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FOURTH
SECTION
CASE OF LEWANDOWSKI v. POLAND
(Application
no. 29437/02)
JUDGMENT
STRASBOURG
3 July
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 Lewandowski 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 12 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 29437/02) 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 Artur Lewandowski (“the
applicant”), on 1 July 2002.
- The
Polish Government were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
- The
applicant alleged, in particular, that the length of his pre trial
detention had been unreasonable.
- On
17 March 2005 the President of the Fourth Section of the Court
decided to communicate the complaint concerning the length of the
applicant's detention on remand to the Government. Under the
provisions of Article 29 § 3 of the Convention, it was
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 1970 and is presently detained in Wołów
Detention Centre.
- On
21 March 2000 the applicant was arrested on suspicion of robbery.
- On
22 March 2000 the Oława District Court (Sąd Rejonowy)
decided to detain the applicant on remand. It considered that the
applicant's detention was justified by the existence of a reasonable
suspicion that he had committed the offence and the gravity of the
charges. It also relied on the risk that the applicant might induce
witnesses to give false testimony or obstruct the proceedings against
him by other means. On 20 April 2000 the Wrocław Regional Court
(Sąd Okręgowy) dismissed the applicant's appeal
against that decision.
- On
21 June 2000 the Regional Court prolonged the applicant's detention
until 21 September 2000. The court considered that there was a
significant risk of the applicant obstructing the proper course of
the proceedings or going into hiding.
- The
applicant's detention was subsequently prolonged on 21 September
and 21 December 2000. The court repeated the reasons previously given
for the applicant's detention and considered that it was necessary to
obtain evidence from an expert psychiatrist.
- On
19 March 2001 the Wrocław Court of Appeal (Sąd
Apelacyjny) again prolonged his detention until 30 April 2001.
- On
20 April 2001 the applicant was indicted before the Wrocław
Regional Court. He was charged with having committed two robberies in
January and February 1999.
- The
applicant's detention was further prolonged by the Wrocław
Regional Court several times, for the same reasons as before.
- On
6 March 2002 the Wrocław Court of Appeal allowed the Regional
Court's request to extend the applicant's detention until
19 September 2002. Subsequently the court prolonged his
detention until 19 December 2002 and, thereafter, until 19 March
2003. The applicant's appeals against those decisions were dismissed.
- His
applications for release of 22 September and 12 November 2002
were likewise dismissed.
- On
5 March 2003 the Court of Appeal, at the prosecutor's request,
prolonged the applicant's detention until 19 June 2003.
- On
15 April 2003, at a hearing, the Regional Court dismissed the
applicant's request for release, for the same reasons as before. The
court found that there were “no grounds for release”
provided by Article 259 of the Code of Criminal Procedure.
- On
29 April 2003 the applicant again unsuccessfully asked the court to
release him from detention.
- On
10 June 2003 the Wrocław Court of Appeal allowed the Regional
Court's application to prolong the detention until 19 September 2003
- On
16 September 2003 the Wrocław Regional Court convicted the
applicant as charged and sentenced him to 12 years' imprisonment.
- On
29 June 2004 the Court of Appeal upheld the applicant's sentence of 4
years' imprisonment in respect of the robbery committed in February
1999. The appeal court quashed the remainder of the impugned judgment
in so far as it concerned the applicant's conviction for armed
robbery committed in January 1999 and for which the applicant was
sentenced to 12 years' imprisonment. The court remitted this
part of the case.
- The
applicant lodged a cassation appeal with the Supreme Court against
the part of the Court of Appeal's judgment which had become final. It
appears that the proceedings ended on an unspecified later date.
- On
31 January 2006 the Wrocław Regional Court gave a judgment with
regard to the part of the judgment which had been quashed by the
Court of Appeal on 29 June 2004. The applicant was convicted of
having committed armed robbery in January 1999 and was sentenced to
12 years' imprisonment.
- The
applicant appealed but on 31 August 2006 the Court of Appeal
dismissed the appeal.
- The
applicant lodged a cassation appeal and the proceedings are pending
before the Supreme Court.
II. RELEVANT DOMESTIC LAW
- The
Code of Criminal Procedure of 1997, which entered into force on
1 September 1998, defines detention on remand as one of the
so called “preventive measures” (środki
zapobiegawcze).
- A
more detailed rendition of the relevant domestic law provisions is
set out in the Court's judgment in Kudła v. Poland [GC],
no. 30210/96, § 75, ECHR 2000 XI, Celejewski
v. Poland, no. 17584/04, §§ 22 and 23, 4 May
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 unreasonable. 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.
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. The parties' submissions
- The
applicant submitted that he had been kept in detention pending trial
for an unjustified period of time. The fact that he had been detained
for many years showed disregard for the right to individual liberty
in Poland and had justified his application to the Court.
- The
Government considered that the applicant's pre-trial detention
satisfied the requirements of Article 5 § 3. They submitted that
on 17 May 2005 the applicant started serving a sentence imposed
on him in another set of criminal proceedings. His detention was
justified by “relevant” and “sufficient”
grounds. These grounds were, in particular, the gravity of the
charges against the applicant as well as the risk that he might
obstruct the course of the proceedings. The latter ground was
particularly justified as the applicant, a recidivist offender, had
been convicted of having committed two robberies, including an armed
robbery.
The
Government further argued that the domestic authorities had shown due
diligence, as required in cases against detained persons.
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, W. v.
