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Cite as: [2011] ECHR 2245

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FOURTH SECTION

CASE OF ZAMBRZYCKI v. POLAND

(Application no. 10949/10)

JUDGMENT

STRASBOURG

20 December 2011

This judgment is final but it may be subject to editorial revision.

In the case of Zambrzycki v. Poland,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

George Nicolaou, President,
Ledi Bianku,
Vincent A. De Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 29 November 2011,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 10949/10) 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 Ryszard Zambrzycki (“the applicant”), on 8 February 2010.

The Polish Government (“the Government”) were represented by their Agent, Mr Jakub Wołąsiewicz of the Ministry of Foreign Affairs.

The applicant alleged, in particular, that his pre-trial detention exceeded a “reasonable time” within the meaning of Article 5 § 3 of the Convention.

On 4 January 2011 the President of the Fourth Section of the Court decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was assigned to a Committee of three Judges.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1963 and is currently detained in Gliwice Remand Centre.

On 13 November 2001 the applicant was arrested on suspicion of murder and identity theft.

On 14 November 2001 the Katowice District Court remanded him in custody, relying on a reasonable suspicion that he had committed the offences in question. It also considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the risk that he might tamper with evidence or induce witnesses to give false testimony. The court also stressed the severity of the anticipated sentence.

The applicant’s appeals against decisions extending his detention and all his subsequent applications for release and appeals against refusals to release him, were unsuccessful. In his applications and appeals, he relied on various reasons inter alia his health condition.

In the course of the investigation, the applicant’s detention was extended on several occasions, namely, on 4 February 2002 (to 13 May 2002), 6 May 2002 (to 31 July 2002) and 22 July 2002 (to 31 October 2002). In their detention decisions the courts repeatedly relied on a strong suspicion that the applicant had committed the offence in question which was supported by evidence from witnesses and experts. They attached importance to the grave nature of those offences and the likelihood of a severe prison sentence being imposed on the applicant. They further considered that the need to secure the proper conduct of the investigation, especially when other suspects were still at large. They also underlined the need to hear numerous witnesses and to obtain fresh evidence from several experts. Finally, the court found no grounds warranting the applicant’s release from detention as provided for by Article 259 of the Code. In particular, the courts observed that it resulted from the medical report that the applicant could be treated within a penitentiary facility.

On an unspecified date in October 2002 a bill of indictment was lodged with the Gliwice Regional Court. The applicant was charged with murder and identity theft.

On 20 February 2003 the trial court held the first hearing. It subsequently held thirty five hearings in the case.

During the court proceedings the authorities further extended the applicant’s pre-trial detention on several occasions, namely, on 21 October 2002 (to 30 April 2003), 25 April 2003 (to 30 October 2003), 20 September 2004 (to 30 March 2005), 23 March 2005 (to 30 September 2005) and 29 September 2005 (to 30 March 2006). The courts repeated the grounds previously given for the applicant’s continued detention.

On 20 January 2006 the Gliwice Regional Court convicted the applicant of murder and sentenced him to twenty five years’ imprisonment. The court acquitted the applicant of identity theft.

The applicant appealed. He was kept in custody pending the appellate proceedings.

On 18 January 2007 the Katowice Court of Appeal quashed the first instance court judgment of 20 January 2006 and remitted the case.

The Gliwice Regional Court further extended the applicant’s pre trial detention on several occasions, namely, on 12 March 2007 (to 30 June 2007), an unspecified subsequent date, 19 December 2007 (to 30 March 2008), 11 March 2008 (to 30 September 2008), an unspecified subsequent date, 8 December 2008 (to 30 March 2009), 25 March 2009 (to 30 June 2009), an unspecified subsequent date, 18 January 2010 (to 30 April 2010), 22 April 2010 (to 30 July 2010) and 28 June 2010 (to 30 August 2010). The courts repeated the grounds previously given for the applicant’s continued detention.

In the retrial proceedings the applicant made several, unsuccessful applications for release and appealed, likewise unsuccessfully, against decisions extending his detention.

On 19 August 2010 the Gliwice Regional Court again convicted the applicant of murder and sentenced him to twenty five years’ imprisonment.

