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RADUCKI v. POLAND - 10274/08 [2011] ECHR 339 (22 February 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/339.html
Cite as:
[2011] ECHR 339
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FOURTH
SECTION
CASE OF RADUCKI v. POLAND
(Application
no. 10274/08)
JUDGMENT
STRASBOURG
22
February 2011
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 Raducki v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
Päivi
Hirvelä,
Ledi
Bianku,
Zdravka
Kalaydjieva,
Nebojša
Vučinić,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 1 February 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 10274/08) 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 Robert
Raducki (“the applicant”), on 15 February 2008.
The
applicant was represented by Ms M. Gąsiorowska, a lawyer
practising in Warsaw. 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 the length of his pre-trial
detention had been excessive.
On
9 June 2008 the
President of the Fourth Section of the Court decided to give notice
of the application to the Government. It was also decided to rule on
the admissibility and merits of the application at the same time
(Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1969 and lives in Łódź.
A. Criminal proceedings
against the applicant and his pre-trial detention
On
27 December 2001 the applicant was arrested on suspicion of murder
and attempted murder committed in an organised criminal group.
On
28 December 2001 the Łódź District Court (Sąd
Rejonowy) remanded him in custody, relying on a reasonable
suspicion that he had committed the offences in question. It attached
importance to the serious nature of those offences and the likelihood
of a severe prison sentence being imposed on the applicant. It
further 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, induce witnesses to give
false testimony or go into hiding.
An
appeal by the applicant against the detention order, and likewise his
further appeals against some of the 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 argued that his lengthy detention had violated the
relevant provisions of the Code of Criminal Procedure.
In
the course of the investigation, the applicant's detention was
extended on several occasions, namely, on 22 March 2002 (to 29 May
2002), 21 May 2002 (to 29 September 2002) and 20 September 2002 (to
14 October 2002). In all their decisions on the matter the
courts relied on the original grounds given for the applicant's
detention. They also stressed that owing to the complexity of the
case and the large volume of evidence, the investigation had still
not been completed.
On
an unspecified date, the prosecution filed a bill of indictment with
the Łódź Regional Court (Sąd Okręgowy).
The bill of indictment comprised numerous charges of murder,
attempted murder, extortion and illegal possession of firearms
brought against fifteen defendants. The applicant was charged with
murder and attempted murder committed in an organised criminal group.
During
the trial the courts further extended the applicant's pre-trial
detention on several occasions, namely, on 24 December 2002 (to
27 December 2003), 9 December 2003 (to 30 April 2004), 14 April
2004 (to 31 December 2004), 21 December 2004 (to 30 June 2005),
22 June 2005 (to 31 December 2005), 21 December 2005 (to 30 April
2006), 26 April 2006 (to 31 July 2006), on 21 November 2007 (to 9
March 2008) and 26 February 2008 (to 9 September 2008). They
repeated the grounds previously given for the applicant's continued
detention. The courts relied especially on the complexity of the
case, the large number of co-accused and the substantial volume of
evidence to be examined. Finally, they attached importance to the
relations between the accused who were all alleged members of an
organised criminal group.
On
4 November 2003 the trial court held the first hearing. It
subsequently held some 78 hearings in the case.
On
9 June 2006 the Łódź Regional Court found the
applicant guilty as charged and sentenced him to life imprisonment.
The applicant appealed.
On
13 and 15 November 2007 the Łódź Court of Appeal
(Sąd Apelacyjny) held hearings.
On
21 November 2007 the Łódź Court of Appeal quashed
the first-instance judgment in respect of the applicant and remitted
the case.
On
26 September 2008 the applicant was released from custody and placed
under police supervision.
The
proceedings before the Łódź Regional Court are still
pending.
B. Conditions of the applicant's detention
On
27 December 2001 the applicant was committed to Sieradz Remand
Centre. Since that date he has been continuously detained in turn in
Płock Remand Centre, Łódź Remand Centre, Opole
Remand Centre and Głubczyce Remand Centre. On 27 March 2007 he
was transferred back to Łódź Remand Centre where he
remained until his release on 26 September 2008.
The
parties gave partly differing accounts of the conditions of the
applicant's detention.
In
his initial application to the Court the applicant maintained that
during his detention in Łódź Remand Centre he had
been held in overcrowded cells in conditions which did not comply
with the basic standards of hygiene. In his letter to the Court of 16
June 2008 he extended his allegations to the remaining penitentiary
facilities.
The
Government submitted that they could not confirm whether during his
stay in Łódź Remand Centre from 16 October 2002 to
14 February 2005, from 23 February 2005 to 20 July 2006
and from 27 March 2007 to 8 August 2007 the applicant had
been detained in cells with a surface area of at least 3 m² per
person. However, they acknowledged that during the applicant's stay
in the remand centre a penitentiary judge was regularly notified
about the overcrowding in that facility. Regarding the period of the
applicant's detention in Łódź Remand Centre after 8
August 2007, the Government acknowledged that the applicant had spent
171 days in cells in which the statutory minimum size of 3 m²
per person had not been respected. The Government did not comment on
the conditions of the applicant's detention in the remaining
penitentiaries.
