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FOURTH
SECTION
CASE OF WIŚNIEWSKI v. POLAND
(Application
no. 43610/06)
JUDGMENT
STRASBOURG
29
September 2009
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 Wiśniewski 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,
Ján Šikuta,
Mihai
Poalelungi,
Nebojša Vučinić,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 8 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 43610/06) 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 Janusz
Wiśniewski (“the applicant”), on 29 September 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 had
exceeded a “reasonable time” within the meaning of
Article 5 § 3 of the Convention.
- On
19 May 2008 the
President of the Fourth Section of the Court decided to give notice
of the application to the Government. It 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 was born in 1969 and is currently
detained in Wrocław Prison.
A. The first set of
criminal proceedings against the applicant (no. II K
255/03) and his pre-trial detention
- On 26 March 2002 the applicant was arrested on
suspicion of a series of thefts and armed robberies committed as a
part of an organised criminal group.
- On
28 March 2002 the Zielona Góra District Court (Sąd
Rejonowy) remanded him in custody, relying on the reasonable
suspicion that he had committed the offences in question. It also
considered 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 likelihood of
a lengthy prison sentence being imposed on the applicant and the
complexity of the case.
- Subsequently,
several other members of the same criminal group were detained and
charged in connection with the same investigation, which was
conducted by the Organised Crime Department of the Zielona Góra
Regional Prosecutor’s Office.
- The
applicant’s appeals against the detention order and the
decisions extending his detention, and his numerous applications for
release and appeals against refusals to release him, were all
unsuccessful.
- In
the course of the investigation, the applicant’s detention was
extended on 21 June 2002 (to 26 September 2002), 23 September 2002
(to 24 December 2002), 20 December 2002 (to 25 March 2003), 20 March
2003 (to 26 July 2003) and 22 July 2003 (to 30 November 2003). The
courts repeated the grounds previously given for his continued
detention, emphasising the complexity of the case and the large
number of co-accused.
- On
19 November 2003 the Zielona Góra Regional Prosecutor lodged a
bill of indictment with the Zielona Góra Regional Court (Sąd
Okręgowy). The applicant was charged with several counts of
theft and armed robbery committed as part of an organised criminal
group.
- During
the court proceedings the courts further extended the applicant’s
detention pending trial on several occasions, namely on 26 November
2003, 25 February 2004, 11 March 2004, 23 June 2004, 21 September
2004, 16 December 2004, 10 March 2005, 17 June 2005, 18 August
2005 and 25 October 2005. They repeated the grounds that had
previously been given for the applicant’s continued detention.
- On
23 February 2006 the Zielona Góra Regional Court gave
judgment. It convicted the applicant as charged and sentenced him to
ten years’ imprisonment and a fine.
- The
applicant appealed.
- On
5 December 2006 the Poznań Court of Appeal (Sąd
Apelacyjny) upheld that judgment.
- The
applicant lodged a cassation appeal with the Supreme Court (Sąd
Najwyższy) which was dismissed on an unspecified subsequent
date.
B. The second set of
criminal proceedings against the applicant (no. II K 194/05) and
his pre-trial detention
- On
8 October 2004 the Zielona Góra District
Court remanded the applicant in custody.
- On
6 January 2005 it extended his pre-trial detention on the
grounds of the likelihood that the applicant might tamper with
evidence and the complexity of the case.
- Subsequently,
further decisions to extend his detention were taken by the Zielona
Góra Regional Court and the
Poznań Court of Appeal on the following dates: 31 March 2005, 1
July 2005, 6 October 2005, 29 December 2006, 23 March 2007, 31 July
2007 and 27 September 2007. The courts repeated
the grounds originally given for his detention.
- On
an unspecified date the applicant was served with a bill of
indictment charging him with armed robbery.
- On
21 November 2007 the Zielona Góra
Regional Court decided not to extend the applicant’s
detention.
- It
appears that the criminal proceedings are still pending before that
court.
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 prolongation, and release from detention, and the rules governing
other “preventive measures” (środki
zapobiegawcze) are described 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
May 2006.
