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FOURTH
SECTION
CASE OF BIŚTA v. POLAND
(Application
no. 22807/07)
JUDGMENT
STRASBOURG
12 January
2010
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 Biśta 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,
Mihai Poalelungi,
Nebojša
Vučinić, judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 8 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 22807/07) 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 Jerzy Biśta
(“the applicant”), on 29 May 2007.
- The
applicant was represented by Mr M. Konieczyński, a lawyer
practising in Katowice. The Polish Government (“the
Government”) were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
- On
21 April 2008 the
President of the Fourth Section 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 1954 and lives in Trzebinia.
A. Criminal
proceedings against the applicant and his detention on remand
- On
9 August 2005 the applicant was arrested by officers of the Internal
Security Agency (Agencja Bezpieczeństwa Wewnętrznego)
on suspicion of revealing State secrets and bribery. As submitted by
the applicant, the officers had handcuffed and beaten him. He was
taken to the Internal Security Agency and subsequently to the Kraków
District Prosecutor's Office where he was again beaten and urged to
confess. At the same time another group of armed officers had broken
into his apartment and handcuffed and terrorised his wife. Their
apartment was ransacked during the search for documents and other
evidence.
- On
11 August 2005 the Kraków District Court remanded him in
custody, relying on the reasonable suspicion that he had committed
the offences in question. It also considered that it was necessary to
keep the applicant in detention in order to secure the proper conduct
of the proceedings, given the risk that he might tamper with evidence
or induce witnesses to give false testimony. The court also stressed
the severity of the likely sentence to be imposed and the complexity
of the case. The court found that there was a reasonable suspicion
that the applicant, while at liberty, would have had unlimited
opportunities to contact other persons who were directly linked to
his criminal activities. In particular, the court considered that the
applicant had presumably been acting with accomplices.
-
An appeal by the applicant against the detention order was dismissed
on 8 September 2005 by the Kraków Regional Court.
- In
the course of the investigation, the applicant's detention was
prolonged on several occasions, inter alia on 7 November
and 29 December 2005 by the Szczecin District Court, on 17
March and 12 September 2006 by the Szczecin Regional Court,
on 19 February and 27 April 2007 by the Szczecin Regional Court
and on 4 July 2007 by the Szczecin Court of Appeal (until 15 October
2007). In all their decisions regarding detention the authorities
repeatedly relied on the original grounds given for the applicant's
detention. In addition, they considered that the need to secure the
proper conduct of the proceedings, especially in view of the
considerable number of witnesses to be heard and confronted, as well
as the extensive body of evidence to be examined, justified holding
him in custody.
-
Numerous appeals by the applicant against decisions prolonging his
detention and all his subsequent applications for release were
unsuccessful.
- On
20 December 2005 the Szczecin Regional Prosecutor filed a bill of
indictment against the applicant and twelve other co-accused. The
applicant was charged with revealing state secrets and bribery. One
hundred and four persons were listed to be examined as witnesses.
- On
12 January 2006 a request to transfer the case to the Szczecin
Regional Court was filed owing to the special nature of charges
brought against the applicant, including, inter alia,
revealing State secrets and involvement in the case of high-ranking
police officers. On 27 January 2006 the request was granted by the
Szczecin Court of Appeal.
- On
3 October 2007 the Szczecin Court of Appeal decided not to allow the
Szczecin Regional Court's request for a further extension of the
applicant's detention. It ordered the imposition of another
preventive measure. The court held that even if grounds for the
initial detention of the applicant still remained valid, they no
longer sufficed to justify extending it further beyond the
permissible period of two years. Such lengthy prolongation of his
detention would change it into an actual sentence and was contrary to
the aim of Article 258 § 2 of the Code of Criminal Procedure.
Lastly, the court stressed that the risk that the accused might
influence the outcome of the evidentiary proceedings had ceased to
exist.
- On
11 October 2007 the Szczecin Regional Court lifted the detention
order. No other preventive measure was ordered. The Kraków
Appeal Prosecutor appealed.
- On
24 October 2007 the Szczecin Court of Appeal quashed the decision of
11 October 2007 and remitted the case for reconsideration in respect
of the need for applying preventive measures.
- On
6 November 2007 the Szczecin Regional Court decided that the
applicant could be released if he put up bail of 50,000 Polish zlotys
(PLN). In addition, an order was given to seize his passport and he
was placed under police supervision.
- The
applicant appealed and requested that the amount of bail be reduced.
- On
5 December 2007 the Szczecin Court of Appeal allowed his request and
set bail at PLN 20,000, to be deposited before 12 December 2007.
