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FOURTH
SECTION
CASE OF DUDA v. POLAND
(Application
no. 67016/01)
JUDGMENT
STRASBOURG
19
December 2006
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 Duda v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr G.
Bonello,
Mr M. Pellonpää,
Mr K. Traja,
Mr L.
Garlicki,
Ms L. Mijović,
Mr J. Šikuta,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 28 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 67016/01) 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 Jerzy Duda (“the
applicant”), on 26 April 2000.
- The
applicant, who had been granted legal aid, was represented by
Mr W. Hermeliński, a lawyer practising in Warszawa.
The Polish Government (“the Government”) were represented
by their Agent, Mr J. Wołąsiewicz of the Ministry
of Foreign Affairs.
- On
13 September 2005 the Court declared the application partly
inadmissible and decided to communicate the complaints concerning the
unreasonable length of the applicant's detention on remand and lack
of equality of arms in the proceedings relating to the prolongation
of his detention to the Government. Under the provisions of Article
29 § 3 of the Convention, it decided to examine the merits of
the application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1959 and lives in Olsztyn.
- On
5 June 1997 the police started an investigation into the murder of a
certain Z.K. It appears that between June and July 1997 the applicant
had been arrested in connection with this investigation but was
released under police supervision.
- On
7 January 1998 the Biskupiec District Court (Sąd Rejonowy)
decided to detain the applicant on remand and subsequently an arrest
warrant was issued against the applicant.
- On
12 February 1998 the applicant was arrested by the police on
suspicion of having killed Mr Z.K. with whom he had been drinking
alcohol on the night of the crime.
- On
19 February 1998 the Biskupiec District Court, at a hearing at which
the applicant had been present, decided to detain him on remand in
view of the reasonable suspicion that he had committed the homicide.
The court further found that the applicant, who had been previously
placed under police supervision, had violated the conditions of this
preventive measure by leaving his place of residence without
notification. Therefore, there was a real risk that he might abscond.
- On
26 February 1998 the applicant was indicted before the Olsztyn
Regional Court (Sąd Wojewódzki).
- On
6 March 1998 the Olsztyn Regional Court dismissed the applicant's
appeal against the decision ordering his pre-trial detention. The
court further prolonged the applicant's detention relying in
particular on the fact that the applicant had previously been in
hiding.
- In
November and December 1998 the trial court held hearings. The court
ordered that an expert opinion be prepared. Subsequently, the
applicant was ordered to undergo psychiatric observation in order to
prepare the expert opinion.
- On
18 December 1998 and 14 May 1999 the Olsztyn Regional Court prolonged
the applicant's detention finding that there was a strong suspicion
that he had committed the offence in question. The court further
noted that the fact that the applicant had been in hiding in the past
justified the need to keep him in custody in order to secure the
proper conduct of the proceedings. As regards the session of 14 May
1999, on 12 May 1999 the court informed the prosecutor and the
applicant's lawyer that it had been scheduled for 14 May.
Nevertheless, the applicant's lawyer failed to appear at the session.
- In
October 1999 the trial court held hearings. Subsequently, in November
1999 the court allowed the applicant's motion to obtain evidence by
means of a DNA test.
- Afterwards
the applicant's pre-trial detention was prolonged on 28 October
1999. The applicant and his lawyer were absent although it appears
from the court order given on 27 October 1999 that the lawyer had
been notified about the session. The trial court established that the
criminal proceedings against the applicant were pending and that most
probably they would not finish before the end of 1999. The court then
added:
“The Regional Court cannot find any reason for
[releasing the applicant from custody].”
- At
the hearing held on 9 November 1999, at which both the applicant and
his lawyer were present, the court further prolonged his pre trial
detention.
- Subsequently,
as the length of the applicant's detention reached the statutory
time-limit of 2 years as laid down in Article 263 § 3 of the
Code of Criminal Procedure (Kodeks postępowania karnego)
the Regional Court made applications to the Supreme Court (Sąd
Najwyższy) asking for the applicant's detention to be
prolonged beyond that term. On 8 February 2000 the Supreme Court
granted the request.
