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FOURTH
SECTION
CASE OF KACPRZYK v. POLAND
(Application
no. 50020/06)
JUDGMENT
STRASBOURG
21 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 Kacprzyk v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Mihai Poalelungi, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 30 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 50020/06) 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 Rafał
Kacprzyk (“the applicant”), on 1 December 2006.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- The
applicant alleged that his pre-trial detention had exceeded a
“reasonable time” within the meaning of Article 5 §
3 of the Convention. He
also complained under Articles 6 § 1 of the Convention of a
shortcoming on the part of the trial court regarding the
classification of one charge and of the unreasonable length of the
criminal proceedings against him.
- On
17 October 2007 the
President of the Fourth Section decided to give notice of the
application 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 1973. He is currently
detained in Ustka Prison.
- On 22 October 2004 the applicant was arrested on
suspicion that he had committed a series of criminal offences against
different banks, such as fraud, perjury and attempted unlawful
disposal of property.
- On
25 October 2004 the Gdańsk District Court (Sąd Rejonowy)
remanded the applicant in custody. On 7 February 2005 the Gdańsk
Regional Court (Sąd Okręgowy) upheld that decision.
- The
applicant's pre-trial detention was subsequently extended by
decisions of the Gdańsk District Court of: 13 January and 22
April 2005 (the latter upheld by the Gdańsk Regional Court on 23
May 2005) and 15 July 2005 (upheld by the Gdańsk Regional
Court on 16 August 2005). Later, the preventive measure in question
was extended by decisions of the Gdańsk Regional Court of 20
October 2005 (upheld by the Gdańsk Court of Appeal on 3 November
2005), 2 January, 23 March, 31 May and 3 July 2006 (upheld
by the Gdańsk Court of Appeal on 19 July 2006), and
23 August 2006.
- The
domestic courts justified the applicant's pre trial detention in
its initial phase by the existence of strong evidence against the
applicant and a likelihood that a severe penalty would be
imposed. Moreover, the authorities invoked the need to ensure the
proper conduct of the proceedings in the light of the risk that the
applicant might go into hiding. He did not have a permanent residence
and had been already sought by the police under a wanted notice.
Finally, the domestic courts indicated that it had been necessary to
examine new witnesses, to obtain psychiatric reports on the applicant
and to run the necessary graphology tests, all of which had
contributed to the delays in the pre trial proceedings.
- At
the later stage of the applicant's pre trial detention, the
authorities emphasised that the applicant had been charged with
seventeen serious criminal offences and that holding him in detention
was the only possible way to ensure the proper conduct of the
proceedings, since the applicant had already gone into hiding in the
past.
- Meanwhile,
from 19 November 2004 to 27 February 2005, from 27 February to
13 May 2005 and from 20 July 2005 to 20 April 2006 the applicant
was concurrently serving prison sentences which had been imposed by
domestic courts in three unrelated criminal proceedings against him.
- It
appears that on 18 February 2005 the applicant, who beforehand had
resided in Germany, became registered at a permanent address in
Poland.
- On
30 September 2005 the applicant was indicted on numerous charges of
fraud, perjury and attempted unlawful disposal of property. It was
asserted in the indictment that he had tried to enter into financial
transactions with different banks under false pretences and using
false documents. The prosecutor asked the trial court to examine
sixty-one witnesses, including nine expert witnesses.
- The
first hearing took place on 7 November 2005. Subsequently, between
2005 and the end of 2007 the trial court held twenty-four hearings.
- When
the length of the applicant's pre trial detention appeared to
reach the statutory two year time limit laid down in
Article 263 § 3 of the Code of Criminal Procedure
(Kodeks postępowania karnego), the Gdańsk Regional
Court asked the superior court to assume jurisdiction to take a
decision on the measure. On 17 October 2006, however, the Gdańsk
Court of Appeal decided not to hear the case, noting that the
applicant's actual pre trial detention had not lasted two years
because it had been interrupted by the prison sentences which he had
been serving at the same time, for approximately one year and
three months.
- Consequently,
the applicant's pre-trial detention was extended again by decision of
the Gdańsk Regional Court of 19 October and 30 November 2006
and 10 January, 7 February, 12 April and 28 June 2007.
Those decisions were upheld by the Gdańsk Court of Appeal on
7 November and 13 December 2006, an unspecified date, and
20 February, 24 April and 18 July 2007, respectively.
- In
the meantime, on 27 February 2007 the Gdańsk Regional Court
dismissed a request by the applicant to lift the preventive measure
in question.
- At
that stage, the domestic courts justified the applicant's protracted
pre trial detention by the complexity of the case, the need to
examine two more witnesses and the fact that the investigation could
not be completed for reasons beyond the prosecutor's control, namely
delays in obtaining the testimony of a witness who was to be heard by
the court in a different administrative region under the courts'
mutual aid system.
-
On 28 December 2007 the court convicted the applicant of several
offences and sentenced him to five and a half years' imprisonment.
- It
appears that the applicant appealed and that the proceedings are
currently pending before the second instance court. The
applicant remains in detention.
