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FOURTH
SECTION
CASE OF ŻYWICKI v. POLAND
(Application
no. 27992/06)
JUDGMENT
STRASBOURG
20 January
2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Żywicki 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,
Ján Šikuta,
Mihai
Poalelungi,
Nebojša Vučinić,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 16 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 27992/06) 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 Krystian
Żywicki (“the applicant”), on 23 June 2006.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- The
applicant alleged, in particular, that his pre-trial detention had
exceeded a “reasonable time” within the meaning of
Article 5 § 3 of the Convention; that the domestic courts had
failed to examine “speedily” one of his appeals against
the extension of the detention and one of his requests for release;
that his detention had been unlawful; and that the length of criminal
proceedings in his case had been excessive.
- On
23 October 2007 the
President of the Fourth Section of the Court decided to give notice
of the complaints under Article 5 § 3 and 5 § 4 of the
Convention 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 1976 and lives in Szczecin.
- On
26 January 2004 the applicant was arrested on suspicion of having
committed several offences of drug trafficking.
- On
26 January 2004 the Szczecin District Court remanded him in custody,
relying on the reasonable suspicion that he had committed the
offences 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 tamper with evidence and go
into hiding. The court also stressed the severity of the anticipated
sentence.
- In
the course of the investigation, his detention was extended several
times. In their decisions the courts referred to the reasons
previously given and the likelihood that he had committed the
offences in an organised criminal group. Further, they referred to
the complexity of the case and the fact that many suspects were
involved and some of them had not yet been arrested. They stressed
that the detention was justified by the need to analyse the existing
evidence and the scope of the applicant's criminal activity, as well
as the necessity to obtain further evidence, in particular to have
witnesses examined.
- The
applicant appealed against the decision extending his detention (he
appealed against the Szczecin District Court's decisions of 9 April,
23 June, 31 August and 22 October 2004 and
19 January 2005) but to no avail. His applications for
release were likewise unsuccessful.
- However,
on 15 July 2004 the Szczecin Regional Court (Sąd Okręgowy),
after examination of the applicant's appeal, amended the decision
extending his detention given by the Szczecin District Court on
23 June 2004 and reduced the detention period by two months. The
court criticised the manner in which the investigation and the case
file had been conducted, as well as pointing out shortcomings in the
prosecutor's request for extension of the applicant's detention.
- On
12 October 2004 the investigation was completed and on
20 October 2004 the applicant and other suspects were
indicted before the court.
- The
detention was then subsequently extended by the Szczecin District
Court on several occasions.
- In
a decision given on 20 October 2005, the Szczecin District Court
extended the applicant's detention and the detention of the other
nine co accused until 25 January 2006. However, at the same time
it ruled that the applicant could be released on bail on payment of a
security of 30,000 Polish zlotys (PLN) (approx. 7,500 euros (EUR).
The court noted also that “in most cases the accused were
charged with acting in an organised criminal group or possibly
(ewentualnie) the offences with which they were charged had
been committed together and under arrangement with other persons”.
The court did not however indicate which of the accused had been
involved in the criminal group.
- On
8 November 2005 the applicant's defence counsel requested the court
to lower the amount of bail by PLN 10,000, but his request was
rejected on 6 December 2005.
- The
applicant did not pay the security and his detention was extended
beyond the statutory two-year time-limit by the Szczecin Court of
Appeal (Sąd Apelacyjny) on 18 January 2006 and
26 April 2006.
- In
the decision of 18 January 2006, which considered the
extension of the detention only in relation to the applicant, the
court did not mention the charge of acting in an organised criminal
group. It noted however that “the applicant was charged with
two offences and in one case the anticipated penalty exceeded eight
years' imprisonment. In such a situation there is ipso iure a
presumption that the applicant would obstruct the proceedings because
of the fear of a severe sentence” (ze względu na obawę
przed grożąca oskarżonemu surową karą).
- On
23 January 2006 the applicant lodged an appeal against the decision
of 18 January 2006 and on 3 April 2006 he applied for release.
According to the applicant, neither the appeal against the extension
of his detention nor the application for release was examined.
In
their observations the Government submitted that the applicant's
appeal of 23 January 2006 had been examined by the Szczecin Court of
Appeal on 2 February 2006 and dismissed. They failed however to
submit the relevant documents. As regards the applicant's request for
release of 3 April 2006, the Government admitted that, “by
mistake” it had not been examined by the court.
- On
26 April 2006 the Szczecin Court of Appeal extended the applicant's
detention until 30 December 2006. The court relied on the same
grounds as previously and reiterated the argument of the Szczecin
District Court of 20 October 2005 (see paragraph 13 above) namely
that “most of the co-accused” had been charged with
acting in an organised criminal group.
- On
31 October 2006 the Szczecin District Court sentenced the applicant
to three years' imprisonment and ordered his release. It appears that
he was released on the same day.
