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CASE OF zELAZKO v. POLAND - 9382/05 [2008] ECHR 186 (4 March 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/186.html
Cite as:
[2008] ECHR 186
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FOURTH
SECTION
CASE OF żELAZKO
v. POLAND
(Application
no. 9382/05)
JUDGMENT
STRASBOURG
4
March 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 żelazko
v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Stanislav Pavlovschi,
Ljiljana
Mijović,
David Thór Björgvinsson,
Ján
Šikuta,
Päivi Hirvelä, judges,
and
Lawrence Early, Section
Registrar
Having
deliberated in private on 12 February 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 9382/05) against the
Republic of Poland lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Polish national, Mr Maciej
żelazko
(“the applicant”), on 25 February 2005.
The
applicant was represented by Ms D. żelazko,
his mother. The Polish Government (“the
Government”) were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
On
7 September 2006 the
Court decided to communicate the complaint concerning the length of
the applicant's pre-trial detention and on 11 September 2007 to
communicate the complaint concerning the length of the proceedings to
the Government. Applying Article 29 § 3 of the Convention, it
decided to rule on the admissibility and merits of the application at
the same time.
THE FACTS
I THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1975 and lives in Sztum.
1. Criminal proceedings against the applicant and his
detention on remand
On
20 October 2000 the Otwock District Court remanded the applicant in
custody, relying on a reasonable suspicion that the applicant had
committed aggravated murder and robbery. The court also stressed the
severity of the anticipated sentence and the fact that the applicant
was a recidivist offender. Finally, the court found that there were
no special grounds, as specified in Article 259 of the Code of
Criminal Procedure, which would justify lifting the detention and
imposing a less severe preventive measure.
The
applicant's appeal against the detention order and his further
appeals against some of the decisions extending his detention as well
as his subsequent, numerous applications for release and appeals
against refusals to release him, were unsuccessful.
In
the course of the investigation, the applicant's detention was
extended by the Warsaw Regional Court on 4 January, 9 April and 5
July 2001. In all their detention decisions the courts repeatedly
relied on the original grounds given for the applicant's detention.
It also noted that certain items of evidence and a psychiatric report
on the other co-accused had not yet been obtained.
On
31 July 2001 the prosecution lodged a bill of indictment with the
Warsaw Regional Court. The applicant was charged with robbery and
murder.
The
Warsaw Regional Court held hearings on 12 April and 20 August
2002.
During
the court proceedings the authorities further extended the
applicant's detention pending trial on 16 August 2001, 25 March 2002,
27 August 2002, 13 November 2002 and on an unknown subsequent
date. The courts repeated the grounds previously given for the
applicant's continued detention. The court found that his continued
detention was necessary in order to secure the proper conduct of the
proceedings.
On
27 August 2002 the Warsaw Regional Court gave judgment. The applicant
was convicted as charged and sentenced to fifteen years'
imprisonment. He was also deprived of his civic rights for a period
of five years. The court further ordered that the period spent by the
applicant in pre–trial detention from 20 October 2000 up to the
date of his conviction was to be deducted from the sentence imposed.
The
applicant appealed. He was kept in detention pending the outcome of
his appeal for three months.
On
26 November 2002 the Warsaw Court of Appeal heard the applicant's
appeal. It quashed the first-instance judgment and remitted the case
for retrial. It ordered that the applicant's detention should
continue.
In
the retrial proceedings the Regional Court held hearings on 7 and
22 May, 14 and 29 July, 8 August, 25 September, 23 October
and 1 December 2003, 2 February, 4 June, 19 July, 8 October,
22 October and 16 November 2004.
In
the retrial proceedings the applicant made numerous, unsuccessful
applications for release and appealed, likewise unsuccessfully,
against decisions extending his detention. The relevant decisions on
the extension of his detention were given by the Warsaw Regional
Court on 17 February, 22 May, an unknown subsequent date, 23 October
and 1 December 2003, 8 March, an unknown subsequent date
and 22 July 2004. On 22 October 2004 the applicant was released
and placed under police supervision.
On
25 October 2005 the Warsaw Regional Court acquitted the applicant of
all the charges.
On 22 February 2006, upon the prosecution's appeal, the Warsaw Court
of Appeal quashed the first-instance judgment and remitted the case
to the Regional Court for reconsideration.
On
26 March 2007 the Warsaw Regional Court gave judgment. The applicant
was convicted as charged and sentenced to 15 years' imprisonment and
deprived of his civic rights for a period of 5 years. The court
further ordered the applicant's detention on remand.
