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MALIKOWSKI v. POLAND - 15154/03 [2007] ECHR 821 (16 October 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/821.html
Cite as:
[2007] ECHR 821
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FOURTH
SECTION
CASE OF MALIKOWSKI v. POLAND
(Application
no. 15154/03)
JUDGMENT
STRASBOURG
16
October 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 Malikowski 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 L. Garlicki,
Ms L.
Mijović,
Mr J. Šikuta,
Mrs P. Hirvelä,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 25 September 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 15154/03) against the Republic
of Poland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Polish national, Mr Tomasz Malikowski (“the
applicant”), on 18 April 2003.
The
applicant, who had been granted legal aid, was represented by Mr W.
Hermeliński, a lawyer practising in Warsaw. The Polish
Government (“the Government”) were represented by their
Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
On
18 October 2005 the Court declared the application partly
inadmissible and decided to communicate complaints concerning the
length of the applicant's detention and the length of the criminal
proceedings 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 1968 and lives in Rumia. The
application was lodged on his behalf by his common-law wife, Ms
Teresa Rohde, who submitted a duly signed written authorisation from
the applicant.
A. The criminal proceedings against the applicant
On
6 September 1999 the applicant was arrested on suspicion of armed
robbery. On 7 September 1999 the Gdańsk District Court remanded
him in custody in view of the reasonable suspicion that he had
committed a number of armed robberies in an organised criminal group.
It held that there was a reasonable risk that the applicant would
obstruct the investigation by, inter alia, inducing witnesses
to give false testimony and relied on the severity of the anticipated
penalty. Consequently, it found that remanding the applicant in
custody was the only preventive measure which could secure the proper
conduct of the investigation.
On
18 November 1999 the Gdańsk Regional Court prolonged the
applicant's detention until 6 March 2000. It relied on the reasonable
suspicion of the applicant having committed the offences in question
and the need to take further investigative measures.
On
16 February 2000 the Gdańsk Court of Appeal ordered that the
applicant be held in custody until 30 June 2000. It held that his
continued detention was justified by the serious nature and the scale
of the offences in question. Furthermore, it had regard to the need
to obtain evidence from many sources.
On
20 June 2000 the Gdańsk Court of Appeal prolonged the
applicant's detention until 6 September 2000. In addition to the
grounds previously invoked, it observed that the applicant's
detention was justified by the complexity of the investigation and
the likelihood that a severe penalty would be imposed.
On
17 August 2000 the Supreme Court extended the applicant's detention
until 15 December 2000. It found that the strong suspicion against
the applicant of having committed the serious offences in question,
the severity of the anticipated penalty and the need to obtain
further evidence warranted holding him in custody.
Meanwhile,
several other persons were charged and detained in connection with
the same investigation conducted by the Department of Organised Crime
of the Gdańsk Regional Prosecutor's Office.
On
13 December 2000 the Gdańsk Court of Appeal prolonged the
applicant's detention until 31 March 2001. It reiterated the
original grounds given for his detention. Taking into account the
nature of the offences, the Court of Appeal added that the fact that
the charges against all nine suspects were closely interrelated gave
substance to the risk that, once released, they might obstruct the
proceedings. It also referred to the particular complexity of the
case. Furthermore, it noted that the prolongation of the
investigation was due to the fact that new suspects had been
identified in the course of the investigation.
On
7 March 2001 the Court of Appeal prolonged the applicant's and his 9
co-suspects' detention until 31 May 2001. It held that the original
grounds given for the applicant's detention were still valid and that
the need to obtain DNA evidence justified the continuation of that
measure.
On
15 May 2001 the prosecution filed a
bill of indictment with the Gdańsk Regional Court.
The applicant was charged with several counts of armed robbery which
had been committed in an organised armed criminal group. The bill of
indictment listed 118 charges brought against 19 defendants, who
all were detained on remand. The case file comprised 114 volumes.
The prosecution asked the court to hear evidence from 366 witnesses.
On
17 May 2001 the Gdańsk Regional Court ordered that the applicant
be detained until 6 September 2001, finding that his detention was
necessary in order to prevent him and other co-defendants from
evading justice or tampering with evidence. It also referred to the
complexity of the case stemming from the number of defendants and
witnesses to be heard.