Switzerland, judgment of 26 January 1993, Series A
no. 254 A, p. 15, § 30, and Kudła v.
Poland [GC], no. 30210/96, § 110, ECHR 2000 XI)
- 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-...).
- 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 mentioned 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
McKay, cited above, § 43).
- 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, § 153,
ECHR 2000 IV, and Jabłoński v. Poland, no.
33492/96, § 80, 21 December 2000).
(b) Application of the principles to the
circumstances of the present case
- The
Court first notes that the applicant's detention on remand started on
21 March 2000 when he was arrested, and ended with his
conviction by the court of first-instance on 16 September 2003. On 29
July 2004 the Court of Appeal remitted the case to the trial court.
The period to be taken into consideration for the purposes of Article
5 § 3 of the Convention ended on 17 May 2005 when the applicant
started to serve a prison sentence ordered in another set of criminal
proceedings (see paragraph 31 above). The period following that
date is covered by Article 5 § 1 (a) of the Convention. The
detention thus lasted 4 years, 3 months and 15 days.
- The
Court observes that the authorities initially relied on the
reasonable suspicion that the applicant had committed the offences
with which he had been charged, and the risk that he might interfere
with the conduct of the proceedings. In addition, the authorities
relied heavily on the severity of the sentence that might be imposed,
which made it probable that the applicant would obstruct the course
of the criminal proceedings.
They
repeated those grounds in all their decisions. In subsequent
decisions the authorities failed to advance any new grounds for
prolonging the most serious preventive measure against the applicant.
Moreover, the authorities did not rely on any specific circumstance
capable of showing that the applicant's release would, and if so why
and how, obstruct the process of obtaining evidence.
- The Court accepts that the suspicion against the
applicant of having committed the offences and the need to secure the
proper conduct of the proceedings might initially justify his
detention. However, with the passage of time, these grounds became
less relevant and cannot justify the entire period of 4 years and
over 3 months during which the applicant remained in detention (see
Malik v. Poland, no. 57477/00, § 45,
4 April 2006).
- Moreover,
the authorities relied heavily on the likelihood that a heavy
sentence would be imposed on the applicant given the serious nature
of the offences at issue. In this respect, the Court agrees that the
severity of the sentence faced is a relevant element in the
assessment of the risk of absconding or re-offending. 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).
- The Court observes further that the applicant was
detained on charges of robbery and was finally sentenced to twelve
years' imprisonment. Even though the applicant had committed the
offences with the help of accomplices, there is no indication that he
was a member of an organised criminal group. It does not appear
therefore that his case presented particular difficulties for the
investigation authorities and for the courts to determine the facts
and mount a case against the perpetrator (see Bąk v.
Poland, no. 7870/04, § 60, ECHR 2007 ...
(extracts)), as would undoubtedly have been the case had the
proceedings concerned organised crime (see Celejewski v. Poland,
cited above, § 37, and Malik, cited above, § 49).
- Finally,
the Court would emphasise that under Article 5 § 3 the
authorities, when deciding whether a person is to be released or
detained, are obliged to consider alternative means of guaranteeing
his appearance at the trial. Indeed, that Article lays down not only
the right to “trial within a reasonable time or release pending
trial” but also provides that “release may be conditioned
by guarantees to appear for trial” (see Jabłoński,
cited above, § 83).
In
the present case the Court notes that there is no express indication
that during the entire period of the applicant's pre-trial detention
the authorities envisaged any other guarantees of his appearance at
trial. Nor did they give any consideration to the possibility of
ensuring his presence at trial by imposing on him other “preventive
measures” expressly foreseen by Polish law to secure the proper
conduct of criminal proceedings.
- The
Court is, therefore, not satisfied that the reasons given to justify
the applicant's detention for 4 years and over 3 months were
“relevant” and “sufficient”, as required
under Article 5 § 3.
There
has therefore been a violation of Article 5 § 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 §1 OF THE
CONVENTION
- The
applicant complained that he did not have a “fair trial”
and that he was innocent. He relied on Article 6 of the Convention.
However,
pursuant to Article 35 § 1 of the Convention:
“The Court may only deal with the matter after all
domestic remedies have been exhausted, according to the generally
recognised rules of international law...”
- The
Court notes that the criminal proceedings against the applicant, as
regards some of the charges against him, are still pending following
the applicant's cassation appeal lodged with the Supreme Court.
Accordingly, the applicant still can, and should, put the substance
of the complaint before the domestic authorities and ask for
appropriate relief.
It
follows that this complaint must be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
- As
regards the part of the proceedings which have apparently ended, the
Court reiterates that it is not called upon to deal with errors of
fact and law allegedly committed by a national court unless and in so
far as they may have infringed rights and freedoms protected by the
Convention (see García Ruiz v. Spain [GC],
no. 30544/96, § 28, ECHR 1999-I).
- The
Court observes that the applicant does not allege any particular
failure to respect his right to a fair hearing. Assessing the
criminal proceedings against the applicant as a whole, it finds no
indication that they were unfairly conducted.
It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
III. 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 66,000 euros (EUR) in respect of
pecuniary damage and EUR 50,000 under the head of non-pecuniary
damage.
- The Government contested those claims.
- 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
2,000 in respect of non pecuniary damage.
B. Costs and expenses
- The
applicant did not claim reimbursement of any 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 applicant's complaint concerning
the unreasonable length of his pre-trial detention admissible and the
remainder of the application inadmissible;
- 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, to be converted
into Polish zlotys at a 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 3 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
