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PISARKIEWICZ v. POLAND - 18967/02 [2008] ECHR 64 (22 January 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/64.html
Cite as:
[2008] ECHR 64
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FOURTH
SECTION
CASE OF PISARKIEWICZ v. POLAND
(Application
no. 18967/02)
JUDGMENT
STRASBOURG
22 January
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 Pisarkiewicz v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Josep
Casadevall,
Giovanni Bonello,
Kristaq Traja,
Lech
Garlicki,
Ján Šikuta,
Päivi Hirvelä,
judges,
and Lawrence Early, Section Registrar,
Having
deliberated in private on 4 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 18967/02) against the
Republic of Poland lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Polish national, Mr Dariusz
Pisarkiewicz (“the applicant”), on 1 August 2001.
The
Polish Government were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
On
17 October 2006 the Court declared the application partly
inadmissible and decided to communicate the complaints concerning the
length of the applicant’s pre-trial 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.
On
31 March 2005 the applicant had expressed a wish to have – in
the event of his death – the proceedings in the case continued
by his partner Ms Ewa Kocik. After the applicant’s death,
on 21 February 2007, Ms Ewa Kocik
informed the Court’s Registry that she wished to continue the
proceedings before the Court in her partner’s stead. Ms Ewa
Kocik is represented by Mr B. Pruszyński, a lawyer practising in
Łódź.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1957 and lived in Łódź,
Poland.
On
14 June 1998 the applicant was arrested on suspicion of attempted
murder.
On
15 June 1998 the Łódź District Court (Sąd
Rejonowy) remanded the applicant in custody until 14 September
1998. The court notes that the applicant was suspected of having
committed a serious offence and that there was strong evidence
against him. There was also the risk that he might attempt to
intimidate witnesses, abscond or go into hiding. The
court also stressed the likelihood that a heavy penalty would be
imposed on him.
On
24 June 1998 the Łódź District Prosecutor
(Prokurator Rejonowy) dismissed the applicant’s request
for release. The decision was upheld by the Łódź
Regional Prosecutor (Prokurator Okręgowy) on 7 July 1998.
The prosecutor relied on the fact that the applicant, shortly before
his arrest, had been wanted by the police in another case and that he
had no permanent place of residence.
The
applicant’s detention was subsequently extended pending trial
several times by the Łódź Regional Court. Each time,
the court repeated the reasons previously given for the applicant’s
detention and, further, relied on the need to take expert evidence.
The court requested that an expert opinion be prepared by the end of
November 1998.
On
18 December 1998 the Łódź District Prosecutor
indicted the applicant for attempted murder.
On
2 June 1999 the trial began, the bill of indictment was read and the
court began hearing statements from the applicant. In the course of
giving explanations the applicant felt unwell and the hearing was
adjourned.
The
applicant’s state of health did not prevent him from
participating in the proceedings. The next hearing was held on 2
September 1999. Subsequent hearings were held at regular intervals
ranging from one to four months. Several hearings were adjourned for
different reasons, such as the absence of one of the judges, the need
to examine the victim’s place of residence and to request
expert opinions on biological and chemical examination of tracks.
On
5 June 2000 the Łódź Regional Court (Sąd
Okręgowy) convicted the applicant of attempted murder and
sentenced him to 12 years’ imprisonment. The applicant appealed
on 15 September 2000.
On
22 January 2001 the Łódź Court of Appeal (Sąd
Apelacyjny) quashed the first-instance judgment and remitted the
case to the prosecutor for further investigation. The applicant
remained in custody.
On
30 March 2001 the prosecutor refused an application for release by
the applicant. He found that there were no reasons for releasing him.
The
applicant’s detention was extended by the Regional Court on
23 March, 22 June, 17 August and 16 November 2001. Appeals by
the applicant against those decisions, and requests for release, were
dismissed.
On
6 July 2001 the prosecutor lodged a new bill of indictment with the
Łódź Regional Court and accused the applicant of
attempted murder.
The
Regional Court held five hearings at regular intervals.
On
30 January 2002 the Łódź Regional Court convicted
the applicant as charged and sentenced him to 10 years’
imprisonment.
On
22 October 2002 the Łódź Court of Appeal upheld the
first instance judgment.
On
12 December 2002 the applicant’s officially appointed lawyer
refused to lodge a cassation appeal on his behalf because he had
found no grounds for doing so.
The
applicant died on 6 April 2006. On 30 January 2007 the Government
informed the Court that the applicant had died nearly 7 months before
the application was communicated to the Government. Furthermore, the
Government requested the Court to adjourn the examination of the
application until the applicant’s successors declared whether
they intended to pursue the application. The Court requested Ewa
Kocik, the applicant’s life partner, mentioned as his successor
before the Court in his letter of 31 March 2005, to submit
information as to whether she wished to continue the proceedings in
her partner’s stead. On 21 February 2007 Ewa Kocik informed the
Court that she wished to continue the proceedings before the Court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The
relevant domestic law and practice concerning the imposition of
pre-trial detention (aresztowanie tymczasowe), the grounds for
its extension, release from detention and rules governing other
“preventive measures” (środki zapobiegawcze)
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, §§
42-46, 11 October 2005; and Celejewski v. Poland, no.
