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FOURTH
SECTION
CASE OF OWSIK v. POLAND
(Application
no. 10381/04)
JUDGMENT
STRASBOURG
16 October 2007
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 Owsik v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza,
President,
Mr J. Casadevall,
Mr S.
Pavlovschi,
Mr L. Garlicki,
Ms L.
Mijović,
Mr J. Šikuta,
Mrs P.
Hirvelä, judges,
and Mr T.L. Early, Section
Registrar,
Having
deliberated in private on 25 September 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 10381/04) 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 Stanislaw Owsik (“the
applicant”), on 11 March 2004.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of
Foreign Affairs.
- On
19 May 2006 the President of the Fourth Section of the Court decided
to communicate the application to the Government. Under the
provisions of Article 29 § 3 of the Convention, it was
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 1958 and lives in Wałcz.
A. The criminal proceedings
- On
7 March 2003 the applicant was arrested by the police.
- On
9 March 2003 the Wałcz District Court (Sąd Rejonowy)
decided to detain the applicant on remand in view of the reasonable
suspicion that he had stolen two “Bosh” cutting tools
worth PLN 700 from his neighbours, damaged their door frame and a
letter box and uttered threats against his neighbour, Mrs. H.M. The
court also referred to the fact that the offences with which the
applicant had been charged had been committed within 5 years of
his previous conviction. The applicant was also charged with having
robbed an individual of PLN 6. However, this charge was subsequently
dropped by the prosecutor.
- On
18 April 2003 the applicant's request to change the preventive
measure against him was dismissed.
- On
19 May 2003 the applicant was indicted before the Wałcz District
Court.
- On
5 June 2003 the Wałcz District Court prolonged the applicant's
detention. The court relied on the reasonable suspicion against the
applicant, on the fact that he had been previously convicted and on
the risk that the applicant might try to influence witnesses given
the violent nature of the offences with which he had been charged and
the fact that the witnesses were known to the applicant and lived in
his neighbourhood. The court also considered that there was a risk
that a severe sentence would be imposed on the applicant even though
the charge of robbery had been dropped. The Court noted that the
applicant was a habitual offender and that there was a risk that he
would abscond. The court concluded that only the detention of the
applicant would secure the proper conduct of the proceedings and that
the conditions for applying police supervision had not been met.
- A
hearing scheduled for 28 August 2003 was cancelled apparently due to
the fact that the applicant went on a hunger strike and had to be
transferred to a prison hospital.
- On
5 September 2003 the applicant's detention was further prolonged. The
court essentially repeated the reasons given on 5 June 2003 and
further found that the applicant's mental and physical health was not
incompatible with detention.
- The
applicant appealed against this decision, contending that the court's
assessment that he would interfere with the course of the proceedings
was unfounded. He pointed out that, for many months after the
proceedings against him had been initiated, he had been living next
to the main witness, Mrs H.M., seeing her several times a day, and he
had not attempted to influence her to withdraw the charges. He
further raised complaints about his health and the inadequate medical
care in the detention centre.
- A
hearing scheduled for 17 September 2003 was adjourned as some of the
witnesses had failed to appear.
- On
29 September 2003 the Koszalin Regional Court (Sąd Okręgowy)
dismissed the applicant's appeal. The court considered that the
applicant's argument that since he had not tried to influence
witnesses previously he would not do so in the future could not
constitute a ground for release. It further dismissed the applicant's
complaints about his state of health as unfounded. The court finally
observed that the trial had not yet started because of the
applicant's decision to go on hunger strike.
- On
2 December 2003 the trial court held the first hearing in the
applicant's case.
- On
16 January 2004 a further request of the applicant to be released
from detention on the grounds of, inter alia, his poor health
was dismissed by the Wałcz District Court.
- On
2 March 2004 the Wałcz District Court prolonged the applicant's
detention relying solely on the reasonable suspicion that the
applicant had committed the offences and on the violent nature of the
offences, which made it probable that he would use force against
witnesses.
- The
applicant appealed against this decision.