19. The applicant appealed. He was kept in pre-trial detention pending the appellate proceedings.

On 17 March 2011 the Katowice Court of Appeal quashed the first instance court judgment of 19 August 2010 and remitted the case.

The Gliwice Regional Court further extended the applicant’s pre trial detention on 9 February 2011 (to 31 May 2011) and 23 May 2011 (to 30 September 2011). The courts repeated the grounds previously given for the applicant’s continued detention. They further underlined the necessity to repeat some of the evidence.

The retrial started on 22 September 2011.

Between 9 July 2002 and 13 July 2004, 19 July and 13 August 2004 as well as between 13 August 2004 and 13 February 2006 the applicant was serving a prison sentence imposed on him in another set of criminal proceedings.

II. RELEVANT DOMESTIC LAW AND PRACTICE

The relevant domestic law and practice concerning the imposition of detention on remand (tymczasowe aresztowanie), 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 May 2006.

THE LAW

I. THE GOVERNMENT’S REQUEST TO STRIKE OUT THE APPLICATION UNDER ARTICLE 37 OF THE CONVENTION

On 5 July 2011 the Government submitted a unilateral declaration similar to that in the case of Tahsin Acar v. Turkey (Tahsin Acar v. Turkey (preliminary objection) [GC], no. 26307/95, ECHR 2003 VI) and informed the Court that they were ready to accept that there had been a violation of the applicant’s rights under Article 5 § 3 of the Convention as a result of the excessive length of his pre-trial detention. In respect of non-pecuniary damage the Government proposed to award PLN 12,000 to the applicant (the equivalent of 3,000 euros (EUR)). The Government invited the Court to strike out the application in accordance with Article 37 of the Convention.

The applicant did not agree with the Government’s proposal. He considered that the amount proposed did not constitute sufficient just satisfaction for the damage he had sustained and requested the Court to continue the examination of the application.

The Court observes that, as it has already held on many occasions, it may be appropriate under certain circumstances to strike out an application or part of an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by the respondent Government even if the applicant wishes the examination of the case to be continued. It will depend on the particular circumstances whether the unilateral declaration offers a sufficient basis for finding that respect for human rights as defined in the Convention and its Protocols does not require the Court to continue its examination of the case (see Tahsin Acar, cited above, § 75, and Melnic v. Moldova, no. 6923/03, § 22, 14 November 2006).

According to the Court’s case-law, the amount proposed in a unilateral declaration may be considered a sufficient basis for striking out an application or part thereof. The Court will have regard in this connection to the compatibility of the amount with its own awards in similar cases, bearing in mind the principles which it has developed for determining victim status and for assessing the amount of non-pecuniary compensation to be awarded where it has found a breach of the reasonable time requirement (see Cocchiarella v. Italy [GC], no. 64886/01, §§ 85 107, ECHR 2006 ...,; Scordino v. Italy (no.1) [GC], no. 36813/97, §§ 193-215, ECHR-2006-...; and Dubjakova v. Slovakia (dec.), no. 67299/01, 10 October 2004).

As to whether it would be appropriate to strike out the present application on the basis of the unilateral declaration made by the Government, the Court notes that despite the Government’s acknowledgement of a violation of the applicant’s rights guaranteed under Article 5 § 3 of the Convention, the applicant continues to be remanded in custody.

In view of the length of the applicant’s detention and the fact that he continues to be deprived of his liberty in the alleged breach of Article 5 § 3 of the Convention, the Court finds that the Government failed to submit a statement offering a sufficient basis for finding that respect for human rights as defined in the Convention and its Protocols does not require the Court to continue its examination of the case (see Bieniek v. Poland, no. 46117/07, § 22, 1 June 2010).

This being so, the Court rejects the Government’s request to strike this part of the application out under Article 37 of the Convention and will accordingly pursue its examination of the admissibility and merits of the case.

II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

The applicant complained that the length of his pre-trial detention 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.”

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 13 November 2001, when he was arrested on suspicion of murder and identity theft.

On 20 January 2006 (quashed by the Katowice Court of Appeal on 18 January 2007) and on 19 August 2010 (quashed by the Katowice Court of Appeal on 17 March 2011) the Gliwice Regional Court convicted the applicant of murder.

