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FOURTH
SECTION
CASE OF JAMROŻY v. POLAND
(Application
no. 6093/04)
JUDGMENT
STRASBOURG
15
September 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 Jamroży 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 Fatoş Aracı,
Deputy
Section Registrar,
Having
deliberated in private on 25 August 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 6093/04) 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 Władysław
Jamroży (“the applicant”), on 3 February 2004.
- The
applicant was represented by Mr W. Kabański, a lawyer practising
in Warsaw. The Polish Government (“the
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
14 November 2007 the
President of the Fourth Section of the
Court 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). In addition, third-party comments were received from the Polish
Helsinki Foundation for Human Rights, Warsaw, which had been given
leave by the President to intervene in the written procedure
(Article 36 § 2 of the Convention and Rule 44
§ 2).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1956 and lives in Polanica Zdrój.
A. Criminal proceedings
against the applicant and his pre-trial detention
- On
27 May 2002 the applicant was arrested by the Central Bureau of
Investigation (Centralne Biuro Śledcze) on suspicion of
having committed fraud.
- On
30 May 2002 the Warsaw District Court (Sąd Rejonowy)
remanded the applicant in custody in view of the reasonable suspicion
that he had committed the offences in question. It further considered
that there was a risk that he would induce the co-accused to give
false testimony or obstruct the proper conduct of the proceedings by
destroying the documentary evidence relevant to the investigation; at
the time of his arrest the applicant was found to be destroying
documents which might be important for the further conduct of the
proceedings. The court also stressed the likelihood that a heavy
penalty would be imposed on him.
- On
6 June 2002 the applicant appealed unsuccessfully against the
detention order. In his further applications for release and appeals
he maintained that, given his poor health, detention was putting a
severe strain on him.
- On
13 June 2002 the applicant lodged a motion with the State Prosecutor
(Prokurator Krajowy) for the case to be referred to another
prosecutor because the prosecutor dealing with his case was not in
his view impartial. In his motion the applicant alleged that he had
been denied access to his lawyer in breach of his right to defence.
On 4 September 2002 the motion was dismissed by the State Prosecutor.
- On
3 October 2002 the applicant lodged an application with the Warsaw
Prosecutor of Appeal (Prokurator Apelacyjny) for the detention
to be either lifted or replaced by another preventive measure. On 7
December 2002 the application was dismissed.
- On
21 August 2002 the Warsaw District Court extended the applicant's
detention until 31 October 2002. It repeated the grounds originally
given for his detention.
- On
24 October 2002 the Warsaw Regional Court (Sąd Okręgowy),
on appeal by the applicant, upheld the decision of 21 August 2002. It
repeated the grounds previously given for the applicant's detention
and referred to the likelihood of a severe sentence of imprisonment
being imposed on him.
- Subsequently,
further decisions extending the applicant's detention were taken by
the Warsaw District Court. The relevant decisions were taken on the
following dates: 28 October 2002 (extending his detention until
31 December 2002), 30 December 2002 (extending his detention
until 28 February 2003), 26 February 2003 (extending his
detention until 30 April 2003) and 25 April 2003 (extending his
detention until 26 May 2003).
- On
23 May 2003 the Warsaw Court of Appeal extended the applicant's
detention until 21 June 2003. The court again relied on the
reasonable suspicion that the applicant had committed the offence in
question and on the severity of the expected penalty. It also
mentioned that the continued detention was justified by reasons
referred to in Article 263 § 4 of the Code of Criminal
Procedure, without however specifying them.
- The
Warsaw District Court further extended the applicant's detention on
the following dates: 16 June 2003 (extending his detention
until 20 September 2003), 19 September 2003
(extending his detention until 31 March 2004) and
27 February 2004 (extending his detention until
26 May 2004).
- In
the meantime, on 4 November 2002, the applicant had appealed against
the decision of 28 October 2002 extending his pre-trial detention. No
ruling was given on the appeal. On 27 February 2003 the Warsaw
District Court gave a decision stating that a ruling on that appeal
would be purposeless, as the impugned decision had expired on 31
December 2002.