- On
24 July 2006 the Constitutional Court, in a case in which it examined
jointly two constitutional complaints (skarga konstytucyjna)
lodged by former detainees, declared Article 263 § 4 of the
Code of Criminal Procedure unconstitutional in so far as it related
to the investigation stage of criminal proceedings (no. SK 58/03).
The provision in question provided that the detention measure could
be extended beyond two years if the pre trial proceedings could
not be completed because of “important obstacles” which
could not have been overcome. The provision in question did not set
any statutory time-limit for extending the detention measure. The
Constitutional Court considered that the impugned provision, by its
imprecise and broad wording, could lead to arbitrary decisions of the
courts on pre-trial detention and thus infringe the very essence of
constitutional rights and freedoms. Referring to other grounds for
extraordinary extensions of pre-trial detention under Article 263 §
4, namely suspension of criminal proceedings, prolonged psychiatric
observation of the accused, the prolonged preparation of an expert
opinion, evidence gathering in a particularly complex case or a
foreign country, and the intentional protraction of the proceedings
by the accused, the Constitutional Court stated that although those
criteria were to some extent vague as well, their constitutionality
could be secured through their precise definition formulated through
practice and by reference, inter alia, to the settled case law
of the European Court as regards violations of Article 5 § 3 of
the Convention.
The
Constitutional Court ruled that the unconstitutional provision was to
be repealed within six months from the date of the publication of the
judgment in the Journal of Laws (Dziennik Ustaw).
B. Measures taken by the State to reduce the length of
pre-trial detention and relevant Council of Europe documents
- The
relevant statistical data, recent amendments to the Code of Criminal
Procedure designed to streamline criminal proceedings and references
to the relevant Council of Europe Documents can be found in the
Court’s judgment in the case of Kauczor (see Kauczor
v. Poland, no. 45219/06, §§
27-28 and 30-35, 3 February 2009).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the length of his pre-trial detention in
the first set of criminal proceedings 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
Government submitted that the applicant had not exhausted all the
remedies afforded by Polish law in that he had failed to lodge a
constitutional complaint under Article 79 § 1 of the
Constitution questioning the constitutionality of the provisions of
the Code of Criminal Proceedings that had served as a basis to extend
his pre-trial detention, in particular Article 263. In that respect
they raised the same arguments, as those submitted in the case of
Figas (Figas v. Poland, no. 7883/07, § 31, 23 June
2009, not final).
- The applicant did not submit any comments on this
point.
- The
Court observes that the rule of exhaustion of domestic remedies
contained in Article 35 § 1 of the Convention requires that
normal recourse should be had by an applicant to remedies which are
available and sufficient to afford redress in respect of the breaches
alleged.
- The
Court notes that in its judgment of 24 July 2006 the Constitutional
Court found Article 263 § 4 of the Code of Criminal Procedure
unconstitutional in so far as it provided for the detention measure
to be extended beyond two years if the pre trial proceedings
could not be completed because of “important obstacles”
(see paragraph 24 above).
The
Court observes, however, that in the present case the domestic courts
did not base their decisions extending the applicant’s
pre-trial detention on the part of Article 263 § 4 that was
declared unconstitutional. They relied only on the necessity of
gathering evidence in a particularly complex case, that is to say, a
prerequisite that the Constitutional Court considered compatible with
the Constitution (see paragraph 24 above).
The
Court is therefore of the opinion that it is doubtful that the
applicant could have successfully lodged a constitutional complaint
in respect of provisions whose constitutionality has been vetted by
the Constitutional Court and found to be compatible with the Polish
Constitution in its judgment of 24 July 2006.
- Furthermore,
the Court observes that the facts giving rise to the alleged
violation of Article 5 § 3 concern the period from 26 March 2002
to 23 February 2006 and that at that time the Constitutional Court’s
practice in respect of the admissibility of constitutional complaints
against ancillary decisions issued in criminal proceedings was not
clearly established (see Łaszkiewicz v. Poland, no.
28481/03, §§ 69-70). In addition, the Court is not
persuaded that at the relevant time a constitutional complaint was
capable of satisfying the second part of the test established in the
Szott Medyńska decision (Szott- Medyńska v.
