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KUBIK v. POLAND - 12848/03 [2008] ECHR 83 (29 January 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/83.html
Cite as:
[2008] ECHR 83
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FOURTH
SECTION
CASE OF KUBIK v. POLAND
(Application
no. 12848/03)
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 Kubik 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. 12848/03) against the
Republic of Poland lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Polish national, Mr Piotr Kubik (“the applicant”),
on 24 March 2003.
The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
On
7 April 2006 the President of the Fourth Section 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 Ziębice.
On
23 January 2001 the applicant was arrested by the police on suspicion
of having committed several burglaries.
On
26 January 2001 the Ząbkowice Śląskie District Court
(Sąd Rejonowy) ordered that the applicant be remanded in
custody in view of the reasonable suspicion that he had committed the
offences in question. It further considered that there was a fear
that he would induce witnesses to give false testimony or would
otherwise obstruct the proper course of the proceedings. It also
stressed that a heavy penalty might be imposed on him.
On
15 February 2001, following an appeal by the applicant, the Świdnica
Regional Court (Sąd Okręgowy) upheld that decision.
His
further appeals against decisions extending his detention and all his
subsequent, repeated applications for release were also unsuccessful.
In his applications and appeals, he maintained that, given his bad
health, detention was putting a severe strain on him. He also relied
on his family's situation.
On
20 February 2001 the Ząbkowice Śląskie District
Prosecutor (Prokurator Rejonowy) refused the applicant's
motion for release as unsubstantiated. His appeal against the
decision was to no avail.
On
22 March 2001 the applicant was indicted before the Ząbkowice
Śląskie District Court. He was charged with fifteen counts
of attempted or actual burglary and three counts of receiving stolen
goods. The bill of indictment concerned four defendants. In all,
fifty-two charges were brought against them. The prosecution asked
the court to hear evidence from some forty-seven witnesses.
On
23 March 2001 the applicant lodged with the Ząbkowice Śląskie
District Court an application for release. He relied on his family
situation.
On
26 March 2001 the Ząbkowice Śląskie District Court
refused the applicant's application. The court stated that the
reasons for his detention were still valid and that there was a fear
that the applicant would attempt to influence witnesses or
co-defendants. It referred to the likelihood that a severe penalty
would be imposed on the applicant, as he had been charged with an
offence attracting a statutory maximum sentence of at least 8 years'
imprisonment. The court did not accept the applicant's argument that
since the date of his arrest his children had been living below the
poverty line. It observed that the applicant's wife had a job and a
steady income.
On
10 April 2001 the Ząbkowice Śląskie District Court
asked the director of the detention centre where the applicant was
being held for an opinion concerning the applicant's state of health.
On
17 April 2001 the applicant lodged a motion to hear evidence from
seven witnesses.
On
18 April 2001 the authorities of the Kłodzko Detention Centre
stated that the applicant could be held in detention and that his
detention did not impose any threat to his health.
On
19 April 2001 the Ząbkowice Śląskie District Court
extended the applicant's detention until 23 July 2001. The court gave
the following reasons for its decision:
“The reasons for his [the applicant's] detention
are still valid. There is still a fear that he will attempt to
influence [witnesses or co-defendants]; in addition there is a
likelihood that a severe penalty will be imposed on the [applicant],
because he has been charged with an offence for which he may be
liable to a statutory maximum sentence of at least 8 years'
imprisonment. Special reasons to the contrary, as referred to in
Article 259 of the CCP [Code of Criminal Procedure], have not been
found in the case. The possibility of applying another preventive
measure could be reconsidered when information from the Kłodzko
Detention Centre on his [the applicant's] health has been obtained”.
On
11 May 2001 the Świdnica Regional Court, upon the applicant's
appeal, upheld the decision of 19 April 2001. It repeated the grounds
previously given for the applicant's detention. It stated that
according to the information obtained from the Deputy Director of the
Kłodzko Detention Centre the applicant had been examined by a
doctor and would be examined in the near future by a urologist. It
further pointed out that the applicant's health was not an impediment
to his continued detention.
During
the court proceedings the authorities extended the applicant's
detention on many occasions.