- On
16 December 2002 the applicant lodged an application with the
Prosecutor of Appeal for his detention to be lifted and replaced by
bail. The applicant referred to his health problems. On 2 January
2003, the Prosecutor of Appeal dismissed the application, emphasising
that the documents submitted in support of the applicant's request
did not constitute sufficient evidence of the alleged negative effect
of detention on his health. On 29 January 2003 the State
Prosecutor dismissed an appeal by the applicant against the decision
of 2 January 2003. On 19 April 2004 the applicant was subjected to a
medical examination at his own request. The results of the medical
examination did not reveal grounds for release.
- On
9 June 2003 the applicant was served with a bill of indictment.
- On
17 August 2004 the Warsaw District Court lifted the applicant's
detention and released him on bail. The court prohibited the
applicant from leaving the country and confiscated his passport.
- On
27 October 2005 the applicant asked for the prohibition on leaving
the country to be lifted. On 28 October 2005 the Warsaw District
Court dismissed his application.
- The
applicant appealed. On 30 November 2005 the Warsaw District Court
dismissed the appeal.
- The
applicant's further numerous requests for the prohibition on leaving
the country to be lifted were unsuccessful. On 22 June 2007 the
Warsaw District Court again refused the applicant's request. The
applicant's lawyer appealed.
- On
10 October 2007 the Warsaw District Court granted the appeal and
lifted the preventive measure in question. The court found that the
applicant had not obstructed the proceedings, had not tried to escape
and had been always at the disposal of the domestic authorities.
- The
case is pending before the first-instance court.
B. Complaint concerning the length of proceedings
- On
18 January 2006 the applicant lodged, under the Law of 17 June 2004
(Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy
w postępowaniu sądowym bez nieuzasadnionej zwłoki)
(“the 2004 Act”), a complaint concerning the length of
the examination of his appeal against the decision of 28 October 2002
prolonging his pre-trial detention. He stressed that he had appealed
on 4 November 2002. He claimed compensation in the amount of 10,000
Polish zlotys (PLN) (approx. EUR 2,500). The Warsaw District Court
refused to entertain the appeal on 27 February 2003.
- On
28 February 2006 the Warsaw Court of Appeal declined to consider the
complaint. It referred to the fact that the complaint concerned
proceedings prior to the entry into force of the 2004 Act and that
the 2004 Act produced legal effects as from the date of its entry
into force.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice concerning the imposition of
pre-trial detention (aresztowanie tymczasowe), the grounds for
its prolongation, release from detention and rules governing other,
so-called “preventive measures” (środki
zapobiegawcze) is 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 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 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 27 May 2002, when he was arrested on
suspicion of having committed fraud. On 17 August 2004 the applicant
was released on bail.
Accordingly,
the period to be taken into consideration amounts to two years,
two months and twenty-two days.
2. The parties' submissions
(a) The Government
- The
Government submitted that the applicant's detention had been duly
justified over the entire period. They emphasised that, apart from
the reasonable suspicion that he had committed the offences with
which he had been charged, the applicant's detention had been
justified by the fear that he would obstruct the proceedings.
(b) The applicant
- The
applicant's lawyer submitted that the length of the applicant's
detention had been clearly unreasonable and that the basis relied on
by the authorities which had extended the detention had never been
clearly explained. He further submitted that the applicant had not
contributed to the overall length of the proceedings; on the
contrary, he had always been at the disposal of the domestic courts.
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 general 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, namely (1) the severity of the penalty to which the
applicant was liable, (2) the risk that the applicant might induce
the co-accused to give false testimony or obstruct the proper conduct
of proceedings by destroying documentary evidence relevant to the
investigation. As regards the latter, they relied on the fact that
the applicant had been found in the act of destroying some documents
at the time of his arrest.