- On
29 March 2004 the Koszalin Regional Court granted the appeal, quashed
the impugned decision and ordered the applicant's release. It appears
that the applicant was released on 31 March 2004. The court gave the
following reasons for its decision:
“We can agree with the first-instance court that
the main ground for maintaining preventive measures with respect to
[the applicant], that is the high probability that the accused had
committed the offences with which he had been charged, is still
relevant. However, in the opinion of the Regional Court, at the
present stage of the proceedings the particular grounds justifying
imposition of the most severe preventive measure are no longer
relevant. In this case there is no real and justified risk that [the
applicant] would attempt to illegally disrupt the proper course of
the trial. As it appears from the case file the court had practically
finished the taking of evidence and had heard all witnesses called.
What remains to be established is the state of health of [the
witness, Mrs H.M.]. In those circumstances it is difficult to argue
that there is a continuing risk that the applicant would try to
influence the witnesses to make false testimonies.
On the other hand, what should be underlined is that the
accused Stanisław Owsik has been in pre-trial detention since 7
March 2003, which is over one year. The act of indictment was lodged
with the court on 19 May 2003. In spite of the fact that the accused
is still in detention, the trial only started on 2 December
2003, that is after half-a-year. It would be a truism to reiterate
that detention on remand should not be transformed into the serving
of a sentence of imprisonment. Such a situation cannot be accepted
because of the guarantees of the accused's rights and the nature of
detention on remand, which is a lawful but controversial trespassing
on the constitutional rights of an individual.
In the light of the above, the appeal court finds that
the appeal should be allowed ...
Incidentally, the Regional Court would observe ex
officio that the first-instance courts instead of upholding
detention on remand in cases where it is not absolutely necessary,
should more often make use of the regulations contained in
Article 376 of the Code [listing other preventive measures].”
- On 18 May 2004 the Wałcz District Court gave a
judgment. The court convicted the applicant of the theft of one
“Bosh” tool worth PLN 269, destruction of property
resulting in damage of PLN 259 and uttering treats. He was
sentenced to one year and six months' imprisonment.
- The
applicant lodged an appeal and on 28 September 2004 the Koszalin
Regional Court dismissed it. The applicant did not lodge a cassation
appeal and the Regional Court's judgment became final.
B. The monitoring of the applicant's correspondence
- The
first page of the applicant's first letter addressed to the Court on
9 March 2004 bears the following stamp: Censored, Wałcz
District Court (Ocenzurowano, Sąd Rejonowy w Wałczu),
a handwritten date: 11.03.2004 and an illegible signature. One side
of the envelope in which the letter was delivered to the Court had
been opened and subsequently sealed with adhesive tape.
II. RELEVANT DOMESTIC LAW
-
The relevant domestic law and practice concerning the imposition of
detention on remand (aresztowanie tymczasowe), 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 August 2006.
- 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)
(“the 1997 Code”) which entered into force on 1 September
1998. Article 103 § 1 of the 1997 Code provides that
convicted persons are entitled to uncensored correspondence with the
Court. For a more detailed rendition of the relevant domestic law
provisions, see the Court's judgments in Michta v. Poland,
no. 13425/02, § 33, 4 May 2006 and Kwiek v.
Poland, no. 51895/99, § 23, 30 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 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 7 March 2003, when the applicant was
arrested, and ended on 31 March 2004 when he was released. Thus, his
detention on remand lasted 1 year and 25 days.
2. The parties' submissions
- The
applicant submitted that he had been kept in detention pending trial
for an unjustified period of time.
- The
Government considered that the applicant's pre-trial detention
satisfied the requirements of Article 5 § 3. It was justified by
“relevant” and “sufficient” grounds. These
grounds were, in particular, the strong suspicion that the applicant
had committed the offences and the genuine risk that he might
obstruct the proceedings. Moreover, the Government considered that
the case had been complex which was shown by the fact that numerous
witnesses had to be heard.
The
Government argued that the domestic authorities had shown due
diligence, as required in cases against detained persons, and that
some delays had been caused by obstacles that could not be
attributable to the domestic authorities.
3. The Court's assessment
(a) General principles
- The
Court recalls 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 judgements (see, among many other authorities,
Kudła v. Poland [GC], no. 30210/96, § 110
et seq, ECHR 2000 XI; and McKay v. the United Kingdom
[GC], no. 543/03, §§ 41-44, ECHR 2006-..., with further
references).
