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DZITKOWSKI v. POLAND - 35833/03 [2007] ECHR 993 (27 November 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/993.html
Cite as:
[2007] ECHR 993
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FOURTH
SECTION
CASE OF DZITKOWSKI v. POLAND
(Application
no. 35833/03)
JUDGMENT
STRASBOURG
27
November 2007
FINAL
27/02/2008
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 Dzitkowski 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 6 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 35833/03) 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 Zygmunt
Dzitkowski (“the applicant”), on 22 October 2003.
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 the complaint concerning the length of the applicant's
detention 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. Subsequently, on 8
June 2006 the Court decided to communicate the complaint concerning
the alleged censorship of the applicant's correspondence.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1943 and lives in Sopot.
A. Criminal proceedings against the applicant and his
detention on remand
The
applicant was arrested on 24 October 2000 on suspicion of armed
robbery. On the same day the Gdańsk District Court remanded the
applicant in custody in view of the reasonable suspicion that he had
committed armed robbery. That suspicion was supported by evidence
obtained in the course of the investigation. The District Court
further held that there was a reasonable risk that the applicant
would obstruct the investigation and go into hiding. It also had
regard to the severity of the anticipated penalty.
Later,
several other persons were detained and charged in connection with
the same investigation conducted by the Department of Organised Crime
of the Gdańsk Regional Prosecutor's Office.
On
9 January 2001 the Gdańsk Regional Court prolonged the
applicant's detention until 31 March 2001. It found that the grounds
previously relied on were still valid. In addition, it held that the
prolongation of his detention was justified by the need to obtain
evidence, including expert reports, from many sources.
On
15 March 2001 the Gdańsk Regional Court extended the applicant's
detention until 31 May 2001. In addition to the grounds previously
invoked, it considered that there was a reasonable risk that the
applicant would induce the witnesses to give false testimonies.
On
15 May 2001 the prosecution filed a
bill of indictment with the Gdańsk Regional Court.
The applicant was charged with one count 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
were all 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 31 October 2001, finding that it was necessary in
order to prevent him – and his other 12 detained 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 the number of witnesses to be heard.
On
16 October 2001 the Gdańsk Regional Court prolonged the
applicant's detention until 31 March 2002, considering that the
grounds originally given for remanding him in custody were still
valid. In respect of the danger of pressure being brought to bear on
witnesses, the Regional Court held, having regard to evidence given
by a witness R.G., that some of the defendants had attempted to
induce witnesses to give false testimonies.
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.
During
the hearing held on 30 January 2002 the trial court ordered the
removal of the applicant and some other defendants from the court
room because of their disruptive behaviour.
Further
prolongation of the applicant's detention were ordered by the Gdańsk
Regional Court on 27 March 2002 (up to 30 September 2002) and on 26
September 2002 (up to 24 October 2002). In both those decisions, the
Regional Court considered that the applicant's detention was the only
measure which could prevent him from interfering with the
proceedings.
It
appears that the applicant refused to participate in the hearing held
on 16 September 2002.
Since
on 24 October 2002 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 prolongations of the
applicant's detention were ordered by the Gdańsk Court of
Appeal. The relevant decisions were given on 2 October 2002
(extending his 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) and 17 December
2003 (ordering his continued detention until 30 June 2004). 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 his detention was the only measure which could secure
the proper conduct of the proceedings in that particularly complex
case, given the nature of the charges, the number of defendants and
the connections between them. In addition, it referred to the volume
of evidence to be heard.
In
its decision of 2 October 2002 prolonging the applicant's detention,
the Court of Appeal considered that holding him in custody was
necessary at least until he had been heard.
On
15 January 2003 the applicant and 17 of his co-defendants
unsuccessfully challenged the judges and lay members of the trial
court.
In
its decision of 25 June 2003 extending the applicant's detention, the
Court of Appeal observed that the trial could not have been
terminated due to obstructiveness on the part of the defendants who
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 of 29 January 2004 dismissing the applicant's appeal
against the decision of 17 December 2003 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 tampering 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, including on the ground that
his detention entailed harsh consequences for his family. He
appealed, likewise unsuccessfully, against refusals to release him
and decisions extending his detention.
The
applicant's detention on remand ended on 30 June 2004 when the last
order prolonging his detention expired. The applicant was released on
31 August 2004 after having served a sentence of imprisonment that
had been imposed on him in another set of proceedings.