“The prolongation of the pre-trial detention is
justified as a delay was caused by allowing evidence to be obtained
from the DNA test that was very important for the case. However, the
detention should not be prolonged without justification. Therefore,
the Supreme Court finds that it is possible to terminate the
proceedings before 31 August 2000.”
It
appears from the minutes of the session that the applicant's lawyer
was absent but had been informed about it by telephone. The applicant
appealed against this decision submitting, inter alia, that in
1997 he had been living in an institution for the homeless. He
informed the local police about this and he was unaware about the
arrest warrant issued against him. The appeal was rejected on 22 May
2000.
- The
applicant's application for release was dismissed on 12 May 2000
by the Olsztyn Regional Court.
- The
trial court held hearings on 20 June and 6 July 2000. On the latter
date the Olsztyn Regional Court gave judgment. The court convicted
the applicant and sentenced him to twelve years' imprisonment.
- On
16 November 2000 the applicant lodged an appeal against the judgment.
- The
applicant's request to lift the detention order was dismissed on
19 December 2000. On 20 December 2000 and March 2001 the Warsaw
Court of Appeal further prolonged the applicant's detention. His
appeals against those decisions were dismissed on 30 January and
20 April 2001 respectively.
- On
19 June 2001 the Warsaw Court of Appeal partly amended the impugned
judgment. The applicant did not lodge a cassation appeal with the
Supreme Court and the judgment became final.
II. RELEVANT DOMESTIC LAW
- The
Code of Criminal Procedure of 1997, which entered into force on
1 September 1998, defines detention on remand as one of the
so called “preventive measures” (środki
zapobiegawcze).
Article
249 § 5 provides that the lawyer of a detained person should be
informed of the date and time of court sessions at which a decision
is to be taken concerning prolongation of detention on remand.
- A
more detailed rendition of the relevant domestic law provisions is
set out in the Court's judgment in Celejewski v. Poland, no.
17584/04, §§ 22 and 23, 4 May 2006.
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 unreasonable. He relied on Article 5 § 3 of the Convention,
which 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 firstly notes that the Government raised a preliminary
objection that the applicant failed to exhaust the remedies provided
for by Polish law as regards his complaint under Article 5 § 3
of the Convention in that he did not appeal against all the decisions
prolonging his detention, particularly those issued between 6 March
1998 and 9 November 1999.
- The
applicant contested this argument and submitted that he had appealed
against the majority of the decisions prolonging his detention on
remand. He did not appeal against some of them, given that his other
appeals had been unsuccessful.
28.
The Court reiterates that it is well established in its case-law that
an applicant must make normal use of those domestic remedies which
are likely to be effective and sufficient. When a remedy has been
attempted, use of another remedy which has essentially the same
objective is not required (see Yaşa v. Turkey judgment
of 2 September 1998, Reports of Judgments and Decisions
1998-VI, § 71).
- In
the present case the applicant lodged appeals against some of the
decisions prolonging his detention, including the decision taken in
the final stage of the proceedings in 2000, when the length of the
detention had reached its most critical point. He also lodged
requests for the detention order to be lifted or for a more lenient
preventive measure to be imposed, and appealed against some of the
rejections of his requests. The Court considers that the purpose of
the remedies used by the applicant was to obtain a review of his
detention pending trial. In the circumstances of the case these
remedies constituted adequate and effective remedies within the
meaning of Article 35 of the Convention as their aim was to obtain
his release.
- The
Court further notes that the arguments raised by the Government are
similar to those already examined and rejected in a previous case
against Poland (see Grzeszczuk v. Poland, no. 23029/93,
Commission decision of 10 September 1997) and that the
Government have not submitted any new circumstances which would lead
the Court to depart from that finding.
- It
follows that this complaint cannot be rejected for non exhaustion
of domestic remedies. The Court further notes that it is not
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. Arguments before the Court
- The applicant submitted that he had been detained for
an unjustifiably long period and that with the passage of time the
authorities had failed to advance any new ground for prolonging the
most serous preventive measure against him. The applicant also
disagreed with the Government's argument that he had violated the
terms of his release in 1997 and submitted that, according to those
terms, he was not prevented from absenting himself from his place of
residence. He also argued that the authorities had failed to consider
the imposition of other preventive measures like bail or police
supervision, despite being obliged to do so by Polish law and the
Convention.
- The
Government considered that the applicant's pre-trial detention
satisfied the requirements of Article 5 § 3. They submitted that
his pre trial detention was duly justified and that during the
entire period the authorities had given relevant and sufficient
reasons for prolonging it. The Government further submitted that the
domestic courts acted diligently and speedily.
2. The Court's assessment
(a) Principles established under the
Court's case-law
- Under
the Court's case-law, the issue of whether a period of detention is
reasonable cannot be assessed in abstracto. Whether it is
reasonable for an accused to remain in detention must be assessed in
each case according to its special features. 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 (see, among other authorities, W. v.
Switzerland, judgment of 26 January 1993, Series A
no. 254 A, p. 15, § 30, and Kudła v.
Poland [GC], no. 30210/96, § 110, ECHR 2000 XI)
- The
presumption is in favour of release. As established in Neumeister
v. Austria (judgment of 27 June 1968, Series A no. 8,
p. 37, § 4), the second limb of Article 5 § 3
does not give judicial authorities a choice between either bringing
an accused to trial within a reasonable time or granting him
provisional release pending trial. Until conviction, he must be
presumed innocent, and the purpose of the provision under
consideration is essentially to require his provisional release once
his continuing detention ceases to be reasonable (see McKay v. the
United Kingdom [GC], no. 543/03, § 41, ECHR
2006-...).
- It
falls in the first place to the national judicial authorities to
ensure that, in a given case, the pre-trial detention of an accused
person does not exceed a reasonable time. To this end they must
examine all the facts arguing for or against the existence of a
genuine requirement of public interest justifying, with due regard to
the principle of the presumption of innocence, a departure from the
rule of respect for individual liberty and set them out in their
decisions dismissing the applications for release. It is essentially
on the basis of the reasons given in these decisions and of the
established facts mentioned by the applicant in his appeals, that the
Court is called upon to decide whether or not there has been a
violation of Article 5 § 3 of the Convention (see
McKay, cited above, § 43).
- The
persistence of a reasonable suspicion that the person arrested has
committed an offence is a condition sine qua non for the
lawfulness of the continued detention, but after a certain lapse of
time it no longer suffices. In such cases, the Court must establish
whether the other grounds given by the judicial authorities continued
to justify the deprivation of liberty. Where such grounds were
“relevant” and “sufficient”, the Court must
also ascertain whether the competent national authorities displayed
“special diligence” in the conduct of the proceedings
(see Labita v. Italy [GC], no. 26772/95, § 153,
ECHR 2000 IV, and Jablonski v. Poland, no. 33492/96,
§ 80, 21 December 2000).
(b) Application of the principles to the
circumstances of the present case
- The
Court firstly notes that the applicant was detained on remand on
12 February 1998 and that the first-instance judgment in his
case was given on 6 July 2000. Consequently, the period to be
taken into consideration lasted 2 years, 4 months and 23
days.
- The
Court observes that in the present case the authorities relied on the
reasonable suspicion that the applicant had committed the offence
with which he had been charged, on the severity of the sentence that
might be imposed and on the fact that after his detention in 1997 he
went into hiding. They repeated those grounds in all their decisions.
The authorities failed to advance any other justifications to prolong
the applicant's detention.
- The
Court accepts that the suspicion against the applicant of having
committed the offences and the need to secure the proper conduct of
the proceedings might initially justify his detention. However, with
the passage of time, these grounds became less relevant and cannot
justify the entire period of 2 years and almost 5 months during which
the most serious preventive measure against the applicant had been
imposed (see Malik v. Poland, no. 57477/00, § 45,
4 April 2006).
- As regards the risk of tampering with evidence or
going into hiding, the Court observes that throughout the entire
relevant period the judicial authorities based their findings on the
fact that the applicant, shortly before his arrest, had changed his
place of residence when he had been released under police
supervision. The Court agrees that, assuming that the applicant had
violated the conditions of his release, this factor justified keeping
him in custody in the initial stages of the proceedings. However, the
Court considers that that ground gradually lost its force and
relevance as the proceedings progressed. In particular, given the
absence of any further attempt on the part of the applicant to
obstruct the proceedings, it is difficult to accept that this single
incident could justify the conclusion that the risk of his tampering
with evidence or going into hiding persisted during the entire period
that he spent in custody (see Harazin v. Poland, no. 38227/02,
§ 42, 10 January 2006).
- Moreover,
the authorities relied heavily on the likelihood that a heavy
sentence would be imposed on the applicant given the serious nature
of the offences at issue. In this respect, the Court agrees 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 detention on remand (see
Ilijkov v. Bulgaria, no. 33977/96, §§ 80 81,
26 July 2001).
- The
Court observes further that the applicant was detained on charges of
homicide. The applicant acted without accomplices. It does not appear
therefore that his case presented particular difficulties for the
investigation authorities and for the courts to determine the facts
and mount a case against the perpetrator as would undoubtedly have
been the case had the proceedings concerned organised crime (see
Celejewski v. Poland, no. 17584/04, § 37,
4 May 2006; Dudek v. Poland, no. 633/03, § 36,
4 May 2006).
- The
Court also notes that there is no specific indication that during the
entire period in question the authorities envisaged the possibility
of imposing other preventive measures on the applicant, such as bail
or police supervision.
In
this context the Court would emphasise that “other preventive
measures” are expressly foreseen by Polish law to secure the
proper conduct of criminal proceedings and that under Article 5
§ 3 the authorities, when deciding whether a person should
be released or detained, are obliged to consider alternative measures
for ensuring his appearance at the trial. Indeed, that Article lays
down not only the right to “trial within a reasonable time or
release pending trial” but also provides that “release
may be conditioned by guarantees to appear for trial” (see
Jablonski, cited above, § 83).
- In
the circumstances, the Court concludes that the grounds given by the
domestic authorities were not “relevant” and “sufficient”
to justify the applicant's being kept in detention for almost 2 years
and 5 months.
There
has therefore been a violation of Article 5 § 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
- The
applicant complained about the procedure relating to the prolongation
of his pre-trial detention, in particular that he and his lawyer had
not attended the sessions at which his detention was prolonged. The
Court will examine this complaint under Article 5 § 4 of the
Convention, which reads as follows:
“Everyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful.”
- The
Government submitted that according to Article 249 § 1 of the
Code of Criminal Procedure, the lawyer of the accused was notified of
the court's sessions at which detention on remand was prolonged and
was entitled to take part in them. The Government maintained that the
applicant's lawyers were summoned to those sessions, although they
were absent from some of them. The Government submitted that, taking
into consideration all the proceedings devoted to the review of the
lawfulness of the applicant's pre-trial detention, the principles
guaranteed in Article 5 § 4 of the Convention had been
respected in the present case.
- The
Court reiterates the following principles which emerge from the
Court's case law on Article 5 § 4, in so far as relevant in
the present case:
(a) Article
5 § 4 of the Convention entitles an arrested or detained person
to institute proceedings bearing on the procedural and substantive
conditions which are essential for the “lawfulness”, in
Convention terms, of their deprivation of liberty (see, among many
others, Brogan and Others v. the United Kingdom, judgment
of 29 November 1988, Series A no. 145 B, pp. 34-35, §
65).
(b) Although
it is not always necessary that the procedure under Article 5
§ 4 be attended by the same guarantees as those required
under Article 6 of the Convention for criminal or civil
litigation, it must have a judicial character and provide guarantees
appropriate to the kind of deprivation of liberty in question (see,
for instance, Assenov and Others v. Bulgaria, judgment of
28 October 1998, Reports of Judgments and Decisions 1998 VIII,
p. 3302, § 162, and Włoch v. Poland,
no. 27785/95, § 125, ECHR 2000-XI, both
with reference to Megyeri v. Germany, judgment of 12 May
1992, Series A no. 237-A, p. 11, § 22).
(c) The
proceedings must be adversarial and must always ensure “equality
of arms” between the parties. In the case of a person whose
detention falls within the ambit of Article 5 § 1(c) a hearing
is required (see Nikolova v. Bulgaria [GC], no. 31195/96,
§ 58, ECHR 1999-II; Assenov and Others, cited above, §
162, with references to Schiesser v. Switzerland,
judgment of 4 December 1979, Series A no. 34, p. 13, §§ 30 31;
Sanchez Reisse v. Switzerland, judgment of 21
October 1986, Series A no. 107, p. 19, § 51;
and Kampanis v. Greece, judgment of 13 July 1995,
Series A no. 318-B, p. 45, § 47).
(d) Furthermore,
Article 5 § 4 requires that a person detained on remand be able
to take proceedings at reasonable intervals to challenge the
lawfulness of his detention (see Assenov and Others, cited
above, p. 3302, § 162, with a reference to Bezicheri
v. Italy, judgment of 25 October 1989, Series A
no. 164, pp. 10-11, §§ 20-21).
- Turning
to the circumstances of the instant case, the Court firstly notes
that it cannot examine events complained of by the applicant which
took place before 26 October 1999, that is more than six months
before the date on which this complaint was submitted to the Court.
- The
procedure for the prolongation of the applicant's pre trial
detention during the period under consideration was based on
Article 249 § 5 of the Code of Criminal Procedure
which requires the domestic courts to inform the lawyer of a detained
person of the date and time of court sessions at which a decision was
to be taken concerning prolongation of detention on remand, or an
appeal against a decision to impose or to prolong detention on remand
was to be considered. It was open to the lawyer to attend such
sessions.
- The
Court observes that on one occasion the decision to prolong the
applicant's detention was given at a public hearing at which the
applicant was present and was legally represented. He was therefore
able to support in person his applications for release.
As
regards the remaining two sessions at which his detention was
prolonged, the Court notes that from the evidence submitted by the
Government it appears that the domestic court had summoned the
applicant's lawyer to the court sessions and that she had failed to
appear. The applicant's assessment that the summons might not have
reached the lawyer on time has not been substantiated. In this
connection the Court reiterates that in cases where characteristics
pertaining to the applicant's personality and level of maturity and
reliability are of importance in deciding on his dangerousness,
Article 5 § 4 requires an oral hearing in the context of an
adversarial procedure involving legal representation (see Waite
v. the United Kingdom, no. 53236/99, § 59, 10
December 2002). The Court considers, however, that in the present
case the question of the assessment of the applicant's character or
mental state did not arise. His personal attendance at all of the
sessions at which his detention on remand had been prolonged was
therefore not required, and the presence of his lawyer would have
ensured respect for equality of arms in those proceedings.
- In
view of the above, the Court is of the opinion that the proceedings
in which the prolongation of his detention was examined satisfied the
requirements of Article 5 § 4 (see Telecki v. Poland,
(dec.), no. 56552/00, 3 July 2003 and Celejewski v.
Poland, no. 17584/04, § 47, 4 May 2006).
- It follows that this complaint must be rejected as
being manifestly ill founded pursuant to Article 35 §§
3 and 4 of the Convention.
III. 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 30,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government considered this claim exorbitant.
- The
Court awards the applicant EUR 1,000 in respect of non pecuniary
damage.
B. Costs and expenses
- The
applicant, who was represented by a lawyer, also claimed EUR 2,000
for the costs and expenses incurred before the Court. This included
20 hours' work at an hourly rate of EUR 100.
- The
Government considered this amount excessive.
- 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, in the light of the applicant's
specification of the costs and expenses incurred in the proceedings
before the Court, he should be awarded the amount claimed in full.
Accordingly, the Court awards the applicant EUR 2,000 for his
costs and expenses together with any value-added tax that may be
chargeable, less EUR 850 received by way of legal aid from the
Council of Europe, which makes a total of EUR 1,150.
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
unreasonable 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 1,000 (one
thousand euros) in respect of non-pecuniary damage, and EUR 1,150
(one thousand one hundred and fifty euros) in respect of costs and
expenses, to be converted into Polish zlotys at the rate applicable
at the date of settlement, 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 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 19 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