- The
applicant did not use, in connection with his criminal trial, any of
the domestic legal means designed to counteract and redress the undue
length of judicial proceedings, such as those regulated in the Law of
17 June 2004 on complaints about a breach of the right to a
trial within a reasonable time (Ustawa o skardze na naruszenie
prawa strony do rozpoznania sprawy w postępowaniu sądowym
bez nieuzasadnionej zwłoki) or by Article 417 of the
Civil Code (Kodeks Cywilny).
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Provisions pertaining to pre-trial detention
- The
relevant domestic law and practice concerning the imposition of
pre-trial detention on remand
(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.
B. Remedies for the excessive length of judicial
proceedings
- The
relevant domestic law and practice concerning remedies for the
excessive length of judicial proceedings, in particular the
applicable provisions of the 2004 Act, are stated in the Court's
decisions in the cases of Charzyński v. Poland no.
15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v.
Poland no. 11215/02 (dec.), ECHR 2005-VIII, and the judgment in
the case of Krasuski v. Poland, no. 61444/00, §§
34-46, ECHR 2005-V.
C. Relevant statistical data, measures taken by the
State to reduce the length of pre-trial detention and relevant
Council of Europe documents
- 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 including the 2007 Resolution
of the Committee of Ministers, 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 submitted that the applicant had not exhausted all the
remedies provided for by Polish law in that he had failed to appeal
against several decisions extending his detention. They also
submitted that the applicant should have lodged a constitutional
complaint with the Constitutional Court.
- The
applicant did not comment.
- The
Court observes that the applicant did not challenge every decision
extending his detention. However, he did lodge as many as eleven
appeals against decisions in question (see paragraphs 7, 8 and 16
above). He also unsuccessfully requested that his detention be lifted
(see paragraph 17 above).
The
Court has already considered that those remedies, namely an appeal
against a detention order or a request for release, whether submitted
to the prosecutor or to the court, depending on the stage of the
proceedings, and also an appeal against a decision to extend
detention, serve the same purpose under Polish law. Their objective
is to secure the review of the lawfulness of detention at any given
time in the proceedings, both in their pre-trial and trial stage, and
to obtain release if the circumstances of the case no longer justify
continued detention (see Iwańczuk v. Poland (dec.),
no. 25196/94, 9 November 2000, and Wolf v. Poland,
nos. 15667/03 and 2929/04, § 78, 16 January 2007). It
follows from the Court's case-law that the applicant is not required
to appeal against each and every decision extending his detention
(see, by contrast, Bronk v. Poland (dec.), no. 30848/03,
11 September 2007).
- Moreover,
according to the established case-law, having exhausted the available
remedy, the applicant was not required to embark on another attempt
to obtain redress by bringing a constitutional complaint (see, for
example, Cichla v. Poland no. 18036/03, § 26,
10 October 2006).
- It
follows that this complaint cannot be rejected for non-exhaustion of
domestic remedies. The Court further notes that it is not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention and 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 22 October 2004, when he was
arrested on suspicion that he had committed a series of criminal
offences against banks, including fraud, perjury and attempted
unlawful disposal of property.
On 28
December 2007 the Gdańsk Regional Court convicted the applicant
and sentenced him to five and a half years' imprisonment. As from
that date he has been detained “after conviction by a competent
court”, within the meaning of Article 5 § 1 (a) and,
consequently, that period of his detention falls outside the scope of
Article 5 § 3 (cf. Kudła, cited above, § 104).
It appears that the proceedings are currently pending an appeal.
- In
parallel to the applicant's pre-trial detention, however, namely from
19 November 2004 to 27 February 2005, from 27 February to 13 May 2005
and from 20 July 2005 to 20 April 2006 the applicant served three
separate prison sentences which had been imposed on him in other
criminal proceedings (see paragraph 11 above). These terms, being
covered by Article 5 § 1 (a), must therefore be subtracted from
the period of the applicant's pre-trial detention for the purposes of
Article 5 § 3.
- Accordingly,
the period to be taken into consideration amounts to one year, eleven
months and thirteen days.
2. The parties' submissions
(a) The applicant
- The
applicant submitted that the length of his pre-trial detention had
been excessive and that the measure had not been sufficiently
justified by the authorities.
(b) The Government
- The
Government stressed that the applicant's pre-trial detention had not
exceeded two years. They considered that the measure in question had
satisfied the requirements of Article 5 § 3. Throughout its
entire period it had been justified by “relevant” and
“sufficient” grounds, in particular the existence of a
reasonable suspicion that he had committed the offences he had been
charged with. Moreover, the Government considered that the
applicant's protracted detention pending trial was justified by the
complexity of the case and the fact that, if convicted, he was facing
a lengthy prison sentence. Lastly, they relied on the risk of the
applicant's absconding, which was considered real in the light of the
fact that he had already been sought under a wanted notice.
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 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
three grounds, namely (1) the severity of the penalty to
which he was liable; (2) the complexity of the case and
(3) the risk of the applicant's absconding. As regards the
latter, they specified that the applicant had already been sought
under a wanted notice and that he did not have a permanent residence
address in Poland.
