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CZAJKA v. POLAND - 15067/02 [2007] ECHR 131 (13 February 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/131.html
Cite as:
[2007] ECHR 131
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FOURTH
SECTION
CASE OF CZAJKA v. POLAND
(Application
no. 15067/02)
JUDGMENT
STRASBOURG
13
February 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 Czajka 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 23 January 2007,
Delivers
the following judgment, which was a opted on that date:
PROCEDURE
The
case originated in an application (no. 15067/02) 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 Marek Czajka (“the
applicant”), on 1 October 2001.
The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of
Foreign Affairs.
On
16 June 2004 the President of the Fourth Section decided to
communicate to the Government the applicant’s complaints
concerning the length of his detention on remand and the criminal
proceedings against him. Under the provisions of Article 29 § 3
of the Convention, it was 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 1974 and lives in Gdynia, Poland.
A. The criminal proceedings
On
8 May 1999 the applicant was arrested by the police. On 9 May
1999 the Gdańsk District Court (Sąd Rejonowy)
decided to detain the applicant on remand in view of the reasonable
suspicion that he had committed robbery, kidnapping and larceny.
The
applicant’s appeal against this decision was dismissed by the
Gdańsk Regional Court (Sąd Okręgowy) on 24 May
1999.
On
25 January 2000 the applicant was indicted before the Gdańsk
Regional Court.
The
applicant’s detention was prolonged on 27 January 2000. The
court reiterated the grounds originally given for his detention and
stressed the gravity of the charges.
On
10 April 2000 the first hearing took place before the trial court.
On
18 May 2000 the Gdańsk Regional Court dismissed the applicant’s
application for release. The court considered that the evidence
obtained in the case sufficiently justified the charges laid against
the applicant. In addition, the gravity of the charges made it
probable that a heavy sentence would be imposed.
Between
27 June 2000 and 17 April 2001 eight hearings took place.
Subsequently,
the Gdańsk Regional Court made a request under Article 263
§ 4 of the Code of Criminal Proceedings to the Gdańsk Court
of Appeal (Sąd Apelacyjny) in which it asked that the
applicant’s detention on remand be extended beyond 2 years.
On 25 April 2001 the Gdańsk Court of Appeal allowed the request.
However, it extended the applicant’s detention only until
31 July 2001 and not until October 2001 as requested by the
Regional Court. The appellate court considered that it was probable
that the applicant had committed the crimes with which he had been
charged. In addition, the case did not disclose any of the grounds
for the applicant’s release listed in Article 259 § 1
of the Code of Criminal Proceedings. At the same time, the court of
appeal pointed out that the proceedings had already taken a long time
and that any extension of his detention on remand beyond a two year
period should only be allowed for the purposes of taking all
necessary procedural steps to conclude the trial.
Afterwards,
hearings were held in June and July 2001.
On
25 July 2001 the Gdańsk Court of Appeal further extended the
applicant’s detention until 30 September 2001. It considered,
however, that the proceedings in the applicant’s case had
already taken a long time and that the Regional Court had been
inefficient in dealing with the case. In this connection, the Gdańsk
Court of Appeal pointed out that the trial court had adjourned the
case for almost 50 days without giving any reasons. As a result of
the adjournment the proceedings had to be recommenced.
Subsequently,
hearings took place before the trial court.
On
26 September 2001 the Gdańsk Court of Appeal further prolonged
the applicant’s detention until 30 November 2001 relying
on the reasonable suspicion that the applicant had committed the
offences and on the complexity of the case.
Between
10 October 2001 and 21 January 2002 fourteen hearings were held.
On
28 January 2002 the Gdańsk Regional Court gave a judgment. The
applicant was convicted and sentenced to fifteen years’
imprisonment.
Subsequently,
the applicant’s detention was prolonged on several occasions.