- On
an unspecified date the applicant appealed against the first instance
judgment. The proceedings are pending before the appellate court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice concerning the imposition of
detention during judicial proceedings (aresztowanie tymczasowe),
the grounds for its extension, release from detention and rules
governing other “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.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the length of his detention during judicial
proceedings had been excessive. He relied on Article 5 § 3
of the Convention, which, in so far as relevant, reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
- The
Government contested that argument.
A. Admissibility
-
The Government submitted in the first place that the applicant had
not exhausted the remedies provided for by Polish law as regards his
complaint under Article 5 § 3 of the Convention, in that he had
failed to appeal against the decision of 26 January 2004 remanding
him in custody and against the decisions of 19 April 2005 and of 19
July 2005 extending his detention.
- The
Court reiterates that it is well established in its case-law that an
applicant must make normal use of those domestic remedies which are
likely to be effective and sufficient. When a remedy has been
attempted, use of another remedy which has essentially the same
objective is not required (see Yaşa v. Turkey judgment
of 2 September 1998, Reports of Judgments and Decisions
1998-VI, § 71).
- In
the present case the applicant lodged appeals against most of the
decisions extending his detention, including the decisions taken in
the final stage of the proceedings, when the length of the detention
had reached its most critical point. He also lodged requests for the
detention measure to be lifted or for a more lenient preventive
measure to be imposed, and appealed against the relevant refusals.
The Court considers that the purpose of the remedies used by the
applicant was to obtain a review of his detention pending trial. In
the circumstances of the case these remedies constituted adequate and
effective remedies within the meaning of Article 35 of the Convention
as their aim was to obtain his release.
- The Court further notes that the arguments raised by
the Government are similar to those already examined and rejected in
a previous case against Poland (see Grzeszczuk v. Poland, no.
23029/93, Commission decision of 10 September 1997) and that the
Government have not submitted any new circumstances which would lead
the Court to depart from its previous findings.
- It
follows that this complaint cannot be rejected for non-exhaustion of
domestic remedies. The Court 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 January 2004, when he was
arrested on suspicion of having committed several offences of drug
trafficking. On 31 October 2006 the Szczecin District Court convicted
him as charged.
Accordingly,
the period to be taken into consideration amounts to two years,
eight months and twenty-three days.
2. The parties' submissions
(a) The applicant
- The
applicant submitted in general terms that the applicant's application
lodged with the Court was justified.
(b) The Government
- The
Government considered that the applicant's detention satisfied the
requirements of Article 5 § 3. They submitted that the detention
had been duly justified and that during the entire period the
authorities had given relevant and sufficient reasons for extending
it. The Government further submitted that the domestic courts had
acted diligently and speedily, in particular taking into account the
complexity of the case, the number of witnesses to be heard and the
number of co-accused, most of whom “had been suspected of
acting in an organised criminal group”.
The
Government also submitted that after one year and nine months of
detention the applicant could be released on bail. However he had
failed to pay the required amount and therefore the detention was
continued.
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 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
four 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 complexity of the case and (4) the risk that
the applicant might obstruct the proceedings. As regards the latter,
they did not, however, specify any concrete grounds justifying their
opinion, relying only on presumption allegedly stemming from the
severe penalty to which the applicant was liable (see paragraph 16
above).
- The
applicant was charged with several counts of drug smuggling. The
courts, when extending the applicant's detention, relied on the fact
that “most of the co-accused were charged with acting in an
organised criminal group or the offences with which they were charged
had been committed together and under arrangement with other persons
(see paragraphs 13 and 18 above). However, the Government
did not submit any document confirming that the charges of acting in
a criminal group had concerned the applicant himself.
- The
Court accepts that the reasonable suspicion that the applicant had
committed serious offences could initially warrant his detention.
Also, the complexity of the case, the need to obtain voluminous
evidence and to determine the degree of the alleged responsibility of
each of the defendants, constituted valid grounds for the applicant's
initial detention.
-
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
reoffending, the gravity of the charges cannot by itself justify long
periods of detention (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 unlimited power
to continue using this measure.
- Having
regard to the foregoing, even taking into account the fact that the
courts were faced with particularly difficult task of trying a case
of considerable complexity and that, at a certain stage of the
applicant's detention, they considered the possibility of release the
applicant on bail, 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 5 § 4 OF THE
CONVENTION
- The
applicant further complained that the Polish courts had failed to
examine “speedily” the lawfulness of his detention in
violation of Article 5 § 4 of the Convention, which states:
“Everyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful.”
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
- The
Court reiterates that Article 5 § 4, in guaranteeing to persons
arrested or detained a right to institute proceedings to challenge
the lawfulness of their deprivation of liberty, also proclaims their
right, following the institution of such proceedings, to a speedy
judicial decision concerning the lawfulness of detention and ordering
its termination if it proves unlawful (see, for instance, Musiał
v. Poland [GC], no. 24557/94, § 43, ECHR 1999-II).
