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FOURTH
SECTION
CASE OF KOWALENKO v. POLAND
(Application
no. 26144/05)
JUDGMENT
STRASBOURG
26 October
2010
This
judgment is final but it may be subject to editorial revision.
In the case of Kowalenko v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as
a Committee composed of:
Ján
Šikuta,
President,
Lech
Garlicki,
Vincent
Anthony de Gaetano,
judges,
and Fatoş Aracı,
Deputy Section Registrar,
Having
deliberated in private on 5 October 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 26144/05) 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 Ukrainian national, Mr Siergiej
Kowalenko (“the applicant”), on 10 July 2005.
- 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 detention on remand
exceeded a “reasonable time” within the meaning of
Article 5 § 3 of the Convention.
- On
6 April 2009 the Court
decided to give notice of the application to the Government. In
accordance with Protocol 14, the application was assigned to a
Committee of three Judges.
- The
Government objected to the examination of the application by a
Committee. After having considered the Government's objection, the
Court rejects it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, Mr Siergiej Kowalenko, is a Ukrainian national who was
born in 1969 and is currently serving a prison sentence in Bydgoszcz
Remand Centre.
A. The applicant's pre-trial detention and criminal
proceedings against him
- The
applicant was a defendant in a criminal case, which is not a subject
of the instant application. He was at liberty, however, as no
pre-trial detention had been imposed on him in connection with that
case.
- On
15 October 2001 he was arrested by the police in connection with
a new case, in which he was suspected of having committed numerous
offences, among others, aiding and abetting in the concealment and
trafficking of stolen cars, fraud and many counts of car hijacking.
- On
17 October 2001 the Toruń District Court (Sąd Rejonowy)
ordered preventive measures, namely police supervision and a security
deposit of 50,000 Polish zlotys (PLN) and the applicant was released.
On 26 March 2002 those preventive measures were lifted but
the applicant remained at liberty.
- On
15 July 2002 the prosecutor introduced additional charges against the
applicant concerning membership of an organised criminal gang and
additional offences of car hijacking and fraud.
- On
22 July 2002 the applicant, who came voluntarily to the
prosecutor's office in connection with the other criminal case, was
once more arrested and the new charges were brought against him.
- On
24 July 2002 the Toruń District Court decided to remand the
applicant in custody. That decision was justified by the authorities
by strong evidence against the applicant, the risk that he would
obstruct the proceedings and the possibility of a severe penalty
being imposed for the offences charged.
- Subsequently,
the measure was extended by numerous decisions, inter alia,
the decisions of the Toruń District Court of 21 October 2002,
22 January, 12 February,18 April, 28 July and 28 October 2003,
29 January, 29 April and 20 July 2004. The first-instance court's
decision of 22 January 2003 was upheld by the Toruń
Regional Court on 12 February 2003.
- The
domestic courts relied on the original grounds for the applicant's
pre trial detention. In addition, it was noted that the
applicant was presumed to have played an important role in the
commission of the offences charged, irrespective of the fact that he
had not pleaded guilty. The authorities also argued that a likelihood
that a severe sentence would be imposed on the applicant given the
serious nature of the offences with which he had been charged,
created a presumption that he would obstruct the proceedings by going
into hiding if released. Lastly, it was reiterated that the applicant
was likely to attempt to induce witnesses to give false evidence
because one of the charges which he was facing at the trial in
question was that he had allegedly instructed two co-defendants to
lie about the circumstances surrounding the burglary into the house
of a certain E.C.
- Meanwhile,
on 15 March 2003 the bill of indictment was lodged with the Toruń
District Court.
- It
appears that the investigation file at this stage of the proceedings
comprised forty volumes, the bill of indictment was 198-page long and
that the thirty-three defendants faced the total number of 214
counts, out of which the applicant himself was charged with as many
as twelve offences.
- The
first trial was scheduled for 3 July 2003. Before that, however, on
18 April 2003 the trial court gathered to decide on the extension of
the applicant's pre-trial detention (see paragraph 13 above).
- On
17 June 2004 the applicant started serving his prison sentence which
had been imposed in the other criminal case.
