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FOURTH
SECTION
CASE OF KORZEB v. POLAND
(Application
no. 39586/03)
JUDGMENT
STRASBOURG
20 May 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 Korzeb 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,
Ján
Šikuta,
Päivi
Hirvelä,
judges,
and Lawrence Early, Section
Registrar,
Having
deliberated in private on 29 April 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 39586/03) 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 two Polish nationals, Mr Dominik Korzeb and Mr Marcin Korzeb
(“the applicants”), on 2 December 2003.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- The
applicants alleged that their detention on remand exceeded a
“reasonable time” within the meaning of Article 5 §
3 of the Convention in
that they were detained for nearly two years and seven months and
over two years and eight months respectively.
- On
19 September 2006 the
Court declared the application partly inadmissible and decided to
communicate the complaint under Article 5 § 3 of
the Convention concerning the length of the applicants' detention on
remand 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
applicants, Mr Dominik Korzeb and Mr Marcin Korzeb, are brothers.
They were born in 1979 and 1981 respectively and live in Ostrów
Mazowiecka.
- The
first applicant, Dominik Korzeb, was arrested on 17 July 2001 on
suspicion of having raped a minor, broken into a shop in a State
school, and caused damage to State property. On 23 July 2001 the
Ostrowia Mazowiecka District Court (Sąd Rejonowy) remanded
him in custody.
- That
decision was justified by a reasonable risk that he would abscond,
especially since he had already gone into hiding and had been sought
under a “wanted” notice. The court also relied on a
serious risk that the applicant would attempt to induce witnesses to
give false testimony or obstruct the proper conduct of the
proceedings.
- The
other applicant, Marcin Korzeb, was arrested on 20 June 2001 on
suspicion of having been an accomplice to the offences allegedly
committed by his brother and two other persons. On 22 July 2001 the
Ostrów Mazowiecka District Court remanded him in custody.
- In
the course of the investigation, the applicants' pre-trial detention
was extended on several occasions by virtue of decisions of the
Ostrołęka Regional Court (Sąd Okręgowy) of
9 August and 22 October 2001, and of 23 January 2002. In
all their detention decisions the authorities repeatedly relied on
the original grounds given for the applicants' detention.
- The
applicants' appeals against the decisions extending their detention
and all their subsequent numerous applications for release and
appeals against refusals to release them were unsuccessful. In their
applications and appeals, they argued that the charge against them
had been based on unreliable and contradictory evidence. They also
relied on their personal circumstances, in particular the need to
care for their elderly mother who had twice attempted to commit
suicide since the applicants' detention.
- On
4 April 2002 the Ostrów Mazowiecka District Prosecutor
(Prokurator Rejonowy) lodged a bill of indictment with the
Ostrołęka Regional Court. The applicants were charged with
rape, criminal damage to State property and burglary.
- On
26 June 2002 the case of a co-defendant, who had meanwhile been
apprehended, was joined to the applicants' case.
- From
20 May to 9 June 2003 the first applicant, Dominik Korzeb,
was serving a prison sentence imposed on him in unrelated criminal
proceedings.
- During
the court proceedings the authorities further extended the
applicants' detention by decisions of the Ostrołęka
Regional Court of 24 April and 23 July 2002, a further decision
of an unspecified date, 19 December 2002, another decision of an
unspecified date, and lastly, its decision of 29 May 2003. In the
latter decision the court extended Dominik Korzeb's detention until
16 July 2003 and Marcin Korzeb's detention until 19 June 2003. The
court reiterated the grounds previously given for the applicants'
continued detention. In addition, the court justified the measure in
question by the need to obtain a psychiatric report on Marcin Korzeb
and to apprehend one further suspect who was still at large.
- On
20 June and 17 July 2003, respectively, the length of the
applicants' detention on remand reached the statutory two-year
time limit laid down in Article 263 § 3 of the Code of
Criminal Procedure (Kodeks postępowania karnego). From
that time on, the detention of Dominik Korzeb was extended by
decisions of the Warsaw Court of Appeal of 1 August 2003 (upheld
by the same court on 16 September 2003) and 3 October 2003
(upheld on 12 November 2003). Likewise, the detention of Marcin
Korzeb was extended by virtue of decisions of the Warsaw
Court of Appeal of 13 June 2003 (upheld by the same
court on 29 July 2003) and 16 September 2003 (upheld
on 24 October 2003).