On
9 April 2003 the Gdańsk Court of Appeal quashed the applicant’s
conviction and remitted the case. At the same time the appellate
court prolonged the applicant’s detention until 21 July
2003. The court considered that it was necessary to keep the
applicant in detention since he had been charged with several crimes
which represented “a significant danger to society” (o
znacznej szkodliwości społecznej) and which
attracted a heavy prison sentence. In addition, the evidence obtained
in the case sufficiently supported the probability that the applicant
had committed those crimes. Moreover, the court considered that there
was a risk that the applicant would go into hiding and that he could
interfere with the proceedings if released. It was recalled in this
connection that the applicant had been arrested while trying to leave
the country.
The
applicant appealed against this decision, but his appeal was
dismissed on 23 April 2003 by the Gdańsk Court of Appeal.
On
7 October, 18 and 20 November 2003 hearings took place before the
Gdańsk Regional Court.
The
applicant’s pre-trial detention was prolonged on 8 July
2003, 20 January, 30 July and 7 December 2004. The court
reiterated the original grounds for keeping him in custody, in
particular the seriousness of the charges against the applicant and
the risk that he might receive a heavy sentence.
At
the hearings held on 11 January and 19 July 2005 the Regional Court
prolonged the applicant’s detention relying on the reasonable
suspicion against the applicant, the seriousness of the charges, the
severity of the likely sentence and the complexity of the case. The
court further stated that since not all of the witnesses had been
heard, there was a risk that the applicant might attempt to influence
them.
On
27 October 2005 the applicant’s detention on remand was
prolonged. The court repeated the grounds relied on in its previous
decision given in 2005 in an almost identical manner.
The
applicant’s numerous appeals and requests for release were to
no avail.
On
27 December 2005 the Gdańsk Regional Court gave a judgment. It
convicted the applicant and sentenced him to 14 years’
imprisonment. On 12 April 2006 the applicant lodged an appeal.
On
20 November 2006 the Gdańsk Court of Appeal partly upheld the
impugned judgment and reduced the applicant’s prison sentence
to 11 years’ imprisonment.
B. The complaint about the unreasonable length of the
proceedings
On
15 November 2004 the applicant lodged with the Gdańsk Court of
Appeal a complaint alleging that his right to have his case examined
within a reasonable time had been breached. He relied on the 2004 Act
on complaints about a breach of the right to a trial within a
reasonable time.
On
28 December 2004 the Gdańsk Court of Appeal allowed his
complaint, found that the length of the criminal proceedings pending
before the Regional Court had been unreasonable and awarded the
applicant PLN 3,000 in compensation. The court examined the
course of the proceedings and found delays between 10 April 2000 and
6 June 2001 for which the trial court had been responsible. The
Court of Appeal further instructed the trial court to accelerate its
handling of the case so that the trial was concluded within a period
much shorter than the one-year period envisaged.
On
29 December 2005 the applicant lodged a second complaint about the
unreasonable length of the proceedings in his case.
On
28 February 2006 the Gdańsk Court of Appeal dismissed the
applicant’s second complaint. The court examined the course of
the proceedings after 28 December 2004 and established that they had
been conducted diligently and that there were no delays attributable
to the trial court.
II. RELEVANT DOMESTIC LAW
A. Preventive measures, including detention on remand
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).
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.
B. The remedy for unreasonable length of proceedings
On
17 September 2004 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”) entered into force. It lays down various
legal means designed to counteract and/or redress the undue length of
judicial proceedings.
A
more detailed description of the relevant domestic law provisions is
set out in the Court’s judgment in Krasuski v. Poland,
no. 61444/00, §§ 34 46, ECHR 2005–...
(extracts) and its decision in Charzyński v. Poland
(dec.), no. 15212/03, §§ 12 23, ECHR
2005–....
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. The Government submitted that the
applicant’s pre-trial detention satisfied the requirements of
Article 5 § 3. It was justified by “relevant”
and “sufficient” grounds. These grounds were, in
particular, the gravity of the charges against the applicant as well
as the complexity of the case. The Government further argued that the
domestic authorities had shown due diligence, as required in cases
against detained persons.