- On
30 September 2004 the preventive measure was lifted. However, on 20
May 2005 the prosecutor made a formal request to the trial court that
the applicant be remanded in custody as soon as he had completed his
prison sentence in connection with his first criminal case, on 15
June 2005.
- As
a result, on 6 June 2005 the Toruń District Court decided to
remand the applicant in custody. The court reiterated the grounds
indicated in the decision of 20 July 2004. The court also relied
on the presumption that the applicant would obstruct the proceedings
since a heavy penalty could be imposed for the offences charged.
Moreover, the risk that the applicant would attempt to induce the
witnesses to give false evidence was considered a valid ground for
his detention even at that stage of the proceedings. The latter was
justified by the applicant's obstructive behaviour and his attempts
to delay the proceedings. The court also pointed to the complexity of
the case and the fact that at that stage of the proceedings as many
as twenty-two co-defendants were on trial. Lastly, it was observed
that the proceedings were already at an advanced stage and they were
likely to be concluded shortly.
- The
applicant and his lawyer lodged two interlocutory appeals against
that decision. The Gdańsk Court of Appeal (Sąd
Apelacyjny) entertained the appeal lodged by the applicant's
lawyer on 16 June 2005 and decided not to entertain the appeal lodged
by the applicant himself. On an unspecified date the interlocutory
appeal lodged by the applicant's lawyer was dismissed as no grounds
had been found to justify the lifting of the applicant's pre-trial
detention.
- Subsequently
the applicant's pre-trial detention was extended by the decisions of
the Gdańsk Court of Appeal of 13 July and 11 October 2005,
and 17 January 2006. The Court of Appeal found that the original
grounds for the preventive measure in question were still valid.
Moreover, mindful of the fact that the applicant's pre-trial
detention had exceeded the statutory limit of two years, the court
noted that the further extension of the measure was nevertheless
justified because the proceedings were about to be concluded.
- The
applicant and his lawyer lodged interlocutory appeals against all the
decisions extending the preventive measure. They also lodged numerous
applications for release. All those appeals were rejected by the
domestic courts.
- On
16 February 2006 the Toruń Regional Prosecutor discontinued the
investigation into the applicant's allegations that a judge competent
to decide on the lifting of his pre-trial detention had asked him for
a bribe. The investigation was discontinued due to the lack of
evidence justifying any suspicion that the offence had been
committed.
- On
3 March 2006 the Toruń District Court convicted the applicant of
several offences and sentenced him to 6.5 years' imprisonment.
- In
the course of the proceedings before the first-instance court the
applicant and his lawyer lodged numerous requests to challenge both
the lay and professional judges. All those requests were rejected as
no reasons had been found to consider the judges biased. The
applicant submitted that his lawyer and he had lodged approximately
100 different procedural motions in the course of the proceedings
before the first-instance court.
- Similarly,
on 28 December 2006 the President of the Toruń Regional Court
informed the applicant that the two judges with the same family name
who had been assigned to the bench in the first and second-instance
court were, in fact, not related.
- On
21 June 2007 the Toruń Regional Court upheld the first-instance
judgment in the part concerning the applicant.
- On
18 March 2008 the Toruń Regional Court appointed a legal-aid
lawyer to lodge a cassation appeal on behalf of the applicant. On an
unspecified date the lawyer informed the court and the applicant that
she had not found any grounds for lodging a cassation appeal in the
case.
- On
10 June 2008 the same court refused to appoint another lawyer as
requested by the applicant. The court noted that the previously
appointed lawyer had made a thorough analysis of the case file and
found no reasons to contest the lawyer's decision not to lodge a
cassation appeal.
B. Proceedings under the 2004 Act
- On
16 September 2006 the applicant complained about the length of the
proceedings under the Act 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”). In particular, he submitted that the
proceedings had been lengthy because the trial court had not severed
his case from the cases of dozens of other co-defendants and because
there had been long delays between hearings.
- On
17 November 2006 the Toruń Regional Court dismissed the
complaint.
- The
court took note of the fact that three years had lapsed from the date
of the lodging of the bill of indictment against the applicant until
the date when the applicant had been convicted by the first-instance
court.
