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FOURTH
SECTION
CASE OF KĄKOL v. POLAND
(Application
no. 3994/03)
JUDGMENT
STRASBOURG
6
September 2007
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 Kąkol 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 K.
Traja,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L.
Mijović, judges,
and Mr T.L. Early, Section
Registrar,
Having
deliberated in private on 10 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 3994/03) 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 Jarosław Kąkol
(“the applicant”), on 15 November 2002.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
18 October 2005 the Court declared the application partly
inadmissible and decided to communicate the complaint concerning the
length of the applicant's 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.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1969 and lives in Gdynia.
- On
21 April 1999 the applicant was arrested on suspicion of armed
robbery. On 22 April 1999 the Gdańsk District Court remanded him
in custody in view of the reasonable suspicion that he had committed
several offences of armed robbery.
- Later,
several other persons were detained and charged in connection with
the same investigation conducted by the Department of Organised Crime
of the Gdańsk Regional Prosecutor's Office. In the course of the
investigation, the applicant's detention was prolonged several times.
- On
13 December 2000 the Gdańsk Court of Appeal prolonged the
applicant's and his eight co-suspects' detention until 31 March
2001.
- On
7 March 2001 the Gdańsk Court of Appeal prolonged the
applicant's detention until 31 May 2001. It relied on the reasonable
suspicion that the applicant had committed the offences with which he
had been charged and the severity of the anticipated penalty. The
Court of Appeal further held that the detention on remand was the
only measure which could secure the proper conduct of the proceedings
given the nature of the charges and the relations between the
suspects, who had acted in an organised group. It also considered
that the prolongation of detention was justified by the need to
obtain DNA evidence in order to corroborate evidence previously
obtained.
- On 15 May 2001 the prosecution
filed a bill of indictment with the Gdańsk
Regional Court. The applicant was charged with several dozen counts
of armed robbery which had been committed in an organised armed
criminal group. The bill of indictment listed 120 charges brought
against 19 defendants, who were all detained on remand. The case
file comprised 114 volumes. The prosecution asked the court to
hear evidence from 366 witnesses.
- On
23 May 2001 the Court of Appeal ordered that the applicant be kept in
custody until 31 October 2001. In addition to the grounds previously
invoked, it referred to the complexity of the case, the significant
number of defendants and the number of witnesses to be heard in the
trial.
- On
24 October 2001 the Court of Appeal extended the applicant's
detention until 31 March 2002, relying on the same grounds as in its
earlier decisions.
- The
trial began on 28 December 2001. However, as of 22 April 2002 the
reading out of the bill of indictment by the prosecution had still
not been concluded. Initially, the trial court held three hearings
per month.
- During the hearing held on 30 January 2002 the trial
court ordered the removal of the applicant and two other defendants
from the court room. They disrupted the trial by screaming when the
prosecutor was reading the bill of indictment, notwithstanding a
warning from the presiding judge. Similarly, during the hearings held
on 27 May and 14 October 2002 the trial court ordered the applicant's
removal on the ground that he had disrupted the trial.
- On
13 March 2002 the Court of Appeal ordered that the applicant and his
seven co-defendants be held in custody until 30 September 2002. It
considered that the trial could be terminated by the last-mentioned
date. In addition to the grounds previously invoked, the Court of
Appeal found that the prolongation of detention was justified under
Article 263 § 4 of the Code of Criminal Procedure by the
particular complexity of the case. It further observed that the
delays in the trial were partly attributable to some of the
defendants who had attempted to disrupt the proceedings and,
consequently, had to be removed from the court room. The Court of
Appeal instructed the trial court to hold more than 3 hearings per
month. Furthermore, it held that no other preventive measure could
secure the proper conduct of the trial. In that respect, the Court of
Appeal observed that there was a reasonable risk that the applicant
and other defendants might interfere with the proceedings, given the
nature of the charges, the severity of the anticipated penalty and
the fact that such attempts had been made in the course of the
investigation.
- On 27, 28 and 29 May 2002 the Gdańsk Regional
Court dismissed the applicant's requests for the presiding judge to
withdraw.