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 notes that the applicant was arrested on 8 May 1999 and
that on 28 January 2002 the trial court gave a judgment in his
case. Subsequently, on 9 April 2003 the Court of Appeal quashed his
conviction and remitted the case. On 27 December 2005 the trial court
again convicted him. His detention thus lasted 5 years, 5 months and
11 days.
The
Court further observes that the domestic courts initially relied on
the reasonable suspicion that the applicant had committed the
offences and on the severity of the sentence that might be imposed.
The judicial authorities also considered that in view of the
complexity of the case, which involved numerous co-accused and
multiple charges, the applicant’s detention was necessary to
secure the proper conduct of the proceedings. On at least one
occasion, in 2003, the Court of Appeal referred to the risk of
flight, justifying it with reference to the applicant’s alleged
attempt to leave the country before his arrest. With the passage of
the time, however, the authorities failed to invoke any new grounds
to justify his detention and their decisions on the matter contained
almost identical reasoning.
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 long term of imprisonment. However, with
the passage of time, this ground became less relevant and cannot
justify the particularly long period of 5 years and over 5 months
during which the most serious preventive measure against the
applicant had been imposed.
As regards the risk of the applicant going into
hiding, the Court observes that the courts on one occasion relied on
an alleged attempt by the applicant to leave Poland before his arrest
in 1999. The Court agrees that, assuming that the applicant had
indeed attempted to evade arrest and prosecution, this factor could
justify a decision to keep him in custody at the initial stages of
the proceedings. However, that ground gradually lost its force and
relevance as the proceedings progressed. In particular, given the
absence of any further attempt on the part of the applicant to
obstruct the proceedings, it is difficult to accept that this single
incident could justify the conclusion that the risk of going into
hiding persisted during the entire period that he spent in custody
(see Harazin v. Poland, no. 38227/02, § 42,
10 January 2006). As regards the risk of the applicant
influencing witnesses or otherwise tampering with evidence, the Court
notes that any such risk was not substantiated in any way by the
domestic courts.
Moreover,
the authorities relied heavily on the likelihood that a heavy
sentence would be imposed on the applicant given the serious nature
of the offences at issue. In this respect, the Court agrees that the
severity of the sentence faced is a relevant element in the
assessment of the risk of absconding or re-offending. 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).
The
Court also notes that there is no specific indication that during the
entire period in question the authorities envisaged the possibility
of imposing other preventive measures on the applicant, such as bail
or police supervision.
In
this context the Court would emphasise that “other preventive
measures” are expressly foreseen by Polish law to secure the
proper conduct of criminal proceedings and that under Article 5
§ 3 the authorities, when deciding whether a person should
be released or detained, are obliged to consider alternative measures
for ensuring his appearance at the trial. Indeed, that Article lays
down not only the right to “trial within a reasonable time or
release pending trial” but also provides that “release
may be conditioned by guarantees to appear for trial” (see
Jablonski, cited above, § 83).
In
the circumstances, the Court concludes that the grounds given by the
domestic authorities were not “relevant” and “sufficient”
to justify the applicant’s being kept in detention for 5 years
and over 5 months.
Furthermore,
the Court cannot but note that the domestic courts have themselves
discerned delays in the criminal proceedings against the applicant
(see paragraphs 14 and 30 above). It cannot therefore be said that
the authorities displayed “special diligence” in the
conduct of the criminal proceedings against the applicant.
There
has therefore been a violation of Article 5 § 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE PROCEEDINGS
The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads
as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
The
Government contested that argument. They argued, moreover, that the
applicant could no longer be considered a victim as the Gdańsk
Court of Appeal had afforded appropriate redress in that he was
granted compensation in the amount of PLN 3,000. Moreover, the
complaint examined by the domestic court on 28 December 2004 had had
an impact on the criminal proceedings against him as the trial court
thereafter had proceeded speedily and on 27 December 2005 gave a
judgment.
The
applicant disagreed. He argued, in particular, that the just
satisfaction awarded was disproportionately low and that further
delays occurred after the Court of Appeal had decided on his
complaint. The proceedings against him have still not ended.
