[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF JANICKI v. POLAND
(Application
no. 35831/06)
JUDGMENT
STRASBOURG
2 December
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 Janicki v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ján
Šikuta,
Päivi
Hirvelä,
Mihai
Poalelungi,
judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 13 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 35831/06) 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 Damian Janicki (“the applicant”),
on 18 August 2006.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- The
applicant alleged, in particular, that his pre-trial detention
exceeded a “reasonable time” within the meaning of
Article 5 § 3 of the Convention.
- On
28 August 2007 the
President of the Fourth Section of the Court decided to communicate
the complaint under Article 5 § 3 of the Convention
concerning the allegedly unreasonable length of the applicant's
pre-trial detention. It was also decided to examine the merits of the
application at the same time as its admissibility (Article 29
§ 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, Mr Damian Janicki, is a Polish national who was born in
1976 and is currently detained in Gdańsk Remand Centre.
Criminal proceedings against the
applicant and his pre-trial detention
- On
20 February 2003 the applicant was arrested by the police on
suspicion of homicide and arson. On 21 February 2003 the Gdańsk
District Court (Sąd Rejonowy) ordered that he be remanded
in custody. That decision was justified by the existence of strong
evidence against the applicant.
- Subsequently,
the applicant's detention was extended several times by the Gdańsk
Regional Court in its decisions of 8 May, 15 July, 16 September and
16 December 2003. The court referred to the likelihood of a severe
sentence of imprisonment being imposed on the applicant, the risk
that he might obstruct the proceedings and the need to obtain further
evidence, such as reports by experts in forensic medicine and in
psychiatry.
- On 30 January 2004 the applicant was indicted
before the Gdańsk Regional Court (Sąd Okręgowy).
The bill of indictment comprised charges of homicide and arson
against the applicant and his alleged accomplice. The prosecutor
requested that thirty-four witnesses and eight experts be heard by
the trial court.
The
first hearing was scheduled for 10 May 2004.
- In
the course of the judicial proceedings, the applicant's detention was
extended several times by decisions of the Gdańsk Regional Court
of 10 February, 19 June, 27 October and 29 December 2004
and a decision of the Gdańsk Court of Appeal of 16 February
2005.
The
courts referred to the likelihood of a severe sentence of
imprisonment being imposed on the applicant and, furthermore, they
reiterated the original grounds for the applicant's pre-trial
detention.
- Between
May and December 2004 the trial court held eight hearings. It appears
that in the course of the proceedings the applicant made numerous
unsuccessful applications for his detention to be lifted or replaced
by another preventive measure and that he appealed, likewise
unsuccessfully, against decisions extending his detention. In his
applications and appeals he relied on personal circumstances, in
particular the fact of being the only guardian of two minor
daughters.
- On
23 March 2005 the Gdańsk Regional Court convicted the applicant
as charged and sentenced him to fifteen years' imprisonment. The
applicant appealed.
-
On 5 January 2006 the Gdańsk Court of Appeal (Sąd
Apelacyjny) quashed the judgment and remitted the case to the
Gdańsk Regional Court.
- On
16 March 2006 the Gdańsk Regional Court extended the applicant's
detention until 31 August 2006. It relied on the reasonable suspicion
that the applicant had committed the offences with which he had been
charged and on the likelihood that a severe sentence of imprisonment
would be imposed on him.
- During
the retrial the applicant's detention was extended on several
occasions by the decisions of the Gdańsk Court of Appeal of 29
August and 14 December 2006. The court referred to the grounds for
detention given in previous decisions.
Between
June and December 2006 the trial court held four hearings.
- On
22 August 2006, during one of the hearings, the applicant lodged an
application for release. It was dismissed. The Regional Court relied
on the reasonable suspicion that the applicant had committed the
offences. It referred to the need to ensure that the process of
obtaining evidence would be successfully completed.
- On
12 December 2006 the court decided to disqualify one of the judges
from dealing with the case. On 14 December 2006 the applicant lodged
a complaint against that decision. It was dismissed by the Regional
Court on 18 December 2006 and by the Court of Appeal on
19 December 2006.
- Subsequently,
the applicant's detention was extended by the decisions of the Gdańsk
Court of Appeal of 13 March, 4 June and 23 October 2007 and a
number of decisions issued in 2008.
- On
24 April 2008 the Gdańsk Regional Court convicted the applicant
as charged. The case is currently pending appeal.
- The
applicant did not lodge a complaint about a breach of the right to a
trial within a reasonable time with the domestic court, under section
5 of the Law of 17 June 2004 (Ustawa o
skardze na naruszenie prawa strony do rozpoznania sprawy w
postępowaniu sądowym bez nieuzasadnionej zwłoki)
(“the 2004 Act”).