The
trial began on 28 December 2001. However, as of April 2002 the
reading out of the bill of indictment by the prosecution had still
not been concluded. Initially, the trial court held three hearings
per month.
On
15 January 2002 the Gdańsk Regional Court dismissed the
applicant's request for the presiding judge to withdraw. On 15
January 2003 the applicant and 17 of his co-defendants unsuccessfully
challenged the judges and lay members of the trial court.
Since
on 6 September 2001 the applicant's detention had reached the
statutory time-limit of 2 years laid down in Article 263 § 3 of
the Code of Criminal Procedure, further prolongation of his detention
was ordered by the Gdańsk Court of Appeal. The relevant
decisions were given on 22 August 2001 (prolonging his detention
until 31 March 2002), 28 March 2002 (extending his
detention up to 30 September 2002), 11 September 2002
(ordering his continued detention until 31 December 2002),
18 December 2002 (prolonging that period until 30 June 2003),
25 June 2003 (extending his detention up to 31 December
2003), 17 December 2003 (ordering his continued detention until
30 June 2004), 23 June 2004 (prolonging his detention until 31
December 2004), 15 December 2004 (prolonging his detention until
31 March 2005), 30 March 2005 (extending that period until
30 June 2005) and 22 June 2005 (prolonging his detention until
30 October 2005).
In
all those decisions the Court of Appeal considered that the original
grounds given for the applicant's detention were still valid. It
stressed that the applicant's detention was the only measure which
could secure the proper conduct of the proceedings in such a
particularly complex case, given the nature of the charges, the
number of the defendants and the connections between them. In
addition, it referred to the volume of evidence to be heard.
In
its decision of 19 September 2001 the Court of Appeal dismissed the
applicant's appeal against the decision of 22 August 2001, prolonging
his detention. It held, inter alia, that Article 258 § 2
of the Code of Criminal Procedure alone constituted a sufficient
ground for the applicant's detention as he had been charged with an
offence which attracted a statutory maximum sentence of at least
8 years' imprisonment. It further found that the applicant's
continued detention was the only measure which could secure the
proper conduct of the trial, given the fact that he had been charged
with the commission of the offences in an organised criminal group.
In
its decision of 25 June 2003 prolonging the applicant's detention,
the Court of Appeal observed that the trial could not be terminated
due to obstructiveness on the part of the defendants who had filed
numerous requests challenging the trial court. It further considered
that although the applicant and other defendants were free to make
use of their procedural rights, the abuse of those rights had
undoubtedly led to delays in the trial. It also noted that the trial
court had taken various procedural steps in order to accelerate the
proceedings.
In
its decision on the applicant's detention of 23 June 2004, the Court
of Appeal observed that up to April 2003 the main reason for the
delays during the trial was the obstructiveness of the defendants and
the abuse of the rights of the defence. It also observed that the
trial could be concluded by the end of 2004 provided that the
Regional Court endeavoured to organise the trial efficiently.
In
its decision of 18 January 2005 dismissing the applicant's appeal
against the decision of 15 December 2004 prolonging his detention,
the Court of Appeal held that Article 258 § 2 of the Code of
Criminal Procedure established a presumption to the effect that the
likelihood of a severe penalty being imposed on the applicant might
induce him to obstruct the proceedings. It added that the risk of
absconding or interfering with witnesses which existed in the present
case did not have to be supported by any concrete facts, but resulted
from the above presumption.
In
the course of the proceedings the applicant made numerous,
unsuccessful applications for release and appealed, likewise
unsuccessfully, against refusals to release him and decisions
extending his detention. In its decision of 28 August 2002 dismissing
the applicant's application for release, the trial court found that
according to evidence given by a witness R.G., the applicant had
attempted to induce him to give false testimony.
On
21 March 2005 the trial court made a severance order with a view to
expediting the proceedings, and thereafter four defendants (J.N.,
G.P., Z.S. and Z.C.), who in the meantime had been released from
detention, were to be tried separately.
After
20 June 2005 no hearing was held due to the serious illness of the
judge rapporteur. On 21 September 2005 the President of the Criminal
Section IV of the Gdańsk Regional Court assigned a new judge
rapporteur. Consequently, the trial had to commence de novo.