17584/04, §§ 22-23, 4 August 2006.
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.”
A. Admissibility
The Court notes at the outset that the applicant died
after the introduction of his application. The Court was informed of
this fact only after notice had been given of the application to the
Polish Government (see paragraph 22 above). Subsequently, on 21
February 2007 his life partner Ewa Kocik
informed the Court that she wished to pursue the application
introduced by her partner.
1. The Government’s objection ratione
personae
26. The
respondent Government submitted that the application should be
declared incompatible ratione personae with the Convention.
In their view, the applicant’s partner had no legitimate
interest in pursuing the application. They referred to the fact that
during the applicant’s detention his relationship with his life
partner had deteriorated, and that this had resulted in a division of
their joint property.
27. They
further maintained that, under the national law, life partners were
not counted as statutory heirs and that E.K. might not be considered
as the applicant’s legal successor.
28. Finally,
the Government disputed the interest of the partner in conducting
further proceedings and argued that due to its nature the claim was
not transferable. The complaint by its very nature was closely linked
with the applicant personally. Therefore, the Government maintained
that neither the applicant’s heirs nor his life partner could
claim to have a sufficient legal interest to justify their claim to
proceed with the further examination of the application on their own
behalf.
The
applicant’s partner submitted that being the applicant’s
life partner for many years and the mother of his son she developed
strong emotional ties with him. She observed that she was authorised
by the applicant to continue proceedings before the Court in case of
his death. She maintained that the lengthy detention of her life
partner had had a negative impact on her private life and resulted in
prolonged moral suffering. Furthermore, she submitted that the
detention of her life partner had reduced her income and her
financial situation had thereby deteriorated.
2. The Court’s assessment
The
Court observes that in various cases in which an applicant has died
in the course of the Convention proceedings, including cases raising
length of pre-trial detention complaints, it has taken into account
the statements of the applicant’s heirs or of close family
members expressing their wish to pursue the application (see, among
other authorities, Jėčius v. Lithuania, no.
34578/97, § 41, 31 July 2000; Kalló v. Hungary,
no. 30081/02, § 24, 11 April 2006, and Bitiyeva
and X. v. Russia, no. 57953/00, § 92, 21 June 2007).
The
Court reiterates that when an applicant dies during the proceedings,
the widow of the applicant has a legitimate interest which justifies
the continuation of the examination of the case (see, for example,
Lukanov v. Bulgaria, judgment of 20 March 1997, and Sadik
v. Greece, judgment of 15 November 1996).
The
Court thus accepts that a person living in a de facto marital
relationship has a legitimate moral interest in pursuing the
application on her partner’s behalf and in obtaining a ruling
on whether the length of his detention had infringed Convention
rights. The Court notes that the applicant’s contact with his
partner and their son had diminished considerably because of the
lengthy pre-trial detention and that, by the nature of things, their
separation resulting from his detention was capable of affecting
significantly her private and family life.
Accordingly,
the late applicant’s life partner has standing to continue the
proceedings before the Court in the applicant’s stead, and the
Government’s preliminary objection should be dismissed.
3. Conclusion as to admissibility
As
to the substance of the complaint, the Court considers that the
application 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 and the Government agreed that the detention lasted from 14
June 1998 to 5 June 2000 and from 22 January 2001 to 30 January 2002.
Accordingly, the period to be considered lasted 3 years.
2. The parties’ submissions
(a) The applicant
The
applicant referred to the length of the proceedings as the principal
cause of an excessively lengthy detention. He argued that the length
of the proceedings had not been caused by him and stressed that the
necessity to hear numerous witnesses and experts did not constitute a
sufficient reason for such lengthy detention.
(b) The Government
The Government considered that the length of the
applicant’s pre trial detention satisfied the requirements
of Article 5 § 3, in particular as his pre-trial
detention had been duly justified and that during the entire period
the authorities had given relevant and sufficient reasons for
extending it.
They
also argued that the applicant’s detention served the purpose
of ensuring the proper conduct of the investigation, as there had
been a risk that he would obstruct the proceedings and intimidate
witnesses. Furthermore, they argued that his detention had been
justified by the risk of the applicant’s absconding or going
into hiding.
They
also maintained that during the proceedings additional circumstances
had come to light which justified the continuation of the applicant’s
detention.
They
further pointed out that the applicant’s detention had been
reviewed at regular intervals. On each occasion the decisions and the
applicant’s appeals against the decisions had been reasoned in
a sufficient and relevant manner.