- 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 serious offences could initially warrant his
detention. Also, the complexity of the case in so far as it had been
necessary to obtain evidence from a large number witnesses, including
expert witnesses, constituted valid grounds for the applicant initial
detention. However, with the passage of time, those grounds became
less and less relevant.
It
must be therefore examined whether the other grounds adduced by the
courts – namely, the severity of the anticipated sentence and
the risk that he would abscond – were “relevant”
and “sufficient” (see, Kudła cited above,
§ 111).
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
re offending, the gravity of the charges cannot by itself
justify long periods of detention on remand (see Michta v. Poland,
no. 13425/02, §§ 49, 4 May 2006).
As
regards the risk of the applicant's absconding, the authorities have
relied on the fact that the applicant had already gone into hiding
and that he did not have a permanent residence in Poland. In
connection with the latter argument, the Court notes that it appears
that in early 2005 the applicant obtained a permanent address in the
country. Moreover, concurrently to his pre-trial detention in
connection with the instant case, the applicant was deprived of
liberty for the purpose of serving three sentences of imprisonment.
His presence in the country was, therefore, secured by the
authorities. The Court cannot agree with the domestic authorities'
assessment that the fact that the applicant had gone into hiding in
the past was alone sufficient to establish, without further inquiry,
a risk that he would abscond or otherwise obstruct the proceedings.
- Having regard to the foregoing and noting that the
offences with which the applicant had been charged, even though they
carried a severe penalty, were not violent crimes and 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 further complained of the Convention of the excessive
length of the criminal proceedings against him. He also complained
under that one of the charges against him had been given a wrong
classification by the domestic court.
Both complaints fall to be examined under Article 6 § 1 of the
Convention, which reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... within a
reasonable time by [a] ... tribunal ...”
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 ...”
- In
this connection, the Court observes that on 28 December 2007 the
Gdańsk Regional Court convicted the applicant at first instance.
It appears that the applicant appealed against that judgment and that
his case is currently pending before the second-instance court with
the possibility of ultimately reaching the Supreme Court.
Accordingly,
the applicant has not yet exhausted domestic remedies in respect of
his complaint under Article 6 § 1 of the Convention concerning
the unfairness of the proceedings.
- Moreover,
as regards the applicant's complaint about the unreasonable length of
the impugned proceedings, the Court notes that the applicant did not
lodge a complaint with the relevant domestic court under the 2004
Act, thus failing to avail himself of the available domestic 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, the Court considered
that the remedy 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 has already occurred (see Charzyński v. Poland
(dec.), no. 15212/03, §§ 36-42).
- It
follows that both complaints under Article 6 § 1 of the
Convention 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.”
A. The parties' submissions
1. The applicant
- The
applicant did not submit any observations concerning this provision.
2. The Government
- The Government submitted that
the length of the applicant's pre-trial detention had not been
excessive considering the complexity of the case. Therefore, the
length of the measure in question did not reveal the existence of a
structural problem. They further stressed that Polish law was
compatible with the standards of Article 5 § 3 of the
Convention.
- Maintaining
that the number of cases in which the domestic courts had ordered
detention on remand lasting from twelve months to two years or longer
was decreasing, the Government made reference to the statistical data
for 2005-2007 which they submitted to the Court. They further
stressed that the awareness of courts of the standards concerning the
length of the detention on remand was growing.
- They
also suggested that the fact that the Court had already given many
judgments finding a violation of Article 5 § 3 of the Convention
should not lead to the automatic application of Article 46, as had
occurred in the case of Scordino v.
Italy. The Polish authorities had
taken many general and individual measures based on the conclusions
stemming from the Court's judgments finding that the length of the
detention on remand had been excessive. In particular, on 17 May 2007
the Cabinet adopted the “Plan of Actions of the Government for
the execution of judgments of the European Court of Human Rights in
respect of Poland”.
- The
Government concluded that, bearing in mind the efforts of the Polish
authorities and the legislative reforms which were and had been
undertaken by them to solve the problem of the length of detention on
remand, Poland could not be said to have failed to comply with its
obligations under Article 46 of the Convention to obey the Court's
judgments.
B. The Court's assessment
- 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 of the Committee of Ministers 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. 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 9,500 euros (EUR) in respect of pecuniary damage,
comprising overdue child maintenance and rent payments. He also
claimed EUR 20,500 in respect of non-pecuniary damage.
- The
Government submitted that the applicant's claims for pecuniary damage
were speculative and unjustified, while his claims for non pecuniary
damage, exorbitant.
- 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 EUR 800 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 2,500 for the costs and expenses incurred
before the domestic courts.
- The
Government submitted that the applicant's claim was to be rejected as
unjustified and irrelevant.
- 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, regard being had to the information in
its possession and the above criteria, the Court rejects the claim
for costs and expenses in the domestic proceedings.
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 under Article 5 § 3
of the Convention concerning the 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 800 (eight
hundred euros) in respect of non-pecuniary damage, plus any tax that
may be chargeable to be converted into the currency of the respondent
State 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 21 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
