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PIOTR KUC v. POLAND - 37766/02 [2006] ECHR 1115 (19 December 2006)
URL: http://www.bailii.org/eu/cases/ECHR/2006/1115.html
Cite as:
[2006] ECHR 1115
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FOURTH
SECTION
CASE OF PIOTR KUC v. POLAND
(Application
no. 37766/02)
JUDGMENT
STRASBOURG
19
December 2006
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 Piotr Kuc 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,
Mrs L. Mijović, judges,
and
Mr T.L. Early, Section Registrar,
Having
deliberated in private on 28 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 37766/02) 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
Piotr Kuc (“the applicant”), on 1 October 2002.
The
applicant was represented by Ms A. Krukowska Konik, a lawyer
practising in Katowice, Poland. The Polish Government (“the
Government”) were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
On
4 May 2004 the Court decided to communicate the application 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 1976 and lives in Mysłowice,
Poland.
A. The applicant's detention on remand
1. Proceedings concerning the charges of burglary and
handling stolen goods
On
25 September 2000 the applicant was arrested by the police on
suspicion of having committed burglary and having handled stolen
goods. On 26 September 2000 the Katowice District Court (Sąd
Rejonowy) ordered that he be remanded in custody in view of the
reasonable suspicion that he had committed the offences in question
while acting in an organised criminal group, the severity of the
anticipated sentence and the need to secure the proper conduct of the
proceedings. The latter ground was based on the risk that, once
released, he might tamper with evidence. The applicant's appeal
against the decision was dismissed on 11 October 2000 by the
Katowice Regional Court (Sąd Okręgowy).
On
15 January 2001 the District Court prolonged the applicant's
detention. It reiterated the grounds originally given for keeping him
in custody.
On
12 March 2001 the applicant and 8 co accused were indicted
before the Katowice District Court. On 18 May 2001 the trial court
held the first hearing.
Subsequently,
the applicant's detention was on several occasions prolonged. The
relevant decisions were given on, inter alia, 26 June,
28 September and 28 December 2001 and 29 January, 20 May
and 10 September 2002. The court considered that the proper
course of the proceedings could only be secured by keeping the
applicant in detention given the fact that he had been charged with
membership of an organised, armed criminal group. Furthermore, the
trial court had actively been taking evidence from co accused,
witnesses and expert witnesses, the process of which could have been
disturbed by the applicant's release.
During
the proceedings the applicant made repeated, but unsuccessful,
applications for release. He also appealed, likewise unsuccessfully,
against refusals to release him and decisions prolonging his
detention.
On
27 September 2002 the Katowice District Court informed the detention
centre that it would not make an application to the Court of Appeal
to prolong further the applicant's detention on the ground that it
had found no exceptional circumstances under Article 263 of the Code
of Criminal Procedure to justify such a request. The applicant,
however, was not released as he was still required to remain in
pre-trial detention on the charge of armed robbery (see below).
This
set of proceedings is apparently still pending.
2. Proceedings concerning the charges of armed robbery,
arson and burglary
On
13 August 2001 the Katowice District Court ordered that the applicant
be remanded in custody in view of the reasonable suspicion that he
had committed armed robbery while acting in an organised criminal
group. The court relied in particular on the gravity of the charges
against the applicant and the likelihood that a heavy prison sentence
might be imposed on him if found guilty.
The
Katowice District Court and the Katowice Regional Court several times
prolonged his detention pending the conclusion of the investigation.
The relevant decisions were given on 16 September and 18 November
2002 and on 3 February 2003. The last of those decisions extended the
applicant's detention until 31 May 2003. The courts considered
that, given that there was a reasonable suspicion that the applicant
had committed serious offences, voluminous expert evidence needed to
be obtained. For that reason, he should be kept in detention in order
to secure the proper conduct of the investigation. They also held
that that measure was justified by the severity of the sentence that
might be imposed and the complex nature of the charges.
Meanwhile,
on 2 January 2003, the applicant had been indicted on charges of
armed robbery, arson and burglary. The bill of indictment comprised
more than 200 charges brought against 26 accused. The two main
accused were charged with 124 and 99 offences respectively.
On
3 March 2003 the Regional Court severed the charges against the
accused, holding that they should be determined in 2 separate trials.
One of the reasons given was that the court did not have at its
disposal a court room to try 26 accused at the same time. The charges
concerning burglary and arson were examined by the Katowice District
Court.
On
5 May 2003 the Regional Court made an application under Article 263
§ 4 of the Code of Criminal Procedure (Kodeks
postępowania karnego) to the Katowice Court of Appeal (Sąd
Apelacyjny), asking that the applicant's detention be prolonged
beyond the statutory time limit of 2 years – until
31 December 2003. The Regional Court relied on the complexity of
the case and the fact that, following the severance order, 12 accused
were to be tried simultaneously.
