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FOURTH
SECTION
CASE OF DYLLER v. POLAND
(Application
no. 39842/05)
JUDGMENT
STRASBOURG
7 July
2009
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 Dyller v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
Ján Šikuta,
Mihai
Poalelungi,
Nebojša Vučinić,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 16 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 39842/05) 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 Zbigniew Dyller (“the
applicant”), on 13 October 2005.
- The
Polish Government were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
- The
applicant alleged, in particular, that his pre-trial detention had
exceeded a “reasonable time” within the meaning of
Article 5 § 3 of the Convention.
- On
30 August 2007 the
President of the Fourth Section of the Court decided to communicate
the complaint concerning the length of the applicant's pre trial
detention to the Government. It was also decided to examine the
merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1961 and lives in Tczew.
- On 15 October 2003 the applicant was arrested by the
police.
- On 16 October 2003 the Tczew District Court (Sąd
Rejonowy) decided to place the applicant in pre-trial detention
in view of the reasonable suspicion that he had committed a robbery
by punching R.O. and taking a “Slava” watch from him
worth 100 Polish zlotys (PLN). The court also relied on the severity
of the penalty that was likely to be imposed on the applicant and the
fact that he had been previously convicted of another robbery, for
which he had been sentenced to two years' imprisonment.
- On
8 January 2004 the applicant's pre-trial detention was extended.
- On
26 March 2004 the applicant was indicted before the Tczew District
Court. The prosecutor established that on 15 October 2003, in Tczew
train station, R.O., a homeless person, had been stopped by an
individual who had taken a can of beer from him. The individual had
then returned, hit R.O. in the face, causing a bruise, and taken his
watch. When the police arrived, R.O. identified the applicant as the
perpetrator. On his arrest the applicant had dropped the watch and it
had been returned to its owner, R.O.
- On
8 April 2004 the Tczew District Court further extended the
applicant's detention, finding that the grounds previously given
remained relevant. Moreover, the court did not find any circumstances
that would point in favour of the applicant's release.
- On
15 July 2004 the Starogard Gdański District Court, to which the
case had been transferred, dismissed the applicant's request for
release and further extended his pre-trial detention. It relied on
the reasonable suspicion against the applicant and on the likelihood
that a severe sentence would be imposed.
- It
appears that on 29 July 2004 the trial court held the first hearing.
Subsequently, hearings were held at regular intervals.
- On
14 October 2004 the District Court extended the applicant's
detention, relying solely on the likely severity of the sentence.
- On
12 January and 11 April 2005 the applicant's detention was further
extended. The court's reasons included two grounds: the reasonable
suspicion against the applicant and the severity of the penalty that
was likely to be imposed.
- On
13 July 2005 the court extended the detention of the applicant
relying, in addition to the likelihood of a severe penalty being
imposed, on the need to secure the proper conduct of the proceedings.
- On
30 September 2005 the Starogard Gdański District Court found the
applicant guilty of the robbery of a watch worth not less than PLN 3,
committed within five years of his previous conviction. The court
established that both the applicant and the victim had been under the
influence of alcohol. The applicant was sentenced to three years and
six months' imprisonment. The applicant lodged an appeal against
the judgment.
- The
applicant's detention was subsequently extended.
- On
13 January 2006 the Gdańsk Regional Court (Sąd Okręgowy)
dismissed the applicant's appeal and upheld the judgment. It appears
that the applicant failed to lodge a cassation appeal with the
Supreme Court (Sąd Najwyższy) and that the judgment
became final.
- On
14 April 2007 the applicant was released from detention, having
served the totality of his sentence.
- On
4 July 2005 the Tczew District Court acquitted the applicant of the
charge of having stolen a can of beer worth PLN 2.8 from R.O. It
appears that the judgment was not appealed against and became final.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law and practice concerning the imposition of
pre-trial detention (aresztowanie tymczasowe), the grounds for
its extension, release from detention and rules governing other
so-called “preventive measures” (środki
zapobiegawcze) are set out 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).
- The
relevant statistical data, recent amendments to the Code of Criminal
Procedure designed to streamline criminal proceedings and references
to relevant Council of Europe materials can be found in the Court's
judgment in the case of Kauczor (see Kauczor v. Poland,
no. 45219/06, §§ 27-28 and 30-35, 3 February
2009).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the length of his pre-trial detention had
been excessive. He relied on Article 5 § 3 of the
Convention, which, in so far as relevant, reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
- The
Government contested that argument.
A. Admissibility
- The
Government raised a preliminary objection arguing that the applicant
had failed to exhaust domestic remedies in respect of his complaint
about the unreasonable length of his pre-trial detention, in that he
had failed to lodge a cassation appeal against the second-instance
judgment given on 13 January 2006.
- In
the absence of any evidence, the Court finds that the Government have
failed to substantiate their contention that a cassation appeal
against the judgment of the appeal court should be considered an
effective remedy for the applicant's complaint under Article 5 §
3 of the Convention (see Oleksy v. Poland, no. 64284/01,
§ 25, 28 November 2006). At that stage of the proceedings
his detention was covered by Article 5 § 1 (a) of the
Convention.
- Accordingly,
the Court rejects the Government's preliminary objection. It further
notes that this complaint is not manifestly ill founded within
the meaning of Article 35 § 3 of the Convention and that it is
not inadmissible on any other grounds. The Court therefore declares
it admissible.
