regular
intervals. In their decisions extending his detention the domestic
authorities relied on a reasonable suspicion that the applicant had
committed the offence in question, the severity of the likely penalty
and the risk that the applicant would obstruct the proper conduct of
the proceedings, in particular by influencing witnesses and other
co-accused. They also noted that the applicant had pleaded not
guilty, which posed an additional risk of his influencing other
persons involved in the proceedings. They considered that no other
preventive measure could ensure the proper conduct of the
proceedings. The need to conduct further investigations also
constituted a ground for the applicant's detention. The courts took
into account new elements that emerged in the course of the
proceedings and the applicant's state of health, which, however, was
not such as to constitute a ground for his release.
- In
fact, numerous expert opinions concerning the applicant's health were
ordered in the course of the proceedings, namely expert opinions on
cardiology (the prosecutor's decisions of 19 December 2002, 5 May
2003 and 9 February 2004), an expert opinion on diabetology (the
prosecutor's decision of 9 February 2004) and an expert opinion on
neurology (ordered by the court and submitted on 5 July 2004). On 24
December 2003 two expert opinions were ordered with a view to
establishing the applicant's mental health. It transpires from the
case file that the applicant was found to be fit for detention and
his medical treatment in the detention centre did not raise any
issue. In the opinion of the neurologist submitted on 5 July 2004 it
was stated that the applicant's continued detention had not posed any
risk to his health. As it was also stated in the expert's opinion,
that the applicant's extended detention might have negative
consequences for his future state of health, arrangements were made
to admit the applicant to a prison hospital. It should be stressed
that soon afterwards the applicant's request for release was allowed
and he was released on 21 October 2004 (after the first-instance
judgment had been given on 30 September 2004).
- The
Court also notes that hearings were held regularly and at brief
intervals, notwithstanding the fact that some witnesses had failed to
appear at hearings or changed their addresses. Disciplinary measures
were taken by the court in order to expedite the proceedings.
- The
Court therefore considers that, in the particular circumstances of
the instant case, the grounds given by the judicial authorities for
the applicant's detention satisfied the requirement of being
“relevant” and “sufficient”.
- There
has, accordingly, been no violation of Article 5 § 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant complained, relying on Article 5 § 4 of the
Convention, that the grounds for his detention had ceased to exist
with the lapse of time and that the state of his health militated in
favour of his immediate release.
- The
Court observes that the applicant's complaint should be examined
under Article 5 §§ 1 (in so far as it concerns his initial
detention) and 3 (in so far as it concerns extensions of his
detention) and not under Article 5 § 4.
- In
so far as the complaint falls to be examined under Article 5 §
1, the Court observes that the applicant did not show that he lodged
an appeal against the first detention order.
- Therefore,
his complaint under Article 5 § 1 must be declared inadmissible
for non-exhaustion of domestic remedies according to Article 35
§§ 1 and 4 of the Convention.
- In
so far as the applicant complained in substance under Article 5 §
3, the Court notes that the applicant's complaint under this Article
has already been extensively considered. The Court does not find any
new elements to be added to its reasoning in paragraphs 40-50 above.
- The
complaint is therefore manifestly ill-founded and must be dismissed
in accordance with Article 35 §§ 3 and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant further complained under Article 3 about the fact that he
had been subjected to inhuman treatment as his state of health had
not allowed for his prolonged detention.
- It
transpires from the case file that the applicant was given regular
medical examinations while detained and medical treatment if needed.
It was established by experts that the applicant's detention did not
cause any risk to his health (see paragraph 48 above). Therefore, the
applicant was not subjected to any inhuman treatment within the
meaning of Article 3 of the Convention.
- In
view of the above, this part of the application is manifestly
ill-founded and must be declared inadmissible according to Article 35
§§ 3 and 4 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant further complained under Article 6 that the length of the
proceedings was unreasonable. That Article provides, in so far as
relevant:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
applicant failed to avail himself of any remedy provided for by
Polish law. He had several remedies at his disposal, namely a
complaint under sections 5 and 18 of the Law of 17 June 2004 on
complaints about a breach of the right to a trial within a reasonable
time as well as a civil action under Article 417 of the Civil Code
read together with section 16 of the above-mentioned Law (as to the
effectiveness of the latter remedy, see Krasuski v. Poland,
judgment of 14 June 2005, no. 61444/00, § 72, ECHR
2005 V (extracts).
- Therefore,
he did not exhaust domestic remedies and his complaint must be
declared inadmissible according to Article 35 §§ 1 and 4 of
the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the length of
the applicant's pre-trial detention admissible and the remainder of
the application inadmissible;
- Holds that there has been no violation of
Article 5 § 3 of the Convention.
Done in English, and notified in writing on 3 April 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
