EHRM, 25-04-2006, nr. 31330/02

EHRM, 25-04-2006, nr. 31330/02

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Uitspraak 25‑04‑2006

Nicolas Bratza, J. Casadevall, G. Bonello, R. Maruste, S. Pavlovschi, L. Garlicki, J. Borrego Borrego

Partij(en)

In the case of

Gołek

v.

Poland,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Sir Nicolas BRATZA, President,

Mr J. CASADEVALL,

Mr G. BONELLO,

Mr R. MARUSTE,

Mr S. PAVLOVSCHI,

Mr L. GARLICKI,

Mr J. BORREGO BORREGO, judges,

and Mr M. O'BOYLE, Section Registrar,

Having deliberated in private on 28 March 2006,

Delivers the following judgment, which was adopted on the last-mentioned date:

Procedure

1

The case originated in an application (no. 31330/02) 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 Antoni Gołek (‘the applicant’), on 3 August 2002.

2

The applicant, who had been granted legal aid, was represented by Mr W. Hermeliński, a lawyer practising in Warsaw. The Polish Government (‘the Government’) were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.

3

On 4 May 2004 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the length of the applicant's pre-trial detention to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

4

On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section (Rule 52 § 1).

The facts

I. The circumstances of the case

5

The applicant was born in 1972 and lives in Bielsko-Biała, Poland.

6

On 15 March 2000 the applicant was arrested by the police on suspicion of having committed homicide. On 16 March 2000 the Żywiec District Court (Sąd Rejonowy) ordered that he be detained on remand in view of the reasonable suspicion that he had committed the offence in question, the serious nature of that offence, the severity of the anticipated penalty and the need to secure the proper conduct of the investigation, in particular the process of obtaining evidence.

7

During the investigation the applicant's detention was extended on several occasions. He filed numerous but unsuccessful applications for release and appealed, likewise unsuccessfully, against the decisions prolonging his detention. The applicant made repeated applications for release on personal grounds, submitting that he had to secure the care and well-being of his 3 year old son. He also contested the reasonableness of the charge against him, maintaining that it was solely based on evidence from his common-law wife who was his alleged accomplice.

8

On 7 June 2000 the Bielsko-Biała Regional Court (Sąd Okręgowy) prolonged his detention until 15 September 2000. On 8 September 2000 it ordered that he be kept in custody until 15 December 2000. On 6 December 2000 it extended that period until 15 March 2001. The court reiterated the grounds originally given for the applicant's detention. It also considered that the need to take further evidence from experts justified the continuation of that measure.

9

On 1 March 2001 the applicant, together with his common-law wife, was indicted on charges of homicide, attempted homicide, assault occasioning actual bodily harm, uttering threats, theft, burglary, fraud and illegally possessing explosives and dangerous substances before the Bielsko-Biała Regional Court. In all, 24 charges were brought against the applicant. The prosecution asked the court to hear evidence from 95 witnesses.

10

The Regional Court continually prolonged the applicant's detention pending trial. On 7 March 2001 it extended his detention until 30 June 2001.

11

On 7 June 2001 the trial court dismissed the applicant's request of 5 June 2001 to sever his case and assign it to a separate set of proceedings. It adjourned the hearing due to the absence of the co-defendant's counsel.

12

Subsequently, the applicant's detention was prolonged on 25 June and 26 November 2001. The court held that the grounds originally given for his detention were still valid. It stressed the strong likelihood that the applicant had committed the offences in question.

13

In the meantime, on 6 July 2001, the applicant had unsuccessfully challenged the composition of the court.

14

On 18 July 2001 he requested the trial court to appoint him a new legal aid counsel.

15

On 1 and 23 August 2001 respectively he requested the trial court to assign his case to a separate set of proceedings. Subsequently, at the hearing held on 6 September 2001 the applicant withdrew his motion.

16

The hearings scheduled for 19 September and 8 October 2001 had to be adjourned due to the co-defendant's absence. Two other hearings were adjourned due to the absence of the judge rapporteur.

17

The trial court held further hearings: on 6 November 2001, 5 and 22 February 2002. In the meantime, the hearings listed for 15 November and 12 December 2001 were cancelled due to the illness of the judge.

