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FOURTH
SECTION
CASE OF HILGARTNER v. POLAND
(Application
no. 37976/06)
JUDGMENT
STRASBOURG
3 March
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 Hilgartner 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
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 10 February 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 37976/06) 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 Sebastian
Hilgartner (“the applicant”), on 1 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 detention exceeded a
“reasonable time” within the meaning of Article 5 §
3 of the Convention.
- On
20 November 2007 the
Court decided to give notice of the application to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1976 and lives in Strzelce Opolskie.
- On
1 July 2003 the applicant was arrested on suspicion of two counts of
kidnapping, deprivation of liberty, extortion and battery, committed
in an organised and armed criminal group.
- On
2 July 2003 the Katowice District Court 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 severity of the anticipated sentence and the
fact that the offences had been committed in an organised criminal
group.
- Subsequently,
fourteen other persons suspected of belonging to the same criminal
group were charged in connection with the investigation of the
applicant.
- The
applicant's appeal against the detention order, likewise his further
appeals against decisions prolonging his detention and all his
subsequent, numerous applications for release and appeals against
refusals to release him, were unsuccessful. In his applications and
appeals, he argued that the charges against him were based on
unreliable evidence. He further relied on his personal circumstances;
in particular the fact that he was unable to complete his university
education and continue running his business, and the need to ensure
that his parents were cared for. Lastly, the applicant stressed, on
several occasions, that he had never made any attempts to disrupt the
trial.
- In
the course of the investigation the applicant's detention was
prolonged on 22 September and 22 December 2003, 22 March, 23 June and
22 September 2004.
- On
18 November 2004 the bill of indictment was lodged with the
Częstochowa Regional Court. The applicant was charged with
kidnapping, deprivation of liberty, extortion and battery committed
in an organised criminal group. The bill of indictment contained
fourteen other persons.
- Further
decisions extending the applicant's detention were taken on 21
December 2004, 29 June and 21 December 2005, 19 April and 11 October
2006, 22 February, 20 June and 28 November 2007. In all their
detention decisions the authorities repeatedly relied on a strong
suspicion that the applicant had committed the offences in question,
which was supported by evidence from witnesses, and on the likelihood
of a severe sentence of imprisonment being imposed on the applicant.
They attached importance to the complexity of the case, the
significant number of persons involved and the voluminous
documentation. They further considered that the need to secure the
proper conduct of the proceedings, especially the need to verify
evidence from suspects and witnesses justified holding him in custody
and that the applicant, if released, could obstruct the proper course
of the proceedings. The courts found no special grounds that would
justify lifting the detention and imposing a less severe measure. In
its decision of 21 December 2005 the Katowice Court of Appeal
recommended to the Częstochowa Regional Court that hearings
should be held more frequently, in order to ensure the speedy
progress of the proceedings. Further, in the decisions of 11 October
2006 and 22 February and 20 June 2007, the Katowice Court of Appeal
stressed the need to terminate the criminal proceedings pending
before the first-instance court.
- By
letters of 12 January, 29 June, 8 August and 26 September 2005 and 1
December 2006 the Częstochowa Regional Court refused the
applicant's requests to receive visits from friends in detention. It
held that the permission to receive visits was limited to the members
of the applicant's close family only.
- On
21 August 2007 the Częstochowa Regional Court did not allow the
applicant to have a book written by Charles Dickens in English
delivered to the detention centre.
- On
10 January 2008 the Częstochowa Regional Court delivered its
judgment. The applicant was convicted and sentenced to seven years'
imprisonment and a fine of 2,250 Polish zlotys (PLN).
- By
decisions of 17 January and 19 June 2008 the Częstochowa
Regional Court further extended the applicant's detention. It held
that in the light of the first-instance judgment, the reasons for
keeping the applicant in detention were still valid.
- On
17 July 2008 the applicant lodged an appeal.
- On
26 November 2008 the Katowice Court of Appeal prolonged the
applicant's detention until 31 January 2009.