The
relevant decisions were given on the following dates.
On
17 July 2001 the Ząbkowice Śląskie District Court
extended the applicant's detention until 23 October 2001. The court
gave the following reasons for its decision:
“The reasons for his [the applicant's] detention
are still valid; at the present stage of the criminal proceedings,
and taking into account the attitude of [the applicant] and the
evidence obtained, there still exists a justified fear that [the
applicant] may, in view of the likelihood that a severe penalty will
be imposed on him, attempt to obstruct the proper course of
proceedings by unlawful means, inter alia, by attempts to
induce [witnesses or co-defendants] to give false testimony; taking
into consideration that none of the grounds for release, as referred
to in Article 259 of the CCP [Code of Criminal Procedure], are
present in the case and that any other less severe preventive measure
will not guarantee the proper conduct of the proceedings, the court
has decided as above.”
A
subsequent decision was taken by the Ząbkowice Śląskie
District Court on 15 October 2001. It extended the applicant's
detention until 23 January 2002. On 22 January 2002 his
detention was extended until 23 April 2002. The next decision
was given on 22 April 2002, extending the applicant's detention until
23 July 2002. It was followed by a decision of 19 July 2002
whereby the Ząbkowice Śląskie District Court extended
his detention until 23 October 2002. In all those decisions, the
Ząbkowice Śląskie District Court relied on the grounds
previously given for the applicant's detention and repeated the
wording of its decision given on 17 July 2001.
It
appears that during the first-instance proceedings the Ząbkowice
Śląskie District Court held 13 hearings, two of which had
to be cancelled because of the absence of a defence lawyer and
witnesses. At the hearing held on 25 February 2002 the court heard
evidence from twenty-three witnesses.
All
the applicant's appeals and applications for release lodged in the
meantime were to no avail.
In
the meantime, on 14 August 2001 the Świdnica Regional Court,
having regard to a medical certificate dated 6 August
2001, dismissed the applicant's appeal against the decision of the
Ząbkowice Śląskie District Court of 17 July 2001. The
court repeated the grounds given in the decision of the
first-instance court. It also stated that the applicant had access to
appropriate medical care in detention.
On
12 February 2002, the Świdnica Regional Court dismissed the
applicant's request for release on health grounds, finding his
complaints about his deteriorating health to be unsubstantiated. It
stated that his medical records had been examined and his allegations
did not find any support in the information contained therein.
On
20 March 2002 the Ząbkowice Śląskie District Court
again dismissed the applicant's request for release on health
grounds. It emphasised that on numerous occasions the applicant's
health had been examined and it was found to be compatible with his
continued detention.
On
6 September 2002 the Ząbkowice Śląskie District Court
gave judgment. The applicant was convicted as charged. He was
sentenced to 6 years' imprisonment. The applicant appealed. His
detention was subsequently extended on two occasions.
On
22 October 2002 the Ząbkowice Śląskie District Court
extended the applicant's detention until 23 January 2003. It relied
on the grounds previously given.
On
16 January 2003 the Świdnica Regional Court extended the
applicant's detention until 23 April 2003.
On
4 March 2003 the Świdnica Regional Court quashed the
first instance judgment and remitted the case.
On
18 April 2003 the Ząbkowice Śląskie District Court
decided to extend the applicant's detention until 23 July 2003. It
relied on the grounds previously given and the need to re-examine the
evidence.
On
27 May and 17 June 2003 the Ząbkowice Śląskie District
Court held hearings.
On
8 July 2003 the Ząbkowice Śląskie District Court
convicted the applicant as charged. He was sentenced to 6 years'
imprisonment. The applicant appealed.
On
18 July 2003 the Ząbkowice Śląskie District Court
further extended the applicant's detention until 23 October 2003. The
next decision was given on 22 October 2003 whereby the court extended
his detention until 23 January 2004. The court reiterated the grounds
originally given for his detention.
On
23 December 2003 the Świdnica Regional Court heard the appeal,
quashed the first-instance judgment and remitted the case.
On
the same day the Świdnica Regional Court released the applicant
from detention.