The
applicant appealed against this judgment.
On
4 September 2007 the Warsaw Court of Appeal dismissed the applicant's
appeal.
Between
27 June 1999 and 3 February 2004 the applicant served a prison
sentence which had been imposed on him in two other sets of criminal
proceedings.
2. Proceedings under the 2004 Act
On
6 October 2004 the applicant lodged a complaint under section 5 of
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”).
On
23 November 2004 the Warsaw Court of Appeal dismissed the applicant's
complaint. The court observed that the length of the proceedings
could not be considered unreasonable. It examined the course of the
impugned proceedings and held that there were no delays for which the
Regional Court or Court of Appeal could be held responsible. The
hearings had been held on a regular basis and evidence from numerous
witnesses had been obtained.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Pre-trial detention
The relevant domestic law and practice concerning the
imposition of pre-trial detention (tymczasowe aresztowanie),
the grounds for its extension, release from detention and rules
governing other, “preventive measures” (środki
zapobiegawcze) at the material time are stated in the Court's
judgments in the cases of Kudła v. Poland [GC],
no 30210/96, §§ 75-79, ECHR 2000-XI;
Bagiński v. Poland, no 37444/97, §§ 42-45,
11 October 2005; and Celejewski v. Poland, no
17584/04, §§ 22-23, 4 August 2006.
B. Remedies against unreasonable length of the
proceedings
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 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 pre-trial detention 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 19 October 2000, when he was
arrested on suspicion of robbery and murder. On 27 August 2002 the
Warsaw Regional Court convicted him as charged.
As
from that date he was detained “after conviction by a competent
court”, within the meaning of Article 5 § 1 (a) and,
consequently, that period of his detention falls outside the scope of
Article 5 § 3 (see, Kudła
v. Poland, cited above,
§ 104).
On
26 November 2002 the Warsaw Court of Appeal quashed the applicant's
conviction and remitted the case to the Regional Court for
reconsideration. Following that date his detention was again covered
by Article 5 § 3. It continued until 22 October
2004 when the applicant was released.
On
26 March 2007 the Warsaw Regional Court convicted the applicant as
charged and ordered the applicant's detention on remand.
As
from that date the applicant was again detained “after
conviction by a competent court”, within the meaning of Article
5 § 1 (a) and, consequently, that period of his detention falls
outside the scope of Article 5 § 3 (see. Kudła v.
Poland, cited above, § 104).
Between
27 June 1999 and 3 February 2004 the applicant served a prison
sentence which had been imposed on him in two other sets of criminal
proceedings. This term, 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 eight months
and nineteen days.
2. The parties' submissions
(a) The applicant
The
applicant maintained that the length of his detention on remand had
been unreasonable.
(b) The Government
The
Government were of the opinion that the whole period of the
applicant's detention had been justified. They stressed that the
domestic courts dealing with the applicant's case had found his
detention to be compatible with the provisions of Article 258 of the
Code of Criminal Procedure and that no grounds warranting the
applicant's release from detention as provided for by Article 259 of
the Code had been established.
The
domestic courts had given on each occasion relevant and sufficient
reasons justifying the applicant's detention.
The
applicant's detention had been justified by the reasonable suspicion
that he had committed the offences with which he had been charged and
the fact that the charges against him attracted a heavy sentence. The
domestic courts also underlined that the applicant was a recidivist
offender.
The
Government further justified the length of the applicant's detention
with reference to the particular complexity of the case, which was
confirmed by the number of witnesses heard and the fact that various
expert opinions had to be ordered.
Lastly,
they maintained that the authorities had displayed adequate 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, cited above, § 110 et seq
and McKay v. the United Kingdom [GC], no. 543/03,
§§ 41-44, ECHR 2006-..., with further references).
(b) Application of the above principles in
the present case
The
Court observes that the judicial authorities relied, in addition to
the reasonable suspicion against the applicant, on three principal
grounds, namely: (1) the serious nature of the offences with which he
had been charged; (2) the severity of the penalty to which the
applicant was liable and the fact that the applicant was a recidivist
offender and (3) the need to collect all necessary evidence and to
obtain relevant expert opinions.
The
Court accepts that the reasonable suspicion that the applicant had
committed the offences with which he had been charged may have
warranted his detention at the early stage of the proceedings.
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 heavy sentence would be imposed on the applicant given the
serious nature of the offences at issue and the fact that he had been
a recidivist offender. According to them, the applicant's continued
detention was necessary in order to secure the proper conduct of the
proceedings (see paragraph 10 above). In this connection, 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).