- The
court also observed that the applicant's case was complex because of
the nature of the charges brought against the defendants and the
voluminous evidence.
The
case had initially involved thirty-three co-defendants and at the
time of the first instance judgment, twenty-two. A number of the
defendants were foreigners. The investigation files comprised forty
volumes and an additional fifty-eight volumes had been produced in
the course of the trial. The prosecutor had requested that
eighty-seven witnesses be heard and the testimonies of eighty-nine
other witnesses be read out at the trial. Moreover, the trial court
had to examine over 500 items of evidence and obtain medical reports
on the applicant's mental health. It was stressed that the
defendants, especially the applicant, had made extensive use of their
procedural rights to challenge the judges, submit motions for new
evidence or to ask for adjournment of the hearings. The trial court
had to rule on all those issues and, in addition, at separate
sessions, on preventive measures. The court's first sessions, which
concerned the preventive measures of the applicant and two other
defendants, were held shortly after the bill of indictment had been
lodged, namely on 28 March and 18 April 2003. Moreover, in 2003
the trial court held twenty-two hearings, in 2004 – thirty two,
in 2005 – fourteen and in 2006 - eight.
- The
court also addressed the applicant's complaint that too many
defendants had been tried in one trial. To that effect the court
noted that the cases of two defendants had been severed already in
May 2003, of eight others, gradually, prior to August 2003 and of
another defendant, at the later stage of the proceedings. The trial
court had considered that the remaining twenty-two co-defendants had
to be tried together because the charges against them were
intertwined and the testimonies of witnesses summoned concerned
several defendants at a time.
- Moreover,
the court observed that some delays had occurred because the
applicant had been making use of his procedural rights in an abusive
manner or because he had been taken ill.
The
applicant had lodged multiple applications to challenge each judge of
the bench. His oral submissions at some hearings had lasted several
hours. He had applied for the adjournment of many hearings because of
a medical indisposition. Several other hearings had to be interrupted
because the applicant had asked for an ambulance to be called to the
court. Finally, when the trial had come to an end on 24 February 2006
the applicant had asked for an adjournment in order to prepare his
own closing speech. The trial court had complied with the request and
had scheduled a new hearing for 3 March 2006. On that date,
however, the applicant had left the court room, refusing to
participate in the proceedings.
- Lastly,
the court pointed out that the first-instance judgment, convicting
the applicant and all other defendants, comprised eighty pages and
additional 373 pages of a reasoned opinion. That element proved, in
the court's opinion, that the case in question had been very complex
and justified further procedural extensions (for example, to serve
the hard copy of the judgment on the parties).
- It
was also taken under consideration that, at the time when the court
was giving its ruling under the 2004 Act, two appeals, which had been
lodged by the applicant and his lawyer, were pending for three weeks
before the court of appeal.
- In
the light of the above findings, the Toruń Regional Court
concluded that the time taken by the trial court to complete the
applicant's case was not excessive. On the contrary, the overall
length of the proceedings was justified by the complexity of the
charges, the voluminous material and the necessity to secure to all
co-defendants the effective enjoyment of their procedural rights.
C. Monitoring of the applicant's correspondence
- The
applicant has corresponded extensively with the State authorities,
non-governmental organisations and the Court. He submitted that his
letters had been withheld and censored by the authorities.
Practically
each envelope of the applicant's numerous letters sent during his
incarceration had the stamp of the detention facility in which he was
being held at the relevant time. The stamp in question also indicated
the date of receipt of the letter and a registration number. For
example: “Bydgoszcz Remand Centre ... received on... No. ...”
(Areszt Śledczy w Bydgoszczy Wpł. ... Nr...), Toruń
Remand Centre ... received on... No. ... Signature” (Areszt
Śledczy w Toruniu Wpł. ... Nr...Podpis). The blank
spaces were filled in by a printed or handwritten date and a
handwritten number. In addition, an illegible signature was visible
on several of the envelopes. It appears that the envelopes had not
been opened before they were forwarded to the addressee.
- The
envelope containing the applicant's letter sent to the Registry of
the Court on 5 April 2006 bears a stamp: “Censored
agreeing on delivery Toruń on ... [space for date and
signature] President of Criminal Department” (Ocenzurowano
zezwalam na doręczenie, dn ... Przewodniczący Wydz.