- On
11 September 2002 the Court of Appeal prolonged the applicant's and
his nine co-defendants' detention until 31 December 2002. In addition
to the grounds previously relied on, it considered that the
applicant's detention was justified under Article 258 § 2
of the Code of Criminal Procedure since that provision established a
presumption to the effect that the likelihood of a severe penalty
being imposed on the applicant might induce him to obstruct the
proceedings. It also noted that the prolongation of his detention was
justified by the volume of evidence to be heard at the trial.
- On
18 December 2002 the Court of Appeal ordered that the applicant and
his 17 co-defendants be kept in custody until 30 June 2003. It held
that the grounds invoked in its previous decisions were still valid.
- On
13 January and 31 March 2003 the Gdańsk Regional Court dismissed
the applicant's request for the judges and lay members of the trial
court to withdraw. On 15 January 2003 the applicant and seventeen of
his co-defendants unsuccessfully challenged the judges and lay
members of the trial court.
- On
13 January 2003 the trial court refused the applicant's request for
dismissal of his legal-aid counsel. Similar requests were dismissed
on 12 February and 20 March 2003.
- On
25 June 2003 the Court of Appeal prolonged the applicant's and
eighteen of his co-defendant's detention until 31 December 2003,
relying on the same grounds as given previously. In addition, it
observed that the trial could not have been terminated due to
obstructiveness on the part of the defendants who had filed numerous
requests challenging the trial court. It also noted that the trial
court had taken various procedural steps in order to accelerate the
proceedings.
- In its decision of 30 July 2003 dismissing the
applicant's appeal against the decision of 25 June 2003 prolonging
his detention, the Court of Appeal held that Article 258 § 2 of
the Code of Criminal Procedure established a presumption to the
effect that the likelihood of a severe penalty being imposed on the
applicant might induce him to obstruct the proceedings.
It added that the risk of absconding or tampering with witnesses in
the present case did not have to be supported by any concrete facts,
but resulted from the above presumption. The Court of Appeal also
observed that although the applicant and other defendants were free
to make use of their procedural rights, the abuse of those rights
undoubtedly led to delays in the trial.
- On
1 September 2003 a new legal-aid counsel was appointed for the
applicant. The previous counsel was discharged by the trial court
from his duties at his own request and following a number of
complaints made by the applicant.
- Subsequently,
the Court of Appeal prolonged the applicant's detention on several
occasions. The relevant decisions were given on 17 December 2003
(prolonging his detention until 30 June 2004), 23 June 2004
(extending his detention until 31 December 2004), 15 December 2004
(ordering his continued detention until 31 March 2005), 30 March 2005
(prolonging his detention until 30 June 2005) and 22 June 2005
(extending his detention until 30 September 2005). In all those
decisions the Court of Appeal stated that the grounds previously
given for the applicant's detention were still valid. It also
stressed the exceptionally complex nature of the case.
- In
its decision on the applicant's detention of 23 June 2004, the Court
of Appeal observed that up to April 2003 the main reason for the
delays during the trial was the obstructiveness of the defendants and
the abuse of the rights of the defence. It also observed that the
trial could be concluded by the end of 2004 provided that the
Regional Court endeavoured to organise the trial efficiently.
- On
15 January and 29 July 2004 and 16 and 31 May 2005 the Gdańsk
Regional Court dismissed as unfounded the applicant's requests for
various members of the trial court to withdraw.
- On
8 March and 24 May 2005 the trial court dismissed the applicant's
application for release on health grounds, relying on the report
prepared by the experts from the Gdańsk Medical Academy. The
applicant was diagnosed with a number of ailments, including a brain
tumour. However the experts determined that he could remain and
receive treatment in detention.
- In
its decision of 27 July 2005 dismissing the applicant's appeal
against the decision of 22 June 2005 prolonging his detention, the
Court of Appeal referred, inter alia, to the presumption
established under Article 258 § 2 of the Code of
Criminal Procedure and held that that presumption alone justified the
applicant's continued detention. It also held that keeping the
applicant in custody was necessary in order to prevent him from
interfering with the trial, given the reasonable risk of such
interference which flowed from the fact that he had been charged with
commission of offences as a member of an organised criminal group.
- By
March 2006 the trial court had held some 135 hearings of the 162
which had been scheduled. It heard more than 400 witnesses.
