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FOURTH
SECTION
CASE OF DUBLAS v. POLAND
(Application
no. 48247/06)
JUDGMENT
STRASBOURG
7 October 2008
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 Dublas 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,
David Thór Björgvinsson,
Ledi
Bianku,
Mihai Poalelungi, judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 16 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 48247/06) 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 Grzegorz Dublas (“the
applicant”), on 10 November 2006.
- The
Polish Government were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
- The
applicant alleged, inter alia, that the length of his
pre-trial detention and of criminal proceedings against him had
exceeded a “reasonable time” within the meaning of
Articles 5 § 3 and 6 § 1 of the Convention.
- On
30 August 2007 the
President of the Fourth Section decided to communicate the complaints
concerning the length of the applicant's pre trial detention and
of his criminal proceedings to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1972 and lives in Pruszcz
Gdański.
- On 8 June 2004 he was arrested by the police.
- On 9 June 2004 the Gdańsk District Court (Sąd
Rejonowy) decided to place the applicant in pre-trial detention
as there were reasonable grounds for suspecting that he had been
dealing in drugs. The court also cited the risk that the applicant
would go into hiding, in view of the likelihood of a heavy sentence.
- On
2 September and 4 November 2004 the applicant's detention was
extended. In addition to the two grounds given previously, the
District Court cited the need to ensure the proper conduct of the
investigation.
- On
26 October 2004 the applicant was indicted before the Gdańsk
District Court. His pre-trial detention was subsequently extended.
- As
the length of the applicant's detention had reached the statutory
time limit of two years laid down in Article 263 § 3 of the
Code of Criminal Procedure (Kodeks postępowania karnego),
the District Court made a series of applications to the Gdańsk
Court of Appeal (Sąd Apelacyjny) for the applicant's
detention to be extended beyond that term. On 18 May and 17 August
2006 the Gdańsk Court of Appeal granted the applications and
extended his detention, citing the reasonable suspicion against the
applicant and the length of the sentence that was likely to be
imposed. The Court also considered that the District Court could not
be held responsible for not having completed the trial as there had
been objective procedural difficulties in hearing all the witnesses.
- The
first hearing was held on 21 January 2005. Subsequently, hearings
were held at regular intervals.
- The
applicant's applications for release from detention and his appeals
against the decisions extending the preventive measure were
dismissed.
- On
17 October 2006 the Gdańsk Court of Appeal extended the
applicant's detention until 20 November 2006. It cited the reasonable
suspicion against the applicant and found that detention was
necessary to secure the proper conduct of the proceedings given the
likelihood of a heavy sentence.
- The
applicant's detention on remand was not extended beyond that date and
on 20 November 2006 he was released.
- On
4 August 2006 the applicant lodged 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”). On 3 November 2006 the Gdańsk Regional Court
dismissed the complaint, finding that the trial had been conducted
speedily and with no periods of inactivity.
- The
proceedings are still pending before the trial court.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law and practice concerning pre-trial detention
(aresztowanie tymczasowe), the grounds for its extension and
release from detention, and the rules governing other “preventive
measures” (środki zapobiegawcze) are 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 law and practice concerning
remedies for the excessive length of judicial proceedings are stated
in the Court's decisions in the cases of Charzyński v. Poland
(no. 15212/03 (dec.), §§ 12 23, ECHR 2005-V),
and Ratajczyk v. Poland (no. 11215/02 (dec.),
ECHR 2005 VIII) and 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 pre-trial detention 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 8 June 2004 when he was arrested on
suspicion of drug dealing. On 20 November 2006 the applicant was
released from his pre-trial detention.
Accordingly,
the period to be taken into consideration amounts to two years, five
months and thirteen days.
2. The parties' submissions
- The
applicant generally submitted that he had been kept in detention
pending trial for an unjustified period of time.
- The
Government considered that the applicant's pre-trial detention
satisfied the requirements of Article 5 § 3. It was justified by
“relevant” and “sufficient” grounds. Those
grounds were, in particular, the gravity of the charges against the
applicant and the risk of his tampering with evidence and obstructing
the proper conduct of the proceedings. The Government argued that the
domestic authorities had shown due diligence, as required in cases
against detained persons, and that the length of the applicant's
detention was attributable to the complexity of the case, in which
there were four defendants.
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 set out
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 cited the reasonable
suspicion against the applicant and the length of the sentence he
faced. In addition the court referred on several occasions to the
complexity of the proceedings and the need to ensure their proper
conduct.