Karnego). The stamp, however, is crossed out and the space for
the date and signature are not filled in. It appears that the
envelope had not been opened before it was received by the Court.
- The
applicant lodged several complaints with the prosecution and
penitentiary authorities alleging that his correspondence had been
withheld or monitored.
- On
2 February 2006 the Toruń District Prosecutor decided not to
open an investigation into the matter because the applicant had
failed to substantiate his allegations. On 14 June 2006, however, the
Toruń Regional Prosecutor quashed the above decision and ordered
an additional inquiry.
- On
28 November 2006 the Toruń District Prosecutor upheld the police
decision of the same date to discontinue the inquiry into the
applicant's allegations that his letters had been withheld or
monitored by the administration of Bydgoszcz Remand Centre and the
Toruń District Court. The inquiry did not confirm that the
alleged facts had taken place. On 9 February 2007 the Toruń
Regional Prosecutor quashed that decision and ordered a further
inquiry. The applicant did not submit any information as to the
subsequent developments in the case.
- By
letter of 6 March 2007 a penitentiary judge of the Toruń
Regional Court informed the applicant that his letters had not been
sent by Toruń Remand Centre via the court because
the applicant had the status of a convicted person. Consequently, the
applicant's correspondence could not have been withheld or monitored.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Preventive measures, including pre-trial detention
- The
relevant domestic law and practice concerning the imposition of
pre trial detention (aresztowanie tymczasowe), the
grounds for its extension, release from detention and rules governing
other “preventive measures” (środki
zapobiegawcze) are set out 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. Remedies for the excessive length of judicial
proceedings
- The
relevant domestic law and practice concerning remedies for the
excessive length of judicial proceedings, in particular the
applicable provisions of the 2004 Act, are stated in the Court's
decisions in the cases of Charzyński v. Poland no.
15212/03 (dec.), §§ 12-23, ECHR 2005-V; Ratajczyk
v. Poland no. 11215/02 (dec.), ECHR 2005-VIII; and the
judgment in the case of Krasuski v. Poland, no. 61444/00,
§§ 34-46, ECHR 2005-V.
C. Monitoring
of the applicant's correspondence
- The
legal provisions concerning monitoring of detainees' correspondence
applicable at the material time and questions of practice are set out
in paragraphs 65-66 of the judgment delivered by the Court on 4 May
2006 in Michta v. Poland , no. 13425/02.
D. Relevant statistical data, measures taken by the
State to reduce the length of pre-trial detention and relevant
Council of Europe documents
- The
relevant statistical data, recent amendments to the Code of Criminal
Procedure designed to streamline criminal proceedings and references
to 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. 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 22 July 2002, when he was arrested
on suspicion of having committed numerous offences as a member of an
organised criminal gang, namely many counts of car hijacking, fraud
and aiding and betting in the concealment and trafficking of stolen
cars.
On 3
March 2006 the Toruń District Court convicted the applicant of
several offences charged and sentenced him to 6.5 years'
imprisonment.
As
from that date the applicant was detained “after conviction by
a competent court”, within the meaning of Article 5 § 1
(a) and, consequently, that period of his detention falls outside the
scope of Article 5 § 3 (cf. Kudła, cited above,
§ 104).
- However,
between 17 June 2004 and 15 June 2005 the applicant served a prison
sentence which had been imposed on him in an unrelated criminal
trial. 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 to two years,
seven months and fourteen days.
2. The parties' submissions
(a) The applicant
- The
applicant submitted that the length of his pre-trial detention had
been excessive and that the measure had not been sufficiently
justified by the authorities.
(b) The Government
- The
Government submitted that the applicant's detention, throughout its
entire length, was based cumulatively on all the prerequisites of
detention listed in the Code of Criminal Procedure as applicable at
the material time. Throughout its entire period the measure in
question had been justified by “relevant” and
“sufficient” grounds, in particular the existence of a
reasonable suspicion that he had committed the offences he had been
charged with. Moreover, the Government considered that the
applicant's protracted detention pending trial was justified by the
gravity of the charges which the applicant was facing and the
severity of the anticipated penalty, as well as the fact that the
case involved numerous co accused and witnesses. As a
consequence, there was a risk that the applicant, if released, would
attempt to induce them to give false testimony.
