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FOURTH
SECTION
CASE OF POLAKOWSKI v. POLAND
(Application
no. 4657/02)
JUDGMENT
STRASBOURG
31 May
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 Polakowski v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza,
President,
Mr J. Casadevall,
Mr S.
Pavlovschi,
Mr L. Garlicki,
Ms L.
Mijović,
Mr J. Šikuta,
Mrs P.
Hirvelä, judges,
and Mr T.L. Early, Section
Registrar,
Having
deliberated in private on 10 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 4657/02) against the Republic
of Poland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Polish national, Mr Krzysztof Polakowski
(“the applicant”), on 22 January 2002.
- The
applicant was represented by Mrs I. Polakowska, his wife. The Polish
Government (“the Government”) were represented by their
Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
18 October 2005 the Court declared the application partly
inadmissible and decided to communicate the complaint concerning the
length of the applicant's detention 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 1964 and lives in Gdynia.
- On
28 October 1996 he was arrested on suspicion of having committed
armed robbery while acting in an organised criminal gang.
- On
29 October 1996 the Gdańsk District Court remanded the applicant
in custody, relying on the reasonable suspicion that he had committed
the offence in question. It noted that keeping the applicant in
detention was necessary to secure the proper conduct of the
proceedings, given the risk that he might tamper with evidence. The
court also stressed the severity of the anticipated penalty.
- Later,
several other persons were detained and charged in connection with
the same investigation conducted by the Department of Organised Crime
of the Gdańsk Regional Prosecutor's Office.
- In
the course of the investigation, the applicant's detention was
prolonged on several occasions. On 16 January 1997 the Gdańsk
Regional Court prolonged his detention until 28 April 1997. On 16
April 1997 the Gdańsk Court of Appeal extended the applicant's
detention until 29 July 1997. It relied on the reasonable
suspicion that the applicant had committed the offences in question
and the gravity of the charges. It also had regard to the number of
suspects and the need to obtain further evidence.
- On
16 July 1997 the Court of Appeal prolonged his detention until
27 October 1997. It considered that there was a risk that the
applicant might go into hiding or obstruct the proceedings. It also
relied on the severity of the anticipated penalty. Lastly, it held
that further prolongation of the investigation was not attributable
to the prosecuting authorities, but resulted from the fact that
further suspects had been identified and arrested. Furthermore, the
prolongation was due to a delay in the preparation of some expert
reports and the need to request legal assistance from the German
authorities.
- On
17 September 1997 the Supreme Court extended the detention of the
applicant and his 5 co-suspects until 31 December 1997. It found that
there was a reasonable risk that the suspects might intimidate
witnesses, given the nature of the charges against them. It further
observed that the investigation could not be terminated on account of
the prolonged preparation of an expert report and the need to hear a
witness, W.B., who was serving his prison sentence in Germany.
- On
28 November 1997 the prosecution
filed a bill of indictment with the Gdańsk Regional Court. The
applicant was charged with kidnapping, armed robbery, extortion and
inflicting grievous bodily harm while being a member of an organised
armed criminal group. There were 16 defendants in the case, all
charged with numerous counts of armed robbery and extortion.
- On 7 January 1998 the Regional Court prolonged his
detention until 21 September 1998. In addition to the grounds
previously invoked, it relied on the complexity of the case and the
number of defendants.
- On
24 February 1998 the trial court held the first hearing. It
subsequently held some 56 hearings in the case.
- On
17 September 1998 the Regional Court extended his detention on remand
until 21 October 1998.
- On 21 September 1998 the Supreme Court ordered that
the applicant be kept in custody until 30 January 1999. It found that
the fact that the trial had not been terminated could not be
attributed to the authorities, given the volume of evidence and the
fact that some hearings had to be cancelled as the defendants'
counsel or witnesses had not appeared. It further noted that the
applicant had been charged with the commission of the crimes for
which he was liable to a sentence of imprisonment exceeding 8 years,
and that the circumstances of the case indicated that there was a
reasonable risk that the applicant might obstruct the proceedings.
- On
19 January 1999 the Supreme Court ordered that the applicant be kept
in custody until 30 June 1999. It relied on the fact that witnesses
had informed the trial court about having been threatened by the
defendants. It also had regard to the severity of the anticipated
penalty and the presumption established by Article 258 § 2 of
the Code of Criminal Procedure. Furthermore, the Supreme Court
considered that the prolongation of the detention beyond the
statutory time-limit of two years was justified by the complexity of
the case and the volume of evidence to be heard. In that respect, it
also observed that in December 1998 the trial court had been
prevented from hearing evidence on account of the absence of two
defence counsel.