- It
appears that the applicant was eventually released on payment of the
bail, at the latest on 15 December 2007. It further appears that the
criminal proceedings are currently pending.
B. Censorship of the
applicant's correspondence
- On
22 October 2007 the applicant received a letter from the Szczecin
Regional Court posted to the Szczecin Remand Centre bearing a stamp
“censored” (“ocenzurowano”).
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Detention on remand
- 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.
B. Censorship of correspondence
- The
relevant domestic law concerning censorship of detainees'
correspondence is set out in the Court's judgment in the case of
Kliza v. Poland, no. 8363/04, §§ 29-34, 6
September 2007.
For
further references concerning the relevant domestic law and practice
concerning monitoring of correspondence, see, among other
authorities, Lewak v. Poland, no. 21890/03, § 25, 6
September 2007; Kołodziński v. Poland, no.
44521/04, § 29, 8 January 2008; Misiak v. Poland,
no. 43837/06, § 18, 3 June 2008.
C. Protection of personal rights
1. Civil Code
- Article
23 of the Civil Code sets out a non-exhaustive list of the so called
“personal rights” (dobra
osobiste) in the following way:
“The personal rights of an individual, such as, in
particular, health, liberty, honour, freedom of conscience, name or
pseudonym, image, secrecy of correspondence, inviolability of the
home, scientific or artistic work, [as well as] inventions and
improvements, shall be protected by the civil law regardless of the
protection laid down in other legal provisions.”
Article
24 § 1 reads as follows:
“A person whose personal rights are at risk [of
infringement] by a third party may seek an injunction, unless the
activity [complained of] is not unlawful. In the event of
infringement [the person concerned] may also require the party who
caused the infringement to take the necessary steps to remove the
consequences of the infringement ... In compliance with the
principles of this Code [the person concerned] may also seek
pecuniary compensation or may ask the court to award an adequate sum
for the benefit of a specific public interest.”
Article 448 provides:
“The court may grant an adequate sum as pecuniary
compensation for non-material damage (krzywda) suffered to
anyone whose personal rights have been infringed. Alternatively, the
person concerned, regardless of seeking any other relief that may be
necessary for removing the consequences of the infringement
sustained, may ask the court to award an adequate sum for the benefit
of a specific public interest ...”
Article 442¹ of the Civil Code
sets out limitation periods in respect of various claims based on
tort, including actions for the infringement of personal rights.
Article 442¹, in the version applicable as from 10 August 2007,
reads, in so far as relevant, as follows:
“1. A
claim for compensation for damage caused by a tort shall lapse
three years following the date on which the claimant learned of the
damage and of the persons liable for it. However, this time-limit may
not be longer than ten years following the date on which the event
causing the damage occurred.”
2. Domestic practice
- For
references concerning domestic practice and available remedies see,
among other authorities, Krawiecki v. Poland, no. 49128/06,
§§15-16, 9 June 2009 and the decision in the case of
Sobolewski v. Poland (no.1), no. 39655/05, 16 December
2008.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the length of his detention on remand 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 raised a preliminary objection as to the non exhaustion
of domestic remedies by the applicant. They maintained that the
applicant could have filed a constitutional complaint with the
Constitutional Court alleging that Article
263 § 4 of the Code of Criminal Procedure, which allowed
the extension of detention on remand without any time-limits, was
contrary to the Constitution. In this connection, the Government
further stressed that provided the constitutional complaint proved to
be successful and Article 263 §
4 was declared unconstitutional, the applicant could
subsequently have made a request to have the proceedings concerning
the extension of his detention reopened or the relevant decision
quashed, as provided by the relevant provisions of the Constitution
read together with the Code of Criminal Procedure. Furthermore, the
Government maintained that once the Constitutional Court ruled on the
non-constitutionality of the provision in question, it was open to
the applicant to make a request for compensation for manifestly
unjustified detention on remand in accordance with the relevant
provision of Article 552 § 4 of the Code of Criminal
Procedure.
- The
applicant failed to submit observations in this respect.
- At
the outset the Court reiterates that it has already dealt with the
question of the effectiveness of a constitutional complaint
(see Szott Medyńska v. Poland, no. 47414/99, 9
October 2003). There, the Court observed that a constitutional
complaint could be recognised as an effective domestic remedy, within
the meaning of the Convention, only where the following requirements
were jointly met: 1) the individual decision, which allegedly
violated the Convention, had been adopted in direct application of an
unconstitutional provision of national legislation; and 2) procedural
regulations applicable to the revision of that type of individual
decisions provided for the reopening of the case or the quashing of
the final decision in consequence of the judgment of the
Constitutional Court in which a finding of unconstitutionality had
been made (see also Pachla v. Poland (dec.), no. 8812/02).