The
Government also argued that the domestic authorities had shown due
diligence, as required in cases against detained persons, and that
the length of the applicant's detention had been attributable to the
exceptional complexity of the 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 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
- The
relevant case against the applicant concerned serious offences,
namely membership in an organised criminal gang, numerous counts of
car high jacking, fraud and trafficking of stolen cars (see
paragraphs 8 and 10 above). In the Court's view, the fact that the
case concerned an alleged member of a criminal gang should be taken
into account in assessing compliance with Article 5 § 3 (see Bąk
v. Poland, no. 7870/04, § 57, 16 January 2007).
Such cases by definition present more difficulties for the
investigation authorities and, later, for the courts in determining
the facts and the degree of responsibility of each of the alleged
members of the group.
It is
also obvious that in cases of this kind continuous control and
limitation of the defendants' contact with each other and with other
persons may be essential to avoid their absconding, tampering with
evidence and, most importantly of all, influencing, or even
threatening, witnesses.
Accordingly,
longer periods of detention than in other cases may be considered
reasonable.
- In
the present case the authorities in their detention decisions relied
on (1) a reasonable suspicion against the applicant, (2) the serious
nature of the offences with which he had been charged, (3) the
severity of the penalty to which he was liable; and (4) the need to
secure the proper conduct of the proceedings in the light of the risk
that the applicant might tamper with evidence. As regards the latter,
they noted that the applicant had been charged, among others, with
the offence of inducing witnesses to give false testimony (see
paragraph 14 above).
- The
Court accepts that the reasonable suspicion against the applicant of
having committed serious offences could initially warrant his
detention. Also, the need to obtain voluminous evidence to determine
the degree of the alleged responsibility of each of the defendants,
who had allegedly acted in a criminal group and against whom numerous
charges of serious offences were laid, constituted valid grounds for
the applicant's detention at the initial and the later stage.
- On
the other hand, the Court notes that although 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 serve to justify long periods of pre-trial detention
(see Michta v. Poland, no. 3425/02, §§ 49,
4 May 2006).
- As
regards the need to secure the proper conduct of the proceedings the
Court notes that 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. Moreover, in the instant case this element of general
risk was converted into a particular and legitimate threat because of
the fact that the applicant faced a charge of having made, in the
course of the criminal investigation, attempts to instruct certain
witnesses to lie about the facts of the case (see paragraph 14
above).
The
Court accepts that the above-mentioned factor could indeed indicate
that the risk of the applicant's influencing witnesses existed both
at the beginning and towards the end of the proceedings.
- Furthermore,
the Court's attention has been drawn to the significant number of
defendants standing the trial (initially, thirty-three and later,
twenty-two), the number of charges which they were facing (214 in
total, out of which the applicant was charged with twelve counts),
the magnitude of the evidence to be analysed (forty volumes of
investigation files and an additional fifty-eight volumes produced in
the course of the trial) and the large number of witnesses to be
heard at the trial (eighty-seven witnesses to be heard and the
testimonies of eighty-nine other witnesses to be read out at the
trial) (see paragraphs 16 and 32 above).
- In these circumstances, the Court accepts that the
need to obtain voluminous evidence from many sources, coupled with
the existence of a general risk flowing from the organised nature of
the applicant's alleged criminal activities and an individual risk
flowing from the fact that the evidence obtained in the case
indicated that the applicant might have instructed certain witnesses
to give false testimony, constituted relevant and sufficient grounds
for extending his detention during the time necessary to complete the
investigation, to draw up the bill of indictment and to hear and to
analyse evidence from the accused at trial (see Rażniak
v. Poland, no. 6767/03, 7 October 2008; Pińkowski
v. Poland, no. 16579/03,
23 February 2010).
- The
Court lastly observes that the proceedings were of considerable
complexity, regard being had to the number of defendants, the
extensive evidentiary proceedings and the implementation of special
measures required in cases concerning organised crime. Nevertheless,
the hearings in the applicant's case were held regularly and at very
short intervals (see aragraph 32 above). The Court therefore
concludes that the national authorities displayed special diligence
in the conduct of the proceedings. The length of the investigation
and of the trial was justified by the exceptional complexity of the
case.