On 20 September 2005 the Court of Appeal prolonged the
applicant's detention until 31 January 2006. The applicant appealed
against that decision. On 18 October 2005 a different panel of the
Court of Appeal quashed the impugned decision and ordered the
applicant's release under police supervision. It also imposed on him
a prohibition on leaving the country. The Court of Appeal had regard
to the fact that the trial had to commence de novo and that
the applicant had already spent a few years in pre-trial detention.
The applicant was released on 19 October 2005.
On
24 November 2005 the trial court made a further severance order and
split the case into eleven separate cases.
By
March 2006 the trial court had held some 135 hearings of the 162
which had been scheduled. It heard more than 400 witnesses.
It appears that the proceedings are still pending
before the first-instance court.
B. The applicant's complaint against the unreasonable
length of proceedings
On
25 January 2005 the applicant filed with the Gdańsk Court of
Appeal a complaint about a breach of his right to a trial within a
reasonable time and asked for compensation. He relied on section 5 of
the Law of 17 June 2004 on complaints about a breach of the
right to a trial within a reasonable time (“the 2004 Act”).
The
applicant submitted that the charges against all the defendants had
been unjustifiably joined in one set of proceedings. He further
referred to numerous absences of witnesses, lawyers and defendants
and claimed that many hearings had been cancelled in the course of
2004.
On
1 March 2005 the Court of Appeal dismissed his complaint as
unfounded, having regard to the criteria set out in section 2 §
2 of the 2004 Act, namely the conduct of the court and of the
parties, the nature of the case, its factual and legal complexity and
what was at stake in the proceedings for the complainant. It held
that the joint examination of the charges against the defendants who
had collectively committed a crime was justified under the domestic
law. The Court of Appeal also found that certain absences referred to
by the applicant had been justified, while in other cases the trial
court had taken measures to discipline the relevant persons. It
further held that certain hearings in 2004 had been cancelled, but
for reasons which had not been attributable to the trial court.
In
conclusion, having regard to the nature of the case, its complexity
and the conduct of the parties, the Court of Appeal held that the
trial court could not be held responsible for the delays in the
proceedings.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The
relevant domestic law and practice regarding the imposition of
detention on remand (tymczasowe aresztowanie), the grounds for
its prolongation, release from detention and rules governing other,
so-called “preventive measures” (środki
zapobiegawcze) at the material time are stated in the Court's
judgments in the cases of Gołek v. Poland, no. 31330/02,
§§ 27-33, 25 April 2006 and Celejewski v. Poland,
no. 17584/04, §§ 22-23, 4 August 2006.
The relevant domestic law and practice concerning
remedies for the excessive length of judicial proceedings are stated
in the Court's decisions in the cases of Charzyński v. Poland
no. 15212/03 (dec.), §§ 12 23, ECHR 2005-V
and 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.
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 6 September 1999, when he was
arrested on suspicion of armed robbery. It continued until 19 October
2005 when the applicant was released. Thus, the total period of his
pre-trial detention in the present case comes to 6 years, 1 month and
14 days.
However,
between 23 September 2003 and 8 February 2006 the applicant served
two prison sentences which had been imposed on him in other criminal
proceedings. 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 under Article 5 §
3 amounts to 4 years and 18 days.
2. The parties' submissions
(a) The applicant
The
applicant argued that an excessive period of detention, such as the
period in the present case, was in itself incompatible with Article 5
§ 3 of the Convention, given the principle of the presumption of
innocence. He maintained that however strong had been the suspicion
against him, it could suffice as a basis for holding him in custody
only in the early stages of the proceedings.
As
regards the risk of collusion and tampering with evidence, the
applicant argued that it had not been based on any reliable facts and
that, with the passage of time, it had become irrelevant from the
point of view of the proper conduct of the trial. He strongly
contested the position of the Court of Appeal that the risk of
absconding or tampering with evidence did not have to be supported by
concrete facts, but resulted from the presumption established in
Article 258 § 2 of the Code of Criminal Procedure. The applicant
emphasised that the courts had not given sufficient and relevant
reasons for his continued detention.