- On
2 June 1999 the Supreme Court prolonged the applicant's detention
until 31 December 1999. It noted that the trial was being efficiently
conducted and that it had not been terminated for reasons which were
attributable to the defendants and their counsel. It noted in
particular that the defendants had attempted to intimidate witnesses
and protract the trial. Further, it had regard to the nature of the
charges and the severity of the likely penalty.
- On 14 December 1999 the Gdańsk Regional Court
convicted the applicant of armed robbery, kidnapping and extortion
and sentenced him to 7 years' and 6 months' imprisonment and a
fine. The applicant appealed.
- The
applicant's detention pending appeal was prolonged on several
occasions. The last decision extending the applicant's detention
until 31 March 2001 was given by the Court of Appeal on 17
January 2001.
- On
7 March 2001 the Gdańsk Court of Appeal quashed the
first-instance judgment in respect of the applicant and remitted the
case.
- On
14 March 2001 the Court of Appeal ordered that the applicant be kept
in custody until 30 June 2001. Having regard to Article 258 § 2
of the Code of Criminal Procedure, it observed that the applicant
might attempt to obstruct the proceedings given the likelihood of a
severe penalty being imposed on him. It also relied on the nature of
the charges.
- On
19 June 2001 the Court of Appeal prolonged his detention until
30 September 2001, finding that continuation of that measure was
necessary in order to secure the proper conduct of the proceedings,
having regard to the severity of the anticipated penalty.
- On
28 September 2001 the Gdańsk Regional Court ordered that the
applicant be kept in custody until 30 December 2001. It found that
the applicant's continued detention was necessary in order to prevent
the applicant from interfering with witnesses. On 10 October 2001 the
Court of Appeal dismissed the applicant's appeal against that
prolongation. Referring to Article 5 § 3 of the Convention, it
observed that the applicant's detention, although undeniably long,
was justified by the particular circumstances of the case. In this
respect, it emphasised that the applicant had been charged with
particularly serious and violent crimes, and thus his
continued detention was justified on public interest grounds.
- On 28 December 2001 the Regional Court prolonged the
applicant's detention until 30 March 2002. It observed that following
the Court of Appeal's instructions most of the witnesses who had
given evidence at the original trial had to be heard again. In that
case there was a reasonable risk that the defendants might interfere
with the witnesses. In addition, the court found that given the
gravity of the charges and the likelihood that severe penalties would
be imposed on them, the defendants might obstruct the proceedings by
going into hiding. On 23 January 2002 the Gdańsk Court of Appeal
upheld that decision. It considered, inter alia, that the
Regional Court had attempted to examine the case within a reasonable
time, but there had been significant delays at the trial which were
attributable to the defendants or their counsel. In this respect, it
pointed to the obstructive conduct of all the defendants on 18
December 2001 which had prevented the Regional Court from holding a
hearing on that day. On the other hand, the Court of Appeal
instructed the Regional Court to assess the length of detention of
each defendant separately. It pointed out that the further
prolongation of the detention of those defendants who were not
simultaneously serving prison sentences could not be accepted in the
long term.
- Further
decisions prolonging the applicant's detention were taken by the
Gdańsk Regional Court on 15 March 2002 (until 30 June 2002) and
on 21 June 2002 (until 30 September 2002). The applicant
appealed against the latter decision.
- On
31 July 2002 the Court of Appeal altered the Regional Court's
decision and ordered that the applicant be released under police
supervision. It underlined that the applicant's detention on remand
had been exceptionally long and had thus lost its provisional nature.
Having regard to the current progress of the trial, the court
observed that it was not possible to predict when the proceedings
would be terminated. Furthermore, it noted that 7 out of 10
co-defendants were serving long-term prison sentences.
- Prior
to his release under police supervision, the applicant filed numerous
but unsuccessful applications for release and appealed, likewise
unsuccessfully, against the decisions prolonging his detention.
- It
appears that the criminal proceedings against the applicant are still
pending.
II. RELEVANT DOMESTIC LAW
- The relevant domestic law and practice concerning the
imposition of detention on remand (tymczasowe aresztowanie),
the grounds for its prolongation, release from detention and rules
governing other, so-called “preventive measures” (środki
zapobiegawcze) at the material time are stated in the Court's
judgments in the cases of Kudła v. Poland [GC],
no. 30210/96, §§ 75-79, ECHR 2000-XI; Bagiński
v. Poland, no. 37444/97, §§ 42-45, 11 October
2005; and Celejewski v. Poland, no. 17584/04, §§
22-23, 4 August 2006.
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 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. At the same time, they refrained
from taking a position on the merits of the applicant's complaint,
having regard to the Court's case-law concerning the length of
pre-trial detention.