- During
the trial the applicant filed numerous but unsuccessful applications
for release and appealed, likewise unsuccessfully, against the
decisions prolonging his detention. He maintained that the length of
his detention was excessive and that the charges against him lacked a
sufficiently strong basis.
- On
21 March 2005 the Gdańsk Regional Court made a severance order
with a view to expediting the proceedings, and thereafter four
defendants (J.N., G.P., Z.S. and Z.C.), who in the meantime had been
released from detention, were to be tried separately.
- After
20 June 2005 no hearing was held due to the serious illness of the
judge rapporteur. On 21 September 2005 the President of the IV
Criminal Section of the Gdańsk Regional Court assigned a new
judge rapporteur. Consequently, the trial had to commence de novo.
- On
20 September 2005 the Court of Appeal prolonged the applicant's
detention until 31 January 2006. The applicant appealed against that
decision. On 18 October 2005 a different panel of the Court of Appeal
quashed the impugned decision and ordered the applicant's release
under police supervision. It also imposed on him a prohibition on
leaving the country. The Court of Appeal had regard to the fact that
the trial had to commence de novo and that the applicant had
already spent a few years in pre-trial detention.
- The
applicant was released on 19 October 2005.
- On
24 November 2005 the trial court made a further severance order and
divided the case into eleven separate cases.
- It appears that the proceedings are still pending
before the first-instance court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice concerning the imposition of
detention on remand (tymczasowe aresztowanie), the grounds for
its prolongation, release from detention and rules governing other,
so-called “preventive measures” (środki
zapobiegawcze) at the material time 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.
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, having regard to the Court's case-law concerning the
length of pre-trial detention, refrained from taking a position on
the admissibility of the complaint.
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 21 April 1999, when he was arrested
on suspicion of armed robbery. It continued until 19 October 2005
when the applicant was released. Accordingly, the period to be taken
into consideration amounts to 6 years and 6 months.
2. The parties' submissions
(a) The applicant
- The
applicant argued that the length of his pre-trail detention had been
unreasonable. The courts prolonging his detention repeatedly invoked
similar grounds throughout the whole period of his detention and did
not impose other preventive measures. The applicant alleged that the
domestic court had handled the trial incompetently. He further
submitted that the complexity of the case resulted from the court's
decision to examine jointly all the charges against the very many
defendants in one set of proceedings.
(b) The Government
- The
Government firstly presented some statistical data, indicating that
in the years 2000-2005 the number of indictments and convictions in
cases concerning organised crime increased both in absolute terms and
in relation to other crimes. In 2004 there were 617 indictments in
such cases and 220 persons were convicted. They argued that in
organised crime cases the authorities were faced with particular
problems, relating to the taking and assessment of evidence and
various logistical issues.
- With
reference to the present case, the Government submitted that the
applicant's pre-trial detention had been justified by the existence
of substantial evidence of his guilt, the nature of the offences with
which he had been charged and the severity of the anticipated
penalty. They underlined that the length of the applicant's detention
should be assessed with reference to the fact that he and his
co-defendants had acted in an organised criminal gang. The risk that
the defendants might obstruct the proceedings or tamper with evidence
was aggravated by the fact they had been members of tightly-knit
organised criminal group. Thus, the domestic courts had considered it
necessary to remand the applicant and his co-defendants in custody
until all relevant witnesses had been heard.
- The
Government emphasised that the serious nature of the charges as well
as the fact that there had been nineteen defendants charged with
numerous offences required that the proper conduct of the proceedings
be secured with particular diligence. The necessity of the
applicant's continued detention had been thoroughly examined by the
courts which on each occasion had given sufficient reasons for their
decisions. The applicant's case had been extremely complex on account
of the number of charges and defendants, and by reason of the volume
of evidence.
- Furthermore,
the Government maintained that the defendants bore the main
responsibility for the length of the trial. They had lodged hundreds
of applications and appealed against every decision, even when they
had been informed that the appeal had been inadmissible. The
Government referred in that respect to the decision of the Court of
Appeal of 23 June 2004 which had observed that the main reason for
the delays in the proceedings until April 2003 had been the
obstructiveness of the defendants and the abuse of the rights of the
defence. In their view the defendants' behaviour justified the
conclusion that they had resorted to delaying tactics. Lastly, they
maintained that the authorities had displayed special diligence in
dealing with the applicant's case.
