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FOURTH
SECTION
CASE OF DRUŻKOWSKI v. POLAND
(Application
no. 24676/07)
JUDGMENT
STRASBOURG
1 December
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 Drużkowski 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 10 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 24676/07) 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 Tomasz Drużkowski (“the applicant”),
on 22 May 2007.
- The
applicant was represented by Mr A. Namysłowski, a lawyer
practising in Bydgoszcz. The Polish Government
(“the Government”) were represented by their Agent,
Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- The
applicant alleged that his pre-trial detention and criminal
proceedings exceeded a “reasonable time” within the
meaning of Articles 5 § 3 and 6 § 1 of the Convention
- On
23 June 2008 the
President of the Fourth Section of the Court decided to give notice
of the application to the Government. 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 was born in 1977 and lives in Toruń. He is currently
detained in the Toruń Remand Centre.
- On
20 November 2002 the Bydgoszcz District Court (Sąd Rejonowy)
issued a “wanted” notice in respect of the applicant in
view of the reasonable suspicion that he had committed a murder and
had gone into hiding, thereby defeating attempts by the police to
arrest him. The court also decided to remand the applicant in custody
for a period of seven days from the date of his arrest.
- On
13 March 2003 the applicant was arrested by the police. On 17 March
2003 the Toruń Regional Court (Sąd Okręgowy)
extended his detention until 13 June 2003.
- Subsequently,
the Toruń Regional Court extended the applicant's detention on 4
June, 29 August and 8 December 2003. The court relied on the
probability that a severe sentence might be imposed on the applicant
and the fact that an arrest warrant had been issued during the time
he had been in hiding.
- His
detention pending investigation was further extended by the Gdańsk
Court of Appeal on 25 February and 28 April 2004.
- On
31 May 2004 the applicant was indicted before the Toruń Regional
Court. The act of indictment was directed against twelve persons. The
applicant was charged with homicide.
- The
trial started in November 2004 and hearings were held at regular
intervals. On several occasions the trial court found that the
grounds for the applicant's detention remained valid and extended it.
- On
23 February 2005 the Gdańsk Court of Appeal decided to extend
the applicant's detention beyond the statutory time-limit of two
years laid down in Article 263 § 3 of the Code of
Criminal Procedure (Kodeks postępowania karnego).
- On
8 December 2005 the Gdańsk Court of Appeal decided to further
extend the applicant's detention. The court based its decision on the
risk that he might interfere with the course of justice, given the
severity of the penalty that could be imposed and the fact that he
had been in hiding prior to his arrest in 2003.
- On
12 May 2006 the Toruń Regional Court convicted the applicant and
sentenced him to twelve years' imprisonment. The applicant would
found guilty of having attacked a certain M.S., who was heavily under
the influence of alcohol, in a billiards club, and beaten him,
causing serious bodily harm and in consequence death.
- The
applicant lodged an appeal. It appears that the trial court
transferred the case to the court of appeal nine months later. The
Toruń Court of Appeal held a hearing on 6 April 2007.
- On
27 April 2007 the court allowed the applicant's appeal and quashed
the impugned judgment.
- On
4 May 2007 the Gdańsk Court of Appeal extended the applicant's
detention, finding that only detention would secure his attendance at
the trial.
- On
8 August and 14 December 2007 the Toruń Regional Court further
extended his detention, observing that the grounds for detention were
still valid. In its identically reasoned decisions the court relied
on two grounds invoked previously: the severity of the penalty that
might be imposed, which made it probable that the applicant
would interfere with the proper course of proceedings, and the fact
that he had been sought pursuant to a “wanted” notice in
2002.
- At
the hearings held on 7 March, 4 June, 12 September and 11 December
2008 the trial court further extended the applicant's detention. In
every decision the court considered that the applicant's detention
was necessary to complete the proceedings and that its length was in
compliance with Convention standards.
- On
18 February and 27 April 2009 the applicant's pre-trial detention was
further extended on the grounds invoked previously.
- On
12 August 2009 the Torun Regional Court convicted the applicant and
sentenced him to twelve years' imprisonment. The applicant requested
a reasoned judgment be delivered to him with a view to lodging an
appeal. The trial court further extended his detention.
- In
November 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
trial within a reasonable time (Ustawa o skardze na naruszenie
prawa strony do rozpoznania sprawy w postępowaniu sądowym
bez nieuzasadnionej zwłoki) (“the 2004 Act”).
However the applicant failed to pay the court fee of 100 Polish
zlotys (PLN 100, approximately 25 euros (EUR)). On 19 December
2006 the Gdańsk Court of Appeal returned the complaint to the
applicant unexamined.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice concerning the imposition
of detention during judicial proceedings (aresztowanie
tymczasowe), the grounds for its extension, release from
detention and rules governing other “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
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 the judgment in
the case of Krasuski v. Poland, no. 61444/00, §§
34-46, ECHR 2005-V.
- The
relevant statistical data, recent amendments to the Code of Criminal
Procedure designed to streamline criminal proceedings and references
to relevant Council of Europe materials including the 2007 Interim
Resolution of the Committee of Ministers 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 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 13 March 2003, when he was arrested
on suspicion of homicide. On 12 May 2006 the Toruń Regional
Court convicted him as charged.
As of
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 (see Kudła v. Poland, [GC] no.
30210/96, § 104).