The
applicant did not lodge any formal complaints with the penitentiary
authorities regarding the conditions of his detention. Nor did he
bring a civil action to seek compensation for the infringement of his
personal rights.
C. Censorship of the
applicant's correspondence
On
15 February and 14 May 2008 the applicant posted letters to the
Court's Registry. On 25 February 2008 he posted a letter to the
Ombudsman. On 19 March 2008 he posted a letter to the Helsinki
Foundation for Human Rights. All acknowledgments of the posting of
these letters bear a stamp “Łódź Regional
Court, censored (“ocenzurowano”), date and
illegible signature”.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Preventive
measures, including pre-trial detention
The
relevant domestic law and practice concerning the imposition of
detention on remand (tymczasowe aresztowanie), the grounds for
its prolongation, 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.
B. Relevant
statistical data
The
relevant statistical data, recent amendments to the Code of Criminal
procedure designed to streamline criminal proceedings and references
to the relevant Council of Europe materials can be found in the
Court's judgment in the case of Kauczor (see Kauczor v.
Poland, no. 45219/06, § 27-28 and 30-35, 3 February
2009).
C. Conditions
of detention
A
detailed description of the relevant domestic law and practice
concerning general rules governing the conditions of detention in
Poland and domestic remedies available to detainees alleging that the
conditions of their detention were inadequate are set out in the
Court's pilot judgments given in the cases of Orchowski v. Poland
(no. 17885/04) and Norbert Sikorski v. Poland (no.
17599/05) on 22 October 2009 (see §§ 75-85 and §§
45-88 respectively). More recent developments are described in the
Court's decision in the case of Łatak v. Poland (no.
52070/08) on 12 October 2010 (see §§ 25-54).
THE LAW
I. 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.”
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 27 December 2001, when he was
arrested on suspicion of murder and attempted murder. On 9 June 2006
the Łódź Regional Court convicted him as charged.
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 v. Poland [GC],
no. 30210/96, § 104, ECHR 2000 XI).
On 21
November 2007 the Łódź Court of Appeal quashed the
applicant's conviction. Following that date his detention was again
covered by Article 5 § 3. It continued until 26
September 2008 when the applicant was released.
Accordingly,
the period to be taken into consideration amounts to five years,
three months and seventeen days.
2. The parties' submissions
(a) The applicant
The
applicant submitted that the period of his detention had exceeded a
reasonable time within the meaning of Article 5 § 3 on the
Convention. Relying on the Court's case-law, he further underlined
that continued detention can be justified in a given case 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. Any system of
mandatory pre-trial detention is per se incompatible with
Article 5 § 3 of the Convention, it being incumbent on the
domestic authorities to establish and demonstrate the existence of
concrete facts outweighing the rule of respect for individual
liberty. The applicant also argued that by failing to address
concrete relevant facts and by relying mainly on the gravity of the
charges, the authorities extended his detention on grounds which
could not be regarded as “sufficient”. He concluded that
the authorities had failed to justify his continued detention.
(b) The Government
The
Court notes that the Government refrained from taking a position on
the merits of this complaint. They maintained, however, that the
proceedings in the applicant's case were particularly complex and
that the applicant had been accused of serious crimes committed as a
member of one of the most influential and dangerous organised
criminal groups in Poland.
3. 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,
cited above, 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
four grounds, namely, (1) the serious nature of the offences with
which he had been charged, (2) the complexity of the case owing to
the number of defendants and volume of evidence to be heard, (3) the
severity of the penalty to which he was liable and (4) the need to
secure the proper conduct of the proceedings. As regards the latter,
they relied on the fact that the applicant might interfere with
witnesses and other co-accused given the fact that he was a member of
an organised crime group.
The
applicant was charged with murder and attempted murder committed in
an organised criminal group (see paragraph 10 above). In the Court's
view, the fact that the case concerned an alleged member of such a
criminal group 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 the serious offences could initially warrant his
detention. In addition, it notes that the authorities were faced with
the difficult task of determining the facts and the degree of alleged
responsibility of each of the defendants. In these circumstances, the
Court also accepts that the need to examine evidence from many
sources constituted relevant and sufficient grounds for the
applicant's initial detention.
Furthermore,
the judicial authorities also relied on the likelihood that a severe
sentence might have been imposed on the applicant given the serious
nature of the offences at issue (see paragraphs 7 and 9). However,
the Court reiterates that, while the severity of the sentence faced
is a relevant element in the assessment of the risk of absconding or
reoffending, the gravity of the charges cannot of itself justify long
periods of detention (see for instance, Ilijkov v. Bulgaria,
no. 33977/96, §§ 80-81, 26 July 2001 and Michta
v. Poland, no. 13425/02, § 49, 4 May 2006).