The
Court notes that the proceedings in question started on 8 May
1999 and on 20 November 2006 the Gdańsk Court of Appeal gave a
judgment. Thus, they lasted 7 years, 6 months and 15 days for two
levels of jurisdiction.
A. Admissibility
As
to the Government’s argument that the applicant cannot be
considered a “victim”, within the meaning of Article 34
of the Convention, of a violation of his right to a hearing
within a reasonable time, this issue falls to be determined in the
light of the principles recently established under the Court’s
case-law (Cocchiarella v. Italy [GC], no. 64886/01,
§§ 69 107, ECHR 2006 ... and Scordino v.
Italy (no. 1) [GC], no. 36813/97, §§ 178 213,
ECHR 2006 - ...).
The
Gdańsk Court of Appeal analysed the course of the impugned
proceedings in the light of the criteria which the Court itself
applies. It concluded that the Regional Court had violated the
applicant’s right to a hearing without unjustified delay and
awarded the applicant the equivalent of EUR 712 in respect of
the length of the proceedings. The just satisfaction awarded by the
Court of Appeal amounts to approximately 25 per cent of what the
Court would be likely to have awarded the applicant at that time in
accordance with its practice, taking into account the particular
circumstances of the proceedings. Moreover, the proceedings were
pending and it took the Gdańsk Regional Court exactly one more
year to conclude the trial despite the Court of Appeal’s
explicit instruction to finish it within a much shorter period. The
combination of those factors lead to the conclusion that the redress
provided to the applicant at domestic level, considered on the basis
of the facts of which he complains before the Court, was
insufficient. In these circumstances, the argument that the applicant
has lost his status as a “victim” cannot be upheld.
The
complaint about the length of the criminal proceedings against the
applicant is not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention. It is not
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
Having
examined all the material submitted to it, the Court finds no
argument capable of persuading it to reach a different conclusion in
the present case. It reiterates that special diligence is required in
the examination of a case where an accused is deprived of his liberty
(see paragraph 49 above). Having regard to its case-law on the
subject the Court concurs with the Court of Appeal that in the
instant case the length of the criminal proceedings complained of was
excessive and failed to meet the “reasonable time”
requirement.
In
view of the above considerations, the Court concludes that there has
been a breach of Article 6 § 1 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 §§ 1, 2 AND
3 OF THE CONVENTION ON ACCOUNT OF THE UNFAIRNESS OF THE PROCEEDINGS
The
applicant further complained of the fact that the proceedings in his
case had been unfair. In particular, he complained that his right to
defence had been violated and that the presiding judge had been
biased. The applicant relied on Article 6 §§1, 2 and 3 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 on 20 November 2006 the Gdańsk Court of Appeal
gave a judgment in the criminal proceedings against the applicant. It
is thus open to the applicant to lodge a cassation appeal with the
Supreme Court. Accordingly, the applicant still can, and should, put
the substance of his complaints under this head before the domestic
authorities and ask for appropriate relief.
It
follows that these complaints must be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
IV. 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 50,000 Polish zlotys (PLN) in respect of pecuniary
and non pecuniary damage.
The
Government considered the claim excessive.
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 must have suffered
some non pecuniary damage, such as distress and frustration
resulting from the unreasonable length of his detention on remand and
of the criminal proceedings against him. Making its assessment on an
equitable basis, and having regard to the sum awarded by the domestic
authorities, the Court awards the applicant 5,000 euros (EUR) in
respect of non-pecuniary damage.
B. Costs and expenses
The
applicant did not make any claim in respect of 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 complaint concerning the
unreasonable length of pre trial detention and length of the
criminal proceedings admissible and the remainder of the application
inadmissible;
Holds that there has been a violation of Article
5 § 3 of the Convention;
Holds that there has been a violation of Article
6 § 1 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 5,000 (five
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 13 February 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.
T.L. Early Nicolas Bratza
Registrar President