3. 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 judgments (see, among many other authorities,
Kudła v. Poland [GC], no. 30210/96, § 110
et seq, ECHR 2000 XI; and McKay v. the United Kingdom
[GC], no. 543/03, §§ 41-44, ECHR 2006-..., with further
references).
(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 charges against
him, (2) the severity of the penalty to which he was liable and the
alleged risk that he might obstruct the trial flowing from the
former, (3) the complexity of the case related to the number of
defendants and volume of evidence to be heard. The domestic courts
also referred to the obstructive behaviour of the defendants and
their counsel aimed at delaying the trial.
- The
applicant was charged with numerous counts of armed robbery committed
in an organised and armed criminal group (see paragraph 9
above). In the Court's view, the fact that the case concerned a
member of such a 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 the serious offences could initially warrant his
detention. In addition, it notes that the authorities were faced with
the difficult task of determining the facts and the degree of alleged
responsibility of each of the defendants. In these circumstances, the
Court also accepts that the need to obtain voluminous evidence from
many sources, coupled with the fact that in the course of the
investigation new suspects had been identified, constituted relevant
and sufficient 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 were “relevant” and “sufficient”
(see, Kudła cited above, § 111).
- 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, for instance, Ilijkov v. Bulgaria, no. 33977/96,
§§ 80-81, 26 July 2001).
- Furthermore,
the judicial authorities relied on the fact that the applicant had
been charged with being a member of an organised criminal gang. In
this regard, the Court reiterates that the existence of a general
risk flowing from the organised nature of the alleged criminal
activities of the applicant may be accepted as the basis for his
detention at the initial stages of the proceedings (see, Górski
v. Poland, no. 28904/02, § 58, 4 October
2005) and in some circumstances also for subsequent prolongations of
the detention (see, Celejewski, cited above, § 37). It is
also accepted that in such cases, involving numerous accused, the
process of gathering and hearing evidence is often a difficult task.
Moreover, the Court considers that in cases such as the present
concerning organised criminal gangs, the risk that a detainee, if
released, might bring pressure to bear on witnesses or other
co-accused, or might otherwise obstruct the proceedings, is by the
nature of things often particularly high. In this respect, the Court
notes that the applicant and some of his co-defendants had made
attempts to disrupt the trial in its early stages (see paragraph 13
above). Furthermore, it accepts that certain delays during the trial
were caused by the defendants' obstructiveness (see paragraphs 20 and
24 above).
- 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. Even if the particular circumstances
of the case required detention on remand to be extended beyond the
period generally accepted under the Court's case-law, particularly
strong reasons would be needed to justify this (Wolf v. Poland,
nos. 15667/03 and 2929/04, § 90, 16 January 2007). In
this respect the Court observes that the applicant had spent 6 years
and 6 months in pre-trial detention which is a particularly long
period.
- Having
regard to the foregoing, even taking into account the fact that the
courts were faced with the particularly difficult task of trying a
case involving members of an organised criminal group, the Court
concludes that the grounds given by the domestic authorities could
not justify the overall period of the applicant's detention. In these
circumstances it is not necessary to examine whether the proceedings
were conducted with special diligence.
- There
has accordingly been a violation of Article 5 § 3 of the
Convention.
II. 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 100,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government submitted that the applicant's claim was exorbitant. They
asked the Court to rule that a finding of a violation constituted in
itself sufficient just satisfaction. Alternatively, the Government
invited the Court to assess the amount of just satisfaction on the
basis of its case-law in similar cases and having regard to national
economic circumstances.
- The
Court considers that the applicant has suffered some non-pecuniary
damage which is not sufficiently compensated by the finding of a
violation of the Convention. Considering the circumstances of the
case and making its assessment on an equitable basis, the Court
awards the applicant EUR 2,000 under this head.
B. Costs and expenses
- The
applicant submitted no claim for costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the remainder of 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 2,000 (two
thousand euros) in respect of non-pecuniary damage, to be converted
into the national currency of the respondent State 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 6 September 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
