(Application no. 45219/06)
3 February 2009
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 Kauczor v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 13 January 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. The applicant's detention and criminal proceedings against him
Subsequently the court held sixty hearings. Approximately twenty hearings were cancelled or adjourned either because of the absence of the applicant's counsel or summoned witnesses, or because of the illness of a judge.
B. Proceedings under the 2004 Act
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Preventive measures, including pre-trial detention
Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads:
“Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused's committing another, serious offence; they may be imposed only if evidence gathered shows a significant probability that an accused has committed an offence.”
Article 258 lists grounds for pre-trial detention. It provides, in so far as relevant:
“1. Pre-trial detention may be imposed if:
(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland];
(2) there is a reasonable risk that an accused will attempt to induce [witnesses or co defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means;
2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years' imprisonment, or if a court of first instance has sentenced him to at least 3 years' imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.”
The provisions on pre-trial detention are based on the precept that pre trial detention, the most extreme among the preventive measures, should not be imposed if more lenient measures are adequate.
Article 257 reads, in so far as relevant:
“1. Pre-trial detention shall not be imposed if another preventive measure is sufficient.”
Article 259 § 1 reads:
“1. If there are no special reasons to the contrary, pre-trial detention shall be lifted, in particular if depriving an accused of his liberty would:
(1) seriously jeopardise his life or health; or
(2) entail excessively harsh consequences for the accused or his family.”
Article 259 § 3 provides:
“Pre-trial detention shall not be imposed if an offence attracts a penalty of imprisonment not exceeding one year.”
Article 259 § 4 specifies that the rule provided for in Article 259 § 3 is not applicable when the accused is attempting to evade justice, when he persistently fails to comply with summonses or when his identity cannot be established.
A more detailed description of the relevant domestic law and judicial practice concerning the imposition of pre-trial detention, the grounds for its extension, release from detention and rules governing other “preventive measures” 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 Constitutional Court ruled that the unconstitutional provision was to be repealed within six months from the date of the publication of the judgment in the Journal of Laws (Dziennik Ustaw).
“The pre-trial detention shall be extended beyond the period specified in paragraphs 2 and 3, only by the court of appeal in whose jurisdiction the proceedings are conducted, upon a motion from the court before which the case is pending, and at the investigation stage, upon a motion from the appellate prosecuting authorities. This can be done if deemed necessary in connection with a suspension of criminal proceedings, in connection with actions aiming at establishing or confirming the identity of the accused, prolonged psychiatric observation of the accused, prolonged preparation of an opinion of an expert, conducting evidentiary action in a particularly intricate case or conducting them abroad, or intentional protraction of proceedings by the accused.”
However, a new provision was added in § 4(a) of Article 263:
“The court of appeal, in whose jurisdiction the proceedings are being conducted may also, on a motion from the court before which the case is pending, order the extension of the detention on remand for a fixed period, exceeding that specified in paragraph 3, because of other important obstacles whose removal has not been possible”.
The above amendment was adopted on 12 January 2007 and entered into force on 16 February 2007 (Journal of Laws of 2007, No. 20, item 116).
B. Relevant statistical data
According to these statistics, in 2005 the total number of cases in which pre-trial detention was ordered by regional courts amounted to 3,833. That number comprised 30% of cases in which the measure lasted between twelve and twenty-four months, and 23 % of cases in which the measure exceeded two years. In 2006 the total number cases in which pre-trial detention was ordered by district courts was 4,000. It comprised over 33 % of cases in which the detention measure lasted between twelve and twenty four months, and over 21 % of cases in which the measure exceeded two years. District courts ordered pre-trial detention in 7,635 cases in 2005 and 7,632 cases in 2006. In both years, approximately in 12% of cases the detention measure lasted between twelve and twenty-four months and in approximately 2.5 % over two years.
C. Remedies for unreasonable length of proceedings
III. MEASURES TAKEN BY THE STATE TO REDUCE THE LENGTH OF PRE-TRIAL DETENTION
A. Recent amendments to the relevant legislation
In particular, newly added Article 285 § l (a), which applies in the investigative and judicial phase of criminal proceedings, empowers a trial court to impose a fine of up to 10,000 Polish zlotys (PLN) on a defence counsel or a representative of a party who has failed to obey the summons of the authority conducting the proceedings or who, without the approval of the competent authority, has left the venue of the proceedings before they were completed.
A similar admonishing measure may be applied in respect of experts, witnesses, interpreters and other persons participating in the proceedings (see among others, Articles 285 § 1, 287 and 20 § 1 (a)).
In addition, new Article 117 (a) entered into force on 20 June 2007. According to this provision it is sufficient if one of the defence lawyers or representatives of a party (who has more than one defence lawyer or representative) is present before the authority to proceed with the case.