In
addition, the judicial authorities relied on the fact that the
applicant had been charged with being a member of an organised
criminal group. In this regard, the Court reiterates that the
existence of a general risk flowing from the organised nature of the
alleged criminal activities of the applicant may be accepted as the
basis for his detention at the initial stages of the proceedings (see
Górski v. Poland, no. 28904/02, § 58, 4
October 2005) and in some circumstances also for subsequent
extensions of the detention (see Celejewski, cited above, §
37). It is also accepted that in such cases, involving numerous
accused, the process of gathering and hearing evidence is often a
difficult task. Moreover, the Court considers that 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,
is in the nature of things often particularly high.
While all the above factors could justify even a
relatively long period of detention, they did not give the domestic
courts unlimited powers to extend this measure. Even if the
particular circumstances of the case required detention to be
extended beyond the period generally accepted under the Court's
case-law, particularly strong reasons would be needed to justify
further extensions of the applicant's pre-trial detention (see Wolf
v. Poland, no. 15667/03 and 2929/04, § 90, 16
January 2007). In this respect, the Court observes that the applicant
was held in custody for five years and three months.
Having regard to the foregoing, even taking into
account the fact that the courts were faced with the particularly
difficult task of trying a case involving an organised criminal
group, the Court concludes that the grounds given by the domestic
authorities could not justify the overall period of the applicant's
detention. In these circumstances, it is not necessary to examine
whether the proceedings were conducted with special diligence.
There
has accordingly been a violation of Article 5 § 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant alleged a breach of Article 3 of the Convention in that he
had been detained in overcrowded cells and that the State had failed
to secure to him adequate conditions throughout his detention.
A. The Government's objection based on exhaustion of
domestic remedies
Article
35 § 1 of the Convention reads, in so far as relevant, as
follows:
“1. The Court may only deal with the
matter after all domestic remedies have been exhausted, according to
the generally recognised rules of international law ...”
The
Government argued that the applicant had not exhausted domestic
remedies available to him, as required by Article 35 § 1 of the
Convention. They raised a preliminary objection similar to that
relied on in the case of Łatak v. Poland (see Łatak
v. Poland (dec.) no. 52070/08, 12 October 2010, §§
63-64). In particular, they stressed that the applicant had already
been released on 26 September 2008. In these circumstances, the
situation giving rise to the alleged breach of Article 3 of the
Convention no longer existed and the applicant should bring a civil
action under Article 24 taken in conjunction with Article 448 of the
Civil Code in order to seek compensation for the past violation.
In
view of the foregoing, the Government invited the Court to reject the
application for non-exhaustion of domestic remedies, pursuant to
Article 35 § 1 of the Convention.
B. The applicant's position
The
applicant disagreed with the above arguments and maintained that the
remedy suggested by the Government could not be considered
“effective” for the purposes of Article 35 § 1 of
the Convention.
C. The Court's assessment
The
Court has already examined the same objection raised by the
Government in the above-mentioned case of Łatak v. Poland and
considered their arguments not only in the context of that particular
applicant but also in respect of other actual or potential applicants
with similar cases (see Łatak, cited above, §§
71-85).
In
so doing, the Court had regard to the fact that on the date of the
adoption of its decision there were 271 cases pending before it where
the applicants had raised complaints similar in substance, alleging a
violation of Article 3 in that at various times and for various
periods they had been adversely affected by the same structural
problem, having been detained in overcrowded, insanitary cells (ibid.
§ 84).
Having
found that a civil action under Article 24 taken in conjunction with
Article 448 of the Civil Code could be considered an “effective
remedy” for the purposes of Article 35 § 1 of the
Convention as from 17 March 2010 and having regard to the
three-year limitation period for lodging such an action, the Court
held that essentially in all cases in which in June 2008 the alleged
violation had either been remedied by placing the applicant in
Convention-compliant conditions or had ended ipso facto because
the applicant had been released, the applicants concerned should
bring a civil action for the infringement of personal rights and
compensation (ibid. § 85 and § 76 respectively).
In
the present case, the situation giving rise to the alleged violation
of Article 3 ended on 26 September 2008, the date on which the
applicant was released. That being so and having regard to the fact
that he still has adequate time to prepare and lodge with the Polish
civil courts an action under Article 24 taken in conjunction with
Article 448 of the Civil Code, he should, before having their
Convention claim examined by the Court, be required to seek redress
at the domestic level.
