1 April 2009
by Zbigniew FINSTER
lodged on 9 May 2008
STATEMENT OF FACTS
The applicant, Mr Zbigniew Finster, is a Polish national who was born in 1969 and lives in Gdańsk.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Criminal proceedings against the applicant and his detention on remand
On 7 March 2006 the applicant was arrested on suspicion of drug trafficking.
On 9 March 2006 the Gdansk District Court (Sąd Rejonowy) ordered his detention on remand. It relied on the reasonable suspicion that the applicant had committed the offence in question. The court also considered that the applicant’s detention was justified by the severity of the penalty he faced and the risk that he would tamper with evidence.
The applicant’s detention was further extended by decisions of the Gdańsk Regional Court (Sąd Okręgowy) of 25 May, 24 August and 16 November 2006.
On 4 December 2006 the Gdańsk Regional Prosecutor (Prokurator Prokuratury Okręgowej) filed a bill of indictment against 21 persons. The applicant was indicted on a charge of drug trafficking.
The applicant’s pre trial detention was subsequently extended by further decisions of unspecified dates.
On 25 October 2007 the Gdańsk Regional Court dismissed the applicant’s request for release and extended his detention until 31 January 2008.
On 18 December 2007 the Gdańsk Regional Court dismissed the applicant’s request for release.
The applicant’s pre-trial detention was subsequently extended by the Gdańsk Regional Court in its decision of 29 January 2008 and by the Gdańsk Court of Appeal in its decisions of 20 February and 19 March 2008. On the last mentioned date the court extended the applicant’s detention until 30 June 2008. The courts observed that the continued detention of the applicant was necessary and reiterated the reasons which had been given at the initial stage of the proceedings. They invoked also the complexity of the case as the reason for extending the measure. The case file comprised at that time some 34 volumes. Furthermore, on 19 March 2008 the Court of Appeal stated in the relevant part of the reasons for its decision that:
“The need for further applying the isolation-type of preventive measure is additionally justified by the fact that the defendants had committed the offences with which they had been charged while acting in an organised criminal group or cooperating with that group. The group aimed at committing crimes of distribution of substantial amounts of intoxicants and psychotropic drugs.”
The applicant appealed against that decision. He alleged, in particular, that the grounds for the court’s decision containing a suggestion that he had committed the offences in question violated the principle of the presumption of innocence. On 8 April 2008 the Gdańsk Court of Appeal, sitting in a different panel of three judges, upheld the contested decision. It stressed that the impugned statement read in the context of the whole decision described a state of suspicion rather than a finding of the applicant’s guilt.
In the course of the proceedings, the applicant made numerous unsuccessful applications for release and appealed, likewise unsuccessfully, against refusals to release him and against decisions extending his detention. The Gdansk Court of Appeal upheld the first-instance decisions on the following dates: 30 May and 29 November 2007, 12 February, 4 March and 8 April 2008.
It appears that the applicant was released on 30 June 2008.
The proceedings are currently still pending before the first-instance court.
2. Conditions of the applicant’s detention
The applicant submitted that he had been held in dark and overcrowded cells. Moreover, he maintained that the poor living conditions deprived him of any privacy.
The applicant was detained in Sztum prison until 13 December 2006. He was held in a cell measuring five square metres and shared by three persons including the applicant.
From 14 December 2006 until 18 June 2007 he was held in Gdańsk Remand Centre in a cell measuring eight square metres.
From 19 June until 10 July 2007 he was assigned to a cell measuring five square metres.
From 10 July until 21 December 2007 he was held in a cell measuring twelve square metres.
From 22 December until the day of release the applicant was detained in a cell measuring five square metres.
The applicant lodged numerous complaints about various aspects of his detention with State authorities. They were to no avail.
On an unspecified date the applicant requested the Gdańsk District Prosecutor to institute an investigation against the Governor of Gdańsk Remand Centre. The applicant alleged that the Governor had neglected his duties (niedopełnienie obowiązków) in that he had not, inter alia, provided the detained persons with adequate sanitary and living conditions in that establishment.
On 17 December 2007 the prosecutor refused to institute an investigation into the applicant’s allegations due to the lack of statutory features of a criminal offence (brak znamion czynu zabronionego).
By a letter of 19 June 2008 the Director of the Gdańsk Regional Inspectorate of the Prison Service (Okręgowy Inspektorat Służby Więziennej) informed the applicant that his allegations about the conditions of his detention had been considered ill-founded. It was considered that the sanitary and living conditions were adequate. The Director acknowledged, however, that Gdańsk Remand Centre had faced the problem of overcrowding and, indeed, the statutory minimum standard of three square metres per person had been reduced on occasions.
B. Relevant domestic law and practice
1. Detention on remand
The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its extension, 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.
2. Conditions of detention
The relevant domestic law and practice concerning the rules on conditions of detention and available remedies are stated in the Court’s judgment in the case of Musiał v. Poland, no. 28300/06, §§ 48-61, 20 January 2009.
2. He further complains under Article 6 § 1 of the Convention about the excessive length of the proceedings.
QUESTIONS TO THE PARTIES
In this context, the parties are also invited to make their observations having regard to:
- the Committee of Ministers’ Interim Resolution CM/ResDH(2007)75 of 6 June 2007 stating that that the great number of the Court’s judgments finding Poland in violation of Article 5 § 3 of the Convention on account of the unreasonable length of pre-trial detention revealed a structural problem; and
- the Court’s judgment in the case of Kauczor v. Poland (no. 45219/06) of 3 February 2009 (not final) holding that numerous cases brought to the Court have demonstrated that the excessive length of pre-trial detention in Poland reveals a structural problem consisting of “a practice that is incompatible with the Convention (see, in particular, paragraphs 56-62).
2. Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case? Reference is made, in particular, to the grounds for the Court of Appeal’s decision of 19 March 2008.
(i) the Constitutional Court’s judgment of 26 May 2008 (no. SK 25/07) and, in particular, to its findings that:
- Article 248 § 1 of the Code of Execution of Criminal Sentences is incompatible with Article 40 (prohibition of torture or cruel, inhuman, or degrading treatment or punishment), Article 41 § 4 (right of a detainee to be treated in a humane manner) and Article 2 (the principle of rule of law) of the Constitution in that it allows for an indefinite and arbitrary placement of detainees in cells below the statutory size of 3 square metres per person, thus causing chronic overcrowding in Polish prisons and exposing detainees to the risk of inhuman treatment;
- overcrowding in prison may by itself be qualified as inhuman treatment and, if combined with various other inconveniences, even as torture;
and (ii) the Prosecutor General’s statement at the hearing before the Constitutional Court that the problem of overcrowding in Polish prisons has continually existed since 2000 and that, according to the prison authorities, 15,000 places for detainees throughout Poland are needed in order to secure to them the statutory 3 square metres per person:
Do the facts of the present application disclose the existence of a “systemic problem” such that the deficiencies in the national law and practice complained of may give rise to numerous similar applications?