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HOLOWCZAK v. POLAND - 25413/04 [2008] ECHR 189 (4 March 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/189.html
Cite as:
[2008] ECHR 189
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FOURTH
SECTION
CASE OF HOŁOWCZAK v. POLAND
(Application
no. 25413/04)
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 Hołowczak v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
Ján Šikuta,
Päivi
Hirvelä,
Ledi Bianku, 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. 25413/04) 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
Hołowczak (“the applicant”), on 15 June 2004.
The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
On
8 March 2007 the
President of the Fourth Section of the Court decided to give notice
of the application to the Government. 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 1967 and lives in Czarne.
A. The applicant's pre-trial detention
On
11 February 1998 the applicant was arrested by the police on
suspicion of murder, involvement in drug trafficking and illegal
possession of a firearm. On 13 February 1998 the Kołobrzeg
District Court (Sąd Rejonowy) remanded him in custody in
view of the reasonable suspicion that he had committed the offences
in question and having regard to their seriousness. It further
considered that there was a risk that he would obstruct the proper
conduct of the investigation and influence witnesses and other
members of the criminal group to which he belonged.
In
the course of the investigation, the applicant's detention was
extended several times.
On
4 August 1998 the applicant was indicted before the Koszalin Regional
Court (Sąd Okręgowy). As the bill of indictment did
not meet the formal requirements a second bill of indictment was
served on 22 August 1998. The bill of indictment comprised
charges of murder, drug trafficking and illegal possession of a
firearm and concerned four accused.
From
13 November 1998 until 2 January 1999 the applicant served a prison
sentence imposed on him in other criminal proceedings.
From
17 February 1999 to 10 August 1999 the court held eight hearings
during which it heard evidence from sixty-six witnesses, as the
applicant and the co-accused asked for all the witnesses to be heard
during the hearing and for their testimony not merely to be read from
the investigation file.
The
hearings scheduled for 10 September 1999 and 12 October 1999 were
postponed due to the illness of a lay judge (ławnik) and
the absence of one of the lawyers.
On
13 October 1999 the court decided to hear the case from the beginning
because of the inability of the lay judge to continue to sit in the
case. From 13 October 1999 to 13 January 2000 the court held thirteen
hearings. In a number of hearings witnesses failed to appear.
On
13 January 2000 the court convicted the applicant as charged and
sentenced him to life imprisonment and forfeiture of his civic
rights. He appealed.
On
28 March 2001 the Gdańsk Court of Appeal (Sąd
Apelacyjny) quashed the judgment and remitted the case to the
Kołobrzeg District Procurator (Prokurator Rejonowy) for
further investigation.
On
14 October 2002 a new bill of indictment was lodged. It comprised the
above-mentioned charges.
The
Koszalin Regional Court proceedings were reopened on 10 December
2002.
On
28 April 2003 the Koszalin Regional Court extended the applicant's
detention until 31 July 2003. It relied on the reasonable suspicion
that the applicant had committed the offence with which he had been
charged, which was supported by evidence from witnesses and experts.
The court further considered that the need to secure the proper
conduct of the investigation justified holding him in custody. It
referred to the likelihood of a severe sentence of imprisonment being
imposed on the applicant. It also relied on the risk that the
applicant might tamper with evidence. It referred to the attempt by
the applicant and one of the co-defendants to influence the process
of taking evidence.
From
14 January 2003 to 31 May 2004 the court held thirty-eight hearings
and evidence from one hundred and forty-three witnesses was obtained.
When witnesses failed to appear, the court imposed fines on them.
During
the proceedings the applicant's detention was extended on several
occasions. The court repeated the grounds given in the previous
decisions.
It
appears that in the course of the proceedings the applicant made
unsuccessful applications for release and appealed, likewise
unsuccessfully, against refusals to release him and against decisions
extending his detention.
On
31 May 2004 the Regional Court convicted the applicant as charged and
sentenced him to life imprisonment. He appealed. The applicant's
detention was subsequently extended on several occasions.