18

Subsequently, as the length of the applicant's detention reached the statutory time-limit of 2 years laid down in Article 263 § 3 of the Code of Criminal Procedure (Kodeks postępowania karnego), the Regional Court made 4 applications to the Katowice Court of Appeal (Sąd Apelacyjny), asking for the applicant's detention to be prolonged beyond that term. The Court of Appeal granted those applications on 13 March 2002 (extending the applicant's detention until 5 October 2002), on 2 October 2002 (extending his detention until 5 March 2003), on 26 February 2003 (prolonging that term until 31 May 2003) and on 21 May 2003 (ordering his continued detention until 31 August 2003). In all those decisions the Court of Appeal considered that the original grounds given for the applicant's detention were still valid.

19

The applicant's numerous applications for release and his appeals against the detention decisions were to no avail.

20

Between March and September 2002, the trial court listed 10 hearings. The applicant and his lawyer were present at all the hearings. During this period the applicant on several occasions refused to participate in the trial, on two occasions he challenged the composition of the court. He also requested the court to appoint him a new legal aid counsel and applied for his case to be assigned to a separate set of proceedings. All his motions were dismissed.

In the meantime, the hearing scheduled for 17 May 2002 had been cancelled. The hearings listed for 12 and 13 June 2002 had likewise been cancelled due to the illness of the judge.

21

Further hearings were held on 2, 15 and 30 October, 14 and 28 November 2002. On 12 December 2002 the applicant refused to participate in the hearing due to his illness. The trial court proceeded with taking evidence and ordered that an expert opinion on the applicant's health be obtained.

22

Subsequently, hearings were held on the following dates: 16 January, 12 and 27 February 2003. On 12 February 2003 the trial court acknowledged the delay in the proceedings and stated that it was caused by the particular complexity of the case and other obstacles which could not have been removed by the relevant authorities.

23

The hearing scheduled for 13 March 2003 had to be adjourned due to the applicant's absence. Further hearings were held on: 8 and 17 April, 6, 7 and 28 May, 3 and 10 June 2003. The applicant and his counsel were present at the hearings. As of April 2003 the court had heard evidence from 85 witnesses.

24

On 12 June 2003 the Regional Court convicted the applicant as charged and sentenced him to life imprisonment.

25

On 24 June 2004 the Katowice Court of Appeal upheld the first-instance judgment.

26

On 12 October 2004 the applicant lodged a cassation appeal.

II. Relevant domestic law

27

The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand 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 social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition to leave the country (zakaz opuszczania kraju).

28

Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads:

‘Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused's committing another, serious offence; they may be imposed only if evidence gathered shows a significant probability that an accused has committed an offence.’

29

Article 258 lists grounds for detention on remand. It provides, in so far as relevant:

‘Detention on remand may be imposed if:

(1)

there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland];

(2)

there is a justified fear that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means;

2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years' imprisonment, or if a court of first instance has sentenced him to at least 3 years' imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.’

30

The Code sets out the margin of discretion as to the continuation of a specific preventive measure. Article 257 reads, in so far as relevant:

‘1. Detention on remand shall not be imposed if another preventive measure is sufficient.’

‘If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would:

(1)

seriously jeopardise his life or health; or

(2)

entail excessively harsh consequences for the accused or his family.’

Article 259, in its relevant part, reads:

31

The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court — within those time-limits — must in each detention decision determine the exact time for which detention shall continue.

32

Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided:

‘1. Imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months.

2. If, due to the particular circumstances of the case, an investigation cannot be terminated within the term referred to in paragraph 1, the court of first instance competent to deal with the case may — if need be and on the application made by the [relevant] prosecutor — prolong detention for a period [or periods] which as a whole may not exceed 12 months.

3. The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed 2 years.

4. Only the Supreme Court may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, a prolonged psychiatric observation of the accused, a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad, when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.’

33

On 20 July 2000 paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs 2 and 3 has been vested with the court of appeal within whose jurisdiction the offence in question has been committed.

