British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[
Home]
[
Databases]
[
World Law]
[
Multidatabase Search]
[
Help]
[
Feedback]
European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
POPLAWSKI v. POLAND - 28633/02 [2008] ECHR 78 (29 January 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/78.html
Cite as:
[2008] ECHR 78
[
New search]
[
Contents list]
[
Printable RTF version]
[
Help]
FOURTH
SECTION
CASE OF POPŁAWSKI v. POLAND
(Application
no. 28633/02)
JUDGMENT
STRASBOURG
29 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 Popławski v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Josep
Casadevall,
Stanislav
Pavlovschi,
Lech
Garlicki,
Ljiljana
Mijović,
Ján
Šikuta,
Päivi
Hirvelä,
judges,
and Lawrence Early, Section
Registrar,
Having
deliberated in private on 8 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 28633/02) 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 Zbigniew
Popławski (“the applicant”), on 9 July 2002.
The
Polish Government were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
The
applicant alleged, in particular, that his detention on remand
exceeded a “reasonable time” within the meaning of
Article 5 § 3 of the Convention and that the length of the
second set of criminal proceedings against him had been unreasonable.
On
30 November 2006 the
President of the Fourth Section of the Court decided to communicate
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 1957 and lives in Zielona
Góra.
A. The first set of criminal proceedings against the
applicant
In 1994 the applicant was charged with assault and
battery. On 21 December 1999 the Zielona Góra
Regional Court (Sąd Okręgowy) convicted the
applicant as charged. The conviction was upheld by the Poznań
Court of Appeal (Sąd Apelacyjny) on 30 January 2001.
On 12 February 2002 the Supreme Court (Sąd Najwyższy)
dismissed the applicant's further cassation appeal.
B. The second set of criminal proceedings against the
applicant
On
1 September 1998 the applicant was arrested on suspicion of
homicide. On 3 September 1998 the Zielona Góra District
Court (Sąd Rejonowy) ordered the applicant's detention on
remand on a charge of murder.
During
the investigation, the applicant's detention was prolonged on two
occasions.
On
20 May 1999 the applicant was indicted before the Zielona Góra
Regional Court. The Regional Court extended his detention on remand
on several occasions. The court referred to the reasonable suspicion
that the applicant had committed the offence with which he had been
charged. It further stressed that holding the applicant in detention
was necessary to secure the proper conduct of the proceedings. These
decisions were upheld on appeal. The applicant made several
unsuccessful applications for release.
On
20 March 2001 the Poznan Court of Appeal prolonged the applicant's
detention. The court relied on the existence of a reasonable
suspicion against the applicant and on the likelihood that a heavy
sentence of imprisonment might be imposed on him. The Court of Appeal
also examined the course of the proceedings and established that they
had been lengthy. It instructed the trial court to concentrate on
scheduling more hearings and on taking other procedural measures to
terminate the trial promptly. The court, nevertheless, stated that
the applicant had been solely responsible for the duration of the
trial as the Regional Court had to examine his allegation that he had
acted in self-defence.
Between
12 April 2001 and 12 February 2004 the applicant was
serving a prison sentence following his conviction in another set of
criminal proceedings.
On
27 April 2001 the Zielona Góra Regional Court convicted
the applicant as charged and sentenced him to 25 years' imprisonment.
On
27 August 2001, 23 November 2001 and 22 February 2002
the Zielona Góra Regional Court prolonged the applicant's
detention. All of these decisions were upheld on appeal.
On
20 December 2001 the prosecutor filed an appeal against the
first instance conviction.
On
16 May 2002 the Poznań Court of Appeal quashed the
first instance conviction and remitted the case to the Regional
Court.
On
19 August 2002, 20 May 2003 and 7 September 2004 the
Regional Court prolonged the applicant's detention. In its
identically reasoned decisions the court referred to the likelihood
that the applicant would receive a lengthy sentence. It also pointed
out that there were no particular circumstances militating in favour
of his release, as defined in Article 259 § 1 of the
Code of Criminal Procedure.
Between
23 November 2004 and 17 December 2004 the applicant was
serving a prison sentence as a result of his conviction in another
set of criminal proceedings against him.