On
1 July 2005 the Szczecin Court of Appeal upheld the judgment.
The
applicant lodged a cassation appeal with the Supreme Court (Sąd
Najwyższy). On 6 November 2006 the Supreme Court dismissed
the appeal.
B. The proceedings concerning a breach of the right to
a trial within a reasonable time
On
31 March 2005 the applicant lodged a complaint with the Szczecin
Court of Appeal 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”).
The
applicant sought a ruling declaring that the length of the
proceedings before the Koszalin Regional Court had been excessive and
an award of compensation in the amount of 10,000 Polish zlotys.
On
18 May 2005 the Court of Appeal dismissed his complaint. The court
observed that even though the case had been pending for seven years,
its length 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 could be held responsible. The hearings
had been held on a regular basis and evidence from over 100 witnesses
and several experts had been obtained. It referred to the case's
extreme complexity, involving a large number of individuals and
complicated evidentiary proceedings, as the main cause of the length
of the proceedings.
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 the 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
Court observes that the period of the applicant's detention to be
considered under Article 5 § 1 started on 11 February 1998, when
the applicant was arrested on suspicion of, inter alia, murder. On
13 January 2000 the Koszalin Regional Court sentenced the
applicant to life imprisonment. As from that date he was detained
“after conviction by a competent court”, within the
meaning of Article 5 § 1 (a) and therefore that period of his
detention falls outside the scope of Article 5 § 3 (see Kudła
v. Poland [GC], no. 30210/96, § 104). On 28 March
2001 the Gdańsk Court of Appeal quashed the applicant's
conviction. Following that date his detention was again covered by
Article 5 § 3. It continued until 31 May 2004, when
the Regional Court sentenced the applicant to life imprisonment for
murder (see paragraphs 5, 12, 13 and 20 above).
Moreover,
between 13 November 1998 and 2 January 1999 the applicant served a
prison sentence which had been imposed on him in other criminal
proceedings (see paragraph 8 above). 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.
Consequently,
the period to be taken into consideration amounts to four years,
eleven months and fourteen days.
2. The parties' submissions
(a) The applicant
The
applicant submitted that the delays in the proceedings in his case,
particularly the fact that the case had been remitted by the Gdańsk
Regional Court to the Regional Court for re-examination, had resulted
in the unreasonable length of his pre-trial detention. The applicant
contended that being a detainee for such a long period meant that he
was deprived of certain rights which were available to prisoners
serving a prison sentence. The applicant argued that the pre-trial
detention, initially justified by the domestic courts, had become
unjustified with the lapse of time.
(b) The Government
The
Government considered that the length of the applicant's pre-trial
detention had satisfied the requirements of Article 5 § 3,
in particular as his pre-trial detention had been duly justified.
Throughout the entire period the authorities had given relevant and
sufficient reasons for extending it. They also argued that the
applicant's detention had served the purpose of ensuring the proper
conduct of the investigation since there was a risk that he would
obstruct the proceedings.
Furthermore,
they justified the length of the applicant's detention by the
particular complexity of the case, which stemmed from the number of
defendants and offences, and the fact that new circumstances had come
to light in the course of the investigation.
They
further pointed out that the applicant's detention had been reviewed
at regular intervals. On each occasion the decisions to extend it and
the decisions on the applicant's appeals had been reasoned in a
relevant and sufficient manner. They argued that the decisions
prolonging pre-trial detention had not been taken automatically and
that the measure had been applied only in respect of some of the
co-accused.
With
regard to the conduct of the domestic authorities, the Government
submitted that the proceedings had been extremely complex. They
contended that the proceedings in all instances had progressed at an
acceptable pace. The courts had heard numerous witnesses and experts.
Disciplinary measures were taken against witnesses who had failed to
appear. Hearings had been scheduled at regular intervals and
adjourned for objective reasons such as the illness of a lay judge.
