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PINKOWSKI v. POLAND - 16579/03 [2010] ECHR 232 (23 February 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/232.html
Cite as:
[2010] ECHR 232
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FOURTH
SECTION
CASE OF PIŃKOWSKI v. POLAND
(Application
no. 16579/03)
JUDGMENT
STRASBOURG
23
February 2010
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 Pińkowski v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Giovanni
Bonello,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ledi
Bianku,
Mihai
Poalelungi,
judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 2 February 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 16579/03) 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 Mariusz
Pińkowski (“the applicant”), on 30 April 2003.
The
Polish Government (“the 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.
On
18 December 2008 the
Court decided to give notice of the application to the Government. It
was also decided to examine the merits of the application at the same
time as its admissibility (Article 29 § 3).
THE FACTS
The
applicant, Mr Mariusz Pińkowski, is a Polish national who was
born in 1970 and lives in Częstochowa.
I. THE CIRCUMSTANCES OF THE CASE
A. The applicant's pre-trial detention and criminal
proceedings against him
On
9 March 2000 the Częstochowa Regional Prosecutor (Prokurator
Okręgowy) charged the applicant with being an accomplice to
an armed robbery and murder in France.
On
the same date the Częstochowa District Court (Sąd
Rejonowy) remanded the applicant in custody. The court justified
its decision by the strong evidence against the applicant, the
likelihood of a severe sentence of imprisonment being imposed on him
if convicted and the risk that he might obstruct the proceedings.
On
an unspecified date the applicant was charged with being an
accomplice to an armed robbery, murder, false imprisonment and being
a member of an organised criminal gang (no. II K 55/01). All the
offences in question were alleged to have taken place in France.
Subsequently,
on 25 May 2001 the applicant was charged with being an accomplice to
an armed robbery and with the imprisonment, torture and murder of a
certain A.T., and with being a member of an organised criminal gang
in France.
On
18 June 2001 the bill of indictment was lodged with the Częstochowa
Regional Court.
The
applicant's pre-trial detention was extended by the decision of the
Katowice Court of Appeal (Sąd Apelacyjny) of
28 August 2000 (upheld by the Supreme Court (Sąd
Najwyższy) on 2 October 2000) and the decisions of the
Katowice Regional Court of 14 February, 28 June and 29 November
2001 (upheld by the Katowice Court of Appeal on 14 March, 22 August
and 20 December 2001, respectively).
The
courts referred to the original grounds for the applicant's detention
and, additionally, to the international dimension of the case.
Meanwhile,
on 1 March 2002 the Nowy Sącz Regional Court convicted the
applicant as charged and sentenced him to twenty-five years'
imprisonment. The reports obtained from Polish and French forensic
experts in the course of the proceedings were contradictory as
regards the cause of the victim's death. However, relying on the
witness testimony and other evidence, the court established that the
victim had died not as a result of asphyxia (when the applicant,
acting together with accomplices, strangled him with a wire and put
tape around his face) as claimed by some experts but as a result of
being shot by the applicant in a forest where the applicant had
possibly buried him with the aid of the gang.
On
3 October 2002 the Kraków Court of Appeal quashed the above
judgment and remitted the case to the prosecution for further
investigation, with a view to eliminating the major discrepancies in
the evidence obtained.
On
21 November 2003 the Częstochowa Regional Prosecutor issued a
new decision charging the applicant with, among other offences,
attempting to kill A.T. by strangling him and then hiding the body.
The supplementary investigation revealed that the victim had died as
a result of numerous wounds inflicted on him. In addition, the
applicant was found to have incited and led the other accomplices,
acting on orders from a certain R.S. All the offences in question
were alleged to have taken place in France.
Meanwhile,
the preventive measure was upheld by decisions of the Kraków
Court of Appeal of 21 February, 21 August, 3 October and 31 December
2002, and 26 March, 24 September and 16 December 2003.
