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FOURTH
SECTION
CASE OF FIGAS v. POLAND
(Application
no. 7883/07)
JUDGMENT
STRASBOURG
23 June
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 Figas 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 2 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 7883/07) 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 Bartłomiej
Figas (“the applicant”), on 29 January 2007.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- The
applicant alleged that his detention had exceeded a “reasonable
time” within the meaning of Article 5 § 3 of the
Convention.
- On
29 April 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 1980 and lives in Wojkowice. He is currently
detained in the Zabrze Remand Centre.
- On
17 November 2003 the applicant was arrested on suspicion of attempted
murder and uttering threats.
- On
19 November 2003 the Zabrze District Court remanded him in custody,
relying on the reasonable suspicion that he had committed the
offences in question, supported by evidence from witnesses and the
applicant's confession of having beaten the victim. It also
considered that keeping the applicant in detention was necessary to
secure the proper conduct of the proceedings. The court stressed the
severity of the anticipated sentence, given the character of the
offence and the magnitude of the injuries suffered by the victim. It
found no special grounds that would justify lifting the detention and
imposing a less severe measure.
- In
the course of the proceedings, the applicant's detention was extended
by the Gliwice Regional Court on 9 February, 10 May and 11 October
2004 and 20 January 2005.
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. They
attached importance to the serious nature of those offences and the
likelihood of a severe sentence of imprisonment being imposed on the
applicant. They further considered that the need to secure the proper
conduct of the proceedings justified holding him in custody and that
the applicant, if released, could disrupt the trial.
- On
6 April 2005 the Gliwice Regional Court convicted the applicant of
rape, aggravated assault and uttering threats and sentenced him to
nine years' imprisonment. The applicant's detention was extended.
- On
7 July 2005 the Katowice Court of Appeal quashed the first instance
judgment and remitted the case to the Gliwice Regional Court.
- Further
decisions extending the applicant's detention were taken on 8 August
and 10 November 2005, and 24 January and 12 April 2006. On 5 May
2006 the Katowice Court of Appeal dismissed an interlocutory appeal
by the applicant against the latter decision.
- Subsequent
decisions prolonging the detention were given by the Gliwice Regional
Court on 8 June and 13 October 2006.
- In
the retrial proceedings the applicant made two applications for
release, which were refused by the Gliwice Regional Court on 16
January and 10 July 2006. In his applications he relied on his
personal circumstances. In particular, the need to ensure that his
sick mother and his brother (a minor) were cared for.
- On
27 October 2006 the Gliwice Regional Court convicted the applicant of
rape, aggravated assault and uttering threats and sentenced him to
seven years' imprisonment.
- On
8 January 2007 the Gliwice Regional Court prolonged the applicant's
detention. It held that in the light of the first-instance court's
judgment, the reasons for the applicant's continued detention were
still valid. A further interlocutory appeal was dismissed by the
Katowice Court of Appeal on 31 January 2007.
- On
15 March 2007 the Katowice Court of Appeal upheld the first instance
judgment.
- On
27 April 2007 the applicant lodged a request to have a legal-aid
lawyer appointed to his case with a view to lodging a complaint
questioning the constitutionality of Article 263 of the Polish Code
of Criminal Procedure. On 28 August 2007, the applicant's legal-aid
counsel informed the Gliwice District Court, and the applicant, that
he had found no grounds for lodging a constitutional complaint.
- On
27 October 2007 the Supreme Court dismissed a cassation appeal by the
applicant against the judgment of 15 March 2007.
- On
14 December 2007 the applicant lodged a claim for compensation and
just satisfaction for unjustified detention. On 6 February 2008 the
Gliwice Regional Court dismissed the claim. The applicant's legal aid
counsel found no grounds for lodging an appeal against the judgment.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Preventive measures, including pre-trial detention
- The
Code of Criminal Procedure of 1997, which entered into force on
1 September 1998, defines pre-trial detention (aresztowanie
tymczasowe) as one of the so-called “preventive measures”
(środki zapobiegawcze). The other measures
are bail (poręczenie majątkowe), police supervision
(dozór policji), guarantee by a responsible person
(poręczenie osoby godnej zaufania), guarantee by a
registered organisation (poręczenie społeczne), a
temporary ban on engaging in a given activity (zawieszenie
oskarżonego w określonej działalności) and a
prohibition on leaving the country (zakaz opuszczania kraju).