- The
Government submitted that the applicant's appeal of 23 January 2006,
which had been submitted to the Szczecin Court of Appeal only on
30 January 2006, had been examined by that court on
2 February 2006 and dismissed. The Government has failed
however to submit the relevant documents to confirm these
submissions. As regards the applicant's request for release of
3 April 2006, the Government admitted that, “by
mistake” it had not been examined by the court.
- However,
in this respect the Court considers that all the issues concerning
the lawfulness of the applicant's detention were, in effect,
determined by the Szczecin Court of Appeal in its decision of
26 April 2006 extending the applicant's detention (see
paragraph 18 above). It is therefore of the view that this decision
can be seen as having addressed the arguments made by the applicant
in his appeal of 23 January 2006 and in his request for
release of 3 April 2006 (see Baranowski v. Poland,
no. 28358/95, § 75, ECHR 2000 III).
- Consequently,
the Court finds that, for the purposes of Article 5 § 4, the
determination of the lawfulness of the extension of the applicant's
detention until 30 June 2006 lasted from 23 January to
26 April 2006, that is over three months. It considers that
such a delay, which resulted in the applicant's appeal being of no
legal or practical effect, amounted to a denial of the applicant's
right “to take proceedings by which the lawfulness of his
detention shall be decided speedily”.
- In
conclusion, the Court holds that in the present case there has been a
violation of Article 5 § 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant also complained under Articles 5 § 1 and 6 § 2
about the alleged unlawfulness of his detention order.
- The
Court considers that the applicant's complaints fall to be examined
under Article 5 § 1 (c) of the Convention.
- The Court notes that the applicant's detention was
based on Article 258 § 1 of the 1997 Code of
Criminal Procedure. Furthermore, the Court observes on the basis of
the material in the case file that the applicant was detained on
reasonable suspicion of having committed criminal offences. The Court
accordingly finds that the decision to place the applicant in custody
had a legal basis and was issued by the appropriate judicial
authority. There is nothing to suggest that the legal basis for his
detention was not clearly defined or lacked the necessary
foreseeability required under the Convention. The Court is therefore
satisfied that the applicant's detention complied with the
requirements of Article 5 § 1 (c). Moreover, the Court
does not see any appearance of arbitrariness on the part of the
relevant judicial authorities when deciding on the applicant's
detention.
- The Court therefore concludes that the applicant's
detention was “lawful” within the meaning of Article 5
§ 1 of the Convention.
- It follows that this complaint is manifestly
ill-founded and must be rejected in accordance with Article 35
§§ 3 and 4 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF EXCESSIVE LENGTH OF THE PROCEEDINGS.
51. The
applicant complained that the length of criminal proceedings had been
incompatible with the “reasonable time” requirement
provided for in Article 6 § 1 of the Convention.
However,
pursuant to Article 35 § 1 of the Convention:
“The Court may only deal with the matter after all
domestic remedies have been exhausted, according to the generally
recognised rules of international law ...”
- The
Court notes that the criminal proceedings against the applicant are
still pending before the appellate court. It further observes that,
pursuant to section 5 of the Law of 17 June 2004 on complaints
about a breach of the right to a trial within a reasonable time
(Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy
w postępowaniu sądowym bez nieuzasadnionej zwłoki)
(“the 2004 Act”) it is open to persons such as the
applicant in the present case to lodge a complaint about the
unreasonable length of the proceedings with the relevant domestic
court.
- The
Court has already examined that remedy for the purposes of Article 35
§ 1 of the Convention and found it effective in respect of
complaints of excessive length of judicial proceedings in Poland. In
particular, it considered that it was capable both of preventing the
alleged violation of the right to a hearing within a reasonable time
or its continuation, and of providing adequate redress for any
violation that has already occurred (see Charzyński,
cited above, §§ 36-42).
- The
applicant did not make use of the remedy provided for under the 2004
Act. Accordingly, the complaint about the unreasonable length of the
proceedings must be rejected under Article 35 §§ 1
and 4 of the Convention for non-exhaustion of domestic remedies.
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 100,000 euros (EUR) in respect
of pecuniary and non-pecuniary damage.
- The
Government contested the claim.
- 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 2,500 under this head.
B. Costs and expenses
- The
applicant also claimed 12,800 Polish zlotys (PLN) for the costs and
expenses incurred before the domestic courts and before the Court.
- The
Government submitted that the applicant had failed to substantiate
his claim and considered that it should be rejected.
- 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 were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court rejects the claim
for costs and expenses in the domestic proceedings and considers it
reasonable to award the applicant, who was not represented by a
lawyer, the sum of EUR 100 for the proceedings before the Court.
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 complaints concerning the length of
the applicant's detention and the speediness of examining the
lawfulness of detention admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
5 § 3 and Article 5 § 4 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 the following
amounts to be converted into Polish zlotys at the rate applicable at
the date of settlement:
(i) EUR
2,500 (two thousand five hundred euros) in respect of non pecuniary
damage plus any tax that may be chargeable;
(ii) EUR
100 (one hundred euros) in respect of costs and expenses, 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 amounts 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 20 January 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence
Early Nicolas Bratza
Registrar President