In
addition, the authorities relied on the need to collect all necessary
evidence and to obtain all relevant expert opinions. Given the
relative complexity of the case and the need to obtain a considerable
amount of evidence, the Court accepts that there existed relevant and
sufficient grounds for the applicant's detention during the time
necessary to terminate the investigation, to draw up the bill of
indictment and to hear evidence from witnesses.
Taking
into account the particular circumstances of the instant case, the
Court considers that the severity of the anticipated penalty taken in
conjunction with the other grounds relied on by the authorities were
“sufficient” and “relevant” to justify
holding the applicant in detention for the entire relevant period,
that is 8 months and 19 days.
It
therefore remains to be ascertained whether the national authorities
displayed “special diligence” in the conduct of the
proceedings. The Court notes in this connection that between the date
of the applicant's arrest on 20 October 2000 and his conviction by
the Warsaw Regional Court on 27 August 2002 the domestic authorities
handled the applicant's case with relative expedition, bearing in
mind the complexity of the investigation and extensive evidentiary
proceedings. As to the conduct of the proceedings after 20
October 2000, the Court considers that it is more appropriate in
the circumstances of this case to address this matter under Article 6
of the Convention from the standpoint of the overall length of the
proceedings.
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 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 his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
The
Government refrained from addressing this complaint.
The
period to be taken into consideration began on 20 October 2000 and
ended on 4 September 2007. It thus lasted 6 years and 11 months for
two levels of jurisdiction; during that period the case was remitted
on two occasions to the first-instance court for re-examination.
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
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 considers that the Government
have not put forward any fact or argument capable of persuading it to
reach a different conclusion in the present case.
It
observes in this connection that in dismissing the applicant's
complaint that the proceedings in his case had exceeded a reasonable
time, the Warsaw Court of Appeal failed to apply standards which were
in conformity with the principles embodied in the Court's case-law
(see Majewski v. Poland, no 52690/99, § 36, 11
October 2005).
The
Court further observes that the first-instance judgments in the
present case were quashed on two occasions by the Court of Appeal.
That court indicated on each occasion that the decisions of the lower
authorities were in breach of the applicable laws (see paragraphs 13
and 17 above).
The Court considers that since the remittal of cases
for re examination is usually ordered as a result of errors
committed by lower authorities, the repetition of such orders within
one set of proceedings discloses a serious deficiency in the
operation of the legal system (mutatis mutandis, Wierciszewska
v. Poland, no 41431/98, § 46, 25 November
2003).
Finally,
the Court notes that there were delays in the proceedings which were
attributable to the authorities. Firstly, there was a delay of about
eight and a half months between the date on which the bill of
indictment had been filed and the date of the first hearing (see
paragraphs 8 and 9 above). This delay when seen against the period
taken for the investigation and the trial (22 months) is rather
significant. Secondly, it took the Warsaw Regional Court almost three
years to re-examine the applicant's case (see paragraphs 13 and 16
above). Taking into account the above, the Court considers that the
authorities failed to display special diligence in the conduct of the
proceedings.
Having
regard to its case-law on the subject, the Court finds that in the
instant case the length of the proceedings was excessive and failed
to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
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 an unspecified amount in respect of non pecuniary
damage related to distress and frustration resulting from the
excessive length of his pre-trial detention and on account of the
protracted length of the criminal proceedings against him.
The
Government invited the Court to rule that the finding of a violation
constituted in itself sufficient just satisfaction for any
non pecuniary damage sustained by the applicant.
The
Court has found no violation in respect of the applicant's complaint
under Article 5 § 3 of the Convention and therefore no award in
this respect can be made. On the other hand, the applicant has
succeeded in respect of his second complaint, namely that his case
was not heard within a reasonable time. However, the Court does not
discern any causal link between the violation found and the pecuniary
damage alleged; it therefore rejects this claim. Nevertheless, it
considers that the applicant certainly suffered non-pecuniary damage,
such as distress and frustration, on account of the protracted length
of the proceedings, which cannot be sufficiently compensated by the
above finding of a violation. Considering the circumstances of the
case and making its assessment on an equitable basis, the Court
awards the applicant EUR 2,000 in respect of non-pecuniary
damage.
B. Costs and expenses
The
applicant did not make any claim 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 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
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 2,000
(two thousand euros) in respect of non-pecuniary damage, plus any tax
that may be chargeable, to be converted into the currency of the
respondent State at the rate applicable on 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;
Done in English, and notified in writing on 4 March 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