A detailed description of the relevant domestic law and judicial
practice concerning the imposition of pre-trial detention, the
grounds for its extension, release from detention and rules governing
other “preventive measures” is given 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.
B. Measures designed to reduce the length of pre-trial
detention
- 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 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 available under Polish law in that he had failed to lodge a
complaint under Article 79 § 1 of Polish Constitution
questioning the constitutionality of those provisions of the Code of
Criminal Procedure that had served as a basis for extending his
pre-trial detention, in particular Article 263 of that Code. They
further submitted that the availability of such a remedy had been
confirmed by two judgments of the Constitutional Court – of 24
July 2006 (SK 53/03) and 10 June 2008 (SK 17/07), where the
Constitutional Court upheld the objections raised by the
complainants.
The
Government observed that by the time the applicant had filed his
application with the Court, the Constitutional Court had already
given the first of the aforementioned judgments concerning Article
263 §§ 3 and 4 of the Code, finding these provisions partly
unconstitutional. They concluded that the applicant might therefore
have been required to exhaust the remedy in question.
In
the Government's opinion, if the constitutional complaint had proved
successful and Article 263 of the Code of Criminal Procedure had been
considered unconstitutional in some part, opportunities for the
applicant to obtain redress at the domestic level would have arisen,
namely (1) the unconstitutional provision would not have been applied
in respect of the applicant; (2) a judgment of the Constitutional
Court finding the provision in question incompatible with the
Constitution would have been a basis for reopening proceedings, or
for quashing the decision or other settlement in a manner and based
on principles specified in the provision applicable to the given
proceedings; (3) the possibility of seeking compensation and just
satisfaction for the undoubtedly unjustified pre-trial detention
(under Article 552 § 4 of the Code of Criminal Procedure) would
have become available to the applicant and (4) the applicant could
have sought compensation for damage resulting from decisions based on
an unconstitutional provision, in accordance with Article 417¹ §
2, second sentence, of the Civil Code.
- The applicant submitted that on 28 August 2007 his
legal-aid counsel had refused to lodge a constitutional complaint on
his behalf, finding that it would have no prospect of success.
- In any event, the Court
reiterates that it has already dealt with the question of the
effectiveness of the constitutional complaint in Poland
(see Szott-Medyńska
v. Poland
(dec.), no. 47414/99, 9
October 2003; and subsequently Pachla
v. Poland
(dec.), no. 8812/02, 8
November 2005; Więcek
v. Poland (dec.), no.
19795/02, 17 January 2006; and Tereba v. Poland
(dec.),
no. 30263/04,
21 November 2006). In the Szott- Medyńska
decision the Court considered, in
particular, two important limitations of the Polish model of
constitutional complaint, namely its scope and the form of redress it
provides.
The Court does not find it necessary to determine whether the remedy
invoked by the Government could be considered effective in the
circumstances of the present case. Having regard to the applicant's
lawyer's refusal to lodge a constitutional complaint and an appeal
against the judgment dismissing the claim for just satisfaction, the
Court is satisfied that the applicant did everything that could
possibly be expected of him to exhaust the national channels of
redress. It follows that the Government's plea of inadmissibility on
the ground of non-exhaustion of domestic remedies must be dismissed.
- The
Court further 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 17 November 2003, when he was
arrested on suspicion of attempted murder and uttering threats.
On 6 April 2005 the Gliwice Regional Court convicted the
applicant and sentenced him to nine 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 (see Kudła v. Poland [GC],
no. 30210/96, § 104, ECHR 2000 XI).
On 7
July 2005 the Katowice Court of Appeal quashed the applicant's
conviction. Following that date his detention was again covered by
Article 5 § 3. It continued until 27 October 2006
when the applicant was again convicted.
Accordingly,
the period to be taken into consideration amounts to two years, eight
months and nine days.
2. The parties' submissions
(a) The applicant
- The applicant submitted in general terms that his
application to the Court was justified. He argued that keeping him in
pre-trial detention for such a lengthy period of time had infringed
his human rights and the Convention. He also
contended that being detained for such a long period had deprived him
of certain rights which persons serving a prison sentence enjoyed.
(b) The Government
- The
Government submitted that they wished to refrain from taking a
position in respect of the merits of the applicant's complaint under
Article 5 § 3 of the Convention. At the same time they
underlined that the applicant's detention had been justified by the
reasonable suspicion that he had committed the serious offences with
which he had been charged and the fact that the charges against him
attracted a heavy sentence. The Government also stressed that the
authorities had displayed special diligence in the conduct of the
criminal proceedings against the applicant.