The
Court of Appeal granted that application on 14 May 2003, fully
upholding the grounds given for it. It added that the applicant's
detention was particularly justified by the severity of the sentence
that might be imposed.
On
3 July 2003 the Katowice Regional Court held the first hearing.
On
1 September 2003 the Katowice Regional Court dismissed the
applicant's request for release.
Subsequently,
the applicant's pre-trial detention was prolonged on 17 December
2003.
On
24 May 2004 the applicant was convicted by the Katowice District
Court in the proceedings concerning the charges of burglary and arson
and was given a three-year prison sentence. On 4 June 2004 the
Katowice Regional Court convicted the applicant of armed robbery and
sentenced him to six and half years' imprisonment.
Afterwards
the applicant's detention was prolonged. It appears that the he
lodged appeals against both judgments. On 17 February 2005 the
Katowice Court of Appeal dismissed his appeal against the judgment of
4 June 2004.
B. Censorship of the applicant's correspondence
On
9 December 2002 the applicant complained that a letter from the
Court, dated 21 October 2002, which included an application
form, had been opened and controlled by the Katowice Regional
Prosecutor. That letter had been delivered to him at the end of
November 2002. The front part of the envelope provided by the
applicant bears a handwritten note: “censored”
(cenzurowano) and an illegible signature.
II. RELEVANT DOMESTIC LAW
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).
Article 249
§ 5 provides that the lawyer of a detained person should be
informed of the date and time of court sessions at which a decision
is to be taken concerning the prolongation of detention on remand.
A more detailed rendition of the relevant domestic law
provisions is set out in the Court's judgment in Kudła v.
Poland [GC], no. 30210/96, § 75, ECHR 2000 XI,
Celejewski v. Poland, no. 17584/04, §§ 22
and 23, 4 May 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 unreasonable. He relied on Article 5 § 3 of the Convention,
which 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. They considered that the entire
period of the applicant's pre-trial detention satisfied the
requirements of Article 5 § 3, particularly having regard to the
fact that the applicant had been detained in connection with two
different sets of proceedings which concerned organised criminal
groups. The applicant was a habitual offender and had been charged
and convicted of crimes committed within five years of his
conditional release from prison in 1996. The Government further
submitted that the domestic courts had acted diligently and speedily,
in particular taking into account the complexity of the case.
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. Principles established under the Court's case-law
Under
the Court's case-law, the issue of whether a period of detention is
reasonable cannot be assessed in abstracto. Whether it is
reasonable for an accused to remain in detention must be assessed 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 (see, among other authorities, W.
v. Switzerland, judgment of 26 January 1993, Series A
no. 254 A, p. 15, § 30, and Kudła v.
Poland [GC], no. 30210/96, § 110, ECHR 2000 XI)
The
presumption is in favour of release. As established in Neumeister
v. Austria (judgment of 27 June 1968, Series A no. 8, p.37,
§ 4), the second limb of Article 5 § 3 does not give
judicial authorities a choice between either bringing an accused to
trial within a reasonable time or granting him provisional release
pending trial. Until conviction, he must be presumed innocent, and
the purpose of the provision under consideration is essentially to
require his provisional release once his continuing detention ceases
to be reasonable (see McKay v. the United Kingdom [GC],
no. 543/03, § 41, ECHR 2006 ...).
It
falls in the first place to the national judicial authorities to
ensure that, in a given case, the pre-trial detention of an accused
person does not exceed a reasonable time. To this end they must
examine all the facts arguing for or against the existence of a
genuine requirement of public interest justifying, with due regard to
the principle of the presumption of innocence, a departure from the
rule of respect for individual liberty and set them out in their
decisions dismissing the applications for release. It is essentially
on the basis of the reasons given in these decisions and of the
established facts mentioned by the applicant in his appeals, that the
Court is called upon to decide whether or not there has been a
violation of Article 5 § 3 of the Convention (see
McKay, cited above, § 43).
The
persistence of a 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. In such cases, the Court must 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 ascertain whether the competent national authorities displayed
“special diligence” in the conduct of the proceedings
(see Labita v. Italy [GC], no. 26772/95, § 153,
ECHR 2000 IV, and Jabłoński v. Poland, no.
33492/96, § 80, 21 December 2000).
2. Application
of the principles to the circumstances of the present case
The
Court first notes that the applicant complains about his pre trial
detention in two sets of criminal proceedings. In the first set the
applicant had been detained between 25 September 2000, when he was
arrested, and 27 September 2002, when the period for which his
detention had been ordered expired. The detention thus lasted
2 years.
As
regards the second set of criminal proceedings the applicant was
detained on remand on 13 August 2001 and on 24 May 2004 he was
convicted by the first-instance court. His detention thus lasted
2 years and over 9 months.