The law

I. Alleged violation of Article 5 § 3 of the Convention

34

The applicant alleged a breach of Article 5 § 3 of the Convention in that his pre-trial detention had been inordinately lengthy. That provision reads, in so far as relevant:

‘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.’

A. Admissibility
35

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
36

The Government submitted that the applicant's detention to be considered under Article 5 § 3 began on 15 March 2000, when he was arrested on suspicion of having committed homicide, and ended on 12 June 2003, when the Bielsko-Biala Regional Court gave the first instance judgment. It accordingly lasted 3 years, 2 months and 28 days. However, they noted that during the period in question the applicant had served 23 days of imprisonment imposed in two other criminal proceedings. Therefore, the period of 23 days should be subtracted from the total period of time to be taken into consideration.

37

The applicant did not comment on the period to be taken into account.

38

The Court agrees that the relevant period lasted from 15 March 2000 to 12 June 2003. Furthermore, the Court notes that the applicant served a sentence of 23 days imprisonment imposed in other criminal proceedings. It recalls that in view of the essential link between Article 5 § 3 of the Convention and paragraph 1 (c) of that Article, a person convicted at first instance cannot be regarded as being detained ‘for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence’, as specified in the latter provision, but is in the position provided for by Article 5 § 1 (a), which authorises deprivation of liberty ‘after conviction by a competent court’ (see, for example, B. v Austria, judgment of 28 March 1990, Series A no. 175, pp. 14–16, §§ 36–39). Thus, the period of 23 days must be subtracted from the total period of the applicant's detention.

39

Accordingly, the period to be taken into consideration lasted 3 years, 2 months and 5 days.

2. The reasonableness of the length of detention
(a) The parties' arguments
40

The applicant submitted that his pre-trial detention had been inordinately lengthy. He stressed that he had spent more than three years in pre-trial detention. In his view, such a lengthy period of detention was in itself incompatible with Article 5 § 3 of the Convention, given the principle of the presumption of innocence. That, he stressed, had in reality amounted to serving a prison sentence.

41

The applicant maintained that, however strong had been the suspicion against him, it could suffice as a basis for holding him in custody only at an early stage of the proceedings. He also accepted that the need to secure the proper conduct of the proceedings had justified his detention as long as the evidence had not been obtained. In the applicant's submission, with the passage of time that ground became less and less relevant.

42

He went on to argue, that during the entire period of his pre-trial detention, the national courts had not considered the possibility of imposing on him other preventive measures, such as bail or police supervision. In their decisions, they had never explained why bail or police supervision would not have guaranteed that the proceedings followed their proper course.

43

As regards the risk of absconding, the applicant considered that it had not been based on any reliable evidence and that, with the passage of time, it had become irrelevant from the point of view of the proper conduct of the trial.

44

The relevant courts had not, the applicant asserted, given any sufficient and relevant reasons for his continued detention. Their decisions had been laconic, vague and sketchy. The courts had repeatedly stated that the original grounds for his detention had still been valid and had repeatedly relied on the necessity to secure the due course of the proceedings.

45

As to the conduct of the authorities, the applicant stated that they had not shown any special diligence in handling his case. He argued that he had not contributed to the delays in the proceedings. The applicant conceded that he had made frequent use of his procedural rights, but submitted that the number of various applications should be seen against the background of the entire length of his detention. He further contested the Government's opinion as to the complexity of the case. In conclusion, the applicant submitted that the length of his detention on remand had exceeded a ‘reasonable time’ requirement.

46

The Government maintained that the length of the applicant's detention was not in breach of Article 5 § 3 and was duly justified during the entire period in issue.

They argued that the domestic courts had given ‘relevant’ and ‘sufficient’ grounds for the applicant's detention. They relied firstly on the existence of serious suspicion that the applicant had committed the offences in question, based on sufficient evidence. They underlined the grave nature of the charges brought against the applicant.

47

The Government further referred to the risk of collusion and of tampering with the evidence because several witnesses from the applicant's close environment had to be heard during the investigation and the trial. Therefore, the authorities conducting the case had to prevent the applicant from interfering with the process of obtaining evidence.