On
10 December 2004 the Regional Court prolonged the applicant's
detention. It considered that the need to ensure the proper course of
the proceedings and the likelihood that the applicant would receive a
lengthy sentence justified the prolongation of his detention. The
court further stressed that the trial would end soon since most of
the witnesses had already been heard.
On
27 October 2004 the applicant filed a complaint alleging that the
proceedings against him had exceeded a reasonable time and requesting
compensation for the prolongation of the proceedings. He relied on
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 3 March 2005 the Poznań Court of Appeal
gave a decision and confirmed that the proceedings before the
Regional Court had been lengthy. However, it refused to award any
compensation to the applicant.
On
14 October 2005 the Zielona Góra Regional Court convicted
the applicant of murder and sentenced him to 25 years' imprisonment.
On
9 December 2005 the Regional Court prolonged the applicant's
detention.
On
23 March 2006 the Poznań Court of Appeal quashed the
first instance conviction and again remitted the case.
On
28 February 2006 the Court of Appeal refused to release the
applicant on bail.
The
applicant again asked to be released on bail.
On
6 April 2006 the Poznań Court of Appeal refused to release
the applicant on bail and further prolonged his detention until
30 June 2006. It considered that there was a risk that the
applicant, if released, would interfere with the proper course of the
proceedings. It also held that between 1989 and 1998 the applicant
had been convicted five times and that the charges against him had
included unlawful possession of a firearm. This decision was upheld
on appeal on 18 May 2006.
On
1 June 2006 the Court of Appeal dismissed the applicant's
complaint under the 2004 Act about the alleged inactivity of the
Regional Court. The court examined only the period after
18 February 2005 as the period before that date had already
been examined. The court concluded that there had been no delays in
the proceedings after that date.
On
28 June 2006 the Regional Court again prolonged the applicant's
detention. The court stressed that there were no particular
circumstances militating in favour of his release, as defined in
Article 259 § 1 of the Code of Criminal Procedure.
This decision was upheld by the Poznań Court of Appeal on 6 July
2006.
On
2 October 2006 the applicant was released from pre-trial detention.
It appears from the parties' submissions that the criminal
proceedings before the Zielona Góra Regional Court are
pending.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The
relevant domestic law and practice concerning the imposition of
detention on remand (aresztowanie tymczasowe), the grounds for
its prolongation, release from detention and rules governing other,
so-called “preventive measures” (środki
zapobiegawcze) are stated in the Court's judgments in the cases
of Gołek v. Poland, no. 31330/02, §§ 27-33, 25
April 2006 and Celejewski v. Poland, no. 17584/04, §§
22-23, 4 August 2006.
The
relevant domestic law and practice concerning remedies for the
excessive length of judicial proceedings, in particular the
applicable provisions of the 2004 Act, are stated in the Court's
decisions in the cases of Charzyński v. Poland no.
15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v.
Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in
the case of Krasuski v. Poland, no. 61444/00, §§
34-46, ECHR 2005-V.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The
applicant complained that the length of his detention on remand in
the second set of proceedings 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 refrained from expressing an opinion on whether the
applicant's pre-trial detention had satisfied the requirements of
Article 5 § 3.
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 was detained on remand on 1 September 1998 and on 2 October
2006 he was released. However, the Court notes that on two
occasions the applicant served a prison sentence ordered by a court
in another set of criminal proceedings. On those occasions he was
therefore detained “after conviction by a competent court”,
within the meaning of Article 5 § 1 (a) and, consequently, those
two periods of detention fall outside the scope of Article 5 § 3
(see Kudła v. Poland [GC], no. 30210/96, § 104
et seq, ECHR 2000 XI).
Accordingly,
the periods of the applicant's detention that fall within the ambit
of Article 5 § 1 (c), and can be considered under
Article 5 § 3, were as follows: between 1
September 1998 and 12 April 2001, between 12 February
2004 and 22 November 2004, between 18 December 2004 and
14 October 2005 and between 23 March 2006 and 2
October 2006.
Accordingly,
the period to be taken into consideration amounts to four years and
nine months.
2. 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, cited above, § 110; and McKay v. the United
Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006-..., with
further references).
3. Application of the above principles in the present
case
The
Court observes that in the present case the authorities relied almost
exclusively on the reasonable suspicion that the applicant had
committed the offences with which he had been charged and the risk
that a lengthy sentence would be imposed. On a few occasions the
courts considered that the detention was justified by the need to
secure the proper conduct of the proceedings. They failed to advance
any other grounds for prolongation of the applicant's detention.
The
Court accepts that the reasonable suspicion against the applicant of
having committed the serious offence of homicide could initially
warrant his detention. However, with the passage of time, such ground
became less and less relevant. Moreover, even though the applicant
was detained on charges of homicide, there is no indication that he
was a member of an organised criminal gang. It does not appear that
his case presented particular difficulties for the investigation
authorities and for the courts to determine the facts and mount a
case against the applicant as would undoubtedly have been the case
had the proceedings concerned organised crime (see Celejewski
v. Poland, cited above, § 37, and Malik
v. Poland, no. 57477/00, § 49, 4 April 2006).
The
Court reiterates that, while the severity of the sentence faced is a
relevant element in the assessment of the risk of absconding or
re-offending, the gravity of the charges cannot by itself justify
long periods of detention on remand (see, for instance, Ilijkov
v. Bulgaria, no. 33977/96, §§ 80-81, 26 July
2001). Therefore, the Court does not consider that those grounds,
which were repeated in all of the decisions of the domestic
authorities, can suffice to justify the extraordinarily long period
in issue.
The
Court further notes that there is no specific indication that during
the period of the applicant's pre-trial detention between September
1999 and April 2006 the authorities envisaged the possibility of
imposing on him other preventive measures – such as bail or
police supervision – expressly foreseen by the Polish law to
secure the proper conduct of the criminal proceedings.
In
this context the Court would emphasise that under Article 5 § 3
the authorities, when deciding whether a person should be released or
detained, are obliged to consider alternative measures of 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 Jablonski v. Poland,
no. 33492/96, § 83, 21 December 2000).
In
the circumstances, the Court concludes that the grounds given by the
domestic authorities were not “relevant” and “sufficient”
to justify the very considerable period of the applicant's detention.
It is
thus 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 ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE SECOND SET OF
CRIMINAL PROCEEDINGS
The
applicant complained that the length of the second set of criminal
proceedings against him had been incompatible with the “reasonable
time” requirement, laid down in Article 6 § 1 of the
Convention, which reads as follows:
““In the determination of ... any criminal
charge against him, everyone is entitled to a fair ... hearing within
a reasonable time by [a] ... tribunal...”
The
Government contested that argument.
The
period to be taken into consideration began on 1 September 1998 and,
according to the parties' submissions, has not yet ended. It has thus
lasted over nine years for two levels of jurisdiction.
A. Admissibility
The
Government submitted that the applicant had not exhausted remedies
available under Polish law. They maintained that he had not lodged a
civil claim for compensation for damage suffered due to the excessive
length of the proceedings with the Polish civil courts under
Article 417 of the Civil Court.
The
applicant generally contested the Government's arguments.
The
Court recalls that the rule of exhaustion of domestic remedies
referred to in Article 35 § 1 of the Convention requires an
applicant first to use the remedies provided by the national legal
system. The rule is based on the assumption that the domestic system
provides an effective remedy in respect of the alleged breach. In
order to comply with the rule, normal recourse should be had by an
applicant to remedies which are available and sufficient to afford
redress in respect of the breaches alleged (see Aksoy v. Turkey,
judgment of 18 December 1996, Reports of Judgments and Decisions
1996-VI, pp. 2275–76, §§ 51–52).
The Court also reiterates that, although Article 35 §
1 requires that the complaints intended to be brought subsequently
before the Court should have been made to the appropriate domestic
body, it does not require that, in cases where the national law
provides for several parallel remedies in various branches of law,
the person concerned, after an attempt to obtain redress through one
such remedy, must necessarily try all other means (see, mutatis
mutandis, H.D. v. Poland (dec.),
no. 33310/96, 7 June 2001, Kaniewski v. Poland,
no. 38049/02, §§ 32-39, 8 November 2005).