On
21 March 2005 the Gdańsk Regional Court made a severance order
with a view to expediting the proceedings, and thereafter four
defendants, who in the meantime had been released, were to be tried
separately.
By
June 2005 the trial court had held some 135 hearings of the 162 which
had been scheduled. It heard more than 400 witnesses.
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
24 November 2005 the trial court made a further severance order and
split the case into eleven separate cases.
It appears that the proceedings are still pending
before the first-instance court.
B. The
alleged censorship of the applicant's correspondence with the Court
The
applicant's letter to the Court of 10 April 2006 bears a stamp
“censored day ... ... year” (cenzurowano dnia ... ...
r.) and no signature. The envelope in which that letter was sent
bears a stamp confirming that the applicant's letter was received for
dispatch by the administration of the Gdańsk Detention Centre on
9 April 2006. However, according to the postage stamp the letter was
posted only on 13 April 2006. The envelope also bears a note written
in pencil: “D.[etention] on R.[emand] the Sopot District
Prosecutor Ds” (T.A. Prok. Rej. Sopot Ds.) and another
illegible note also written in pencil. It also appears that the
envelope was cut open and subsequently resealed with an adhesive
tape.
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 concerning the censorship of prisoners'
correspondence is set out in the Court's judgment in the case of
Michta v. Poland, no. 13425/02, §§ 33-39, 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 excessive. He relied on Article 5 § 3 of the
Convention, which reads, in so far as relevant:
“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 24 October 2000, when he was
arrested on suspicion of armed robbery. That period came to an end on
30 June 2004 when the last order prolonging his detention on remand
expired. It appears that the trial is pending.
However,
between 8 November 2001 and 23 November 2001, between 8 January 2002
and 28 January 2002, and between 23 March 2003 and 31 August 2004 the
applicant served prison sentences which had been imposed on him in
other criminal proceedings. The overall period during which the
applicant served prison sentence comes to 1 year, 6 months and 15
days. 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 2 years, 1
month and 22 days.
2. The parties' submissions
(a) The applicant
The
applicant asked the Court to continue the examination of his case,
but did not make any specific submissions.
(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 offence with
which he had been charged 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 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.
Furthermore,
the Government maintained that the defendants, including the
applicant, had borne the main responsibility for the length of the
trial by lodging numerous ill-founded applications and appeals.
Lastly, they 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 judgements (see, among many other authorities,
Kudła v. Poland [GC], no. 30210/96, § 110
et seq, ECHR 2000 XI; and McKay v. the United Kingdom
[GC], no. 543/03, §§ 41-44, ECHR 2006-..., with further
references).
(b) Application of the above principles in
the present case
In
their detention decisions, the authorities, in addition to the
reasonable suspicion against the applicant, relied principally on
four grounds, namely (1) the severity of the penalty to which he was
liable and the consequential risk that he might obstruct the trial by
influencing witnesses, (2) the nature of the charges against him, (3)
the risk that the applicant might go into hiding 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
Court notes that the applicant was charged with armed robbery
committed in an organised armed criminal gang (see paragraph 9
above). When assessing compliance
with Article 5 § 3 of the Convention, it will take into account
the fact that the present case concerned a person charged with being
a member of a criminal gang (Bąk v. Poland,
no. 7870/04, § 57, 16 January 2007).
The
Court accepts that the reasonable suspicion against the applicant of
having committed the serious offence may initially have warranted his
detention. However, with the passage of time that ground inevitably
became less and less relevant. It must then establish whether the
other grounds advanced by the judicial authorities were “relevant”
and “sufficient” to continue to justify the deprivation
of liberty.
The
Court notes that the judicial authorities relied on the likelihood
that a severe sentence would be imposed on the applicant given the
serious nature of the offences at issue. According to them, that
likelihood created a presumption that the applicant would obstruct
the proceedings. In this respect, the Court recalls that the severity
of the sentence faced is a relevant element in the assessment of the
risk of absconding or re-offending. It 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). 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
(see Szydłowski v. Poland, no. 1326/04, § 55;
Malikowski v. Poland, no. 15154/03, § 54 and Osiński
v. Poland, no. 13732/02, § 53, all judgments delivered on
16 October 2007).
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. In these circumstances, the Court considers
that the need to obtain voluminous evidence from many sources and to
determine the facts and degree of alleged responsibility of each of
the co-defendants, constituted relevant and sufficient grounds for
the applicant's detention during the period necessary to terminate
the investigation, to draw up the bill of indictment and to hear
evidence from the accused. 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 otherwise obstruct the proceedings,
is by the nature of things often particularly high. In this respect,
the Court notes that the applicant and his co-defendants by their
obstructive behaviour, tried to delay the trial (see paragraphs 13,
15 and 19 above).