48

The Government maintained that the case had been complex on account of the number of charges brought against the applicant and his two other co-defendants and the need to obtain extensive evidence, including expert evidence.

Furthermore, they submitted that the prosecution authorities had acted with requisite diligence in the course of the pre-trial investigation which had been terminated within the period of 11 months and 14 days. They also stressed that the trial court had shown due diligence in the course of the trial. They submitted that hearings had been regularly and frequently fixed.

49

The Government further stressed that the applicant had significantly obstructed the trial. They submitted that he had repeatedly refused to participate in the hearings and requested to be taken to the detention centre. They maintained that he had made numerous requests to exclude his case to a separate set of proceedings and submitted several applications to challenge the composition of the trial court. They also referred to the applicant's motions for the appointment of legal aid counsel. In the Government's view, the applicant's behaviour justified the conclusion that he had resorted to delaying tactics. The Government concluded that the authorities had acted with due diligence in handling the applicant's case.

50

Finally, they stated that although the above grounds for detention had not been expressly mentioned in every decision of the relevant authorities, they were duly taken into consideration and justified the applicant's continued detention. They added that the applicant's detention had been subject to frequent and thorough review by the domestic courts.

(b) The Court's assessment
(i) General principles
51

The Court reiterates that the question whether a period of detention is reasonable cannot be assessed in the abstract but must be considered in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, §§ 110–111, ECHR 2000-X).

Under Article 5 § 3 the national judicial authorities must ensure that the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must, paying due regard to the principle of the presumption of innocence, examine all the facts arguing for a departure from the rule in Article 5 and must set them out in their decisions on the applications for release.

The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. The Court must then establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were ‘relevant’ and ‘sufficient’, the Court must also be satisfied that the national authorities displayed ‘special diligence’ in the conduct of the proceedings (see, for instance, Jabłoński v. Poland, no. 33492/96, § 80, 21 December 2000).

(ii) Application of the above principles to the present case
52

The Court observes that the judicial authorities relied, in addition to the reasonable suspicion against the applicant, on four principal grounds, namely

(1)

the serious nature of the offences with which the applicant had been charged,

(2)

the severity of penalty to which he was liable

(3)

the particular complexity of the case and

(4)

the need to secure the process of obtaining extensive evidence (see paragraphs 6, 8, 12 and 18 above).

53

The Court accepts that the reasonable suspicion against the applicant of having committed the serious offences may initially have warranted his detention. The Court also accepts that the need to obtain voluminous evidence from many sources together with the complexity of the investigation, constituted relevant and sufficient grounds for the applicant's detention during the time necessary to terminate the investigation.

However, with the passage of time those grounds inevitably became less and less relevant. In particular, even if the Court were to accept that the applicant had contributed to certain delays during the trial by making use of his procedural rights, the Court considers that those grounds could not justify the entire period of the applicant's detention. It must then establish whether the other grounds advanced by the judicial authorities were ‘relevant’ and ‘sufficient’ to continue to justify the deprivation of liberty.

54

The Court notes that the judicial authorities also relied on the likelihood that a severe sentence would be imposed on the applicant given the serious nature of the offences at issue (see paragraphs 6, 8, 12 and 18 above). In this respect, the Court recalls that the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or re-offending. It acknowledges that in view of the seriousness of the accusations against the applicant the authorities could justifiably consider that such an initial risk was established. However, the Court has repeatedly held that the gravity of the charges cannot by itself serve to justify long periods of detention on remand (see Ilijkov v. Bulgaria, no. 33977/96, §§ 80–81, 26 July 2001). In the circumstances of the present case, the Court finds that the severity of the anticipated penalty alone, or in conjunction with the other grounds relied on by the authorities, cannot constitute a ‘relevant and sufficient ground’ for holding the applicant in detention for a considerably long period of over 3 years and 2 months. In consequence, the authorities failed to advance any new grounds for prolonging the most serious preventive measure against the applicant.