The Court notes that the applicant lodged two
complaints about the length of the proceedings under the 2004 Act. On
3 March 2005 the Poznan Court of Appeal admitted that the proceedings
had been lengthy but refused to award any compensation to the
applicant. Afterwards, and given the fact that the proceedings had
not been terminated, the applicant lodged a second complaint which
was dismissed on 1 June 2006 by the Poznan Regional Court. The Court
has already examined that remedy for the purposes of Article 35
§ 1 of the Convention and found it effective in respect of
complaints about the excessive length of judicial proceedings in
Poland (see Michalak v. Poland (dec.)
no. 24549/03, §§ 37-43).
The
Court considers therefore that, having exhausted the available remedy
provided by the 2004 Act, the applicant was not required to embark on
another attempt to obtain redress by bringing a civil action for
compensation (see Cichla v. Poland, no. 18036/03, § 26,
10 October 2006). Accordingly, the Court concludes that, for the
purposes of Article 35 § 1 of the Convention, the
applicant has exhausted domestic remedies. For these reasons, the
Government's plea of inadmissibility on the ground of non-exhaustion
of domestic remedies must be dismissed.
The
Court further notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention. It also
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.
Having regard to its case-law on the subject, the Court considers
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. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant raised several complaints invoking numerous Articles of the
Convention. In particular, he complained about unfairness and the
length of the first set of criminal proceedings against him. He
further complained about unfairness of the second set of the criminal
proceedings. These complaints fall to be examined under Article 6 §
1 of the Convention.
With
regard to the applicant's complaint relating to the unfairness of the
first set of proceedings, the Court reiterates, that it is not called
upon to deal with errors of fact and law allegedly committed by a
national court unless and in so far as they may have infringed rights
and freedoms protected by the Convention (see García Ruiz
v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).
The
Court observes that the applicant does not allege any particular
failure to respect his right to a fair hearing. Assessing the
criminal proceedings against the applicant as a whole, it finds no
indication that they were unfairly conducted.
It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
The
applicant also complained about the unreasonable length of the first
set of proceedings that lasted between 1994 and 12 February 2002. He
also raised several complaints relating to unfairness of the second
set of criminal proceeding which are pending before the
first-instance court.
However,
pursuant to Article 35 § 1 of the Convention:
“The Court may only deal with the matter after all
domestic remedies have been exhausted, according to the generally
recognised rules of international law ...”
With
regard to the complaint about the length of the first set of
proceedings, the Court notes that they came to an end on 12 February
2002, i.e. less than three years before 17 September 2004, the date
on which the 2004 Act had come into force.
It further observes that, pursuant to section 16 of
the 2004 Act, it was open to persons such as the applicant to seek
compensation in tort from the State Treasury, relying on Article 417
of the Civil Code for damage caused by the allegedly excessive length
of proceedings in which a judicial decision on the merits of the case
had already been given (see Turzyński v. Poland
(dec.), no. 10453/03, 22 November 2005).
The Court has already examined whether a civil action
for damages brought under section 16 of the 2004 Act read together
with Article 417 of the Civil Code was an effective remedy in
respect of the length of judicial proceedings. It held, having regard
to the characteristics of these remedies and notwithstanding the
absence of established judicial practice in respect of such claims,
that these remedies were effective in respect of persons who on 17
September 2004, when the 2004 Law entered into force, could still
lodge such an action with the competent domestic court (see Krasuski
v. Poland, judgment of 14 June 2005, §§ 69-72).
However,
the applicant has chosen not to avail himself of this remedy.
As
regards the complaints relating to unfairness of the second set of
criminal proceedings, the Court observes that according to the
parties' submissions, they are pending before the Zielona Gora
Regional Court. It is thus open to the applicant to appeal against
the judgment and, subsequently, to lodge a cassation appeal with the
Supreme Court. Accordingly, the applicant still can, and should, put
the substance of the complaint before the domestic authorities and
ask for appropriate relief.
It
follows that both complaints must be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
IV. 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 20,000 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 just satisfaction.
The
Court awards the applicant EUR 6,000 in respect of non-pecuniary
damage.
B. Costs and expenses
The
applicant did not submit any claim for reimbursement 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 complaints concerning the length of
the applicant's pre-trial detention and the length of the second set
of criminal proceedings against the applicant admissible and the
remainder of the application inadmissible;
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 6,000 (six
thousand euros) in respect of non-pecuniary damage, plus any tax that
may be chargeable, to be converted into Polish zlotys at the rate
applicable at 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;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 29 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