(b) Application of the above principles in
the present case
- In
their detention decisions, the authorities, in addition to the
reasonable suspicion against the applicant, relied principally on
three grounds, namely (1) the serious nature of the offences with
which he had been charged; (2) the severity of the penalty to which
he was liable; (3) the need to secure the proper conduct of the
proceedings, in particular, the risk that the applicant might try to
influence the witnesses. They relied on the fact that the main
witness had been the applicant's neighbour.
- The
applicant was convicted of having stolen one “Bosh” tool
worth approximately EUR 60, of having uttered threats against his
neighbour and of having destroyed her letter box and a door frame
causing damage of approximately EUR 60. Those offences, although
punishable by law and committed following the applicant's relapse
into crime, can hardly be considered violent crimes or as giving rise
to particular difficulties for the investigation authorities and the
courts to determine the facts, mount a case against the perpetrator
and reach a conclusion (see Malik v. Poland,
no. 57477/00, § 49, 4 April 2006).
- The
Court reiterates that Article 5 § 3 of the Convention cannot be
seen as authorising pre trial detention unconditionally provided
that it lasts no longer than a certain period. Justification for any
period of detention, no matter how short, must be convincingly
demonstrated by the authorities (see Belchev v. Bulgaria,
no. 39270/98, § 82, 8 April 2004 and Sarban v. Moldova,
no. 3456/05, § 97, 4 October 2005).
- The
Court accepts that the reasonable suspicion against the applicant of
having committed the offences could initially have warranted his
detention. However, with the passage of time, this ground became less
relevant and could not justify the entire period of the applicant's
detention. Moreover, the likelihood that a severe sentence would be
imposed on the applicant, a doubtful argument in the instant case
given the minor character 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 considers that the authorities did not rely on any specific
circumstance capable of showing that the applicant's release would,
and if so why and how, obstruct the process of obtaining evidence.
Moreover, the District Court in its decision of 29 September 2003
treated as irrelevant the applicant's argument that he had not made
any attempt to influence witnesses after they had initiated criminal
proceedings against him. The Court cannot agree with the domestic
authorities' assessment that the fact that the applicant had been the
main witness' neighbour was alone sufficient to establish a risk that
he would attempt to influence witnesses or otherwise obstruct the
proceedings.
- Finally,
the Court would emphasise that under Article 5 § 3 the
authorities, when deciding whether a person is to be released or
detained, are obliged to consider alternative means of guaranteeing
his appearance at the trial (see Jablonski v. Poland,
no. 33492/96, § 83, 21 December 2000). The Court
observes that the applicant was released following the Regional
Court's decision of 29 March 2004 which had criticised the trial
court for having failed to consider the possibility of ensuring his
presence at trial by means of other “preventive measures”
expressly foreseen by Polish law (see paragraph 19 above). Indeed,
apart from one brief statement in the decision of 5 June 2003
prolonging the applicant's detention, it does not transpire from the
case file that the domestic courts gave any careful consideration to
measures other than detention to secure the applicant's appearance at
his trial.
- 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 1 year and 25
days.
- Although
the above finding would normally absolve the Court from assessing
whether the proceedings were conducted with special diligence, in the
present case the Court cannot but note that even though the applicant
was indicted in 19 May 2003, it took the trial court over 6 months to
hold the first hearing (see paragraphs 8 and 15 above). The
Government failed to provide an explanation for the trial court's
inactivity during this period. Moreover, on 29 March 2003 the
Regional Court criticised the inactivity of the District Court (see
paragraph 19 above). That delay was significant and it cannot be said
that the authorities displayed “special diligence” in the
conduct of the criminal proceedings against the applicant.
There
has therefore been a violation of Article 5 § 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant also complained under Article 6 § 1 of the Convention
that the length of the proceedings in his case had exceeded a
“reasonable time” within the meaning of this provision.
- However,
pursuant to Article 35 § 1 of the Convention:
“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
Court notes that on 17 September 2004 the Law of 17 June
2004 on complaints about a breach of the right to a trial within a
reasonable time entered into force (Ustawa o skardze na naruszenie
prawa strony do rozpoznania sprawy w postępowaniu sądowym
bez nieuzasadnionej zwłoki) (“the 2004 Act”).
The Court observes that the present application was lodged with the
Court when the relevant proceedings were pending before the domestic
court.
Pursuant
to section 18 of the 2004 Act, it was open to persons such as the
applicant in the present case whose case was pending before the Court
to lodge, within six months from 17 September 2004, a complaint about
the unreasonable length of the proceedings with the relevant domestic
court, provided that their application to the Court had been lodged
in the course of the impugned proceedings and that it had not yet
been declared admissible.