Furthermore, between 9 July 2002 and 13 July 2004, 19 July and 13 August 2004, and between 13 August 2004 and 13 February 2006 the applicant served a prison sentence which had been imposed on him in another set of criminal proceedings. This term, as 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 of the Convention.

Accordingly, the period to be taken into consideration amounts, so far, to four years and ten months (from 13 November 2001 to 9 July 2002, from 9 to 19 July 2004, from 18 January 2007 to 19 August 2010 and from 17 March 2011 until the present date). For the remaining period of his confinement the applicant 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, Kudła v. Poland, cited above).

2. The Court’s assessment

(a) General principles

The Court reiterates 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; and (3) the need to secure the proper conduct of the proceedings. As regards the latter, they did not, however, specify any concrete grounds justifying their opinion.

The Court accepts that the reasonable suspicion that the applicant had committed the serious offences he was charged with could initially warrant his detention. However, with the passage of time those grounds inevitably 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).

The Court notes that the judicial authorities relied heavily on the likelihood that a severe sentence would be imposed on the applicant given the serious nature of the offences at issue. According to them, that likelihood created a presumption that the applicant would obstruct the proceedings. In this respect, the Court recalls that the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or re-offending. However, the Court has repeatedly held that the gravity of the charges cannot by itself serve to justify long periods of pre-trial detention (see, for instance, Michta v. Poland, no. 13425/02, § 49, 4 May 2006).

As regards the risk that the applicant would obstruct the proceedings, the Court is not persuaded that it constituted a valid ground for the entire length of his pre-trial detention. Firstly, it notes that the Gliwice District Court, when originally remanding the applicant in custody, made only a general reference to the risk that the applicant would tamper with evidence. Secondly, the Court notes that the relevant decisions did not contain any argument capable of showing that these fears were well-founded. Such a generally formulated fear, flowing from the nature of the offences with which the applicant had been charged, might possibly be accepted as the basis for his detention at the initial stages of the proceedings. Nevertheless, in the absence of any other factor capable of showing that the fear of his influencing witnesses actually existed, the Court cannot accept that ground as a justification for holding the applicant in custody for the entire period in question.

In these circumstances, the Court concludes that the grounds given by the domestic authorities were not “relevant” or “sufficient” to justify keeping the applicant in detention for four years and ten months. It is not therefore necessary to examine whether the proceedings were conducted with special diligence.

In view of the foregoing, the Court concludes that there has been a violation of Article 5 § 3 of the Convention.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

Invoking Article 5 § 4 of the Convention, the applicant complained that his applications for release had been examined with undue delay. The applicant further complained under Article 6 § 1 of the Convention that the criminal proceedings against him had been lengthy and unfair.

As regards the applicant’s complaint under Article 5 § 4 of the Convention, the Court has examined it as submitted by the applicant. However, having regard to all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the applicant has failed to substantiate his complaint. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

As to the complaint under Article 6 § 1 of the Convention concerning the excessive length of criminal proceedings, the Court notes that the applicant failed to lodge a complaint about the breach of the right to a trial within a reasonable time under the Law of 17 June 2004 on complaints about a breach of the right to an investigation conducted and supervised by a Prosecutor and to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki) (see Charzyński v. Poland (dec.) no. 15212/03, 1 March 2005). It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

Finally, as regards the complaint concerning the alleged unfairness of the criminal proceedings, the Court notes that the relevant proceedings against the applicant are still pending before the first-instance court. Accordingly, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention as being premature.

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 EUR 50,000 in respect of non-pecuniary damage and 135.208,69 Polish zlotys (PLN) in respect of pecuniary damage.

The Government contested the claim for non-pecuniary damage finding it exorbitant. They further considered the applicant’s claims for pecuniary damage groundless and irrelevant.

The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it considers that the applicant has suffered non-pecuniary damage which is not sufficiently compensated by the finding of a violation of the Convention. Considering the circumstances of the case and making its assessment on an equitable basis, the Court awards the applicant EUR 3,000 under this head.

B. Costs and expenses

The applicant submitted no claim for 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 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, EUR 3,000 (three 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 20 December 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı George Nicolaou
Deputy Registrar President