On 27
April 2007 the Toruń Court of Appeal quashed the applicant's
conviction. Following that date his detention was again covered
by Article 5 § 3 until 12 August 2009 when
the Toruń Regional Court convicted the applicant.
Accordingly,
the period to be taken into consideration amounted to five years,
five months and eighteen days.
2. The parties' submissions
- The
applicant submitted that he had been kept in pre-trial detention for
an unjustified length of time. He argued that there had been
no justifiable grounds for extending his detention and that the
authorities' decisions had been repetitive. They failed to refer to
any events that would substantiate an alleged risk of the applicant
obstructing the course of the proceedings.
- 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. These
grounds were, in particular, the gravity of the charges against the
applicant and the fact that the applicant had gone into hiding and
had been sought by means of a “wanted” notice. The
Government conceded that the overall period of the applicant's
detention had been lengthy but considered that there had been a risk
of the applicant going into hiding or otherwise interfering with the
proper course of the proceedings. Moreover, the proceedings had been
very complex. The Government argued that the domestic authorities had
shown due diligence, as required in cases against detained persons.
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
stated in a number of its previous judgments (see, among many other
authorities, Kudła, cited above, § 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 applicant, relied principally on two
grounds, namely the severity of the penalty to which he was liable,
which created a presumption that he would interfere with the course
of the proceedings, and the risk that the applicant might go into
hiding, given the fact that prior to 2003 a wanted notice had been
issued for him. They repeated those grounds in all their decisions.
The authorities failed to advance any other justifications to
extend the applicant's detention.
- The
Court accepts that the suspicion against the applicant of having
committed the offence might initially have justified his detention,
particularly since he had gone into hiding before his arrest
(see Krowiak v. Poland, no. 12786/02, §
41, 16 October 2007). However, with the passage of time the grounds
given became less relevant and cannot justify the entire period of
over five years and five months, during which the most serious
preventive measure available was imposed on the applicant
(see Malik v. Poland,
no. 57477/00, § 45, 4 April 2006; Depa v.
Poland, no. 62324/00, § 38,
12 December 2006; and Czajka
v. Poland, no. 15067/02,
§ 46, 13 February 2007).
- 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 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
Court considers that the authorities did not rely on any other
circumstance capable of showing that the applicant's release would
obstruct the process of obtaining evidence, and if so why and how.
Finally, the Court notes that there is no specific indication that
during the period of the applicant's pre-trial detention the
authorities envisaged the possibility of imposing on him other
preventive measures, such as bail or police supervision, expressly
foreseen by Polish law to secure the proper conduct of criminal
proceedings.
In
this context the Court would emphasise that under Article 5 § 3
the authorities, when deciding whether a person should be released or
detained, are obliged to consider alternative measures of ensuring
his appearance at 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 Jabloński
v. Poland, no. 33492/96, § 83, 21 December
2000).
- Having
regard to the foregoing and noting that the case did not belong to
the category of organised crime (compare Bąk v. Poland,
no. 7870/04, ECHR 2007 ... (extracts)), the Court concludes
that the grounds given by the domestic authorities could not justify
the extraordinarily long 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
- 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 ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
- The
Government contested that argument and indicated that the applicant
had failed to exhaust domestic remedies.
- 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 observes that after the entry into force, on 17 September
2004, of the 2004 Act, it was open to the applicant to lodge a
complaint that the length of the proceedings was unreasonable with
the relevant domestic court. The applicant lodged such a complaint on
one occasion, in November 2006; however, he failed to pay the court
fees, which resulted in the court leaving it unexamined (see
paragraph 22 above). There is no indication that the applicant
applied for exemption from this fee or that he lodged another
complaint about the length of the proceedings under the 2004 Act.
- The
Court has already examined that remedy for the purposes of Article 35
§ 1 of the Convention and found it to be effective in respect
of complaints of excessive length of judicial proceedings in
Poland. In particular it has considered that that remedy is
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, ECHR 2005-V).
- It
follows that this part of the application must be rejected under
Article 35 §§ 1 and 4 of the Convention for
non-exhaustion of domestic remedies.
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.”
- The
applicant did not submit any observations concerning this provision.
46 The Government submitted
that it could not be said that the
length of the pre-trial detention in the present case revealed a
systemic problem.
- 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 of the Committee of Ministers taken together with
the number of judgments already delivered and of the pending cases
raising an issue of excessive 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.
- In
the present case, as in other numerous similar detention cases, the
authorities did not justify the applicant's continued detention by
relevant and sufficient reasons (see paragraphs 34-37 above).
Consequently, the Court sees no reason to diverge from its findings
made 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 50,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government submitted that the claim was excessive.
- The
Court awards the applicant EUR 5,000 in respect of non pecuniary
damage.
B. Costs and expenses
- The
applicant also claimed EUR 2,771 for the costs and expenses incurred
before the Court.
- The
Government submitted that the costs and expenses should be awarded
only in so far as they had been incurred necessarily and
in a reasonable amount.
- According
to the Court's case-law, an applicant is entitled to reimbursement
of his costs and expenses only in so far as it has been shown that
these have been actually and necessarily incurred and are reasonable
as to quantum. In the present case, regard being had to the
information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 1,500 for the
proceedings before the Court.
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 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, the
following amounts, to be converted into Polish zlotys at the rate
applicable at the date of settlement:
(i) EUR
5,000 (five thousand euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage;
(ii) EUR
1,500 (one thousand five hundred euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 1 December 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