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 Court observes that the applicant was arrested on 28 October
1996 and remanded in custody on 29 October 1996. On 14 December 1999
the Gdańsk Regional Court convicted him of armed robbery,
kidnapping and extortion. As from that date he was detained “after
conviction by a competent court”, within the meaning of Article
5 § 1 (a) and therefore that period of his detention falls
outside the scope of Article 5 § 3 (cf. Kudła, cited
above, § 104). On 7 March 2001 the Gdańsk Court of Appeal
quashed the applicant's conviction. Following that date his detention
was again covered by Article 5 § 3. It continued until 31 July
2002 when the applicant was released under police supervision.
Consequently, the period to be taken into consideration lasted 4
years, 6 months and 10 days.
2. The reasonableness of the length of detention
(a) The parties' arguments
- The
Government submitted that the applicant's pre-trial detention had
been justified by the existence of substantial evidence of his guilt,
the nature of the offences with which he had been charged and the
severity of the anticipated penalty. They underlined that the length
of the applicant's detention should be assessed taking into account
the fact that he and his co-defendants had acted in an organised
criminal gang. The risk that the defendants might obstruct the
proceedings or tamper with evidence was aggravated by the fact they
been closely linked as members of an organised criminal group. Thus,
the domestic courts had considered it necessary to remand the
applicant and his co-defendants in custody until all relevant
witnesses had been heard.
- The
Government emphasised that the serious nature of the charges as well
as the fact that there had been 16 defendants charged with numerous
offences committed in a criminal gang required that the proper
conduct of the proceedings be secured with particular diligence. 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. Lastly, they maintained that the
authorities had displayed special diligence in dealing with the
applicant's case.
- The
applicant's case has been extremely complex on account of the number
of charges and the defendants, and the volume of evidence.
Furthermore, the conduct of the proceedings had been significantly
hindered by the unwarranted exercise of procedural rights by the
defendants and their defence counsel. The defendants had lodged
hundreds of applications and appealed against every decision, even
when they had been informed that the appeal had been inadmissible.
Thus, the applicant and other defendants contributed to the length of
the proceedings.
- The
applicant argued that the length of his detention had been
unreasonable.
(b) The Court's assessment
(i) Principles established under the
Court's case-law
- The
presumption is in favour of release. As established in Neumeister
v. Austria (judgment of 27 June 1968, Series A no. 8, p.37, §
4), the second limb of Article 5 § 3 does not give judicial
authorities a choice between either bringing an accused to trial
within a reasonable time or granting him provisional release pending
trial. Until conviction, he must be presumed innocent, and the
purpose of the provision under consideration is essentially to
require his provisional release once his continuing detention ceases
to be reasonable (see McKay v. the United Kingdom [GC],
no. 543/03 , § 41, ECHR 2006-...).
- Continued
detention therefore 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 laid down in Article 5 of the
Convention (see, among other authorities, Kudła, cited
above, §§ 110-111).
- 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,
paying due regard to the principle of the presumption of innocence,
examine all the facts arguing for or against the existence of the
above-mentioned requirement of public interest justifying a departure
from the rule in Article 5 and must set them out in their decisions
on 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 (see, for example, Labita v. Italy [GC], no. 26772/95, §
152, ECHR 2000-IV, and Kudła, cited above, § 110).
- 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. The Court must then 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 be satisfied that
the national authorities displayed “special diligence” in
the conduct of the proceedings. The complexity and special
characteristics of the investigation are factors to be considered in
this respect (see, for example, Scott v. Spain, judgment of 18
December 1996, Reports of Judgments and Decisions 1996-VI,
pp. 2399-2400, § 74, and I.A. v. France, judgment of
23 September 1998, Reports 1998-VII, p. 2978, §
102).
- In
sum, domestic courts are under an obligation to review the continued
detention of persons pending trial with a view to ensuring release
when circumstances no longer justify continued deprivation of
liberty. For at least an initial period, the existence of reasonable
suspicion may justify detention but there comes a moment when this is
no longer enough. As the question whether or not a period of
detention is reasonable cannot be assessed in the abstract but must
be assessed in each case according to its special features, there is
no fixed time-frame applicable to each case (see McKay, cited
above, § 45).
(ii) Application of the principles to the
circumstances of the present case
- The
Court observes that the judicial authorities, in addition to the
reasonable suspicion against the applicant, relied principally on
three grounds, namely (1) the serious nature of the charges against
him, (2) the severity of the penalty to which he was liable and (3)
the risk of obstruction of the proceedings. In respect of the latter,
they relied on the defendants' attempts to intimidate witnesses. The
domestic courts also referred to the obstructive attitude of the
defendants and their counsel aimed at delaying the trial. Lastly,
they had regard to the complexity of the case related to the nature
of the charges, the number of defendants and volume of evidence to be
heard.