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Preventive measures, including pre-trial detention
- The
relevant domestic law and practice concerning the imposition of
pre-trial detention (aresztowanie tymczasowe), the grounds for
its extension, release from detention and rules governing other,
so called “preventive measures” (środki
zapobiegawcze) are summarised in several judgments concerning
similar cases (see, among others, Gołek v. Poland,
no. 31330/02, §§ 27-33, 25 April 2006; Celejewski
v. Poland, no. 17584/04, §§ 22-23, 4 August
2006).
B. Remedies for unreasonable length of proceedings
- The
relevant domestic law and practice concerning remedies for excessive
length of judicial proceedings, in particular the applicable
provisions of the 2004 Act, 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 its 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 20 February 2003, when he was
arrested on suspicion of murder and arson. On 23 March 2005 the
Gdańsk Regional Court convicted him as charged.
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, cited above, § 104).
On 5
January 2006 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 24 April 2008 when the Gdańsk Regional Court
convicted the applicant after remittal. The case is currently pending
appeal and the applicant is 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, cited above,
§ 04).
- Accordingly,
the period to be taken into consideration amounted to four years,
four months and twenty days.
2. The parties' submissions
(a) The applicant
- The
applicant submitted that the length of his pre-trial detention had
been excessive and that the measure had not been sufficiently
justified by the authorities. He maintained that there was no risk
that he would obstruct the proceedings. In that connection, the
applicant noted that he had voluntarily gone to the police station on
the day of his arrest and that from the beginning he had cooperated
with the authorities by admitting to his presence at the scene of the
crime and describing his role in the events which had given rise to
the charges.
The
applicant also argued that the prosecution services had not acted
with due diligence. There had been significant delays and many errors
had been committed, i.e. the post-mortem examination had been
performed several months after the victim's death, after the
exhumation of the body.
(b) The Government
- 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, in
particular the existence of a reasonable suspicion throughout the
entire period of the applicant's pre-trial detention that he had
committed the offences he had been charged with. Moreover, the
Government considered that the applicant's protracted detention
pending trial was justified by the complexity of the case, a genuine
public interest requirement, namely the fact that the applicant had
been charged with serious offences and was facing a lengthy prison
sentence. Finally, the Government noted that the applicant's
pre-trial detention was justified by the risk that he would obstruct
the proceedings and tamper with evidence.
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. he 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
three 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 risk that the applicant might obstruct the
proceedings.
- The
Court accepts that the reasonable suspicion against the applicant of
having committed serious offences could initially warrant his
detention. Also, the need 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.
- However,
with the passage of time, those grounds became less and less
relevant. The Court must then establish whether the other grounds
adduced by the courts – namely, the severity of the anticipated
sentence risk the risk that the applicant would obstruct the
proceedings – were “relevant” and “sufficient”
(see, Kudła cited above, § 111).
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).
- Having
regard to the foregoing, 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. ALLEGED
VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
- Furthermore,
the applicant complained of the allegedly unreasonable length of the
proceedings. This complaint is to be examined under Article 6 § 1
of the Convention which, in its relevant part, provides:
“In the determination ... of any
criminal charge against him, everyone is entitled to a ... hearing
within a reasonable time by [a] tribunal ...”
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 ...”
- In
this connection, the Court observes that the applicant did not lodge
a complaint about the unreasonable length of the proceedings with the
relevant domestic court under the 2004 Act, thus failing to avail
himself of the available domestic remedy.
The
Court has already examined that remedy for the purposes of
Article 35 § 1 of the Convention and found it
effective in respect of complaints about the excessive length of
judicial proceedings in Poland. In particular, the Court considered
that the remedy was capable both of preventing the alleged violation
of the right to a hearing within a reasonable time or its
continuation, and of providing adequate redress for any violation
that has already occurred (see Charzyński v. Poland
(dec.), no. 15212/03, §§ 36-42).
- It
follows that this complaint must be rejected under Article 35 §§ 1
and 4 of the Convention for non-exhaustion of domestic remedies.
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 200,000 Polish zlotys (PLN) in respect of pecuniary
damage. He also claimed non-pecuniary damage; however, he left the
assessment of the amount to be awarded to the Court's discretion.
- The
Government argued that there was no causal link between the alleged
violation and the pecuniary damage claimed by the applicant. They did
not make any comment on the applicant's claim for non-pecuniary
damage.
- 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 make a claim for any costs and expenses incurred.
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 under Article 5 § 3
of the Convention concerning the length of the applicant's 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 together with any
tax that may be chargeable, 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 2 December 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