- Subsequently,
as a result of amendments to the Code of Criminal Procedure and the
death of a judge sitting in the case, the Ostrołęka
Regional Court was no longer competent to deal with the applicants'
case. Consequently, on 20 November 2003 the case was referred to the
Ostrowia Mazowiecka District Court and the trial commenced de
novo.
- On
16 December 2003 the Warsaw Court of Appeal (Sąd Apelacyjny)
delivered a decision upholding the preventive measure in respect
of both applicants. Their pre-trial detention was considered to be
justified by the fact that the reasons initially relied on were still
valid and that the proceedings were pending before a newly composed
court. This decision was upheld by the same court on 26 January
2004.
- On
2 February 2004 the first hearing was held before the Ostrowia
Mazowiecka District Court. It was followed by hearings on
19 February and 4 March 2004.
- On
4 March 2004 the Ostrowia Mazowiecka District Court convicted
the applicants as charged and sentenced each of them to
six years' imprisonment.
- The
applicants appealed. They were kept in detention pending the outcome
of their appeal.
- On
3 June 2004 the Ostrołęka Regional Court upheld the
first-instance judgment.
- The
applicants failed to lodge a cassation appeal (kasacja) with
the Supreme Court (Sąd Najwyższy).
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice 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) are stated 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 LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicants complained that the length of their detention on remand
had been excessive. They relied on Article 5 § 3 of
the Convention, the relevant part of 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 the application 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
detention of the first applicant, Dominik Korzeb, started on
17 July 2001 when he was arrested on suspicion of having
committed rape, criminal damage to State property and burglary. From
20 May to 9 June 2003 the applicant was serving a
prison sentence imposed in a separate criminal case. The detention of
the other applicant, Marcin Korzeb, started on 20 June 2001
when he was arrested on suspicion of having been an accomplice to the
offences allegedly committed by his brother and two other persons.
On
4 March 2004 the Ostrowia Mazowiecka District Court convicted
the applicants as charged and sentenced each of them to
six years' imprisonment. As from that date they were
detained “after conviction by a competent court”, within
the meaning of Article 5 § 1 (a) and, consequently, that period
of their detention falls outside the scope of Article 5 § 3
(see Kudła v. Poland [GC], no. 30210/96, § 104,
ECHR 2000 XI).
On
3 June 2004 the Ostrołęka Regional Court upheld the
first-instance judgment and no cassation appeal was lodged with the
Supreme Court.
- Accordingly,
the period to be taken into consideration amounts to two years,
six months and twenty-eight days with regard to the first applicant,
Dominik Korzeb, and two years, eight months and fourteen days with
respect to the other applicant, Marcin Korzeb.
2. The parties' submissions
(a) The applicants
- The
applicants submitted that the length of their pre-trial detention had
been excessive and that the measure had not been sufficiently
justified by the authorities.
They
argued that they had been wrongly considered as fugitives merely
because of their absence from their usual place of residence for a
short time when they had been on summer holiday. The applicants also
denied that they had attempted to induce witnesses to give false
testimony and stressed that during their trial no witness had been
charged with perjury in connection with providing the defendants with
an alibi. Moreover, there had been no justification for keeping them
in detention merely because of the difficulties in arresting a
co-suspect and for continuing to apply the measure after all the
witnesses had been examined and the pre-trial investigation closed
and after the trial had reached an advanced stage. Finally, the
inactivity of the Ostrołęka Regional Court from
5 April 2002 to 20 November 2003, before the case was
transferred to the Ostrowia Mazowiecka District Court, had
unnecessarily extended their detention.
(b) The Government
- The
Government considered that the applicants' 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 applicants' pre-trial detention that they had
committed the offences they had been charged with. Moreover, the
Government considered that the applicants' protracted detention
pending trial was justified by a genuine public interest requirement,
namely the fact that the applicants had been charged with serious
offences and were facing a lengthy prison sentence. The Government
also emphasised that the authorities had relied on the serious risk
that the applicants would abscond, particularly since they had gone
into hiding immediately after they had committed the offences and had
been sought pursuant to a “wanted” notice. Finally, the
Government noted that the applicants' pre-trial detention was
justified by the risk that they would obstruct the proceedings and
tamper with evidence, especially in view of the facts that the victim
was a minor, a number of witnesses had been coerced into providing
the defendants with false alibis, there were as many as four suspects
in the case and that the identity and whereabouts of one of them had
remained unknown until the final stage of the investigation.