However,
the applicant has chosen not to avail himself of this remedy.
- The
Court has already examined that remedy for the purposes of Article 35
§ 1 of the Convention and found it effective in respect of
complaints about the excessive length of judicial proceedings in
Poland. In particular, it considered that it was capable both of
preventing the alleged violation of the right to a hearing within a
reasonable time or its continuation, and of providing adequate
redress for any violation that had already occurred (see Charzyński
v. Poland (dec.), no. 15212/03, §§ 36 42).
- 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. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
Court considered it appropriate to raise ex officio the issue
of Poland's compliance with Article 8 of the Convention on
account of the monitoring of the applicant's correspondence with the
Court.
This
Article, 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 under Article 8.
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. Principles established under the Court's case-law
- The
Court recalls that any “interference by a public authority”
with the right to respect for correspondence will contravene
Article 8 of the Convention unless it is “in accordance
with the law”, pursues one or more of the legitimate aims
referred to in paragraph 2 of that Article and is “necessary in
a democratic society” in order to achieve them (see, among many
other authorities, Silver and Others v. the United Kingdom,
25 March 1983, Series A no. 61, p. 32, § 84;
Campbell v. the United Kingdom, 25 March 1992, Series A
no. 233, p. 16, § 34 and Niedbała v. Poland
no. 27915/95, § 78).
- As
to the expression “in accordance with the law”, the Court
has established three fundamental principles. The first one is that
the interference in question must have some basis in domestic law.
The second principle is that “the law must be adequately
accessible”, namely a person must be able to have an indication
that is adequate, in the circumstances, of the legal rules applicable
to his case. The third principle is that “a norm cannot be
regarded as a 'law' unless it is formulated with sufficient precision
to enable a person to regulate his conduct; he must be able if
need be with appropriate advice to foresee, to a degree that
is reasonable in the circumstances, the consequences which a given
action may entail” (see Silver, cited above, §§ 86 88).
- It
is important to respect the confidentiality of correspondence with
the Court since it may concern allegations against prison authorities
or prison officials. The opening of letters both to and from the
Court undoubtedly gives rise to the possibility that they will be
read and may conceivably, on occasion, also create the risk of
reprisals by prison staff against the prisoner concerned (see
Campbell, cited above, p. 22, § 62). No
compelling reasons have been found to exist for monitoring or
delaying an applicant's correspondence with the Court (see Campbell,
cited above, §§ 48 and 62; and Peers
v. Greece, no. 28524/95, § 84, ECHR 2001 III
and Drozdowski v. Poland, no. 20841/02, §§
27-31, 6 December 2005).
2. Application of the principles to the circumstances
of the present case
(a) Existence of an interference
- The
Court observes that the first page of the applicant's first letter
addressed to the Court of 9 March 2004 bears the stamp
“Censored, Wałcz District Court”, a handwritten date
of 11 March 2004 and an illegible signature. One side of the envelope
in which the letter was delivered to the Court was opened and
subsequently sealed with tape (see paragraph 22 above).
- The
Court notes that the Government refrained from taking a position on
the question whether there had been an interference with the
applicant's right to respect for his correspondence.
- In
those circumstances the Court considers that the opening and
censoring of the applicant's letter to the Court amounted to an
“interference” with the applicant's right to respect for
his correspondence under Article 8 (see, among many authorities,
Michta v. Poland, cited above, § 58).
(b) 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 March 2004 when the applicant had been
detained on remand prior to the first instance judgment.
- The
Court further 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
1997 Code, which expressly relates to convicted persons, was also
applicable to detained persons (see Michta v. Poland,
cited above, § 61, Kwiek v. Poland,
cited above, § 44).
- Thus,
censorship of the applicant's letter to the Registry of the Court was
contrary to the domestic 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.
57. Consequently,
the Court finds that there has been a violation of Article 8 of
the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- The
applicant did not submit any claim for just satisfaction or for
reimbursement of costs and expenses.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning the
unreasonable length of the applicant's pre-trial detention and
censorship of his correspondence with the Court admissible and the
remainder of the application inadmissible;
- 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.
Done in English, and notified in writing on 16 October 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