The
Court firstly observes that in both sets of criminal proceedings the
domestic courts initially relied on the reasonable suspicion that the
applicant had committed the offences, the severity of the sentence
that might be imposed and a risk that he might interfere with the
conduct of the proceedings, in particular since he had been charged
with being a member of organised, armed criminal groups. The judicial
authorities also considered that in view of the complexity of both
cases, which involved numerous co accused and multiple charges,
the applicant's detention was necessary to secure the proper conduct
of the proceedings.
In
the first set of proceedings the domestic court decided not to
prolong the detention on remand against the applicant beyond two
years. As regards the second set of proceedings, the Court considers
that with the passage of time, the authorities had failed to invoke
any new grounds justifying the applicant's detention.
The
Court accepts that the suspicion against the applicant of having
committed the offences might initially have justified his detention,
in particular in the light of the fact that the applicant was
subsequently sentenced to a term of imprisonment.
In
addition, the judicial authorities appeared to presume the risk of
the applicant absconding or obstructing the proceedings basing
themselves on the severity of the penalty that might be imposed given
the serious nature of the offences. In this respect, the Court
reiterates that the severity of the sentence faced is a relevant
element in the assessment of the risk of absconding or re offending
(Górski v. Poland, no. 28904/02, § 57,
4 October 2005). The Court also 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).
Furthermore,
the judicial authorities relied on the fact that the applicant had
been charged with being a member of organised, armed criminal groups.
In this regard, the Court considers 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 and in some
circumstances also for subsequent prolongations of the detention (see
Drabek v. Poland, no. 5270/04,
§ 49, 20 June 2006). In this regard, the Court
reiterates its case-law according to which in cases concerning
organised crime a relatively longer period of detention on remand
could be justified given the particular difficulties in dealing with
those cases by the trial courts (see Celejewski v. Poland,
no. 17584/04, § 36, 4 May 2006). However, it does not give
the authorities unlimited power to prolong this preventive measure
(see Pasiński v. Poland, no. 6356/04,
§ 44, 20 June 2006). Firstly, with the passage of
time, the initial grounds for pre-trial detention become less and
less relevant and the domestic courts should rely on other “relevant”
and “sufficient” grounds to justify the deprivation of
liberty (see, among many other authorities, I.A. v. France,
judgment of 23 September 1998, Reports of Judgments and
Decisions 1998-VII, p. 2979, § 102; Labita
v. Italy [GC], cited above, § 153). Secondly, even
if due to the particular circumstances of the case, detention on
remand is extended beyond the period generally accepted under the
Court's case-law, particularly strong reasons would be required to
justify this.
In
the circumstances of the present case, the Court takes into account
the particular difficulty in dealing with cases concerning organised
criminal group and the fact that in the first set of proceedings the
authorities decided not to prolong the detention beyond the two year
period. However, the applicant's detention on remand in connection
with the second set of proceedings reached 2 years and 9 months.
Thus, with the passage of time the grounds repeatedly relied on by
the authorities cannot be accepted as “relevant” and
“sufficient” justification for holding the applicant in
detention for such a long period.
There
has therefore been a violation of Article 5 § 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The applicant further complained under Article 8 of
the Convention that his correspondence with the Court had been
censored. This Article, in its relevant part, reads:
“1. Everyone has the right to respect
for his ... correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection
of the rights and freedoms of others.”
The
Government argued that there was no evidence that the applicant's
correspondence with the Court had been censored by the authorities.
The
Court notes that the applicant submitted one side of the envelope in
which the Court's letter of 21 October 2002 was delivered to him.
That envelope bears a handwritten note “censorship”
(cenzurowano) and an illegible signature. The envelope bears
no stamp of the detention centre or of any other authority which
would make it possible to establish who had made the note on the
envelope. In consequence, it is impossible to establish to any degree
of certainty whether the envelope had been opened by the domestic
authorities. The applicant failed to submit any other evidence of
censorship of his correspondence with the Court by the authorities.
In
view of the above, the Court finds that in the particular
circumstances of the case that the complaint has not been
substantiated and does not disclose any appearance of a violation of
Article 8 of the Convention (see Płoski v. Poland
(dec.), no 26761/95, 4 December 2001).
It
follows that this part of the application is manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention and must
be rejected in accordance with Article 35 § 4.
III. 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 200, 000 Polish zlotys (PLN) in respect of
non pecuniary damage.
The
Government submitted that this claim was exorbitant.
The
Court awards the applicant 1,000 euros (EUR) in respect of
non pecuniary damage.
B. Costs and expenses
The
applicant, who was represented by a lawyer, did not claim any sum for
the costs and expenses incurred 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 complaint concerning the
unreasonable length of the pre-trial detention admissible and the
remainder of the application inadmissible;
Holds that there has been a violation of Article
5 § 3 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
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, plus any tax
that may be chargeable, to be converted into Polish zlotys at the
rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 19 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