Subsequently
the applicant's pre-trial detention was extended by the trial court,
the Nowy Sącz Regional Court, in its decisions of 29 June and
15 November 2004 and of 29 March and 19 August 2005 (upheld by
the Kraków Court of Appeal on 22 July and 9 December 2004 and
on 4 May and 14 September 2005, respectively).
The
courts reiterated the original grounds for the applicant's pre-trial
detention. In addition, although they acknowledged the fact that the
investigation had been lengthy, the domestic courts considered it
justified in the light of the international character of the case and
the fact that certain witnesses had to be examined with the aid of
the French authorities.
On
an unspecified date in early-2004 a new bill of indictment was lodged
by the prosecutor (no. II K 8/04) and the case was sent to the Nowy
Sącz Regional Court.
From
17 May 2004 until 18 November 2005 the trial court held thirteen
hearings. The court examined a French witness and obtained a forensic
report from a French expert. The case file comprised twenty-three
volumes in Polish and twenty-nine volumes in French.
On
18 November 2005 the Nowy Sącz Regional Court convicted the
applicant as charged and sentenced him to fifteen years'
imprisonment. That term was reduced by the period which the applicant
had already spent in pre-trial detention, from 11 March 2000 until 27
March 2001 and from 14 January 2003 until 18 November 2005.
On
8 March 2006 the Kraków Court of Appeal acquitted the
applicant of inciting and commanding the other accomplices and upheld
the remainder of the first-instance judgment.
On
15 February 2007 the Supreme Court dismissed the cassation appeals
lodged by the defence lawyers.
In
parallel to his pre-trial detention which is the subject of the
instant application, the applicant served two separate prison
sentences. Between 22 April and 31 July 2002 the applicant was
serving a sentence of 100 days imposed on him by a judgment of the
Częstochowa District Court of an unspecified date (no. III K
1554/98). On 31 July 2002 he started serving a sentence of twelve
years' imprisonment, which was imposed on him by a judgment of the
Nowy Sącz Regional Court of an unspecified date (no. II K
14/06).
B. The conditions of the applicant's detention under
the regime for “dangerous prisoners”
During his pre-trial detention, the applicant was
first held in the Nowy Sącz Prison and later in Częstochowa
Remand Centre.
On 14 November 2001 the Penitentiary Commission of
Nowy Sącz Prison (Komisja Penitencjarna) classified him
as a “dangerous detainee” (“N”). That
decision was based on the information about the applicant obtained
from the trial court, namely that he had been suspected of a cruel
crime committed while acting in an organised criminal gang.
On 8 May 2003 that decision was lifted by the
Penitentiary Commission of Częstochowa Remand Centre.
The applicant did not submit any details about the
conditions of his detention under the “N” regime.
It
appears that on 19 December 2007 the applicant was released on
parole.
C. The length of the criminal proceedings against the
applicant
The
applicant did not complain about the length of the proceedings under
the Act 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”).
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Preventive measures, including pre-trial detention
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,
so-called “preventive measures” (środki
zapobiegawcze) are summarised in several judgments concerning
similar cases (see, among others, Kauczor v. Poland,
no. 45219/06, §§25-27, 3 February 2009; Gołek
v. Poland, no. 31330/02, §§ 27-33, 25
April 2006; Celejewski v. Poland, no. 17584/04, §§ 22-23,
4 August 2006).
B. Remedies for unreasonable length of proceedings
The
relevant domestic law and practice concerning remedies for excessive
length of judicial proceedings, in particular the applicable
provisions of the above-mentioned 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 its 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 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 contested that argument.
A. The Government's request to strike out the
application under Article 37 of the Convention
In
their letter of 6 November 2009 the Government asked that the
application be struck out of the Court's list of cases on the basis
of Article 37 of the Convention, which, in its relevant part,
reads as follows:
“1. The Court may at any stage of the
proceedings decide to strike an application out of its list of cases
where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue
his application; or
(b) the matter has been resolved; or
(c) for any other reason established by the
Court, it is no longer justified to continue the examination of the
application...”
The
Government maintained that the applicant had failed to pursue his
application in that he had not submitted his observations on the
admissibility and the merits of the case within the time-limit
indicated by the Court.
