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FOURTH
SECTION
CASE OF HENRYK SIKORSKI v. POLAND
(Application
no. 10041/09)
JUDGMENT
STRASBOURG
25 January
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Henryk Sikorski v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a
Committee composed of:
Ján
Šikuta,
President,
Lech
Garlicki,
Mihai
Poalelungi,
judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 4 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 10041/09) 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 Henryk
Sikorski (“the applicant”), on 10 February 2009.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr Jakub Wołąsiewicz, of the Ministry of
Foreign Affairs.
- The
applicant alleged that his detention on remand exceeded a “reasonable
time” within the meaning of Article 5 § 3 of the
Convention.
- On
7 December 2009
President of the Fourth Section of the Court decided to give notice
of the application to the Government. In accordance with Protocol No.
14, the application was assigned to a Committee of three Judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1971 and lives in Warsaw. He is currently
detained in the Warsaw Remand Centre.
- On
26 October 2005 the applicant was arrested on suspicion of, inter
alia, drug trafficking and extortion, committed in an organised
and armed criminal group.
- On
27 October 2005 the Warsaw District Court (Sąd Rejonowy)
remanded him in custody, relying on the reasonable suspicion that he
had committed the offence 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 induce
witnesses to give false testimony. The court also stressed the
severity of the anticipated sentence and the complex nature of the
case.
- Later,
twenty-eight members of the same criminal group were detained and
charged in connection with the investigation against 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 were unsuccessful.
- In
the course of the investigation, the applicant's detention was
extended by decisions of the Warsaw Regional Court (Sąd
Okregowy) delivered on 19 January, 20 April, 28 August and 28
December 2006, 21 May, 3 September and 23 October 2007 and 11
February 2008.
- 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
underlined the grave nature of those offences and the likelihood of a
severe sentence of imprisonment being imposed on the applicant. The
courts attached great importance to the complexity of the case, the
significant number of persons involved (around 100 persons) and the
voluminous documentation gathered in the proceedings. They further
considered that the need to secure the proper conduct of the
proceedings justified holding the applicant in custody, as he could
otherwise tamper with evidence or induce the witnesses to change
their testimonies.
In
its decision of 20 April 2006 the court noted that the prosecutor's
arguments for having the applicant's detention extended had been of a
very general nature and instructed the prosecutor to provide a
detailed list of tasks that still needed to be completed during the
investigation if he wished to have the applicant's detention extended
further.
Furthermore,
in its decision of 11 February 2008 the court noted that a special
room had to be reserved for hearings in the present case, as it
concerned a dangerous criminal group.
- On
26 September 2007 a bill of indictment was lodged with the Warsaw
Regional Court. There were twenty-nine defendants in the case, all
charged with numerous counts of drug trafficking and extortion
committed in an organised criminal group.
- On
25 March 2008 the trial court held the first hearing.
- During
the court proceedings the authorities further prolonged the
applicant's detention pending trial. The applicant's detention was
extended by decisions of the Warsaw Court of Appeal (Sąd
Apelacyjny) delivered on 4 December 2008, 18 June 2009 and 29
December 2009. The courts repeated the
grounds previously given for the applicant's continued detention and
stressed, on several occasions, that a number of experts' opinions
had to be requested and legal help had to be sought from Sweden.
- During
his detention the applicant served a twenty months' imprisonment
sentence ordered by the Warsaw District Court in a different set of
criminal proceeding against him.
- On
22 June 2010 the Court of Appeal prolonged the applicant's detention
until 31 October 2010.
- The
proceedings are still pending before the first-instance court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Preventive
measures, including pre-trial detention
- 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 presented 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. Relevant
statistical data
- 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 materials 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. THE GOVERNMENT'S REQUEST TO
STRIKE OUT THE APPLICATION UNDER ARTICLE 37 OF THE CONVENTION
- On 23 July 2010 the Government
submitted a unilateral declaration similar to that in the case of
Tahsin Acar v. Turkey
(Tahsin Acar v.
Turkey (preliminary
objection) [GC], no.
26307/95, ECHR 2003 VI) and informed the Court that they were
ready to accept that there had been a violation of the applicant's
rights under Article 5 § 3 of the Convention as a result of the
excessive length of his pre-trial detention. In respect of
non-pecuniary damage the Government proposed to award PLN 5,600 to
the applicant (the equivalent of 1,150 euros (EUR)). The
Government invited the Court to strike out the application in
accordance with Article 37 of the Convention.
- The applicant did not agree with
the Government's proposal. He considered that the amount proposed did
not constitute sufficient just satisfaction for the damage he had
sustained and requested the Court to continue the examination of the
application.
- The Court observes that, as it
has already held on many occasions, it may be appropriate under
certain circumstances to strike out an application or part of an
application under Article 37 § 1 (c) of the Convention on the
basis of a unilateral declaration by the respondent Government even
if the applicant wishes the examination of the case to be continued.
It will depend on the particular circumstances whether the unilateral
declaration offers a sufficient basis for finding that respect for
human rights as defined in the Convention and its Protocols does not
require the Court to continue its examination of the case (see
Tahsin Acar,
cited above, §
75, and Melnic v. Moldova,
no. 6923/03, § 22, 14 November 2006).