They also stressed that the applicant and the co-accused had asked
for all the witnesses to be heard during the hearings. Lastly, they
maintained that the authorities had shown 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, have been 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).
(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
three grounds, namely (1) the likelihood he had committed the
offences with which he had been charged, (2) the serious nature of
those offences and the severity of the penalty to which he was liable
and (3) the need to ensure the proper conduct of the proceedings in
view of the risk that he might intimidate witnesses and members of
the criminal group. As regards the latter, they relied on the fact
that the applicant and his co-defendants had used delaying tactics in
order to disrupt the taking of evidence (see paragraph 16 above).
The
applicant was charged with drug trafficking, murder and illegal
possession of a firearm committed in an organised criminal group (see
paragraph 7 above).
In
the Court's view, the fact that the case concerned a member of an
organised criminal group should be taken into account in assessing
compliance with Article 5 § 3 (see Bąk v. Poland,
no. 7870/04, § 57, 16 January 2007).
The
Court accepts that the reasonable suspicion against the applicant of
having committed serious offences may initially have warranted his
detention. It also considers that the authorities were faced with a
difficult task in determining the facts and the degree of
responsibility of each of the defendants. 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
circumstances came to light, constituted relevant and sufficient
grounds for the applicant's detention during the time necessary to
terminate the investigation, to draft the bill of indictment and to
hear evidence from the accused.
While
all the above factors could justify even a relatively long period of
detention, they did not give the domestic courts an unlimited power
to extend this measure. In this context, the Court would observe that
by the date of his original first-instance conviction the applicant
had already spent almost two years in pre-trial detention. Following
the quashing of that conviction on appeal, he was kept in custody for
a further three years and two months (see paragraphs 12, 13 and 28
above).
Moreover,
the authorities relied heavily on the likelihood that a lengthy
sentence would be imposed on the applicant given the serious nature
of the offences at issue. In this connection, the Court agrees that
the severity of the sentence faced is a relevant element in the
assessment of the risk of absconding or reoffending. However, the
Court has repeatedly held that the seriousness of charges cannot by
itself justify long periods of pre-trial detention (see, for
instance, Ilijkov v. Bulgaria, no. 33977/96, §§
80-81, 26 July 2001), which in this case amounted to over four years
and seven months.
Furthermore,
the judicial authorities found that there was a danger that the
applicant, if released, might induce witnesses to give false
testimony. In cases such as the present one 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 often is, by the nature of things, high. The
Court notes in this connection that the applicant and an co-accused
had attempted to disrupt the process of taking evidence (see
paragraph 16 above). It agrees that the applicant's attempt to
obstruct justice justified keeping him in custody in the initial
stages of the proceedings. However, this ground gradually lost its
relevance as the trial proceeded and the witnesses and co-accused
were heard. Moreover, given the absence of any further attempt on the
part of the applicant to induce witnesses or to obstruct the course
of the proceedings in any other way, it is difficult to accept that a
single attempt at collusion justified keeping him in custody for the
entire period of almost five years.
Furthermore,
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” to secure the proper conduct of criminal proceedings
are expressly foreseen by Polish law 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 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
Jabłoński v. Poland, no. 33492/96, § 83,
21 December 2000, and McKay, § 41, cited above).
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 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 further complained that the length of criminal proceedings
had been incompatible with the “reasonable time”
requirement, provided 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.
A. Period to be taken into consideration
The
period to be taken into consideration began on 13 February 1998 and
ended on 6 November 2006. It thus lasted almost eight years and nine
months at three levels of jurisdiction.
B. Reasonableness of the length of the proceedings
1. Arguments before the Court
The
Government submitted that the length of the proceedings could be
explained by the complexity of the case, the difficulties in
obtaining evidence from numerous witnesses and the conduct of the
applicant. In this connection, the Government pointed out that the
applicant had requested that all the witnesses be heard. The
Government submitted that the authorities had shown special diligence
in conducting the applicant's highly complicated case. They noted
that the hearings had been scheduled at regular intervals, that
several hearings had been adjourned for reasons beyond the control of
the courts and that the courts had applied disciplinary measures
against witnesses who had failed to appear.
