KUSYK v. POLAND - 7347/02 [2006] ECHR 889 (24 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.

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

Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr G. Bonello,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr L. Garlicki,
Mr J. Borrego Borrego, judges,
and Mr T.L. Early, Section Registrar,

14. On 5 April 2001 the Lublin Court of Appeal quashed the first-instance judgment and ordered a retrial.

“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.”

(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.”

“1. Detention on remand shall not be imposed if another preventive measure is sufficient.”

“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:

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.”

“ 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.”

Article 64 §§ 1 and 2 of the Criminal Code of 1997 included in Chapter VII of the Criminal Code of 1997 provide for special rules relating to the sentencing of habitual offenders. The finding that a person is subject to the rules on recidivism within the meaning of Article 64 of the Criminal Code, inevitably results in the sentence of imprisonment to which the accused was liable being increased.

“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.”

Done in English, and notified in writing on 24 October 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint dissenting opinion of Sir Nicolas Bratza and Mr Casadevall is annexed to this judgment.

We are unable to agree with the view of the majority of the Chamber that there was no violation of Article 5 § 3 in the present case.

The applicant was detained on remand for periods totalling nearly 3 years. Particularly strong reasons were in our view called for to justify such a prolonged period of pre-trial detention. As noted in the judgment, the judicial authorities in Poland relied on a number of features of the case as justifying the continued detention of the applicant – the strong suspicion against the applicant, the seriousness of the charge against him, the severity of the penalty which he faced and the fact that he was subject to the rules on recidivism. In addition, the respondent Government placed emphasis on the complexity of the case and the fact that it had been before the trial court and the Court of Appeal on two occasions. In our view, none of these reasons, whether considered alone or in combination, are sufficient to justify a total period of detention of such length.

While we accept that the reasonable suspicion against the applicant may have warranted his detention at the early stage of the proceedings against him, it is well-established that, after a certain period of time, the persistence of a reasonable suspicion against an accused no longer suffices and that any justification for his continued detention must be founded on other “relevant” and “sufficient” grounds (see, for example, Letellier v. France, judgment of 26 June 1991, Series A, no. 207, p. 18, § 35).

The severity of the sentence faced is a relevant element in the assessment of the risk of absconding or re-offending. However, the degree of that risk cannot be gauged solely on the basis of the severity of the offence and anticipated sentence (see Muller v. France, judgment of 17 March 1997, Reports of Judgments and Decisions 1997-II, p. 388, § 43). Moreover, as is noted in the judgment, the Court has repeatedly held that the gravity of the charges cannot by itself serve to justify long periods of detention on remand. While the accusations against the applicant were of sufficient seriousness that the authorities could initially justifiably have considered that such a risk was established, we are unable to share the view of the majority that the gravity of the charges or the severity of the penalty to which the applicant was exposed served to justify his continued prolonged detention on remand.

The same applies to the reliance on the fact that the applicant was a recidivist and was subject to the rules on recidivism. The character of the accused and his previous behaviour are undoubtedly relevant factors for the domestic courts when they assess the risk of the applicant’s absconding or obstructing the proceedings (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 60, ECHR 2003 IX). Nevertheless, in the present case, even if we could accept that the fact that the applicant was a habitual offender gave

rise to the risk that he might abscond, this could not in our view of itself justify the applicant’s detention throughout the entire period in question.

In this regard we recall that, when deciding whether a person should be released or detained, the judicial authorities are obliged under Article 5 § 3 to consider alternative measures of ensuring his appearance at trial. That provision not only proclaims 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. 36, § 3; and Jabłoński v. Poland, no. 33492/96, § 83, 21 December 2000). In the present case it is notable that, during the entire period the applicant was kept in detention, and despite his applications for release, the authorities never appear to have envisaged any other guarantees for his appearance at trial. Nor do they appear to have given consideration to the possibility of imposing on him any other “preventive measures” expressly foreseen by Polish law to secure the proper conduct of criminal proceedings (see paragraph 20 of the judgment).

It is true that, as emphasised by the majority, the proceedings against the applicant were of a certain complexity and that two separate periods of detention on remand were involved, the applicant’s original conviction having been quashed on appeal. However, neither factor is in our view of decisive importance. What is important is that, whether continuously or not, the applicant remained in detention as an unconvicted person for an exceptionally long period, for which no sufficiently strong grounds of justification have been advanced.

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