- Having
regard to the foregoing, the Court considers that there has been no
violation of Article 5 § 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE LENGTH OF PROCEEDINGS
- The
applicant further complained that the length of the proceedings was
incompatible with the “reasonable time” requirement laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
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. The applicant
- The
applicant reiterated that the proceedings had lasted too long.
2. The Government
-
The Government submitted that the impugned proceedings were not
unreasonably lengthy. The public prosecutor and trial courts had
showed special diligence in handling the applicant's case.
- The
Government emphasised that the case had been complex, mainly because
of the volume of the evidence gathered by the prosecuting authorities
during the investigation. There had initially been thirty-three and
ultimately, twenty-two accused in the case. The authorities had
assigned numerous experts to prepare various reports concerning,
inter alia, the mental health of the applicant. Expert
reports were also submitted by specialists in car mechanics.
- Regarding
the conduct of the authorities, the Government submitted that the
authorities had conducted the applicant's case diligently.
The
investigation had lasted seventeen months and had resulted in a bill
of indictment which listed 214 charges. The court hearings had been
held regularly and frequently. The judicial proceedings had been
terminated after seventy- six hearings.
Procedural
obstacles had occurred irrespectively of the conduct of the
authorities and could not, therefore, be held against the courts.
Witnesses had repeatedly failed to attend the hearings or had been
unable to testify, which had made it necessary for the court to
adjourn several hearings. Many other hearings had had to be adjourned
because certain defence counsel had failed to comply with the
summonses.
The
trial court had made efforts to expedite the proceedings, for
instance, by imposing disciplinary measures on several of the defence
lawyers who failed to appear at court's hearings.
- As
to the applicant's conduct, the Government claimed that the applicant
had intentionally employed tactics to delay the proceedings.
Many
hearings had been adjourned or interrupted at his request, usually
because of an alleged medical indisposition. The applicant had made
multiple requests that new evidence be admitted by the court. He had
also filed hundreds of procedural motions, challenging all judges of
the bench, asking that a new counsel be appointed to represent him or
that the case be referred to another court. The applicant had also
appealed against each and every single court's decision, even if he
had been instructed that no such appeal was available under the
applicable law.
3. The Court
- The
Court observes that the impugned criminal proceedings lasted five
years and eight months, from 15 October 2001 until 21 June 2007 and
included a seventeen-month long investigation, three years' trial
before the first-instance court and fifteen months' appellate
proceedings (see paragraphs 8, 15, 25 and 28 above).
- The Court recalls that the length of proceedings must
be assessed in the light of the particular circumstances of the case
and having regard to the criteria laid down in the Court's case-law,
in particular the complexity of the case and the conduct of the
applicant and of the authorities dealing with the case (see, among
other authorities, Sałapa v. Poland, no. 35489/97, § 83,
19 December 2002 and Szeloch v. Poland, no. 33079/96, §
101, 22 February 2001).
- The
Court is of the opinion that the case can be considered complex.
There were thirty-three and, later, twenty-two accused, some of whom
were foreigners (see paragraph 34 above). They were facing serious
charges concerning, inter alia, membership of an organised
criminal gang, car hijacking and trafficking of stolen cars (see
paragraphs 8 and 10 above). During the investigation the prosecuting
authorities gathered 500 items of evidence to be presented to the
court and asked that eighty-seven witnesses be heard and the
testimonies of eighty-nine other witnesses be read out at the trial.
The investigation files comprised forty volumes and an additional
fifty-eight volumes were produced in the course of the trial (see
paragraph 34 above).
- As
to the conduct of the authorities, the Court observes that the bill
of indictment was submitted to the Toruń District Court on 15
March 2003 and that the first hearing on the merits of the case was
held four months later, on 3 July 2003. It must be noted,
however, that there were considerable procedural activities
throughout that period because the court was deciding on the
preventive measures of three defendants including the applicant (see
paragraph 17 above). Altogether, the trial court ruled on the
applicant's pre-trial detention at least thirteen times (see
paragraphs 9, 12, 13,19 and 20 above) and held seventy-six main
hearings (see paragraph 34 above).