55

The Court further observes that the Government, when adducing circumstances which would justify the applicant's detention, relied heavily on his obstructive attitude, the risk of collusion and of tampering with evidence (see paragraphs 47 and 49 above). However, it is to be stressed, in the light of the material before the Court and, in particular, the documents submitted by the parties, that the domestic courts did not in fact rely on those considerations in their decisions (see paragraphs 6, 8, 12 and 18 above). Therefore, the Court finds it difficult to accept that those factors can be effectively invoked as constituting relevant and sufficient grounds to justify the entire period of the applicant's detention.

56

The Court would also emphasise that under Article 5 § 3 the authorities, when deciding whether a person should be released or detained, are obliged to consider alternative measures of ensuring his appearance at trial. Indeed, that provision not only proclaims the right to ‘trial within a reasonable time or to release pending trial&’ but also lays down that ‘release may be conditioned by guarantees to appear for trial’ (see the Jabloński judgment cited above, § 83).

57

In the present case the Court notes that during the entire period of the applicant's pre-trial detention, the authorities did not envisage the possibility of imposing on the applicant other ‘preventive measures’— such as bail or police supervision — expressly foreseen by Polish law to secure the proper conduct of criminal proceedings (see paragraphs 7–8, 12 and 18–19 above). What is more, it does not emerge from the relevant decisions that at any stage of the applicant's detention the authorities considered that those other measures would not have ensured his appearance before the court or that the applicant, had he been released, would have in any way obstructed the course of the trial. Nor did they mention any factor indicating that there was a risk of the applicant's tampering with evidence, absconding, going into hiding or evading any sentence that might be imposed (see paragraphs 7–8, 10, 12, 18–19 above).

58

Furthermore, the Court cannot but note that it took the trial court six months to hold the first hearing on the merits (see paragraphs 9–15 above). Bearing in mind that at that stage the applicant had already been detained on remand for almost one year and six months, the Court finds that the trial court should have fixed a tighter schedule of hearings in order to speed up the proceedings. Subsequently, between September and December 2001 the trial court adjourned a number of hearings (see paragraphs 16 and 17 above). Later on, from October 2002 the hearings were held more often and the proceedings were conducted more efficiently (see paragraphs 21–24 above).

59

On the whole, while acknowledging that that there may have been good reasons to impose and continue the applicant's detention at the beginning of the proceedings, especially in view of the complexity of the investigation proceedings, the Court finds it difficult to accept that the grounds relied on by the authorities were sufficient and relevant to justify his detention for the period of 3 years, 2 months and 5 days.

There has accordingly been a violation of Article 5 § 3 of the Convention.

II. Application of Article 41 of the Convention

60

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
61

Under the head of non-pecuniary damage the applicant claimed 15,000 euros (EUR).

62

The Government considered that the sum in question was exorbitant and should be rejected. They asked the Court to rule that the finding of a violation would constitute in itself sufficient just satisfaction.

63

The Court considers that the applicant has suffered non-pecuniary damage — such as distress resulting from the protracted length of his detention — 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 1,000 under this head.

B. Costs and expenses
64

The applicant, who had been granted legal aid, also sought reimbursement of EUR 2,000 for the costs and expenses incurred in the proceedings before the Court. This included 20 hours' work at an hourly rate of EUR 100.

65

The Government stated that the applicant's lawyer had not presented any specification of the costs and expenses incurred during the proceedings before the Court and the domestic courts.

66

According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, in the light of the applicant's specification of the costs and expenses incurred in the proceedings before the Court, he should be given the amount claimed in full. Accordingly, the Court awards the applicant EUR 2,000 for his costs and expenses together with any value-added tax that may be chargeable, less EUR 701 received by way of legal aid from the Council of Europe.

C. Default interest
67

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

1.

Declares the remainder of the application admissible;

2.

Holds that there has been a violation of Article 5 § 3 of the Convention;

3.

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, and EUR 2,000 (two thousand euros) in respect of costs and expenses, less EUR 701 (seven hundred and one euros) received from the Council of Europe, to be converted into Polish zlotys at the rate applicable at the date of settlement, plus any tax that may be chargeable;

(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;

4.

Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 25 April 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Nicolas BRATZA

President

Michael O'BOYLE

Registrar

Deze functie is alleen te gebruiken als je bent ingelogd.