Poland (dec.), no. 47414/99, 9 October 2003). Thus, the
Court considers that in the present case the constitutional remedy
lacked the requisite effectiveness.
- It follows that the Government’s plea of
inadmissibility on the ground of non-exhaustion of domestic remedies
must be dismissed.
- The Government further submitted that the applicant’s
complaint was manifestly ill-founded as throughout the period
complained of he was detained “after conviction by a competent
court”, namely the Zielona Góra Regional Court in case
no. II K 255/03.
- The Court observes that the Government’s
submission concerns the second set of criminal proceedings against
the applicant (no. II
K 194/05) and is not relevant to the
determination of the admissibility of the applicant’s complaint
about the length of his pre-trial detention in the first set of
criminal proceedings.
- The Court notes that the complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention and 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 26 March 2002, when he was
arrested on suspicion of having committed several thefts and armed
robberies as a member of an organised criminal group. On 23 February
2006 the Zielona Góra Regional Court convicted the applicant
and sentenced him to ten years’ imprisonment.
- With
effect from the latter date he was detained “after conviction
by a competent court” within the meaning of Article 5 § 1
(a) and, consequently, his detention thereafter falls outside the
scope of Article 5 § 3 (cf. Kudła, cited above, §
104).
Accordingly,
the period to be taken into consideration amounts to 3 years and 11
months.
2. The parties’ submissions
(a) The applicant
- The
applicant argued that the length of his detention had been
unreasonable.
(b) The Government
- The Government submitted that the applicant’s
detention had satisfied all the criteria laid down in the Court’s
case-law.
- They pointed out, firstly, that the evidence obtained
in the proceedings indicated that there was a strong likelihood that
the applicant had committed the crimes in question. Secondly, the
charges brought against him concerned numerous offences committed as
part of an organised criminal group, for which the applicant faced a
heavy sentence. Thus, bearing in mind the seriousness of the charges
and the sentence he faced, the applicant’s detention had been
justified.
- The Government further argued that the aforementioned
circumstances had remained valid for the whole term of the
applicant’s detention. They requested the Court to assess the
length of his detention in the light of the fact that he had been
charged with crimes committed as part of an organised criminal group.
3. The Court’s assessment
(a) General principles
- The
Court notes 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 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
addition to the reasonable suspicion against the applicant, the
authorities principally relied in their detention decisions 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 need to secure the proper conduct of the proceedings
and the risk that the applicant might tamper with evidence. As
regards the latter, they relied on the fact that he had been a member
of an organised criminal group.
- The
applicant was charged with numerous counts of theft and armed robbery
committed as part of an organised and armed criminal group
(see paragraph 11 above).
In
the Court’s view, the fact that the case concerned a member of
such a criminal group should be taken into account in assessing
compliance with Article 5 § 3 (see Bąk v. Poland,
no. 7870/04, § 57, 16 January 2007).
- The
Court accepts that the reasonable suspicion against the applicant
could initially have warranted his detention. Also, the need to
obtain voluminous evidence and to determine the degree of alleged
responsibility of each of the defendants, who were all members of a
criminal group and faced serious charges, constituted valid grounds
for the applicant’s initial detention.
- Indeed,
in cases such as the present one concerning organised criminal
groups, 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 often, by the nature of things, high.
Furthermore,
according to the authorities, the likelihood of a severe sentence
being imposed on the applicant created a presumption that he 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).
- While
all the above factors could justify even a relatively long period of
detention, they did not give the domestic courts an unlimited power
to prolong this measure.
- Having
regard to the foregoing, even taking into account the fact that the
courts were faced with the particularly difficult task of trying a
case involving an organised criminal group, 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. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained under Article 5 § 3 of the
Convention about the length of his pre-trial detention in the second
set of criminal proceedings (II K 194/05).
- The
Court notes that the applicant’s detention started on 8 October
2004, when he was remanded in custody, and ended on 21 November 2007,
when the Zielona Góra Regional
Court decided not to extend his detention.