- The Court notes that the applicant was charged with
kidnapping, armed robbery, extortion
and inflicting grievous bodily harm which had been committed in an
organised armed criminal gang. When assessing compliance
with Article 5 § 3 of the Convention, it will take into account
the fact that the present case concerned a member of a criminal gang
(Bąk v. Poland, no. 7870/04, § 57, 16
January 2007).
- The
Court accepts that the reasonable suspicion against the applicant of
having committed the serious offences may initially have warranted
his detention. In addition, it considers that the authorities were
faced with a difficult task of determining the facts and the degree
of alleged responsibility of each of the defendants, who had been
charged with acting in an organised criminal group. In these
circumstances, the Court also accepts that the need to obtain
voluminous evidence from many sources, coupled with the fact that in
the course of the investigation new suspects had been identified,
constituted relevant and sufficient grounds for the applicant's
detention at the early stages of the trial.
- However,
with the passage of time those grounds inevitably became less and
less relevant. It must then establish whether the other grounds
advanced by the judicial authorities were “relevant” and
“sufficient” to continue to justify the deprivation of
liberty.
- The
Court notes that the judicial authorities relied heavily on the
likelihood that a severe sentence would be imposed on the applicant
given the serious nature of the offences at issue. According to them,
that likelihood created a presumption that the applicant would
obstruct the proceedings. In this respect, the Court recalls that the
severity of the sentence faced is a relevant element in the
assessment of the risk of absconding or re-offending. It acknowledges
that in view of the seriousness of the accusations against the
applicant the authorities could justifiably consider that such an
initial risk was established. However, the Court has repeatedly held
that the gravity of the charges cannot by itself serve to justify
long periods of detention on remand (see Ilijkov v. Bulgaria,
no. 33977/96, §§ 80-81, 26 July 2001).
- Furthermore,
the judicial authorities relied on the fact that the applicant had
been charged with being a member of an organised criminal gang. In
this regard, the Court reiterates that the existence of a general
risk flowing from the organised nature of the alleged criminal
activities of the applicant may be accepted as the basis for his
detention at the initial stages of the proceedings (see, Górski
v. Poland, no. 28904/02, § 58, 4 October
2005) and in some circumstances also for subsequent prolongations of
the detention (see, Celejewski, cited above, § 37). It is
also accepted that in such cases, involving numerous accused, the
process of gathering and hearing evidence is often a difficult task.
In these circumstances, the Court considers that the need to obtain
voluminous evidence from many sources and to determine the facts and
degree of alleged responsibility of each of the co-defendants,
constituted relevant and sufficient grounds for the applicant's
detention during the period necessary to terminate the investigation,
to draw up the bill of indictment and to hear evidence from the
accused. Moreover, the Court considers that in cases such as the
present concerning organised criminal gangs, 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 by
the nature of things often particularly high. Indeed, the Court notes
that the defendants made attempts to intimidate the witness at their
original trial (see paragraph 16 above). Furthermore, it accepts that
certain delays during the trial were caused by the defendants'
obstructiveness (see paragraph 24 above).
- While
all the factors considered above could justify a relatively longer
period of detention on remand, they do not however give the
authorities unlimited power to prolong this preventive measure.
Firstly, with the passage of time, the initial grounds for pre-trial
detention become less and less relevant and the domestic courts
should rely on other “relevant” and “sufficient”
grounds to justify the deprivation of liberty (see, among many other
authorities, I.A., cited above, § 102; Labita,
cited above, § 153). Secondly, even if the particular
circumstances of the case required detention on remand to be extended
beyond the period generally accepted under the Court's case-law,
particularly strong reasons would be needed to justify this (Wolf
v. Poland, nos. 15667/03 and 2929/04, § 90, 16
January 2007). In this respect the Court notes that the applicant had
already spent 3 years and more than 1 month in detention on remand
before his first conviction was pronounced. The situation was further
aggravated following the quashing of the applicant's conviction on 7
March 2001, after which he spent nearly 17 months more in
custody.
- Having
regard to the foregoing, even taking into account the particular
difficulties in dealing with a case concerning an organised criminal
gang, the Court concludes that the grounds given by the domestic
authorities were not “relevant” and “sufficient”
to justify holding the applicant in detention for 4 years and
over 6 months. 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 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 60,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government submitted that the applicant's claim was exorbitant and
should be rejected. They asked the Court to rule that a finding of a
violation constituted in itself sufficient just satisfaction.
Alternatively, the Government invited the Court to award a sum which
would be considerably lower than the amount claimed.
- 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 1,000 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 remainder of the application
admissible;
- 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 1,000 (one
thousand euros) in respect of non-pecuniary damage, to be converted
into the national currency of the respondent State at the rate
applicable at the date of settlement, plus any tax that may be
chargeable;
(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 31 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