- The
Court further observes that a number of hearings in the case were
adjourned because either the accused or the lawyers failed to comply
with the summonses (see paragraphs 36 and 74 above). By contrast, it
appears that no hearings were adjourned for reasons, which could be
attributed to the court's failure to organise the proceedings
efficiently. It is clear that the authorities made efforts to
expedite the proceedings. On the whole, the hearings in the case were
scheduled at regular intervals, and when they were adjourned it was
mostly for reasons which cannot be attributed to the domestic court.
- As
to the applicant's conduct, the Court observes that the applicant
made an extensive use of his procedural rights by, inter alia,
challenging all decisions ordering the extension of his pre-trial
detention or lodging repeated requests for release (see paragraph 23
above). Therefore, the case file had to be forwarded several
times from the Toruń Regional Court to the Gdańsk Court of
Appeal in order for the latter to rule on the applicant's appeals.
This necessarily prolonged the proceedings. Finally, the applicant
submitted at least one hundred procedural motions and requests, many
of which were clearly ill-founded or formally inadmissible under the
law (see paragraphs 26 and 75 above). To that effect the Court
notes that the applicant lodged motions to challenge the impartiality
of each and every professional and lay judge of the bench, including
two judges, who, simply, shared the same family name, to, eventually,
ask to have his case referred to another court altogether (see
paragraphs 26, 27 and 75 above). Lastly, the applicant asked several
times to have a new lawyer appointed to represent him (see paragraph
75 above) and filed his own interlocutory appeal against the
extension of his pre-trial detention even though his lawyer had
already done so on his client's behalf (see paragraph 21 above).
The
applicant's conduct contributed inevitably to the prolongation of the
proceedings. It also leaves the Court with an impression that the
applicant had acted with intention to delay the proceedings.
- Having
regard to the foregoing, the Court considers that has been no
violation of Article 6 § 1 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- In
addition, the applicant submitted the following complaints:
(1) complaint under Article 5 § 4 that his
interlocutory appeal lodged against the decision of the Toruń
Regional Court of 6 June 2005 to detain him in custody had not been
examined; (2) complaint under Article 6 § 1 about the
alleged unfairness of the trial court and (3) complaint under Article
8 that his correspondence had been monitored and withheld.
- Regarding
the complaint under Article 5 § 4 of the Convention, it must be
noted that the decision to remand the applicant in custody was
challenged first by the applicant's lawyer and then, by the applicant
himself in a separate appeal. The Gdańsk Court of Appeal
examined the lawyer's appeal on the merits and therefore, decided not
to entertain the appeal lodged by the applicant (see paragraph 21
above).
- As
regards the complaint under Article 6 § 1 of the Convention,
assessing the circumstances of the case as a whole, the Court finds
no indication that the impugned proceedings were conducted unfairly.
- Lastly,
regarding the complaint under Article 8 of the Convention, the Court
notes that the fact that the applicant's envelopes bear stamps of
different remand centres is indicative only of the fact that the
letters in question had been registered by the relevant authorities
before being sent out to their addressees (see paragraphs 40, 41 and
45 above). None of the letters appears to have been opened by the
authorities. Moreover, the applicant failed to substantiate his
allegation that the letters had been sent out with a delay.
- Having
examined all the material in its possession, the Court concludes that
there is nothing in the case file which might disclose any appearance
of a violation of the rights guaranteed by the above-mentioned
provisions of the Convention.
- It
follows that this part of the application is inadmissible and must be
rejected pursuant to Article 35 §§ 1, 3 and 4 of the
Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under Articles 5 §
3 and 6 § 1 of the Convention, concerning the length of the
applicant's pre-trial detention and criminal proceedings
respectively, admissible and the remainder of the application
inadmissible;
- Holds that there has been no violation of
Articles 5 § 3 and 6 § 1 of the Convention.
Done in English, and notified in writing on 26 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş
Aracı Ján Šikuta Deputy Registrar President