Furthermore,
the Government argued that the domestic authorities had shown due
diligence, as required in cases against detained persons. Even though
the case was not of a complex nature, the process of obtaining
evidence had been particularly difficult due to the defendants'
numerous motions for evidence to be taken and the need to obtain
extensive psychological reports on the defendants and the victim. The
Government submitted that not all of the defendants had been
apprehended at the same time, which had caused some delays in the
pre-trial proceedings. Subsequently, one co-defendant had escaped
while the trial was pending. The Government did not comment on the
period when the trial was pending before the Ostrołęka
Regional Court; however they noted that after the case had been
transferred to the Ostrowia Mazowiecka District Court, the trial was
concluded within less than four months.
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. 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, in addition to the
reasonable suspicion against the applicants, relied principally on
two grounds, namely (1) the severity of the penalty to which they
were liable, and (2) the need to secure the proper conduct of the
proceedings in the light of the risk that the applicants might
attempt to induce witnesses to give false testimony or abscond. As
regards the latter, the authorities alleged that the defendants had
intimidated witnesses into providing the defendants with false
alibis. The authorities also relied on the fact that the applicants
and their co-defendants had gone into hiding immediately after they
had committed the offences alleged against them.
- The
Court accepts that a reasonable suspicion against the applicants of
having committed the offences could initially warrant their
detention. Also, the severity of the sentence likely to be imposed
constituted a valid ground for the applicants' 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 risk of the applicants'
going into hiding and the risk that they would tamper with evidence –
were “relevant” and “sufficient” (see Kudła,
cited above, § 111).
- As
regards the risk that the applicants would go into hiding, the Court
notes that it transpires from the material submitted that only the
first applicant, Dominik Korzeb, was sought by the police under a
“wanted” notice. The second applicant, Marcin Korzeb, was
arrested soon after the alleged offences were committed. Moreover,
the Court is not convinced that the fact that one of the applicants'
co-defendants remained a fugitive throughout almost the entire period
of the investigation and that he absconded while undergoing
psychiatric observation, constituted a valid reason to fear that the
applicants would also go into hiding. Finally, the Court recalls 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 (see Jabłoński v. Poland, no. 33492/96,
§ 83, 21 December 2000). However, in the instant case no
consideration was ever given by the authorities to applying
alternative measures to avoid the risk that the applicants would
abscond.
- Furthermore,
the Court observes that the risk that the applicants would tamper
with the evidence was not sufficiently justified by the authorities
when deciding to extend the applicants' pre-trial detention. The
Government's submission that the applicants had in fact induced
several witnesses to give false testimony is not supported by any of
the documents submitted and, in the Court's opinion, cannot for that
reason be relied upon.
- In
the circumstances, the Court concludes that the grounds given by the
domestic authorities were not “relevant” and “sufficient”
to justify the applicants' detention for over two and a half years.
- Although
the above finding would normally absolve the Court from assessing
whether or not the proceedings were conducted with the diligence
required under Article 5 § 3 (see McKay, cited
above, § 44), in the present case the Court cannot but note that
the investigation lasted ten months and that the case was pending for
a further nineteen months before the Ostrołęka Regional
Court. The Government noted that when the case was referred to the
Ostrowia Mazowiecka District Court, it was tried and concluded within
less than four months. That being said, the Government, although
conceding that the case was not complex, failed to adduce any reasons
for the long period of inactivity of the Ostrołęka Regional
Court prior to the referral of the case to the District Case.
In
the circumstances, the Court finds that the authorities failed to act
with all due diligence in handling the applicants' case.
- 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
applicants claimed 50,000 euro (EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government did not make any comment on the claim.
- The
Court does not discern any causal link between the violation found
and any pecuniary damage alleged; it therefore rejects this claim.
Moreover, the Court considers that in the circumstances of the case,
the above finding of violation of Article 5 § 3 of the
Convention constitutes in itself sufficient just satisfaction for any
non-pecuniary damage suffered by the applicants.
B. Costs and expenses
- The
applicants 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
1. Declares the remainder of the application
admissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention in respect of both applicants;
- Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for the
applicants' alleged non-pecuniary damage;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 20 May 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.
Lawrence Early Nicolas Bratza
Registrar President