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, are set out in a
number of its previous judgments (see, among many other authorities,
Kudła, cited above, § 110 et seq.,
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 reasonable
suspicion that the applicant had committed the crimes, relied
principally on three grounds, namely (1) the serious nature of the
offences, (2) the severity of the penalty to which he was liable and
(3) the need to secure the proper conduct of the proceedings and,
particularly, the risk that he might obstruct the proceedings.
- The
Court accepts that the reasonable suspicion that the applicant had
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 therefore establish whether the other
grounds adduced by the courts – namely, the grave nature of the
offence, the severity of the anticipated sentence and the risk that
the applicant would disrupt the proceedings – were “sufficient”
and “relevant” (see, Kudła cited above,
§ 111).
- It
is true that the applicant was detained on charges of a serious
nature (see paragraph 6 above), but he was believed to have acted
without accomplices. Therefore, it appears that neither the
investigating authorities nor the court were faced with particular
difficulties when determining the facts and mounting the case.
- According
to the judicial authorities, the likelihood of a severe sentence
being imposed on the applicant, given the serious nature of the
offences in question, 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 severity of
the charges cannot by itself justify long periods of pre-trial
detention (see Michta v. Poland, no. 13425/02, §§
49, 4 May 2006).
- Further, the Court notes 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 proceedings 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 entire period of the applicant's detention.
Furthermore, there is no indication that during any part of the
period in question the authorities envisaged the possibility of
imposing other preventive measures on the applicant, such as bail or
police supervision.
- Having
regard to the foregoing, the Court concludes that the grounds given
by the domestic authorities do 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. 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.”
A. The parties' submissions
1. The applicant
- The
applicant did not submit any observations concerning this provision.
2. The Government
- The Government submitted that
the proceedings in the applicant's case had showed some exceptional
features that distinguished them from other pre-trial detention cases
and that the length of the applicant's detention had been an effect
of the highly complex nature of the proceedings, and that
consequently, it did not reveal the existence of a structural problem
but was simply an exceptional case. They further stressed that Polish
law was compatible with the standards stemming from Article 5 § 3
of the Convention.
- Further, the Government provided
some examples of the latest amendments to the relevant provisions of
domestic law (which entered into force during the applicant's
detention) and made reference to the Constitutional Court's judgment
of 24 July 2006 (see paragraph 21 above).
- Maintaining
that the number of cases in which pre-trial detention ordered by
courts lasting from twelve months to two years or longer was
decreasing, the Government made reference to the statistical data for
2005 2007 which they submitted to the Court. They further
stressed that the courts' awareness of the standards concerning the
length of pre-trial detention was growing.
- They
also suggested that the fact that the Court had already given many
judgments finding a violation of Article 5 § 3 of the Convention
should not lead to the automatic application of Article 46 of the
Convention in the manner in which it was applied in the case of
Scordino v. Italy. Indeed,
the Polish authorities had taken
many general and individual measures based on the conclusions
stemming from the Court's judgments in which an excessive length of
pre-trial detention had been found. In particular, on 17 May 2007 the
Council of Ministers had adopted the “Government Plan of Action
for the execution of judgments of the European Court of Human Rights
in respect of Poland” (see paragraph 21 above).
- Lastly,
the Government concluded that bearing in mind the endeavours of the
Polish authorities and the legislative reforms which were being and
had been undertaken by them to solve the problem of the length of
pre-trial detention, one could not say that Poland had failed to
comply with its obligation under Article 46 of the Convention to obey
the Court's judgments delivered in respect of Poland.
B. The Court's assessment
- Recently,
in the Kauczor case (see Kauczor v. Poland, 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 the number of
pending cases raising an issue of excessive length 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 might 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
numerous similar detention cases, the authorities did not justify the
applicant's continued detention with relevant and sufficient reasons
(see paragraphs 35-38 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 ).
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 35,000 euros (EUR) in respect of
non pecuniary damage.
- The Government considered this sum unreasonable in the
light of the Court's case-law concerning similar cases brought
against Poland and invited the Court to reject
the applicant's claim as excessive.
- The
Court awards the applicant EUR 1,000 in respect of non pecuniary
damage.
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 application admissible;
- 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 1,000 (one 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 23 June 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