On
1 March, 23 March and 20 April 2004 the Ząbkowice Śląskie
District Court held hearings.
On
11 May 2004 the Ząbkowice Śląskie District Court gave
judgment. It again convicted the applicant as originally charged and
sentenced him to 6 years' imprisonment.
On
9 June 2004 the applicant appealed.
On
14 January and 10 May 2005 the Świdnica Regional Court held
hearings on the applicant's appeal.
On
10 May 2005 the Świdnica Regional Court gave judgment and
reduced his sentence to 4 years' imprisonment.
The
applicant did not lodge a cassation appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The
relevant domestic law and practice concerning the imposition of
detention (aresztowanie tymczasowe), the grounds for its
extension, release from detention and rules governing other,
so-called “preventive measures” (środki
zapobiegawcze) are described 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 LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained under Article 3 of the Convention that he had
not received adequate medical treatment while in detention.
Article
3 of the Convention provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
The
Court recalls that this provision cannot be interpreted as laying
down a general obligation to release a detainee on health grounds or
to place him in a civil hospital to enable him to obtain a particular
kind of medical treatment. Nevertheless, under this provision the
State must ensure that a person is detained in conditions which are
compatible with respect for his human dignity, that the manner and
method of the execution of the measure do not subject him to distress
or hardship of an intensity exceeding the unavoidable level of
suffering inherent in detention and that, given the practical demands
of imprisonment, his health and well-being are adequately secured by,
among other things, providing him with the requisite medical
assistance (Kudła v. Poland [GC], no. 30210/96, §§
93-94, ECHR 2000-X).
On
the basis of the available material, the Court finds no indication of
any shortcomings on the part of the authorities in providing adequate
medical treatment to the applicant. Consequently, it cannot be said
that the applicant was subjected to ill-treatment that attained a
sufficient level of severity to come within the scope of Article 3 of
the Convention.
It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The
applicant complained that the length of his detention on remand had
been excessive. He relied on Article 5 § 3 of the
Convention, which, in so far as relevant, reads:
“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 23 January 2001, when he was
arrested on suspicion of having committed several burglaries. On
6 September 2002 the Ząbkowice Śląskie District
Court convicted him of several counts of burglary, attempted burglary
and receiving stolen goods (see paragraphs 5, 6 and 27 above). 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, among many other authorities, Kudła,
cited above, § 104).
On 4
March 2003 the Świdnica Regional Court quashed the applicant's
conviction. Following that date his detention was again covered by
Article 5 § 3. It continued until 8 July 2003
when the applicant was again convicted (see paragraph 33 above).
Accordingly,
the period to be taken into consideration under Article 5 § 3
lasted one year, eleven months and seventeen days.
2. The parties' submissions
(a) The applicant
The applicant maintained that the length of his detention had been
unreasonable, and thus in breach of Article 5 § 3 of the
Convention. He submitted that his detention had in effect been a
prison sentence without the possibility of applying for parole.
(b) The Government
The
Government submitted that the applicant's detention was not
unreasonably lengthy. They argued that there had been valid reasons
for holding him in detention for the entire period in question. The
domestic courts had on each occasion given relevant and sufficient
reasons justifying the applicant's detention and had regularly
reviewed it.
The applicant's detention had been justified by the
strong suspicion that he had committed the offences with which he had
been charged and the fact that the seriousness of the charges against
him and the scale of the criminal activity involved attracted a heavy
sentence. In this connection, the Government
submitted that the applicant was charged with the commission of
several burglaries in which he had played a leading role. They
maintained that the domestic courts had also relied on the risk that
the applicant might obstruct the proper conduct of the proceedings,
in particular by tampering with evidence.
The
Government further justified the length of the applicant's detention
by the complexity of the case, which stemmed from the number of
defendants and offences. The complexity was also shown by the volume
of evidence and the fact that the trial court had had to obtain
several expert opinions. They argued that his detention had been
based on the grounds specified in the Code of Criminal Procedure.
They further maintained that his medical records had been examined
several times and his detention had not exposed his health to any
risk.