2. The Court's assessment
The
reasonableness of the length of proceedings must be assessed in the
light of the circumstances of the case and with regard to the
criteria laid down in the Court's case-law, in particular the
complexity of the case and the conduct of the applicant and of the
relevant authorities which in this instance call for an overall
assessment (see, among many other authorities, Pélissier
and Sassi v. France [GC], no. 25444/94, § 67, ECHR
1999-II, and Szeloch v. Poland, no. 33079/96, § 101,
22 February 2001).
The
Court considers that the subject matter of the case before the
domestic courts was undoubtedly complex, as shown, inter alia,
by the fact there were four accused and the case concerned an
organised criminal group. Establishing the facts of the case
necessitated submitting a substantial amount of evidence to the court
and examining a large number of witnesses. It is to be noted in this
connection that on 18 May 2005 the Szczecin Court of Appeal stressed
that the case was particularly complex (see paragraph 25 above).
On
the other hand, the Court cannot accept the Government's argument
that the applicant was responsible for prolonging the proceedings by
requesting that all the witnesses be heard during the hearings. In
particular, even if the Court were to accept that the defendants,
including the applicant, had contributed to certain delays during the
trial by making use of their procedural rights, it considers that
that factor could not justify the length of the proceedings. In that
connection, the Court emphasises that the Government did not refer to
particular acts indicating that the applicant had obstructed the
trial and did not give any details in respect of the applications and
appeals to which they referred.
As
to the conduct of the judicial authorities, the Court notes that the
first hearing in the case was held only six months after the bill of
indictment had been lodged with the Koszlin Regional Court. It is
true that the proceedings were conducted speedily at the beginning of
the judicial proceedings. However, the lay judge's illness prolonged
the judicial proceedings significantly and the first-instance
judgment was given on 13 January 2000. The Court further notes
that the proceedings, in their investigative phase, after being
remitted by the Gdańsk Court of Appeal to the Kołobrzeg
District Prosecutor were conducted from March 2001 to 14 October
2002. After the bill of indictment had been filed with the court on
the latter date, the first hearing was fixed for 14 January 2003.
After the case had been remitted for further examination, the
proceedings lasted more than four years at three instances.
The
Court also notes that a number of hearings in the case were adjourned
because either the co-accused or witnesses failed to comply with
summonses (see paragraph 11 above). However, the domestic court made
efforts to expedite the proceedings, in particular by imposing fines
on absent witnesses (see paragraph 17 above).
The
Court further observes that on 18 May 2005 the Szczecin 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 analysed the
entire period of the proceedings and found no undue delays caused by
inactivity or improper actions on the part of the trial court.
Nevertheless,
the Court must point out that the duty to administer justice
expeditiously was incumbent in the first place on the domestic
authorities, especially as during the whole of the trial the
applicant remained in custody, even though for a short period he was
serving a prison sentence at the same time. The Court has stressed on
many occasions, in relation to Article 5 § 3, that 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 Abdoella v.
the Netherlands, judgment of 25 November 1992, Series A no.
248 A, pp. 16-17, § 24).
On
the basis of the above considerations, and observing that the
proceedings lasted eight years and nine months, the Court considers
that the reasonable time requirement within the meaning of Article 6
§ 1 of the Convention was exceeded.
There
has therefore been a violation of Article 6 § 1 of the
Convention.
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 50,000 euros (EUR) in respect of non pecuniary
damage.
The
Government asked the Court to reject the claim as being exorbitant.
The
Court considers that the applicant must have sustained non pecuniary
damage. Ruling on an equitable basis, it awards him EUR 5,000
under this head.
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 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 5,000 (five thousand euros) in respect of
non-pecuniary damage, 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 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 4 March 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza Registrar President