(b) The Government
The
Government firstly presented some statistical data, indicating that
in the years 2000-2005 the number of indictments and convictions in
cases concerning organised crime increased both in absolute terms and
in relation to other crimes. In 2004 there were 617 indictments in
such cases and 220 persons were convicted. They argued that in
organised crime cases the authorities were faced with particular
problems, relating to the taking and assessment of evidence and
various logistical issues.
With
reference to the present case, the Government submitted that the
applicant's pre-trial detention had been justified by the existence
of substantial evidence of his guilt, the nature of the offences at
issue and the severity of the anticipated penalty. They underlined
that the length of the applicant's detention should be assessed with
reference to the fact that he and his co-defendants had acted in an
organised criminal gang. The risk that the defendants might obstruct
the proceedings or tamper with evidence was aggravated by the fact
that they had been members of a tightly-knit organised criminal
group. Thus, the domestic courts had considered it necessary to
remand the applicant and his co-defendants in custody until all
relevant witnesses had been heard.
The
Government emphasised that the serious nature of the charges as well
as the fact that there had been nineteen defendants charged with
numerous offences required the authorities to take all necessary
measures to secure the proper conduct of the trial. The necessity of
the applicant's continued detention had been thoroughly examined by
the courts which on each occasion had given sufficient reasons for
their decisions. The applicant's case had been extremely complex on
account of the number of charges and defendants, and by reason of the
volume of evidence.
Lastly,
the Government maintained that the authorities had displayed the
requisite diligence in dealing with the applicant's case.
3. The Court's assessment
(a) General principles
The
Court recalls that the general principles regarding the right “to
trial within a reasonable time or to release pending trial”, as
guaranteed by Article 5 § 3 of the Convention were stated in a
number of its previous judgments (see, among many other authorities,
Kudła v. Poland [GC], no. 30210/96, § 110
et seq, ECHR 2000 XI; and McKay v. the United Kingdom
[GC], no. 543/03, §§ 41-44, ECHR 2006-..., with further
references).
(b) Application of the above principles in
the present case
In
their detention decisions, the authorities, in addition to the
reasonable suspicion against the applicant, relied principally on
four grounds, namely (1) the serious nature of the charges against
him, (2) the severity of the penalty to which he was liable and the
consequential risk that he might obstruct the trial, (3) the risk
that the applicant might abscond or interfere with witnesses, given
the fact that he had been a member of a criminal gang and (4) the
complexity of the case related to the number of defendants and volume
of evidence to be heard. The domestic courts also referred to the
obstructive behaviour of the defendants aimed at delaying the trial.
The
applicant was charged with numerous counts of armed robbery committed
in an organised and armed criminal group (see paragraph 13
above). In the Court's view, the fact that the case concerned a
member of such a criminal group should be taken into account in
assessing compliance with Article 5 § 3 (see Bąk v.
Poland, no. 7870/04, § 57, ECHR 2007 ...
(extracts)).
The
Court accepts that the reasonable suspicion against the applicant of
having committed the serious offences could initially warrant his
detention. In addition, it notes that the authorities were faced with
the difficult task of determining the facts and the degree of alleged
responsibility of each of the defendants. In these circumstances, the
Court also accepts that the need to obtain voluminous evidence from
many sources, coupled with the fact that in the course of the
investigation new suspects had been identified, constituted relevant
and sufficient grounds for the applicant's initial detention.
However,
with the passage of time, those grounds became less and less
relevant. The Court must then establish whether the other grounds
adduced by the courts were “relevant” and “sufficient”
(see, Kudła cited above, § 111).
According
to the authorities, the likelihood of a severe sentence being imposed
on the applicant created a presumption that the applicant would
obstruct the proceedings. They relied in this respect on the Supreme
Court's resolution and its construction of Article 258 § 2 of
the Code of Criminal Procedure (see paragraphs 19 and 22 above).
However, the Court would reiterate that, while the severity of the
sentence faced is a relevant element in the assessment of the risk of
absconding or re-offending, the gravity of the charges cannot by
itself justify long periods of detention on remand (see, for
instance, Ilijkov v. Bulgaria, no. 33977/96, §§
80-81, 26 July 2001). Having regard to the above, the Court
cannot accept the position adopted by the judicial authorities in the
present case, namely that the presumption referred to above would
alone, after a certain lapse of time, justify the applicant's
continued detention, without the need to indicate any concrete facts
supporting the risk of obstruction of the proceedings.