The
Court notes that the applicant, who acted without legal
representation, has maintained extensive correspondence with the
Court throughout the entire proceedings. In all of his letters,
including the last letter sent to the Court before the expiration of
the time-limit for his observations, the applicant stated that he
confirmed his original pleadings and wished to pursue his
application.
In
such circumstances and having regard to the fact that the applicant
expressed clearly his intention to pursue his application, the Court
must continue the examination of his case.
This being so, the Court rejects the Government's
request to strike the application out under Article 37 of the
Convention.
B. 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.
C. Merits
1. Period to be taken into consideration
The
applicant's detention started on 9 March 2000, when he was arrested
on suspicion of being an accomplice to an armed robbery and murder in
France. On 1 March 2002 the Nowy Sącz Regional Court convicted
him as charged and sentenced him to twenty-five years' imprisonment.
As
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 (cf. Kudła, cited above, § 104).
On 3
October 2002 the Kraków Court of Appeal quashed the
applicant's conviction. Following that date his detention was again
covered by Article 5 § 3. It continued until 18
November 2005 when the applicant was again convicted.
However,
in parallel to his pre-trial detention, the applicant served two
prison sentences which had been imposed on him in other criminal
proceedings. Between 22 April and 31 July 2002 the applicant
served a prison sentence imposed on him by the Częstochowa
District Court and on 31 July 2002 he started serving a sentence of
twelve years' imprisonment imposed by the Nowy Sącz Regional
Court (see paragraph 23 above). Those terms, being covered by Article
5 § 1 (a), must therefore be subtracted from the period of the
applicant's pre-trial detention for the purposes of Article 5 § 3.
Accordingly,
the period to be taken into consideration amounts to 1 year, 11
months and 22 days.
2. The parties' submissions
(a) The applicant
When
lodging his application with the Court, the applicant submitted that
the length of his pre-trial detention had been excessive and that the
measure had not been sufficiently justified by the authorities. He
did not make any comments on the Government's observations on the
case.
(b) The Government
43. The Government firstly presented some statistical data,
indicating that in the years 2000-2005 the number of indictments and
convictions in cases concerning organised crime had increased both in
absolute terms and in relation to other crimes. They argued that in
organised crime cases the authorities were faced with particular
problems relating to the taking and assessment of evidence and
various logistical issues.
44. With reference to the present case, the Government
considered that the measure in question had satisfied the
requirements of Article 5 § 3. Throughout its entire period it
had been justified by “relevant” and “sufficient”
grounds, in particular the existence of a reasonable suspicion that
he had committed the offences he had been charged with. They
underlined that the length of the applicant's detention should
be assessed with reference to the fact that he and his co-defendants
had allegedly acted in an organised criminal gang. The latter element
aggravated the risk that the applicant might obstruct the proceedings
or tamper with evidence. That risk became particularly real when one
of the witnesses had testified before the trial court that the
applicant had tried to influence him to change his testimony.
Moreover, the Government considered that the applicant's protracted
detention pending trial was justified by the gravity of the charges
which the applicant was facing and the severity of the anticipated
penalty, as well as the fact that the case was very complex due to
its international dimension.
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 v. Poland [GC], no. 30210/96, § 110
et seq, ECHR 2000 XI; and McKay v. the United Kingdom
[GC], no. 543/03, §§ 41-44, ECHR 2006-..., with further
references).
(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
three grounds, namely (1) the serious nature of the offences with
which he had been charged; (2) the severity of the penalty to which
he was liable; (3) the risk that the applicant might tamper with
evidence. As regards the latter, they relied on the fact that the
applicant and his co-defendants had allegedly acted in an organised
criminal gang and that the applicant had already attempted to
intimidate a witness (see paragraph 43 above). Lastly, the
authorities referred to the complexity of the investigation and the
trial in the light of the international character of the case (see
paragraphs 12 and 18 above).
The
applicant was charged with armed robbery, murder, false imprisonment
and torture, committed in an organised criminal gang in France and
Poland (see paragraphs 6, 9 and 15 above).