B. Merits
1. Period to be taken into consideration
- The
applicant's detention started on 15 October 2003, when he was
arrested on suspicion of having committed a robbery. On 30 September
2005 the District Court convicted him as charged.
Accordingly,
the applicant's detention lasted one year, eleven months and sixteen
days.
2. The parties' submissions
- The
applicant submitted in general terms that he had been kept in
pre-trial detention for an unjustified length 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 gravity of the charges against the
applicant and the fact that the applicant had been previously
convicted. The Government considered that there had been a risk of
the applicant going into hiding or otherwise interfering with the
proper course of the proceedings. The Government argued that the
domestic authorities had shown due diligence, as required in cases
against detained persons.
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, have been stated
in a number of its previous judgments (see, among many other
authorities, Kudła v. Poland [GC], no. 30210/96,
§ 110 et seq, ECHR 2000 XI, and McKay v. the
United Kingdom [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 two
grounds: the severity of the penalty to which he was liable and the
fact that the applicant was a recidivist offender.
- The
Court firstly observes that although the applicant was detained on
charges of robbery, the circumstances in which the offence was
committed were rather trivial. The applicant was convicted of having
robbed a homeless person in a train station of a watch worth
approximately one euro (EUR). The applicant acted without accomplices
and the main evidence against him had been the testimonies of the
victim and the police officers who had caught him immediately after
the incident. This offence, although committed following the
applicant's relapse into crime, can hardly be considered as giving
rise to particular difficulties for the investigation authorities and
the courts in determining the facts, mounting a case against the
applicant and reaching 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; Sarban v. Moldova,
no. 3456/05, § 97, 4 October 2005; and Owsik v.
Poland, no. 10381/04, § 34, 16 October 2007).
- The
Court accepts that the suspicion against the applicant of having
committed the offence might initially have justified his detention.
However, with the passage of time, the grounds given became less
relevant and cannot justify the entire period of almost two years
during which the most serious preventive measure available was
imposed on the applicant.
- According
to the authorities, the likelihood of a severe sentence being imposed
on the applicant created a presumption that the applicant would
obstruct the proceedings. However, the Court would reiterate that,
while the severity of the sentence faced is a relevant element in the
assessment of the risk of absconding or reoffending, the gravity of
the charges cannot by itself justify long periods of pre-trial
detention (see Michta v. Poland, no. 13425/02, §§
49, 4 May 2006).
- The
Court considers that the authorities did not rely on any specific
circumstance capable of showing that the applicant's release would
obstruct the process of obtaining evidence, and if so why and how.
Finally, the Court notes that there is no specific indication that
during the period of the applicant's pre-trial detention the
authorities envisaged the possibility of imposing on him other
preventive measures – such as bail or police supervision –
expressly foreseen by Polish law to secure the proper conduct of the
criminal proceedings.
In
this context the Court would 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 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 v. Poland,
no. 33492/96, § 83, 21 December 2000).
- Having
regard to the foregoing and noting that the case did not belong to
the category of organised crime (compare Bąk v. Poland,
no. 7870/04, ECHR 2007 ... (extracts)), the Court concludes
that the grounds given by the domestic authorities could not justify
the overall period of the applicant's detention. In these
circumstances it is not necessary to examine whether the proceedings
were conducted with special diligence.
There
has accordingly been a violation of Article 5 § 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that he did not have a “fair trial”
and that he was innocent. He relied on Article 6 of the Convention.
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 the applicant failed to lodge a cassation appeal
with the Supreme Court. Therefore, the Court finds that the applicant
failed to exhaust the available domestic remedies.
- It
follows that this complaint must be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
III. APPLICATION OF ARTICLE 46 OF THE CONVENTION
- Article
46 of the Convention provides:
“1. The High Contracting Parties undertake to
abide by the final judgment of the Court in any case to which they
are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
- Recently,
in the case of Kauczor v. Poland (see Kauczor, cited
above, § 58 et seq. with further references) the Court held that
the 2007 Resolution taken together with the number of judgments
already delivered and of the pending cases raising an issue of
excessive detention incompatible with Article 5 § 3 demonstrated
that the violation of the applicant's right under Article 5 § 3
of the Convention had originated in a widespread problem arising out
of the malfunctioning of the Polish criminal justice system which had
affected, and may still affect in the future, an as yet unidentified,
but potentially considerable number of persons charged in criminal
proceedings.
- In
the present case, as in other numerous similar detention cases, the
authorities did not justify the applicant's continued detention by
relevant and sufficient reasons (see paragraph 38 above).
Consequently, the Court sees no reason to diverge from its findings
made in Kauczor
as to the existence of a structural problem and the need for the
Polish State to adopt measures to remedy the situation (see Kauczor,
cited above, §§ 60-62).
IV. 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 PLN 350,000 in respect of pecuniary and
non pecuniary damage.
- The
Government considered that these claims were excessive and as such
should be rejected. They were of the view that in cases concerning
criminal proceedings a finding of a violation of Article 5 § 3
should constitute in itself sufficient just satisfaction.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant 2,000 euros (EUR) in respect
of non pecuniary damage.
B. Costs and expenses
- The
applicant submitted no claim for 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 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 2,000 (two
thousand euros) in respect of non-pecuniary damage, plus any tax that
may be chargeable, to be converted into Polish zlotys at the rate
applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above 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 7 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