Furthermore,
the judicial authorities relied on the fact that the applicant had
been charged with being a member of an organised criminal gang. In
this regard, the Court reiterates that the existence of a general
risk flowing from the organised nature of the alleged criminal
activities of the applicant may be accepted as the basis for his
detention at the initial stages of the proceedings (see, Górski
v. Poland, no. 28904/02, § 58, 4 October 2005) and
in some circumstances also for subsequent prolongations of the
detention (see, Celejewski, cited above, § 37). It is
also accepted that in such cases, involving numerous accused, the
process of gathering and hearing evidence is often a difficult task.
Moreover, the Court considers that in cases such as the present
concerning organised criminal gangs, the risk that a detainee, if
released, might bring pressure to bear on witnesses or other
co-accused, or might otherwise obstruct the proceedings, is by the
nature of things often particularly high. Indeed, the Court notes
that the applicant attempted to intimidate a witness (see paragraph
23 above). Furthermore, it accepts that certain delays during the
trial were caused by the defendants' obstructiveness and the abuse of
the rights of the defence (see paragraphs 20-21 above).
While
all those above factors could justify even a relatively long period
of detention, they did not give the domestic courts an unlimited
power to prolong this measure. Even if the particular circumstances
of the case required detention on remand to be extended beyond the
period generally accepted under the Court's case-law, particularly
strong reasons would be needed to justify this (Wolf v. Poland,
nos. 15667/03 and 2929/04, § 90, 16 January 2007). In
this respect, the Court observes that the applicant was held in
custody for 4 years and 18 days.
Having
regard to the foregoing, even taking into account the fact that the
courts were faced with the particularly difficult task of trying a
case involving members of an organised criminal group, the Court
concludes that the grounds given by the domestic authorities could
not justify the overall period of the applicant's detention. In these
circumstances it is not necessary to examine whether the proceedings
were conducted with special diligence.
There
has accordingly been a violation of Article 5 § 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
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.
The
period to be taken into consideration began on 6 September 1999 when
the applicant was charged with armed robbery. The proceedings are
pending before the trial court. They have thus lasted over 8 years
for one level of jurisdiction.
A. Admissibility
The
Government submitted that since the applicant's complaint lodged
under the 2004 Act had been dismissed on 1 March 2005, the applicant
had a possibility to lodge another complaint about the length of the
proceedings after a lapse of 12 months, according to section 14 of
that Act. In a new complaint the applicant could have raised his
arguments concerning the conduct of the courts after 1 March 2005.
Therefore, in the Government's view, the subsequent period should not
be taken into account by the Court in the assessment of the overall
length of the proceedings.
The
applicant disagreed with the Government. He submitted that, having
regard to the reasons put forward by the Court of Appeal in its
decision of 1 March 2005, another complaint under the 2004 Act would
have had no prospects of success.
The
Court recalls that it has already established that the remedies
provided by the 2004 Act were effective in respect of excessive
length of criminal proceedings (see Charzyński v. Poland,
cited above). However, the Court observes that the applicant's
complaint was dismissed when the proceedings in his case had already
been pending for 5 years and nearly 6 months. The Court does not
consider it necessary for the applicant, in order to comply with the
requirement of Article 35 § 1 of the Convention, to lodge a new
complaint every 12 months (see Wolf v. Poland, cited above,
§ 62).
For
this reason, the Government's plea of inadmissibility on the ground
of non-exhaustion of domestic remedies with regard to the period
after 1 March 2005 must be dismissed.
The
Court further 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 parties' submissions
(a) The applicant
The
applicant argued that his case could not be considered complex simply
on account of the significant volume of evidence. He maintained that
he had not contributed to the prolongation of the proceedings. In
this respect, he admitted that he had made frequent use of his
procedural rights, but submitted that should not be reproached on
that account.
Referring
to the case-law on the subject, the applicant submitted that the
court's excessive workload could not be considered an excuse and that
the State was under a general obligation to organise its court system
efficiently. The State may be held liable not only for any delay in
the handling of a particular case, but also for a failure to increase
resources in response to a backlog of cases and for structural
deficiencies in its system of justice that cause delays.