B. Other measures
33. On 17 May 2007 the Council of Ministers (Rada Ministrów) adopted the “Plan of Actions of the Government for the execution of judgments of the European Court of Human Rights in respect of Poland” (Program Działań Rzqdu w sprawie wykonywania wyroków Europejskiego Trybunału Praw Człowieka). By virtue of that document the Minister of Justice was obliged to disseminate among judges and prosecutors on a regular basis information on the standards concerning the length of pre-trial detention stemming from the Convention and the case-law of the Court in Polish cases and to include this topic in the programmes of workshops and seminars for judges.
IV. RELEVANT COUNCIL OF EUROPE DOCUMENTS
A. The Committee of Ministers
“... Having regard to the great number of judgments of the Court finding Poland in violation of Article 5, paragraph 3, of the Convention on account of the unreasonable length of detention on remand (...)
Recalling that the obligation of every state, under Article 46, paragraph 1, of the Convention, to abide by the judgments of the Court involves an obligation rapidly to adopt the individual measures necessary to erase the consequences of the violations found as well as general measures to prevent new, similar violations of the Convention;
Stressing the importance of rapid adoption of such measures in cases where judgments reveal structural problems which may give rise to a large number of new, similar violations of the Convention;
Noting also that, although some courts have begun to refer to the Convention and the European Court's case-law in rendering decisions on the use of detention on remand, this preventive measure still seems often to be ordered without taking into consideration the Convention's requirements;
Underlining that continued detention can be justified only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty;
Recalling that the persistence of reasonable suspicion that a person arrested has committed an offence, although a condition sine qua non for the lawfulness of the continued detention, may no longer suffice after a certain lapse of time and that consequently other relevant and sufficient grounds must be presented in order to extend such detention;
Noting that the number of cases in which the European Court has found similar violations is constantly increasing,
- to continue to examine and adopt further measures to reduce the length of detention on remand, including possible legislative measures and the change of courts' practice in this respect, to be in line with the requirements set out in the Convention and the European Court's case-law; and in particular
- to take appropriate awareness-raising measures with regard to the authorities involved in the use of detention on remand as a preventive measure, including judges of criminal courts and prosecutors;
- to encourage domestic courts and prosecutors to consider the use of other preventive measures provided in domestic legislation, such as release on bail, obligation to report to the police or prohibition on leaving the country;
B. The Council of Europe's Commissioner for Human Rights
“36. The European Court of Human Rights has repeatedly found violations of Article 5 § 3 of the Convention (right of a person subject to pre-trial detention to be tried within a reasonable time) in respect of Poland. Examples of cases brought to Strasbourg where pre-trial detention has lasted between 4 to 6 years are not uncommon.
40. The Commissioner urges the Polish authorities to review the application and functioning of pre-trial detention in Polish law. The training of judges and prosecutors as regards European standards and case-law of the Strasbourg Court is crucial. The general rule should be the release rather than the detention on remand and this message needs to be strongly underlined to national judges...”
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
“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.”
1. Period to be taken into consideration
Accordingly, the period to be taken into consideration amounts to seven years, ten months and three days.
2. The parties' submissions
(a) The applicant
In particular, the applicant pointed out that the task of the trial court was to hear thirty-four witnesses and merely read out the testimonies of the other witnesses. Consequently, the time which the trial court took to examine the applicant's case was far too long. The applicant also claimed that the Government's argument that there was a risk that he would obstruct the proceedings because he had pleaded 'not guilty' breached the principle of the presumption of innocence and was unjustified. Finally, the applicant argued that during the proceedings he had been acting in compliance with his statutory rights as a defendant and none of his actions should have contributed to the protraction of the trial and his detention. The applicant concluded that the reasons for his pre-trial detention provided by the authorities had been laconic and vague. They had no justification in the circumstances of the case, especially in the light of the fact that the applicant's pre-trial detention had lasted nearly eight years and that his criminal case was still pending before the first-instance court.
(b) The Government
3. The Court's assessment
(a) General principles
(b) Application of the above principles in the present case
Furthermore, the Court observes that the risk that the applicant would tamper with the evidence was not sufficiently justified by the authorities when deciding to extend his pre-trial detention. The Court notes that the Government relied on a presumption that the applicant would obstruct the proceedings and tamper with evidence because he had not pleaded guilty to the offences charged. In so far as the domestic courts appear to have drawn adverse inferences from the fact that the applicant had not pleaded guilty, the Court considers that their reasoning showed a manifest disregard for the principle of the presumption of innocence and cannot, in any circumstances, be relied on as a legitimate ground for deprivation of the applicant's liberty (see Garycki v. Poland, no. 14348/02, § 48, 6 February 2007 and Górski v. Poland, no. 28904/02, § 58, 4 October 2005).
There has accordingly been a violation of Article 5 § 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
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. APPLICATION OF ARTICLE 46 OF THE CONVENTION
Article 46 of the Convention provides:
“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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 10,000 (ten thousand euros) in respect of non-pecuniary damage, 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;
Done in English, and notified in writing on 3 February 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza