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FOURTH SECTION
CASE OF GĄSIOROWSKI v. POLAND
(Application no. 7677/02)
JUDGMENT
STRASBOURG
17 October 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 Gąsiorowski 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 26 September 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 7677/02)
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 Gąsiorowski (“the applicant”), on 10 January
2002.
- The Polish Government (“the Government”)
were represented by their Agent, Mr J. Wołąsiewicz of the
Ministry of Foreign Affairs.
- On 4 May 2004 the Court decided to give notice of the
application 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 1960 and lives in Warsaw.
A. The applicant’s pre-trial detention
- On 10 December 1999 the applicant was arrested by the
police on suspicion of having committed armed robbery against a lorry
driver. On 11 December 1999 the Żyrardów District
Court (Sąd Rejonowy) ordered that the applicant be
detained on remand for 3 months. It found that in the light of the
evidence obtained, in particular from his accomplices, there was a
strong likelihood that the applicant had committed that offence. The
court further observed that the applicant had not confessed and found
that there was a risk that he might obstruct the investigation.
Having regard to the severity of the penalty that could be expected,
the court held that keeping the applicant in custody was necessary in
order to secure the proper conduct of the proceedings. That decision
was upheld on appeal on 7 January 2000.
- On 8 March 2000 the Skierniewice Regional Court (Sąd
Okręgowy) prolonged the applicant’s detention until 10
June 2000, finding that, given that the applicant had been caught in
flagrante delicto, there was a strong likelihood that he had
committed the offence in question. The court stressed that the
applicant had – like his 3 detained co-suspects – given
contradictory evidence and had not confessed, which gave sufficient
reasons to believe that, once released, he would obstruct the proper
course of the proceedings. The applicant’s continued detention
was also justified by the severity of the penalty that could be
expected. Moreover, evidence from ballistics and fingerprint experts
– which was crucial for the determination of the role played by
each co-suspect – needed to be obtained.
- On 6 June 2000 the Łódź Court of
Appeal (Sąd Apelacyjny) ordered that the applicant be
held in custody until 10 September 2000, reiterating the grounds
previously given for his detention. It further held that the gravity
of the charges and the severity of the likely penalty justified the
prolongation of the most severe preventive measure.
- On 25 August 2000 a bill of indictment was filed with
the Skierniewice Regional Court against the applicant and his 3
accomplices. The applicant was charged with attempted armed robbery
and unlawful possession of a firearm. The bill of indictment
specified that the applicant had been previously sentenced for
similar offences. The prosecution asked the court to hear evidence
from 23 witnesses.
- On 30 August 2000 the Skierniewice Regional Court
prolonged the applicant’s detention until 31 March 2001,
repeating the grounds that had been given in the previous decisions.
It also held that the value of the goods that the accused had planned
to steal and the previous criminal records of some of them made it
likely that they would be given a heavy sentence.
- Subsequently, apparently in November 2000, the
Skierniewice Regional Court referred the case to the Płock
Regional Court, finding that the latter court should deal with the
matter. The ensuing jurisdictional dispute was determined on an
unspecified later date by the Warsaw Court of Appeal. The latter
court ordered that the case be referred to the Warsaw Regional Court
since the Skierniewice Regional Court had in the meantime been closed
down. On 18 June 2001 the bill of indictment was transmitted to the
Warsaw Regional Court.
- Meanwhile, on 22 March 2001, the Płock Regional
Court had prolonged the applicant’s detention until 30 June
2001, finding that the reasons previously given for holding him in
custody were still valid.
- On 25 June 2001 the Warsaw Regional Court prolonged
the applicant’s detention until 30 October 2001. On 25 October
2001 the Regional Court ordered the applicant’s continued
detention until 10 December 2001. In both decisions the court
relied primarily on the severity of the sentence that could be
expected.
- On 23 November 2001 the Court of Appeal dismissed the
applicant’s appeal against the decision of 25 October 2001
prolonging his detention. It found that the applicant’s
continued detention on the basis of Article 258 § 2 of
the Code of Criminal Procedure remained valid. Having regard to the
nature of the alleged offences, the circumstances in which they had
been committed and the fact that the applicant had committed similar
offences in the past, the Court of Appeal found that there was a very
strong likelihood that he would be given a heavy sentence. It further
held that Article 258 § 2 of the Code of Criminal Procedure
established a kind of presumption to the effect that the likelihood
of a severe penalty being imposed on an accused might induce him to
obstruct the proceedings.
- Since on 10 December 2001 the length of the
applicant’s pre-trial detention reached the statutory 2-year
time-limit laid down in Article 263 § 3 of the Code of
Criminal Procedure, all further decisions prolonging his detention on
remand were given by the Warsaw Court of Appeal.
- The relevant decisions were taken on the following
dates: on 7 December 2001 (extending his detention until 28
February 2002), 26 February 2002 (ordering his continued
detention until 30 April 2002 and having regard to the particular
complexity of the case) and on a later unspecified date in April 2002
(extending his detention for a further period). In its decision of 7
December 2001, the Court of Appeal found that prolongation of the
applicant’s detention beyond the statutory 2-year time-limit
was justified under Article 263 § 4 on account of major
insurmountable difficulties, referring in this connection to the
above-mentioned jurisdictional dispute.
- The Regional Court listed the first hearing for 7
October 2001 but the trial could not be started since the case file
was with another court. Two hearings listed for 7 and 16 November
2001 were adjourned due to the change of the applicant’s
counsel and the need for the latter to prepare for the hearing. Two
further hearings listed for 10 December 2001 and 11 January
2002 were also adjourned (at the defendants’ request and
because of the absence of the applicant’s counsel
respectively). As a result, the trial started on 15 January 2002.
Further hearings were held on 31 January, 21 February, 12 and 24
April, 29 May and 10 June 2002.
- On 13 June 2002 the Warsaw Regional Court convicted
the applicant of attempted armed robbery and, having regard to his
previous criminal record, sentenced him to seven years’
imprisonment. It acquitted the applicant of the charge of unlawful
possession of a firearm. It also prolonged his detention until 30
September 2002.
- The prosecutor and all the defendants appealed.
- On 19 December 2002 the Warsaw Court of Appeal quashed
the first-instance judgment and remitted the case. It ordered that
the applicant be kept in detention pending the retrial until 30 March
2003 in view of the reasonable suspicion that he had committed the
offence with which he had been charged and the severity of the likely
sentence.
- On 6 March 2003 the Warsaw Regional Court extended the
applicant’s detention until 30 June 2003, holding that the
grounds originally given for his detention were still valid. It
further held that keeping him in detention was sufficiently justified
by the severity of the likely sentence and the need to secure the
proper conduct of the trial. Subsequent decisions prolonging the
applicant’s detention were given by the Regional Court on the
following dates: 26 June 2003 (ordering his continued detention until
30 September 2003), 1 September 2003 (extending his detention
until 31 October 2003) and 23 October 2003 (ordering his
continued detention until 31 January 2004). The court held that the
grounds previously given for his continued detention were still
valid.
- On 13 January 2004 the Regional Court prolonged the
applicant’s detention until 30 April 2004, relying on the
severity of the likely sentence and the associated risk that the
applicant might obstruct the proceedings. The applicant appealed. On
10 February 2004 the Court of Appeal ordered the applicant’s
release and placed him under police supervision. It held that further
prolongation of the applicant’s detention was unjustified,
since the Regional Court had not put forward any arguments warranting
the continued application of the most severe preventive measure. In
particular, the Regional Court had not indicated any concrete grounds
which would justify the risk that the applicant might obstruct the
proceedings. The applicant was released on the same day.
- Prior to 10 February 2004, the applicant made
numerous, unsuccessful applications for release and appealed,
likewise unsuccessfully, against refusals to release him and
decisions extending his detention.
- On 5 May 2004 the Warsaw Regional Court convicted the
applicant of attempted armed robbery and sentenced him to seven
years’ imprisonment. The applicant appealed.
- On 28 September 2004 the Warsaw Court of Appeal upheld
the first-instance judgment. The applicant’s legal aid lawyer
declined to file a cassation appeal against the Court of Appeal’s
judgment since he had not found any grounds on which an appeal could
be based.
B. Censorship of correspondence
- The applicant submits that during his detention his
correspondence was censored by the authorities.
- On 12 March 2002 the Registry sent the applicant a
letter in reply to his first letter setting out his Convention
complaints. That letter, with which an application form and
accompanying documents were enclosed, was delivered to the applicant
after having been controlled by the authorities. The Court’s
envelope bears a stamp that reads “Censored. Judge”
(“Ocenzurowano. Sędzia.”), followed by a date
“12 [April 20]02” and an illegible signature. There are
two other stamps that read: “Warsaw-Białołęka
Detention Centre. Received 2002-04-05” (“Areszt
Śledczy. Wpłynęło 2002-04-05) and
“Warsaw-Białołęka Detention Centre. Received
2002-04-15” (Areszt Śledczy. Wpłynęło
2002-04-15).
II. RELEVANT DOMESTIC LAW
A. Preventive measures, including detention on remand
- 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). The other measures are bail (poręczenie
majątkowe), police supervision (dozór policji),
guarantee by a responsible person (poręczenie osoby godnej
zaufania), guarantee by a social entity (poręczenie
społeczne), temporary ban on engaging in a given activity
(zawieszenie oskarżonego w określonej działalności)
and prohibition on leaving the country (zakaz opuszczania kraju).
- Article 249 § 1 sets out the general grounds for
imposition of preventive measures. That provision reads:
“1. Preventive measures may be imposed
in order to ensure the proper conduct of proceedings and,
exceptionally, also in order to prevent an accused’s committing
another, serious offence; they may be imposed only if the evidence
gathered shows a significant probability that an accused has
committed an offence.”
- Article 258 lists grounds for detention on remand. It
provides, in so far as relevant:
“1. Detention on remand may be imposed
if:
(1) there is a reasonable risk that an
accused will abscond or go into hiding, in particular when his
identity cannot be established or when he has no permanent abode [in
Poland];
(2) there is a reasonable risk that an
accused will attempt to induce [witnesses or co-defendants] to give
false testimony or to obstruct the proper course of proceedings by
any other unlawful means;
2. If an accused has been charged with a
serious offence or an offence for the commission of which he may be
liable to a statutory maximum sentence of at least 8 years’
imprisonment, or if a court of first instance has sentenced him to at
least 3 years’ imprisonment, the need to continue
detention to ensure the proper conduct of proceedings may be based on
the likelihood that a severe penalty will be imposed.”
- The Code sets out the conditions governing the
continuation of a specific preventive measure. Article 257 reads, in
so far as relevant:
“1. Detention on remand shall not be
imposed if another preventive measure is sufficient.”
Article 259, in its relevant part, reads:
“1. If there are no special reasons to
the contrary, detention on remand shall be lifted, in particular if
depriving an accused of his liberty would:
(1) seriously jeopardise his life or health;
or
(2) entail excessively harsh consequences for
the accused or his family.”
- The Code not only sets out maximum statutory
time-limits for detention on remand but also, in Article 252 §
2, lays down that the relevant court – within those time-limits
– must in each detention decision determine the exact time for
which detention shall continue.
Article 263 sets out time-limits for detention. In the version
applicable up to 20 July 2000 it provided:
“1. When imposing detention in the course of
an investigation, the court shall determine its term for a period not
exceeding 3 months.
2. If, due to the particular circumstances of the
case, an investigation cannot be terminated within the term referred
to in paragraph 1, the court of first instance competent to deal with
the case may – if need be and on an application made by the
[relevant] prosecutor – prolong detention for a period [or
periods] which as a whole may not exceed 12 months.
3. The whole period of detention on remand
until the date of the first conviction at first instance may not
exceed 2 years.
4. Only the Supreme Court may, on application
made by the court before which the case is pending or, at the
investigation stage, on application made by the Prosecutor General,
prolong detention on remand for a further fixed period exceeding the
periods referred to in paragraphs 2 and 3, when it is necessary in
connection with a stay of the proceedings, for the purpose of a
prolonged psychiatric observation of the accused or a prolonged
preparation of an expert report, when evidence needs to be obtained
in a particularly complex case or from abroad or when the accused has
deliberately prolonged the proceedings, as well as on account of
other significant obstacles that could not be overcome.”
- On 20 July 2000 paragraph 4 was amended and since then
the competence to prolong detention beyond the time-limits set out in
paragraphs 2 and 3 has been vested in the court of appeal within
whose jurisdiction the offence in question has been committed. In
addition, new paragraph 5 was added. It provides:
“A decision of the Court of Appeal taken pursuant
to paragraph 4 may be appealed against to the Court of Appeal sitting
in a panel of three judges.”
B. Censorship of correspondence
1. The Code of Execution of Criminal Sentences 1997
- Rules relating to means of controlling correspondence
of persons involved in criminal proceedings are set out in the Code
of Execution of Criminal Sentences (Kodeks karny wykonawczy)
which entered into force on 1 September 1998.
- The relevant part of Article 103 § 1 of
the Code provides as follows:
“Convicted persons (...) have a right to lodge
complaints with institutions established by international treaties
ratified by the Republic of Poland concerning the protection of human
rights. Correspondence in those cases (...) shall be sent to the
addressee without delay and shall not be censored.”
- Article 214 § 1 reads as follows:
“Unless exceptions are provided for in the present
Chapter, a detainee shall enjoy at least the same rights as are
secured to a convicted person serving a sentence of imprisonment
under the ordinary regime in a closed prison. No restrictions shall
be applied to him except such as are necessary to secure the proper
conduct of criminal proceedings, to maintain order and security in a
remand centre and to prevent demoralisation of detainees.”
- Article 217 § 1 reads, in so far as relevant, as
follows:
“(...) detainee’s correspondence shall be
censored by [the authority at whose disposal he remains], unless the
authority decides otherwise.”
Article 242 § 5 reads as follows:
“The prohibition of censorship shall also mean the
prohibition of acquainting oneself with the content of the letter.”
2. The Rules of Detention on Remand 1998
- On 1 September 1998 the Rules of Detention on Remand
(Rozporządzenie Ministra Sprawiedliwości w sprawie
regulaminu wykonywania tymczasowego aresztowania) entered into
force.
§ 36 of the Rules provides:
“The detainee’s correspondence, including
the correspondence with the international institutions for the
protection of human rights, which act on the basis of international
agreements ratified by the Republic of Poland, with the Ombudsman and
public and local government institutions, is mailed through the
intermediary of the organ at whose disposal he remains.”
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 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 Court observes that the applicant was arrested on
10 December 1999 and remanded in custody on 11 December 1999. On 13
June 2002 the Warsaw Regional Court convicted him of attempted armed
robbery and sentenced him to seven years’ imprisonment. As from
that date he was detained “after conviction by a competent
court”, within the meaning of Article 5 § 1 (a) and
therefore 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 19 December 2002 the
Warsaw Court of Appeal quashed the applicant’s conviction. As
from that date his detention was again covered by Article 5 § 3.
It continued until 10 February 2004, when the applicant was released.
- Consequently, the period to be taken into
consideration under Article 5 § 3 lasted 3 years and nearly
8 months.
2. The
reasonableness of the length of detention
(a) The parties’ arguments
- The Government argued that there had been valid
reasons for holding the applicant in detention for the entire period
in question. They stressed that the applicant’s detention had
been justified by the gravity of the charges against him and the
serious suspicion that he had committed the offences in question. In
the latter respect, they pointed to the fact that the applicant had
been caught in flagrante delicto. The Government further
emphasised that the applicant had been previously sentenced for
similar offences. On that account, they argued that there had been a
considerable risk that the applicant, if released, might obstruct the
proceedings or exert pressure on witnesses during the investigation
and the trial. Lastly, the Government referred to the complexity of
the case, stemming from the number of defendants and witnesses to be
heard as well as the number of expert reports.
- The applicant disagreed and maintained that the length
of his detention had been unreasonable.
(b) The Court’s assessment
(i) Principles established under the
Court’s case-law
- The Court reiterates that the question of whether or
not a period of detention is reasonable cannot be assessed in the
abstract. 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 laid down in
Article 5 of the Convention (see, among other authorities, Kudła
v. Poland [GC], no. 30210/96, §§ 110-111 with
further references, ECHR 2000-XI).
- 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, paying due regard to the principle of the presumption of
innocence, examine all the facts arguing for or against the existence
of the above-mentioned requirement of public interest justifying a
departure from the rule in Article 5 and must set them out in their
decisions on the applications for release. It is essentially on the
basis of the reasons given in these decisions and of the established
facts stated 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 (see, for example, Labita v. Italy [GC], no.
26772/95, § 152, ECHR 2000-IV, and Kudła, cited
above, § 110).
- 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. The Court must then 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 be satisfied that the national authorities displayed “special
diligence” in the conduct of the proceedings. The complexity
and special characteristics of the investigation are factors to be
considered in this respect (see, for example, Scott v. Spain,
judgment of 18 December 1996, Reports 1996-VI, pp. 2399-2400,
§ 74, and I.A. v. France, judgment of 23 September 1998,
Reports 1998-VII, p. 2978, § 102).
(ii) Application of the principles to the
circumstances of the present case
- The Court observes that the judicial authorities
relied, in addition to the reasonable suspicion against the
applicant, on three principal grounds, namely (1) the risk that the
applicant might obstruct the proceedings, given that he had not
confessed and that he and his co-defendants had given contradictory
evidence (2) the severity of the penalty to which the applicant was
liable and the serious nature of the charges against him and (3) the
complexity of the case and the need to obtain expert evidence.
Furthermore, the Government submitted that the applicant’s
detention was also justified by the fact that he had been previously
convicted of similar offences.
- The Court accepts that the reasonable suspicion that
the applicant had committed the offences with which he had been
charged may have warranted his detention in the early stage of the
proceedings. However, with the passage of time that ground inevitably
became less relevant. In particular, the Court considers that that
ground cannot suffice to justify the entire period in issue. It must
then establish whether the other grounds advanced by the judicial
authorities were “relevant” and “sufficient”
to continue to justify the deprivation of the applicant’s
liberty.
- As regards the risk of the obstruction of the
proceedings, the Court cannot accept that that constituted a relevant
and sufficient ground for the entire length of the applicant’s
detention. Firstly, it notes that in the first two decisions on the
applicant’s detention the Żyrardów District Court
and the Skierniewice Regional Court held that the risk of obstruction
was justified by the fact that the applicant had not confessed and
that he and his co-suspects had given contradictory evidence. In so
far as those courts appear to have drawn adverse inferences from the
fact that the applicant had not confessed, the Court considers that
their reasoning showed a manifest disregard for the principle of the
presumption of innocence and cannot, in any circumstances, be relied
on as a legitimate ground for deprivation of the applicant’s
liberty (see Górski v. Poland, no. 28904/02, § 58,
4 October 2005). Secondly, the Court observes that the judicial
authorities appear to have presumed the risk that the applicant might
obstruct the proceedings by basing themselves on the likelihood that
a heavy sentence would be imposed on the applicant as well as on the
nature of the offences in question. It notes however that the
relevant decisions did not mention any argument capable of showing
that these fears were well-founded. The Court considers that such a
generally formulated risk based on the nature of the offences with
which the applicant had been charged may possibly have justified his
detention in the initial stages of the proceedings. Nevertheless, in
the absence of other factors capable of showing that the risk relied
on actually existed, the Court cannot accept those grounds as a
justification for holding the applicant in custody for the entire
period under consideration. Furthermore, it appears that this risk
did not materialise following his release under police supervision on
10 February 2004.
- The Court notes that the judicial authorities
continuously relied on the likelihood that a heavy sentence might be
imposed on the applicant given the serious nature of the offences
with which he had been charged. 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. It acknowledges
that in view of the seriousness of the charges against the applicant
the authorities could justifiably consider that such a risk existed.
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). In the circumstances of the present case,
the Court finds that the severity of the likely sentence alone, or in
conjunction with the other grounds relied on by the authorities,
cannot constitute a “relevant and sufficient ground” for
holding the applicant in detention for a period of 3 years and nearly
8 months.
- As regards the fact that the applicant had been
convicted of similar offences in the past, the Court observes that,
although this might have been a potentially relevant argument, the
judicial authorities did not explain its importance to their
assessment of risk that the applicant would abscond or interfere with
the administration of justice. It appears that they regarded that
consideration as relevant only from the point of view of the severity
of the sentence that might be imposed on the applicant (see the
Skierniewice Regional Court’s decision of 30 August 2000,
paragraph 9 above). Thus, this ground cannot be taken to justify the
applicant’s prolonged period of detention.
- The Court further observes that the applicant was
detained principally on charges of attempted armed robbery committed
together with 3 accomplices and had been apprehended in flagrante
delicto. The defendants had not been formally charged with acting
in an organised criminal group. In these circumstances, the Court is
not persuaded that the instant case presented particular difficulties
for the investigation authorities and for the courts to determine the
facts and mount a case against the perpetrators as would undoubtedly
have been the case had the proceedings concerned organised crime (see
Celejewski v Poland, no. 17584/04, § 37, 4 May
2006).
- The Court would also emphasise that under Article 5
§ 3 the authorities, when deciding whether a person should
be released or detained, are obliged to consider alternative measures
of ensuring his appearance at trial. Indeed, that provision proclaims
not only the right to “trial within a reasonable time or to
release pending trial” but also lays down that “release
may be conditioned by guarantees to appear for trial” (see
Neumeister v. Austria, judgment of 27 June 1968, Series A
no. 8, p. 3, § 3; and Jabłoński v.
Poland, no. 33492/96, § 83, 21 December 2000).
- In the present case the Court notes that there is no
specific indication that during the entire period in question, the
authorities gave consideration to the possibility of ensuring the
applicant’s presence at trial by imposing on him other
“preventive measures” expressly foreseen by Polish law to
secure the proper conduct of criminal proceedings (see paragraph
27 above).
- What is more, it is not apparent from the relevant
decisions why the judicial authorities considered that those other
measures would not have ensured the applicant’s appearance
before the court or in what way the applicant, had he been released,
would have obstructed the course of the trial. Nor did they mention
any factor indicating that there was a real risk of his absconding or
obstructing the proceedings. In that regard the Court would also
point out that, although such a potential danger may exist where an
accused is charged with a serious offence and where the sentence
faced is a long term of imprisonment, the degree of that risk cannot
be gauged solely on the basis of the severity of the offence and the
anticipated sentence (see Muller v. France, judgment of
17 March 1997, Reports 1997-II, p. 388, § 43).
- The Court accordingly concludes that the reasons
relied on by the courts in their decisions were not sufficient to
justify the applicant’s being held in custody for 3 years and
nearly 8 months.
- That finding would, as a rule, absolve the Court from
determining whether the national authorities displayed “special
diligence” in the conduct of the proceedings. However, in that
context the Court cannot but note that even though the applicant was
indicted on 25 August 2000, the first hearing was listed only for 7
October 2001 and the trial began on 15 January 2002. The delay in the
proceedings between 25 August 2000 and 7 October 2001 was caused to a
large extent by the jurisdictional dispute between the courts (see
paragraph 10 above). The Court finds that such a delay should be
considered significant and it cannot therefore be said that the
authorities displayed “special diligence” in the conduct
of the criminal proceedings against the applicant.
- There has accordingly been a violation of Article 5 §
3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The applicant complained under Article 8 of the
Convention that his correspondence with the Court had been censored.
This provision, in its relevant part, reads:
“1. Everyone has the right to respect
for ... his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The Government refrained from expressing their opinion
on the admissibility and merits of the complaint, stating that they
had not received any evidence of the alleged censorship.
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. Existence of an interference
- The Court notes that the envelope, in which the
Registry’s letter of 12 March 2002 to the applicant was sent,
bears the following stamp: “Censored. Judge”
(“Ocenzurowano. Sędzia.”), followed by a date
“12 IV [20]02” and an illegible signature. There are two
other stamps that read: “Warsaw-Białołęka
Detention Centre. Received 2002-04-05” (“Areszt
Śledczy. Wpłynęło 2002-04-05) and
“Warsaw-Białołęka Detention Centre. Received
2002-04-15” (Areszt Śledczy. Wpłynęło
2002-04-15).
- The Court considers that, even if there is no separate
stamp on the letter as such, there is a reasonable likelihood that
the envelope had been opened by the domestic authorities. The Court
has held on many occasions that as long as the Polish authorities
continue the practice of marking detainees’ letters with the
“censored” stamp, the Court has no alternative but to
presume that those letters have been opened and their contents read
(see Matwiejczuk v. Poland, no. 37641/97, §
99, 2 December 2003 and Pisk-Piskowski v. Poland, no.
92/03, § 26, 14 June 2005, Michta v. Poland,
no. 13425/02, § 58, 4 May 2006). It follows that there
was an “interference” with the applicant’s right to
respect for his correspondence under Article 8.
2. Whether the interference was “in accordance
with the law”
- The Government did not indicate a concrete legal basis
in the domestic law for the impugned interference. The Court notes
that the interference took place in April 2002 when the applicant had
been detained on remand pending trial.
- The Court observes that, according to Article 214
of the Code of Execution of Criminal Sentences, persons detained on
remand should enjoy the same rights as those convicted by a final
judgment. Accordingly, the prohibition of censorship of
correspondence with the European Court of Human Rights contained in
Article 103 of the same Code, which expressly relates to convicted
persons, was also applicable to detained persons (see Michta
v. Poland, no. 13425/02, § 61, 4 May 2006, Kwiek
v. Poland, no. 51895/99, § 44, 30 May 2006). Thus,
censorship of the applicant’s letter from the Court’s
Registry was contrary to the domestic law. It
follows that the interference in the present
case was not “in accordance with the law”.
- Having regard to that finding, the
Court does not consider it necessary to ascertain whether the other
requirements of paragraph 2 of Article 8 were complied with.
Consequently, the Court finds that there has
been a violation of Article 8 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 273,000 Polish zlotys (PLN) in
respect of pecuniary damage and 150,000 PLN in respect of
non-pecuniary damage.
- The Government argued that the applicant’s
claims were exorbitant and should be rejected. They asked the Court
to rule that a finding of a violation of Article 5 § 3
constituted in itself sufficient just satisfaction. In the
alternative, they invited the Court to assess the amount of just
satisfaction on the basis of its case-law in similar cases and having
regard to national economic circumstances.
- The Court does not discern any causal link between the
violations 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 violations 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 submitted no claim in respect of 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 application admissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds that there has been a violation of Article
8 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, 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
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 17 October 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