(b) The Government
The
Government underlined that the case had been extremely complex. It
had concerned an organised criminal group and 118 charges brought
against 19 defendants. The trial court has heard so far about
400 witnesses. As of April 2006 the case file comprised 204
volumes. The Government relied on the volume of evidence obtained by
the prosecuting authorities and on the difficulties in conducting the
investigation, given the considerable number of defendants and
victims, as well as the serious nature of the offences committed by
the criminal gang.
As
regards the conduct of the authorities, the Government maintained
that they had shown special diligence required in cases of detained
persons, both at the investigative and the judicial phase of the
proceedings. The trial court had held hearings at regular intervals,
initially three, and subsequently five per month. Some of the
hearings had to be adjourned due to the absence of the defence
counsel, but the trial court had taken all available measures to
ensure their presence at the hearings. Similarly, the court had taken
measures to discipline witnesses who had failed to comply with
summonses. Consequently, the Government maintained that there had
been no delays in the proceedings for which the authorities could be
held responsible.
As
to the applicant's conduct, the Government emphasised that the
defendants had borne the main responsibility for the length of the
proceedings. The conduct of the proceedings was hindered by the
excessive exercise of procedural rights by the defendants and their
defence counsel. They had lodged hundreds of applications and
appealed against every decision, even when they had been informed
that the appeal had been inadmissible. The trial court had been
required to examine all those applications and the prolongation of
the proceedings had thus been inevitable. Due to the defendants'
attitude the hearing of evidence could only begin in April 2003. The
Government referred in that respect to the decision of the Court of
Appeal of 23 June 2004 which had observed that the main reason for
the delays in the proceedings until April 2003 had been the
obstructiveness of the defendants and the abuse of the rights of the
defence. In order to remedy that situation of intentional
prolongation of the proceedings the trial court had decided to limit
the time assigned for submission of procedural motions during every
hearing. In the Government's view, the defendants' behaviour
justified the conclusion that they had resorted to delaying tactics.
As
regards the applicant, he had contributed significantly to the length
of the proceedings by lodging numerous ill-founded applications and
appeals. On many occasions he had challenged the trial court and
requested that the case be sent back to the prosecution or
transferred to another court. At the hearing held on 18 May 2005 the
applicant had supported the request of another defendant to read all
the documents indicated in the bill of indictment. That request had
resulted in significant delay in the proceedings.
The
Government concluded that there had been no violation of Article 6
§ 1 in the present case.
2. The Court's assessment
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 (see, among
many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II).
The
Court accepts the Government's argument that the case before the
domestic authorities was undoubtedly complex. This is clearly shown,
inter alia, by the number of defendants and the volume of
evidence obtained during the proceedings. During the investigation
the prosecuting authorities gathered extensive documentary evidence.
Numerous witnesses had to be interviewed. Even before the trial had
commenced, the case file numbered 114 volumes, and the number reached
204 volumes by April 2006.
As
regards the applicant's conduct, the Court observes that he lodged
several requests for release and appealed against the court decisions
prolonging his detention. It further notes that the defendants in the
present case, including the applicant, certainly contributed to the
length of the proceedings by having made frequent applications on
procedural matters which, inevitably, led to delays in the
examination of the case. The defendants' obstructiveness and the
abuse of the rights of the defence were referred to expressly on a
few occasions by the domestic courts (see paragraphs 20-21 above).
While the applicant's conduct must have generated delays at the trial
and cast doubt on his intention to have the proceedings concluded
speedily, the Court cannot subscribe to the view that this factor
could justify the entire length of the proceedings.
As
to the conduct of the authorities, the Court notes that the trial
court initially held three hearings per month. On 13 March 2002 the
Court of Appeal directed the trial court to increase that number to
five per month. The Court notes that otherwise hearings were held
regularly and when they were adjourned it was normally for reasons
not attributable to the court. Furthermore, the trial court took
measures to ensure the presence of defence counsel and witnesses at
the hearings. On the other hand, the Court cannot but note that
following the judge rapporteur's illness and the subsequent change in
the composition of the trial court some time after 21 September
2005 the trial had to commence de novo.