With
regard to the conduct of the domestic authorities the Government
agreed with the Court’s assessment in the partial decision of
17 October 2006 that the proceedings in all instances had
progressed at an acceptable pace. The courts had heard numerous
witnesses. Hearings had been scheduled at regular intervals. Except
for a delay in the initial stage of the proceedings, there had been
no substantial periods of inactivity for which the domestic
authorities could be held responsible.
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 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).
(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 offences with
which he had been charged, (2) the likelihood that a heavy sentence
would be imposed on him, (3) the need to ensure the proper conduct of
the proceedings in view of the risk that he might intimidate
witnesses and (4) the risk of the applicant’s absconding or
going into hiding.
The Court accepts that the suspicion that the
applicant had committed the offence might initially justify his
detention. However, with the passage of time, this ground became less
relevant and cannot justify the entire period of three years during
which the most serious preventive measure against the applicant had
been imposed (see Malik v. Poland, no. 57477/00, § 45,
4 April 2006).
Moreover,
the authorities relied on the likelihood that a heavy sentence would
be imposed on the applicant given the serious nature of the offence
at issue. In this respect, the Court agrees that the severity of the
sentence faced is a relevant element in the assessment of the risk of
absconding or reoffending (see paragraph 7 above). However, the Court
has repeatedly held that the seriousness of the charges alone cannot
serve to justify long periods of detention (see Ilijkov v.
Bulgaria, no. 33977/96, §§ 80-81, 26 July
2001).
As
regards the risk that the applicant would intimidate witnesses, the
Court is not persuaded that it constituted a valid ground for the
entire length of the applicant’s pre-trial detention. Firstly,
it notes that the Łódź District Court, when
originally remanding the applicant in custody, referred to the risk
that the applicant would intimidate witnesses only in general and in
the context of his criminal past. Secondly, the Court notes that in
the other relevant decisions of the judicial authorities no specific
substantiation of the risk that the applicant would intimidate
witnesses emerged. In the absence of any other factor capable of
showing that the risk relied on actually existed, the Court cannot
accept that argument.
Moreover, as regards the authorities’ reliance
on the risk of the applicant’s absconding or going into hiding,
the Court observes that throughout the entire relevant period the
judicial authorities based their findings on the fact that the
applicant, shortly before his arrest, had been wanted by the police
in another case and that he had no permanent place of residence. The
Court agrees that, assuming that the applicant had been wanted in a
different case and that he had no place of residence, this factor
justified keeping him in custody in the initial stages of the
proceedings. However, the Court considers that that ground gradually
lost its force and relevance as the proceedings progressed. In
particular, given the absence of any further attempt on the part of
the applicant to obstruct the proceedings, it is difficult to accept
that this single incident could justify the conclusion that the risk
of his going into hiding persisted during the entire period that he
spent in custody (see Harazin v. Poland, no. 38227/02,
§ 42, 10 January 2006).
It is true that the applicant was detained on charges
of attempted murder but he was believed to have acted without
accomplices. It does not appear therefore that his case presented
particular difficulties for the investigation authorities and for the
courts to determine the facts and mount a case against the
perpetrator, as it would undoubtedly have done if the proceedings had
concerned organised crime (see Celejewski v. Poland,
no. 17584/04, § 37, 4 May 2006, and Dudek v.
Poland, no. 633/03, § 36, 4 May 2006).
In
the circumstances, the Court concludes that the grounds given by the
domestic authorities were not “relevant” or “sufficient”
to justify the applicant’s being kept in detention for three
years. In these circumstances, it is not necessary to examine whether
the proceedings were conducted with special diligence.
There has therefore been a violation of Article 5 §
3 of the Convention.
II. 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 150,000 Polish zlotys (PLN) (equivalent to 54,000
euros (EUR)) in respect of non-pecuniary damage.
The Government asked the Court to rule that a finding
of a violation would constitute in itself sufficient just
satisfaction. In the alternative, they invited the Court to reject
the just satisfaction claim as exorbitant.
The
Court accepts that the applicant may have suffered some non-pecuniary
damage as a result of the protracted period of detention, which is
not sufficiently compensated by the finding of a violation of the
Convention. In the circumstances of this particular case and deciding
on an equitable basis, it awards the applicant 1,500 euros under the
head of non-pecuniary damage.
B. Costs and expenses
The
applicant’s lawyer claimed costs and expenses of an unspecified
amount in respect of the proceedings before the Court. However, the
Court observes that he failed to produce any documents in support of
the claim. In those circumstances, the Court rejects the claim for
costs and expenses (see, Adamiak v. Poland, no. 20758/03,
§ 49, 19 December 2006).
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
(a) that the respondent State is to pay Mrs Ewa Kocik,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention,
EUR 1,500 (one thousand five hundred euros) in respect of
non-pecuniary damage, to be converted into Polish zlotys 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 22 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