- On
22 December 2008 the Katowice Court of Appeal lifted the applicant's
detention and placed him under police supervision. The court held
that the applicant's presence at home was necessary to ensure the
care of his parents in the light of their difficult financial
situation and the forthcoming surgery of the applicant's father.
The
applicant was released on 23 December 2008.
- It
appears that the criminal proceedings are still pending before the
appellate court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice concerning the imposition of
detention (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.
III. RELEVANT COUNCIL OF EUROPE DOCUMENTS
A. The Committee of Ministers
- On 6 June 2007 the Committee of Ministers adopted
on the Interim Resolution concerning the judgments of the European
Court of Human Rights in 44 cases against Poland relating to the
excessive length of detention on remand (“the 2007
Resolution”). Noting that the number of cases in which the
European Court had found similar violations was constantly
increasing. It concluded that the number of the Court's judgments
finding Poland in violation of Article 5 § 3 of the Convention
revealed a structural problem. A more detailed rendition of the 2007
Resolution can be found in the Court's judgment given in the case of
Kauczor v. Poland (see Kauczor v.
Poland, no. 45219/06, § 34,
3 February 2009; not final).
B. The Council of Europe's Commissioner for Human
Rights
- On
20 June 2007 the Council of Europe's Commissioner for Human Rights
released the Memorandum to the Polish Government concerning, among
other issues, the use of the detention measure in Poland, stressing
that examples of cases brought to the Court where pre-trial detention
had lasted between four to six years were not uncommon. The
Commissioner urged the Polish authorities to review the application
and functioning of pre trial detention in Polish law. A more
detailed rendition of the relevant parts of the memorandum can be
found in the above mentioned Kauczor judgment (see Kauczor
v. Poland, cited
above, § 35).
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 did not submit any observations within the time limit
set for that purpose, which expired on 14 March 2008.
A. Admissibility
- The
applicant's detention started on 1 July 2003, when he was arrested on
suspicion of kidnapping, robbery and battery, committed in an
organised criminal group. On 10 January 2008 the Częstochowa
Regional Court convicted the applicant and sentenced him to seven
years' imprisonment.
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).
Accordingly, the period to be taken into consideration amounts to
four years, six months and eight days.
- 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. General principles
- The
Court observes 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).
2. 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
four 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, particularly the risk that he might tamper with evidence
and (4) the complexity of the case.
- The
applicant was charged with kidnapping, deprivation of liberty,
extortion and battery committed in an organised criminal group (see
paragraphs 6 and 11 above).
In
the Court's view, the fact that the case concerned a member of a such
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 of
having committed serious offences could initially warrant his
detention. Also, the need to obtain a large volume of evidence and 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.
- 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 often is, by the nature of things, high. In this
respect, the Court notes, however, that in all the decisions
extending the applicant's detention, no specific substantiation of
the risk that the applicant would tamper with evidence, intimidate
witnesses or attempt to otherwise disrupt the trial emerged. In the
absence of any other factor capable of showing that the risk relied
on actually existed, this argument cannot be accepted in the context
of the whole period.
- Furthermore,
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).
- As
regards the complexity of the case, the Court's attention has been
drawn to the nature of the charges, the number of the accused
(fifteen) and the voluminous documentation. It appears, however, that
the authorities referred to the complexity of the case in a very
general manner. There is no indication that the nature of the case
required the applicant's continuous detention. Moreover, it seems
that the authorities failed to envisage the possibility of imposing
other preventive measures on the applicant.
- 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. In this context, the Court would observe
that until the date of his first-instance conviction the applicant
had already spent four years, six months and eight days in pre-trial
detention.
- 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. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The applicant complained, in
substance under Article 8 of the Convention, that his correspondence
had been delayed and censored by the prison authorities and that he
had not been authorised to make phone calls. Further, he complained
that he had not been allowed to receive visits from friends during
his detention.