- The
Court accepts that the reasonable suspicion against the applicant of
having committed serious offences could initially have justified his
detention. However, even though the applicant was detained on charges
of drug-trafficking and the proceedings concerned four co-accused,
there is no indication that he was a member of an organised criminal
group. It does not appear, therefore, that there were any special
features to his case – such as a link to organised crime –
that would have made it difficult for the investigating authorities
or the courts to determine the facts and mount a case (see
Celejewski, cited above, § 37, and Malik v.
Poland, no. 57477/00, § 49, 4 April 2006).
- According
to the authorities, the likelihood of a heavy sentence being imposed
on the applicant created a presumption that he would obstruct the
proceedings. However, the Court would reiterate that, while the
length 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 pre-trial detention (see
Michta v. Poland, no. 13425/02, §§ 49, 4
May 2006).
- The
domestic courts considered that the prolonged detention of the
applicant was necessary to secure the proper conduct of the
proceedings. However, the authorities did not refer to any specific
circumstance capable of showing that the applicant's release would
interfere with the proper conduct of the proceedings, and if so why
and how. They did not point to any instance of the applicant's
attempting to intimidate witnesses or to disrupt the trial at any
stage during his detention. Nor is there any evidence that the
applicant made any attempt to pervert the course of justice after his
release in November 2006. Apart from the grounds examined above, the
domestic courts failed to advance any other argument justifying the
extension of the applicant's pre-trial detention.
- Lastly,
the Court would emphasise that, when deciding whether a person is to
be released or detained, the authorities are obliged under Article 5
§ 3 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 Jablonski v. Poland,
no. 33492/96, § 83, 21 December 2000).
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 designed to secure his
appearance at the trial. Nor did they give any consideration to the
possibility of ensuring his presence at trial by imposing on him
other “preventive measures” expressly intended to secure
the proper conduct of criminal proceedings. It is also unclear on
what ground the authorities found in November 2006 that the
applicant's detention was no longer necessary after having required
it for two years and almost six months.
- Having
regard to the foregoing, the Court concludes that the grounds given
by the domestic authorities cannot justify the overall period of the
applicant's detention. In these circumstances it is not necessary to
examine under Article 5 § 3 of the Convention 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 UNREASONABLE LENGTH OF THE 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 his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government raised a preliminary objection that the applicant had
failed to exhaust domestic remedies. They refrained from expressing
their opinion on the merits of the complaint under Article 6 of
the Convention.
- The
Court notes that the period to be taken into consideration began on 8
June 2004 and has not yet ended. It has so far lasted over four years
for one level of jurisdiction.
A. Admissibility
- The
Government raised a preliminary objection that the applicant had not
exhausted the domestic remedies available to him under Polish law, as
required by Article 35 § 1 of the Convention. They maintained
that since the applicant's complaint lodged under the 2004 Act had
been dismissed on 3 November 2006, the applicant could have
lodged another length of proceedings complaint after the
lapse of 12 months, in accordance with section 14 of that Act. In the
new complaint the applicant could have raised his arguments
concerning the courts' conduct after 3 November 2006.
- The
Court has previously established that the remedies provided by the
2004 Act are effective in respect of the excessive length of criminal
proceedings (see Charzyński v. Poland, cited above).
However, it observes that the applicant's complaint was dismissed
when the proceedings in his case had already been pending for over
two years before the trial court. It does not consider it necessary
for the applicant, in order to comply with the requirement of Article
35 § 1 of the Convention, to lodge a new complaint every 12
months (see Wolf v. Poland, nos. 15667/03 and 2929/04,
§ 62, 16 January 2007, and Osiński v. Poland,
no. 13732/03, § 63, 16 October 2007).
- For
this reason, the Government's plea of inadmissibility on the ground
of non-exhaustion of domestic remedies must be dismissed.
- The
Court further 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
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 considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE UNFAIRNESS OF THE PROCEEDINGS
- The
applicant complained that the proceedings in his case were unfair. He
alleged a breach of Article 6 § 1 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 proceedings against the applicant are pending
before the trial court. It will be thus open to the applicant to
lodge an appeal against the trial court's judgment and a further
cassation appeal against the second-instance court's judgment.
Accordingly, the applicant still has an opportunity, which he should
make use of, to put the substance of his complaints under this limb
to the domestic authorities and ask for appropriate relief.
- It
follows that these complaints 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 5,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government considered that this claim was
excessive and as such should be rejected.
- The Court does not discern any causal link between the
violation found and the pecuniary damage alleged; it therefore
rejects this claim. However, it awards the applicant EUR 3,000 in
respect of non-pecuniary damage.
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 complaint concerning the
unreasonable length of the applicant's pre-trial detention and length
of the criminal proceedings admissible and the remainder of the
application inadmissible;
- 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;
- 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 3,000
(three thousand euros), plus any tax that may be chargeable, 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 7 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