Between
23 February 2006 and 21 November 2007 the applicant served a prison
sentence which had been imposed on him in the first set of criminal
proceedings. This term, being covered by Article 5 § 1 (a), must
therefore be subtracted from the period of the applicant’s
pre-trial detention for the purposes of Article 5 § 3.
Accordingly, the period to be taken into consideration amounts to one
year and four months.
- The
applicant was charged with armed robbery
(see paragraph 20 above).
According to the well established case-law of the Court (see, among
other authorities, Wiensztal v. Poland, no. 43748/98,
30 August 2006; Kusyk v.
Poland, no. 7347/02, 24 October 2006; and Buta
v. Poland, no. 18368/02, 28 November
2006) and in view of the seriousness of the accusations,
it cannot be said that the length of the applicant’s detention
was excessive.
- Consequently,
this complaint is manifestly ill-founded and must be rejected
pursuant to Article 35 §§ 3 and 4 of the Convention.
- Finally,
the applicant complained under Article 6 about the outcome and
procedural shortcomings in the first set of criminal proceedings
against him. Assessing the circumstances of the case as a whole, the
Court finds no indication that the impugned proceedings were
conducted unfairly.
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 § 3 and 4 of
the Convention.
III. APPLICATION OF ARTICLE 46 OF THE CONVENTION
- Article
46 of the Convention provides:
“1. The High Contracting Parties undertake to
abide by the final judgment of the Court in any case to which they
are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
1. The parties’ submissions
(a) The applicant
- The
applicant did not submit any observations concerning this provision.
(b) The Government
- The
Government referred to the arguments submitted previously in the case
of Figas v. Poland (see Figas, cited
above, §§ 48-51).
2. The Court’s assessment
- Recently,
in the case of Kauczor v. Poland (see Kauczor, cited
above, §§ 58 et seq. with further references) the Court
held that the 2007 Resolution, taken together with the number of
judgments already delivered and the number of pending cases raising
an issue of inordinate periods of detention incompatible with Article
5 § 3, demonstrated that the violation of the applicant’s
right under Article 5 § 3 of the Convention had originated in a
widespread problem arising out of the malfunctioning of the Polish
criminal justice system which had affected, and may still affect in
the future, an as yet unidentified, but potentially considerable
number of persons charged in criminal proceedings.
- It
is true that the present case concerns a person involved in an
organised criminal group. However, as stated above, while this
element is to be taken into account in assessing compliance with
Article 5 § 3 and may justify a longer period of detention than
in a case concerning an individual offender, a member of an organised
criminal group is also entitled to the protection against
unreasonably lengthy detention afforded by this provision (see
paragraphs 46-47 above). As in other
numerous similar detention cases, the authorities did not justify the
applicant’s continued detention by relevant and sufficient
reasons (see paragraph 49 above). Moreover, as demonstrated by the
ever increasing number of judgments in which the Court has found
Poland to be in breach of Article 5 § 3 in respect of applicants
involved in organised crime, the present case is by no means an
isolated example of the imposition of unjustifiably lengthy detention
but a confirmation of a practice found to be contrary to the
Convention (see, among many other examples, Celejewski v. Poland,
cited above; Kąkol v. Poland, no. 3994/03, 6
September 2007; Malikowski v. Poland, no. 15154/03,
16 October 2007; and also Hilgartner v. Poland, no. 37976/06,
§§ 46-48, 3 March 2009). Consequently, the Court sees
no reason to diverge from its findings in Kauczor as to the
existence of a structural problem and the need for the Polish State
to adopt measures to remedy the situation (see Kauczor, cited
above, §§ 60-62).
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 10,000 euros (EUR) in respect of
non pecuniary damage.
- The
Government considered the claim exorbitant and asked the Court to
rule that a finding of a violation would constitute in itself just
satisfaction.
- Considering
the circumstances of the case and making its assessment on an
equitable basis, the Court awards the applicant EUR 1,500 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 complaint concerning the length of
the applicant’s pre-trial detention in the first set of
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
(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 1,500 (one
thousand five hundred euros) in respect of non-pecuniary damage, plus
any tax that may be chargeable to be converted into the currency of
the respondent State 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 29 September 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