It
follows that this part of the application must be rejected under
Article 35 §§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant complained that whenever he was outside
a prison he wore hand-cuffs joined by chains with fetters. He further
complained under Article 5 § 1 (c) of the Convention about the
alleged unlawfulness of his arrest. Invoking Article 8 of the
Convention, the applicant also complained that his extended detention
had put a severe strain on his family life. Finally, invoking the
same Article, the applicant complained about the censorship of his
correspondence with the Court, the Ombudsman and the Helsinki
Foundation for Human Rights.
Regarding
the applicant's complaint about the alleged unlawfulness of his
arrest the Court notes that the applicant was arrested on 27 December
2001, and that he lodged his application on 15 February 2008. It
follows that this complaint has been introduced out of time and must
be rejected in accordance with Article 35 §§ 1
and 4 of the Convention.
As
to the applicant's complaint about the censorship of his
correspondence the Court has held that applicants with similar
complaints based on interferences which occurred after 28 June 2007
are required to avail themselves of the provisions of Articles 23 and
24 § 1 read in conjunction with Article 448 of the
Civil Code, failing which they will be considered to have failed to
exhaust domestic remedies, as required by Article 35 § 1 of the
Convention (see Biśta v. Poland, no. 22807/07, § 49,
12 January 2010).
In
the present case, the interference complained of had taken place on
several occasions between February and March 2008 (see paragraph
23 above), that is to say, after 28 June 2007, the date on which
the Warsaw Court of Appeal gave its judgment granting compensation
for the infringement of the confidentiality of a prisoner's
correspondence on account of interference with it, and thereby
establishing to the Court's satisfaction that an effective remedy
could be said to exist in respect of such complaints (see Biśta
cited above § 49). That being so, the Court considers
that the applicant should, as required by Article 35 § 1, first
put the substance of his Convention claim under Article 8 before the
domestic courts. It follows that this complaint must be rejected
under Article 35 §§ 1 and 4 of the
Convention for non-exhaustion of domestic remedies.
As
to the remaining complaints, the Court has examined them 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 those complaints. It
follows that this part of the application is manifestly ill founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
IV. 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.”
Recently,
in the case of Kauczor v. Poland (see Kauczor, cited
above, §§ 58 et seq. with further references) the Court
held that the 2007 Resolution, taken together with the number of
judgments already delivered and the number of pending cases raising
an issue of inordinate periods of detention incompatible with Article
5 § 3, had demonstrated that the violation of the applicant's
right under Article 5 § 3 of the Convention had originated in a
widespread problem arising out of the malfunctioning of the Polish
criminal justice system which had affected, and may still affect in
the future, an as yet unidentified, but potentially considerable
number of persons charged in criminal proceedings.
It
is true that the present case concerns a person involved in an
organised criminal group. However, as stated above, while this
element is to be taken into account in assessing compliance with
Article 5 § 3 and may justify a longer period of detention than
in a case concerning an individual offender, an alleged member of an
organised criminal group is also entitled to the protection against
unreasonably lengthy detention afforded by this provision (see
paragraphs 39-40 above). As in other
numerous similar detention cases, the authorities did not justify the
applicant's continued detention by relevant and sufficient reasons
(see paragraphs 41-42 above). Moreover, as demonstrated by the ever
increasing number of judgments in which the Court has found Poland to
be in breach of Article 5 § 3 in respect of applicants involved
in organised crime, the present case is by no means an isolated
example of the imposition of unjustifiably lengthy detention but a
confirmation of a practice found to be contrary to the Convention
(see, among many other examples, Celejewski v. Poland, cited
above; Kąkol v. Poland, no. 3994/03, 6 September
2007; Malikowski v. Poland, no. 15154/03, 16 October
2007; and also Hilgartner v. Poland, no. 37976/06,
§§ 46-48, 3 March 2009, not final). Consequently, the
Court sees no reason to diverge from its findings in Kauczor
as to the existence of a structural problem and the need for the
Polish State to adopt measures to remedy the situation (see Kauczor,
cited above, §§ 60-62).
V. 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 50,000 euros (EUR) in respect of non pecuniary
damage.
The
Government contested the claim finding it exorbitant and
significantly higher than the amounts usually awarded by the Court in
similar cases.
The
Court 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 2,000 under this head.
B. Costs and expenses
The
applicant also claimed 6,100 Polish zlotys (PLN) for the costs and
expenses incurred before the Court.
The
Government invited the Court to assess the amount of reimbursement of
legal costs and expenses only in so far as those costs and expenses
had been actually and necessarily incurred in the Court's proceedings
and reasonable as to the quantum.
According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession, the above criteria and the fact that the violation
found concerned a repetitive issue, the Court considers it reasonable
to award the sum of EUR 1,000 for costs and expenses for the
proceedings before 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 2,000 (two
thousand euros) in respect of non-pecuniary damage and EUR 1,000 (one
thousand euros) for costs and expenses, 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 amounts 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 22 February 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