The
Court further observes that on 1 March 2005 the Gdańsk Court of
Appeal found, on a complaint by the applicant about the breach of his
right to a trial within a reasonable time, that the length of the
proceedings had not been excessive. The Court of Appeal concluded
that there had been no delays caused by the trial court's inactivity.
The Court considers that the Court of Appeal in examining the
applicant's complaint generally applied standards which were in
conformity with the principles embodied in the Court's case-law. The
Court discerns only one shortcoming in the review carried out by the
Court of Appeal, namely that the latter did not regard the fact of
the applicant's detention as a relevant factor for directing the
trial court to conduct the proceedings with particular diligence.
78. In
this connection, it recalls that persons kept in detention pending
trial are entitled to “special diligence” on the part of
the authorities. Consequently, in cases where a person is detained
pending the determination of a criminal charge against him, the fact
of his detention is itself a factor to be considered in assessing
whether the requirement of a decision on the merits within a
reasonable time has been met (see, for example, Abdoella
v. the Netherlands, judgment of 25 November
1992, Series A no. 248-A, p. 17, § 24; Jabłoński v.
Poland, no. 33492/96, § 102, 21 December 2000;
Mõtsnik v. Estonia, no. 50533/99, § 40,
29 April 2003; Bąk v. Poland, cited above, §
81).
In
this respect, the Court would point out that the duty to administer
justice expeditiously was incumbent in the first place on the
domestic authorities, especially given that during a substantial part
of his trial (4 years and 18 days) the applicant remained in custody.
Notwithstanding the significant difficulties which they faced in the
present case, the domestic authorities were required to organise the
trial efficiently and ensure that the Convention guarantees were
fully respected in the proceedings. However, the Court notes that the
trial, which has already lasted over 6 years and 4 months, appears to
be still pending before the first-instance court.
Having
regard to all the circumstances of the case and the overall length of
the proceedings, the Court considers that the reasonable time
requirement of Article 6 § 1 of the Convention has not been
respected. Consequently, there has been a violation of this
provision.
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 100,000 euros (EUR) in respect of non-pecuniary
damage for both alleged violations.
The
Government argued that the applicant's claims in respect of the
complaint under Article 5 § 3 were exorbitant. They submitted
that in some cases (Świerzko v. Poland, no.
9013/02, 10 January 2006; Pasiński v. Poland, no.
6356/04, 20 June 2006) in which a similar violation of Article 5 §
3 has been found, the Court refused to make any award under
Article 41 in respect of non-pecuniary damage suffered by the
applicant. Thus, the Government invited the Court, having regard to
the particular circumstances of the present case, to rule that a
finding of a violation of Article 5 § 3 constituted in
itself sufficient just satisfaction. Alternatively, they submitted
that any award made by the Court should be considerably lower than
the amount claimed by the applicant.
The
Court notes that it has found a violation of Article 5 § 3 on
account of the excessive length of pre-trial detention and a
violation of Article 6 § 1 on account of the unreasonable length
of the proceedings. The applicant's claims were submitted in respect
of both those violations. The Court considers that the applicant has
suffered some non-pecuniary damage which is not sufficiently
compensated by the finding of the above violations of the Convention.
Taking into account that the applicant contributed to the length of
the proceedings and that the facts which gave rise to both violations
overlap to a certain extent, and making its assessment on an
equitable basis, the Court awards the applicant EUR 3,000 under
this head.
B. Costs and expenses
The
applicant also claimed EUR 1,500 for the costs and expenses incurred
before the Court.
The
Government did not comment.
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. The Court notes the applicant was paid EUR 850 in legal aid
by the Council of Europe. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 1,000 for the
proceedings before it, less the amount received by way of legal aid
from the Council of Europe. The Court thus awards EUR 150 for costs
and expenses.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the remainder of the application
admissible;
Holds that there has been a violation of Article
5 § 3 of the Convention;
Holds 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 3,000
(three thousand euros) in respect of non-pecuniary damage and EUR 150
(one hundred and fifty euros) in respect of costs and expenses, to be
converted into the national currency of the respondent State at the
rate applicable at the date of settlement, plus any tax that may be
chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above 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 16 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