- Turning
now to the present case, it should be noted that the Government
failed to specify the provision of the Constitution to which Article
263 § 4 of the Code of Criminal Procedure was contrary
(see paragraph 25 above). Nor have the Government provided any
further details as to the content of such a (hypothetical)
constitutional complaint. Moreover, according to the established
case-law, having exhausted one available remedy, namely an appeal
against the decision extending further his detention, the applicant
was not required to embark on another attempt to obtain redress by
bringing a constitutional complaint (see Kacprzyk v. Poland
no. 50020/06, § 30, 21 July 2009).
Having
regard to the above, the Court finds that it cannot be said that the
constitutional complaint would be an effective remedy within the
meaning of the Convention, given the circumstances of the applicant's
case.
- Accordingly,
the Court concludes that, for the purposes of Article 35 §
1 of the Convention, the applicant has exhausted domestic remedies
and the Government's plea of inadmissibility on the ground of
non-exhaustion of domestic remedies must be dismissed.
- The
Court further notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention, neither
is it 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 9 August 2005, when he was arrested
on suspicion of revealing State secrets and bribery. On 5 December
2007 the Szczecin Court of Appeal eventually quashed the applicant's
detention and ordered a preventive measure to be imposed in lieu.
Subsequently the applicant was released, as it appears from the case
file, at the latest on 15 December 2007.
Accordingly,
the period to be taken into consideration amounts to approximately
two years and four months.
2. The parties' submissions
(a) The applicant
- The
applicant stressed at the outset the long delays between court
hearings which had contributed to the overall length of the
proceedings pending which he had been detained. He further submitted
that on numerous occasions he had filed requests for a review of his
detention. Lastly, the applicant stressed that he had extensively
contributed to the evidentiary proceedings by making ample
submissions and giving detailed clarification of the facts of the
case. Hence, there was no need for his prolonged detention. In
addition, he underlined that he fulfilled the criteria for having a
less severe penalty imposed (nadzwyczajne złagodzenie kary).
(b) The Government
- The
Government maintained that the applicant's detention was justified
throughout its duration and in compliance with the prerequisites
contained in Articles 258 and 259 of the Code of Criminal Procedure.
It was grounded by the existence of strong evidence pointing to the
applicant's guilt and the gravity of the charges brought against him.
Furthermore, its purpose was to secure the proper conduct of the
proceedings, which were extremely complex. As regards the latter, the
Government stressed that the applicant had made attempts to obstruct
the proceedings. They concluded that the applicant's complaint was
manifestly ill-founded.
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 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-X, with further references).
(b) Application of the above principles in
the present case
- In
their decisions regarding the applicant's detention, the authorities,
in addition to the reasonable suspicion against the applicant, relied
principally on three grounds, namely (1) the severity of the penalty
to which he was liable; (2) the complexity and special nature of the
case; (3) the need to secure the proper conduct of the proceedings,
given the risk that the applicant might tamper with evidence or
induce witnesses to give false testimony. As regards the latter, they
specified that the applicant, while at liberty, would have had an
unlimited possibility of contacting other persons who were directly
linked to his criminal activities.
- The
Court accepts that the reasonable suspicion against the applicant of
having committed the offences in question could initially have
warranted his detention. Also, the complexity of the case and the
need to secure the proper conduct of the proceedings 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 then establish whether the other grounds
adduced by the courts – namely, the severity of the anticipated
sentence and the risk that the applicant would tamper with evidence,
in particular with witnesses' testimonies – were “relevant”
and “sufficient” (see Kudła, cited above, §
111).
- Furthermore,
the Court observes that the applicant was primarily detained on
charges of revealing State secrets and bribery, allegedly committed
together with some accomplices. These offences, even though they
carried a severe penalty, were not violent crimes. Moreover, the
applicant had not been formally charged with acting as part of an
organised criminal gang. In these circumstances, the Court is not
persuaded that the instant case presented particular difficulties for
the investigating authorities and for the courts to determine the
facts and mount a case against the defendant as would undoubtedly
have been the case had the proceedings concerned organised crime (see
Celejewski, cited above and Bąk v. Poland, no.
7870/04, § 56, ECHR 2007-II).