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, cited above; and McKay v. the United Kingdom,
[GC], no. 543/03, §§ 41-44).
(b) Application of the above principles in
the present case
The
Court observes that, as the Government maintained, the applicant's
detention was indeed reviewed by the courts at regular intervals.
However, in their decisions extending the applicant's detention, they
limited themselves exclusively to reiterating the reasons for
detention provided for by the Code of Criminal Procedure, without
explaining how they applied in the applicant's case (see paragraphs
12, 16, 20 and 21 above). In addition to the reasonable suspicion
against the applicant, they relied principally on two grounds: (1)
the serious nature of the offence with which he had been charged and
the likely severity of his sentence; and (2) the risk that the
applicant might tamper with evidence, in particular intimidate
witnesses.
The
Court accepts that the strong suspicion of the applicant having
committed a serious offence could initially warrant his detention.
However,
with the passage of time, that ground became less and less relevant.
The Court must then establish whether the other grounds adduced by
the courts were “relevant” and “sufficient”
(see, Kudła, cited above, § 111).
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 seriousness of the 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 nearly two
years.
The
Court is not persuaded by the Government's argument that the risk
that the applicant might tamper with evidence constituted a valid
ground for the entire length of the applicant's pre-trial detention.
Although the Government have argued that the applicant had played a
leading role in the commission of the offences with which he had been
charged, the domestic courts did not refer to this in their
decisions; nor did they gave any indications as to why they believed
that the applicant, if released, might obstruct the proceedings. The
Court cannot therefore accept that ground as a justification for
holding the applicant in custody for the entire period.
Moreover,
the Court notes that the reasons relied upon by the domestic courts
in their decisions to remand the applicant in custody and to prolong
his detention were limited to paraphrasing the reasons for detention
provided for by the Code of Criminal Procedure, without explaining
how they applied in the applicant's case. Firstly, the Court observes
that the Ząbkowice Śląskie District Court, when
extending the applicant's detention, only repeated the wording of the
decisions previously given (see paragraphs 12, 16, 20 and 21 above).
Secondly, the Court notes with concern that the Ząbkowice
Śląskie District Court limited itself to reiterating the
relevant provision of the Code of Criminal Procedure. Accordingly,
the Court does not consider that the instant case can be
distinguished from Castravet v. Moldova, (no. 23393/05,
§ 34, 13 March 2007) in what concerns the relevance
and sufficiency of reasons for detention.
It
is true that, as the Government submitted, the case was of
considerable complexity given the number of defendants and offences
as well as the volume of evidence. However, it would appear that the
courts never relied on this as a factor militating against the
applicant's release.
The Court recalls that justification for any period of detention, no
matter how short, must be convincingly demonstrated by the
authorities (Belchev v. Bulgaria, no. 39270/98, §
82, 8 April 2004, and Castravet v. Moldova, § 33,
cited above). In this case, the Court finds that the grounds given by
the domestic authorities were not “relevant” and
“sufficient” to justify the applicant's being kept in
detention for nearly two 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.
III. ALLEGED
VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicant complained in general terms under Article 6 §§ 1
and 3 (c) of the Convention about the outcome of the criminal
proceedings against him, maintaining that the courts had wrongly
assessed the evidence and that his defence rights had not been
respected.
However,
the Court notes that the applicant failed to lodge a cassation appeal
against the judgment of the Świdnica Regional Court given on 10
May 2005.
Accordingly,
these 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 30,000 euros (EUR) in respect of non pecuniary
damage.
The Government considered this claim exorbitant. They
asked the Court to rule that a finding of a violation would
constitute in itself sufficient just satisfaction.
The
Court, making its assessment on an equitable basis, awards the
applicant EUR 1,000 in respect of non pecuniary damage.
B. Costs and expenses
The
applicant did not claim reimbursement of the costs and expenses
incurred before the domestic courts and the Court.
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 complaint concerning the length of
the applicant's pre-trial detention admissible and the remainder of
the application inadmissible;
Holds that there has been a violation of Article
5 § 3 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 1,000 (one
thousand euros) in respect of non-pecuniary damage, to be converted
into Polish zlotys at a 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 29 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