- According to the Court's
case-law, the amount proposed in a unilateral declaration may be
considered a sufficient basis for striking out an application or part
thereof. The Court will have regard in this connection to the
compatibility of the amount with its own awards in similar cases,
bearing in mind the principles which it has developed for
determining victim status and for assessing the amount of
non-pecuniary compensation to be awarded where it has found a
breach of the reasonable time requirement (see
Cocchiarella v. Italy [GC],
no. 64886/01, §§ 85 107, ECHR 2006 ...,;
Scordino v. Italy (no.1) [GC],
no. 36813/97, §§ 193-215, ECHR-2006-...; and Dubjakova
v. Slovakia
(dec.), no. 67299/01, 10 October 2004).
- As to whether it would be
appropriate to strike out the present application on the basis of the
unilateral declaration made by the Government, the Court notes that
despite the Government's acknowledgement of a violation of the
applicant's rights guaranteed under Article 5 § 3 of the
Convention, the applicant continues to be remanded in custody.
- In
view of the length of the applicant's detention and the fact that he
continues to be deprived of his liberty in the alleged breach of
Article 5 § 3 of the Convention, the Court finds that the
Government failed to submit a statement offering a sufficient basis
for finding that respect for human rights as defined in the
Convention and its Protocols does not require the Court to continue
its examination of the case (see Bieniek v. Poland, no.
46117/07, § 22, 1 June 2010).
- This being so, the Court rejects
the Government's request to strike this part of the application out
under Article 37 of the Convention and will accordingly pursue its
examination of the admissibility and merits of the case.
II. 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 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 26 October 2005, when he was
arrested on suspicion of having committed several offences, acting as
a member of an organised and armed criminal group. No judgment has
yet been given in the proceedings.
- However,
in the course of his detention, the applicant served a twenty months'
prison sentence which had been imposed on him in other criminal
proceedings. This term, as being covered by Article 5 § 1 (a),
must therefore be subtracted from the period of the applicant's
pre-trial detention for the purposes of Article 5 § 3.
Accordingly,
the period to be taken into consideration amounts, so far, to three
years and over four months.
2. The Court's assessment
(a) General principles
- The
Court recalls 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 judgements (see, among many other authorities,
Kudła v. Poland [GC], no. 30210/96, § 110
et seq, ECHR 2000 XI; and McKay v. the United Kingdom
[GC], no. 543/03, §§ 41-44, ECHR 2006-..., with further
references).
(b) Application of the above principles in
the present case
- In
their detention decisions, the authorities, in addition to the
reasonable suspicion against the applicant, relied principally on
three grounds, namely (1) the serious nature of the offences with
which he had been charged; (2) the severity of the penalty to which
he was liable; (3) the need to secure the proper conduct of the
proceedings, given the risk that the applicant might tamper with
evidence or induce the witnesses to give false testimonies. As
regards the latter, they did not, however, specify any concrete
grounds justifying their opinion.
- The
applicant was charged with numerous counts of, inter alia, drug
trafficking and extortion, committed in an organised and armed
criminal group (see paragraphs 6 and 12 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 determine the degree of the alleged
responsibility of each of the defendants, who had acted in a criminal
group and against whom numerous charges of serious offences were laid
and 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.
- 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).
- While
all those above factors could justify even a relatively long period
of detention, they did not give the domestic courts an unlimited
power to prolong this measure.
- Having
regard to the foregoing, even taking into account the fact that the
courts were faced with particularly difficult task of trying the 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.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
-
4The applicant further complained that his lengthy detention violated
Article 6 § 2 of the Convention.
- 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
rights and freedoms set out in the Convention or its Protocols
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 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 had
affected, and may still affect in the future, an as yet unidentified,
but potentially considerable number of persons charged in criminal
proceedings.
- It
is true that the present case concerns a person involved in an
organised criminal group. However, as stated above, while this
element is to be taken into account in assessing compliance with
Article 5 § 3 and may justify a longer period of detention than
in a case concerning an individual offender, a member of an organised
criminal group is entitled to the protection against unreasonably
lengthy detention afforded by this provision (see paragraphs 34-35
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 36-38 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
and also Hilgartner v. Poland, no. 37976/06,
§§ 46-48, 3 March 2009). 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).
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 163,140 Polish zlotys (PLN) in respect of pecuniary
damage. This sum covered food and sanitary products that he received
from his family and purchased in the prison shop, the income he has
allegedly lost and his wife's salary for all the days off work that
she spent travelling to the remand centre in order to see him. He
further claimed PLN 35,000 in respect of non-pecuniary damage.
- The
Government noted that the applicant's claim for
pecuniary and non-pecuniary damage was fully unjustified. They
further submitted that it was excessive and inconsistent with the
Court's case-law.
- 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 1,200 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
- Rejects
the Government's request to
strike the application out of the list;
2. 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,
EUR 1,200 (one thousand two hundred euros) in respect of
non pecuniary damage, plus any tax that may be chargeable, to be
converted into the currency of the respondent State at the rate
applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 25 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Ján Šikuta
Deputy
Registrar President