- Having
regard to the foregoing, 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
- Furthermore
the applicant complained about the censorship of his correspondence,
relying on Article 8 of the Convention, which in so far as relevant
reads as follows:
“1. Everyone has the right to respect
for (...) his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. The Government's preliminary objective on exhaustion
of domestic remedies
- The
Government raised a preliminary objection as to the non-exhaustion of
domestic remedies by the applicant as required by Article 35 § 1
of the Convention. They argued that it was open to the applicant to
obtain redress as regards the alleged violation by means of an action
for protection of his personal rights under Articles 23, 24§§1
and 2 in conjunction with Articles 417 and 448 of the Polish Civil
Code on account of the infringement of the right to respect for his
correspondence. In support of their argument the Government invoked
the domestic courts' practice concerning inter alia protection
against noise (the judgment of the Supreme Court of 22 March 1999,
No. CRN 28/91) and the worship of a deceased person (the judgment of
the Supreme Court of 13 January 1965). Further, they referred to the
cases of a certain D.S., whose claim for protection of personal
rights (secrecy of correspondence) was granted by the Śrem
District Court on 21 December 2005 (upheld on 19 May 2006 by the
Poznań Regional Court) and a certain A.K., whose similar action
was admitted by the Warsaw Regional Court on 27 November 2006 (upheld
on 28 June 2007 by the Warsaw Court of Appeal).
- The
applicant failed to submit observations in this respect.
B. The Court's assessment
- The
Court recalls that the rule of exhaustion of domestic remedies
referred to in Article 35 § 1 of the Convention requires an
applicant first to use the remedies provided by the national legal
system. The rule is based on the assumption that the domestic system
provides an effective remedy in respect of the alleged breach. In
order to comply with the rule, normal recourse should be had by an
applicant to remedies which are available and sufficient to afford
redress in respect of the breaches alleged (see Aksoy
v. Turkey, judgment of 18 December 1996, Reports of
Judgments and Decisions 1996-VI, pp. 2275–76,
§§ 51–52).
- The
Court notes that the Government referred first to cases brought
before the Supreme Court concerning inter alia protection
against noise and the worship of a deceased person, which did not
concern the censorship of correspondence. Although these cases
demonstrate the readiness of the domestic courts to develop the
principles of civil liability and to apply them to new situations it
cannot however be said that the cases relied on show conclusively
that a remedy for the applicant's specific grievance was thereby
available.
- As
to the remaining cases cited by the Government, the Court reiterates
that in many previous cases it held that when the interference with a
prisoner's correspondence occurred before the date of the judgment of
the Warsaw Court of Appeal relied on by the Government any possible
relevance was reduced by the fact that this judgment had been given
after the censorship had occurred (see, among other authorities,
Pasternak v. Poland, no. 42785/06, § 30, 16 July
2009; and Misiak v. Poland, no. 43837/06, §
18, 3 June 2008).
- However,
the Court observes that in the present case the interference
complained of took place on 22 October 2007 (see paragraph 19 above),
that is to say, after 28 June 2007, the date on which the Warsaw
Court of Appeal had given its judgment granting compensation for the
infringement of the secrecy of a prisoner's correspondence on account
of censorship (see paragraph 42 above). Furthermore, given that
the three-year limitation period for lodging a civil action under
Articles 23 and 24§1 read in conjunction with Article 448 of the
Civil Code has not yet expired (see paragraphs 19 and 22 above),
the applicant can still make use of this remedy.
- That
being so, the Court considers that the complaint is premature and
that the applicant should, as required by Article 35 § 1, first
put the substance of his Convention claim under Article 8 before the
domestic courts.
- The
Court would further observe that applicants with similar complaints
based on interferences which occurred after 28 June 2007 are required
to avail themselves of the provisions of under Articles 23 and 24 § 1
read in conjunction Article 448 of the Civil Code, failing which they
will be considered to have failed to exhaust domestic remedies, as
required by Article 35 § 1 of the Convention.
- It
follows that this complaint must be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
III. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained, invoking Article 3 of the Convention, that
violence was used during his arrest in August 2005 by officers of the
Internal Security Agency, which amounted to inhuman and degrading
treatment. In this connection he also submitted, relying on Article 8
of the Convention, that the degree of force used by the officers was
excessive and resulted in his and his wife's sustaining very serious
and long-term psychological damage.
- The
Court observes that the events complained of by the applicant took
place in 2005, whereas his application was introduced in
May 2007, hence outside the six month time-limit set
down by Article 35 § 1 of the Convention. It follows that these
complaints must also be rejected under Article 35 §§ 1 and
4 of the Convention.
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 a lump sum of 20,000 euros (EUR) in respect of
non-pecuniary damage.
- The
Government found the amount to be exorbitant.
- The
Court awards the applicant, ruling on an equitable basis, EUR 2,000
in respect of non-pecuniary damage resulting from the violation it
has found of Article 5 § 3 of the Convention.
B. Costs and expenses
- The
applicant did not make any claim for costs and expenses involved in
the proceedings.
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 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 12 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza Registrar President