In
the Court's view, the facts that the case concerned a member of such
a criminal group and that some of the offences had been committed
abroad should be taken into account in assessing compliance with
Article 5 § 3 (see Bąk v. Poland, no. 7870/04,
§ 57, 16 January 2007).
The
Court accepts that the reasonable suspicion against the applicant of
having committed serious offences warranted his initial detention.
Also, the need to determine the degree of the alleged responsibility
of each of the defendants and the need to secure the proper conduct
of the proceedings, constituted valid grounds for the applicant's
initial detention.
Indeed,
in cases such as the present one concerning organised criminal
groups, the risk that a detainee, if released, might bring pressure
to bear on witnesses or other co-accused or might otherwise obstruct
the proceedings often is, by the nature of things, high. In this
respect, the Court takes notice of the Government's submission that
the applicant had apparently made attempts to intimidate a witness
during the proceedings (see paragraph 43 above).
Furthermore,
according to the authorities, the likelihood of a severe sentence
being imposed on the applicant created a presumption that the
applicant would obstruct the proceedings. However, the Court would
reiterate 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 Michta v. Poland,
no. 13425/02, §§ 49, 4 May 2006).
On
the other hand, the need to obtain voluminous evidence and the need
to secure the proper conduct of the proceedings, in particular the
process of obtaining evidence from witnesses, some of whom had to be
examined with the aid of the French authorities, constituted valid
grounds for maintaining the applicant's detention for the period of
one year, eleven months and twenty-two days.
The
foregoing considerations are sufficient for the Court to conclude
that the grounds given for the applicant's pre-trial detention were
“relevant” and “sufficient” to justify
holding him in custody for the entire relevant period, that is one
year, eleven months and twenty-two days (see Rażniak
v. Poland, no. 6767/03, 7 October 2008).
It
therefore remains to be ascertained whether the national authorities
displayed “special diligence” in the conduct of the
proceedings.
In
this regard, the Court observes that the investigation was of
considerable complexity, regard being had to the international
character of the case, the number of witnesses, the extensive
evidentiary proceedings and the implementation of special measures
required in cases concerning organised crime. The Court does not
discern any significant periods of inactivity in the investigation or
the initial phase of the trial. Furthermore, the proceedings were
additionally complicated by the need to obtain evidence with the aid
of the French authorities and the fact that the material obtained
from the forensic experts was contradictory as regards the cause of
the victim's death (see paragraphs 13, 15 and 20 above). For these
reasons, the Court considers that during the relevant period the
domestic authorities handled the applicant's case with relative
expedition.
Having regard to the foregoing, the Court finds that
there has been no violation of Article 5 § 3 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
In
addition the applicant made the following complaints: (1) a general
complaint under Article 3 of the Convention concerning the conditions
of his detention under the regime for so-called “dangerous
prisoners”; (2) a complaint under Article 6 § 1 of the
Convention about the unreasonable length of the criminal proceedings
against him; and (3) a complaint under Article 6 § 1 of the
Convention about the unfairness and the alleged shortcomings of the
criminal proceedings against him.
The
Court notes that the complaint under point (2) is inadmissible on the
ground of non exhaustion of domestic remedies since the
applicant failed to lodge with a domestic court a complaint under the
2004 Act. Moreover, as regards the remaining complaints (points 1
and 3), having examined all the
material in its possession, the Court finds nothing in the case file
which might disclose any appearance of a violation of the rights
guaranteed by the Convention. Consequently, these complaints are
manifestly ill-founded.
It
follows that this part of the application is inadmissible and must be
rejected pursuant to Article 35 §§ 1, 3 and 4 of the
Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Rejects the Government's request to strike the
application out of the list;
Declares the complaint under Article 5 § 3
of the Convention concerning the length of the applicant's pre-trial
detention admissible and the remainder of the application
inadmissible;
Holds that there has been no violation of
Article 5 § 3 of the Convention.
Done in English, and notified in writing on 23 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza Registrar President