- As
regards the complaint concerning the correspondence, the Court
observes that the applicant has failed to substantiate his
allegations, as he did not submit copies of the allegedly delayed or
censored letters. Furthermore, the letters in his file do not show
any signs of censorship or any other form of interference.
- With
regard to the complaint about being denied visits from friends during
his detention, the Court reiterates that detention, similar to
any other measure depriving a person of his liberty, entails inherent
limitations on private and family life. However, it is an essential
part of a detainee's right to respect for family life that the
authorities enable him or, if need be, assist him in maintaining
contact with his close family (see Klamecki v. Poland (no. 2),
no. 31583/96, § 144, 3 April 2003). Such restrictions as
limitations put on the number of family visits, supervision over
those visits and, if so justified by the nature of the offence,
subjection of a detainee to a special prison regime or special
visiting arrangements constitute an interference with his rights
under Article 8 but are not, by themselves, in breach of that
provision. In the present case, regard being had to the fact that the
applicant has been allowed regular visits from his parents (twice a
month) and his brother, and taking into account the margin of
appreciation left to the State authorities, the Courts finds no
appearance of a violation of the Convention.
- As
to the alleged lack of access to telephone facilities, the applicant
failed to substantiate his complaint.
- 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. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 1 TO
THE CONVENTION
- Relying
on Article 2 of Protocol No. 1 to the Convention, the applicant
complained that due to his lengthy detention, he had been unable to
complete his university education; and that he had failed to improve
his language skills, as no English books were allowed in detention.
- Having
examined all the material in its possession, regardless
of other possible grounds of inadmissibility, the Court finds
nothing in the case file which might disclose any appearance of a
violation of the right guaranteed by the provision relied on.
It
follows that this part of the application is manifestly ill-founded
and must be rejected pursuant to Article 35 §§ 3 and 4 of
the Convention.
IV. 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.”
- Recently,
in the case of Kauczor v. Poland (see Kauczor, cited
above, § 58 et seq. with further references) the Court has held
that the 2007 Resolution 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 has
had affected, and may still affect in the future, an yet
unidentified, but potentially considerable number of persons charged
in criminal proceedings.
It
concluded, as the Committee of Ministers had already done, that the
excessive length of pre-trial detention in Poland revealed a
structural problem consisting of “a practice that is
incompatible with the Convention” (see Kauczor, cited
above, § 60; and mutatis mutandis Broniowski v. Poland
[GC], no. 31443/96, §§ 190 191, ECHR
2004 V; Scordino v. Italy (no. 1) [GC], no.
36813/97, §§ 229-231, ECHR 2006 ...; Bottazzi v.
Italy [GC], no. 34884/97, § 22, ECHR 1999 V
with respect to the Italian length of proceedings cases).
- It
is true that the present case concerns the 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 entitled to the protection against unreasonably
lengthy detention afforded by this provision (see paragraphs 30, 32
and 36 above). As in other numerous similar detention cases, the
authorities did not justify the applicant's continued detention by
relevant and sufficient reasons (see paragraphs 30-36 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, no. 17584/04, 4 May 2006;
Kąkol v. Poland, no. 3994/03, 6 September 2007;
Malikowski v. Poland, no. 15154/03, 16 October 2007).
Consequently, the Court sees no reason to diverge from its findings
made in Kauczor as to the existence of the structural problem
and the need for the Polish State to adopt measures to remedy the
situation (see Kauczor, cited above, §§ 60-62 ).
V. 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 690,000 euros (EUR) in respect of pecuniary damages
and non-pecuniary damage. He further demanded that EUR 500,000
be awarded to Amnesty International.
- The
Government did not express an opinion on the matter.
- 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 considers that the applicant has suffered
non-pecuniary damage which is not sufficiently compensated by the
finding of a violation of the Convention. Considering the
circumstances of the case and making its assessment on an equitable
basis, the Court awards the applicant EUR 2,000 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
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, 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 3 March 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