The
foregoing considerations are sufficient for the Court to conclude
that the grounds given for the applicant's pre-trial detention were
“relevant” and “sufficient” to justify
holding him in custody for the entire relevant period, that is
2 years, 1 month and 22 days.
It
therefore remains to be ascertained whether the national authorities
displayed “special diligence” in the conduct of the
proceedings. In this regard, the Court 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, hearings in the applicant's case were
held regularly and at fairly short intervals. Furthermore, the Court
cannot overlook the fact that the obstructiveness on the part of the
defendants, including the applicant (see paragraphs 13, 15 and 19
above) had a negative impact on the progress of the trial. For these
reasons, the Court considers that the domestic authorities handled
the applicant's case with relative expedition.
Having
regard to the foregoing, the Court finds that there has been no
violation of Article 5 § 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLES 8 AND 34 OF THE
CONVENTION
The
Court raised of its own motion a complaint under Articles 8 and 34 of
the Convention concerning the interference with the applicant's
correspondence. Article 8, 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.”
Article
34 provides:
“The Court may receive applications from any
person, non-governmental organisation or group of individuals
claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the
Protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
A. Admissibility
The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
The
Government submitted that there had been no interference with the
applicant's right to respect for his correspondence. In their view
there was no indication that the correspondence had been censored or
that the contents of the letter had been checked. The applicant's
letter to the Court bore a stamp “censored”, however
without any signature, date or the name of the authority which might
have stamped it. Thus, the Government had serious doubts whether the
applicant's letter had indeed been censored by the authorities. The
Government further submitted that the applicant had been in no way
hindered in the exercise of his right of petition to the Court,
therefore, the facts of the case disclosed no breach of Article 34
of the Convention.
The Court's assessment
(a) Existence of an interference
The
Court notes that the authorities marked the applicant's letter to the
Court with the “censored” stamp (see paragraph 28 above).
It also appears that the envelope in which that letter was sent had
been cut open and subsequently resealed with adhesive tape.
The
Court considers that marking the applicant's letter with the
“censored” stamp indicates that there was a reasonable
likelihood that the letter had been opened and their contents read.
The Court has held on many occasions that as long as the Polish
authorities continue the practice of marking detainees' letters with
the “censored” stamp, the Court has no alternative but to
presume that those letters have been opened and their contents read
(see Matwiejczuk v. Poland, no. 37641/97, §
99, 2 December 2003; Pisk-Piskowski v. Poland, no. 92/03,
§ 26, 14 June 2005 and Michta, cited above, § 58).
It follows that there was an “interference” with the
applicant's right to respect for his correspondence under Article 8.
(b) Whether the interference was “in
accordance with the law”
The
Government did not indicate a concrete legal basis in the domestic
law for the impugned interference. The Court notes that the
interference took place in April 2006 when the applicant had been
detained on remand in the Gdańsk Detention Centre.
The
Court observes that, according to Article 214 of the Code of
Execution of Criminal Sentences, persons detained on remand should
enjoy the same rights as those convicted by a final judgment.
Accordingly, the prohibition of censorship of correspondence with the
European Court of Human Rights contained in Article 103 of the same
Code, which expressly relates to convicted persons, was also
applicable to detained persons (see Michta, cited above, §
61 and Kwiek v. Poland, no. 51895/99, § 44, 30
May 2006). Thus, censorship of the applicant's letter to the Court
was contrary to the domestic law. It
follows that the interference in the present
case was not “in accordance with the law” as required
under Article 8 of the Convention.
Accordingly,
there has been a breach of Article 8 in that respect. Having regard
to this finding, the Court does not consider it necessary to examine
this complaint under Article 34 of the Convention (see,
Pisk-Piskowski, cited above, § 29).
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.”
The
applicant did not submit a claim for just satisfaction.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the remainder of the application
admissible;
Holds that there has been no violation of
Article 5 § 3 of the Convention;
Holds that there has been a violation of Article
8 of the Convention;
Holds that there is no need to examine the
complaint under Article 34 of the Convention.
Done in English, and notified in writing on 27 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.
T.L. Early Nicolas Bratza
Registrar President