- The
Court accepts that the reasonable suspicion against the applicant of
having committed a serious offence could initially warrant his
detention. Also, the need to obtain voluminous evidence and to secure
the proper conduct of the proceedings, in particular the process of
obtaining evidence from witnesses constituted valid grounds for the
applicant's initial detention.
- However,
with the passage of time, those grounds became less and less
relevant. The Court must then establish whether the other grounds
adduced by the courts – namely, the severity of the anticipated
sentence and the risk that the applicant would tamper with evidence –
were “relevant” and “sufficient” (see, Kudła
cited above, § 111).
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 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 that the applicant might induce the co-accused to
give false testimony or obstruct the proper conduct of proceedings by
destroying the documentary evidence relevant to the investigation the
Court considers that this ground could be relevant in the early
stages of the investigation. After that the proper conduct of the
proceedings could be assured by securing the necessary documents
rather than by keeping the applicant in detention for two years and
nearly three months.
- The
Court further notes that the applicant was not a habitual offender,
he was charged with financial offences and not with crimes having a
violent element and that the case did not involve an organised
criminal group. No consideration was given to any alternative way of
ensuring attendance in the trial.
- Having
regard to the foregoing, 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. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Article 5 § 1 (c)
of the Convention that the decision ordering his pre-trial detention
had been arbitrary and unnecessary.
- The
Court notes that the applicant appealed against the detention order
of 30 May 2002. On 4 September 2002 the appeal was dismissed.
It
follows that this complaint was
introduced out of time and must be
rejected in accordance with Article 35 §§ 1 and 4
of the Convention.
- The applicant further complained
under Article 5 § 4 of the Convention that during his
pre-trial detention he had been denied prompt access to a court to
determine the lawfulness of his detention.
The
Court notes that this complaint is manifestly
ill-founded. The applicant was
represented by a lawyer and according to Polish law he could
regularly lodge appeals against the extension of pre-trial detention
or applications for release.
- The
applicant also alleged a violation of Article 6 § 1 of
the Convention on account of the unreasonable length of the
proceedings concerning the examination of his appeal against the
decision of 28 October 2002 extending his detention.
The
Court considers that this complaint should be examined under Article
5 § 4 of the Convention. However, it is inadmissible
as it was introduced outside the
six-month time limit and must be
rejected in accordance with Article 35 § 1 of the Convention;
the six months' period began to run on 27 February 2003, the date on
which the Warsaw District Court issued a decision stating that a
ruling on the appeal would be devoid of any purpose.
- The
applicant complained further under Article 6 § 1 about the
unreasonable length of the criminal proceedings against him. However,
the applicant has not exhausted domestic remedies available to him
under Polish law, i.e. the 2004 Act, giving him the possibility of
lodging a complaint about a breach of the right to a trial within a
reasonable time with a domestic court. He made a complaint under the
2004 Act only in respect of the prolonged non-examination of his
appeal against the decision of 28 October 2002 extending his
pre-trial detention but not in respect of the overall length of the
trial. For that reason the complaint about the unreasonable length of
the proceedings must be declared inadmissible for non-exhaustion
of domestic remedies.
- The
applicant relied further on Article 6 § 3 (c) claiming that
during his pre-trial detention he had been denied access to one of
his lawyers, which had infringed his right to defence. The Court
considers this complaint to be manifestly
ill-founded. The applicant was
represented by two lawyers of his own choice and he was able to see
one of the lawyers during the first days of detention (see Salduz
v. Turkey [GC], no. 36391/02, §§ 57-63,
27 November 2008).
- Lastly,
the applicant complained under Article 13 that Polish criminal
procedure allowed, in cases where pre-trial detention exceeded twelve
months, the examination of an appeal by the same Court of Appeal
which had previously decided on the extension of pre-trial detention.
The
Court notes that in such situations the decisions by the Court of
Appeal examining the appeal against extension of pre-trial detention
are given by a different panel of judges. It follows that this
complaint must be declared inadmissible as manifestly ill-founded
within the meaning of Article 35 §§ 3 and 4 of the
Convention.
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
there had been no grounds to apply Article 46 of the Convention and
that the proceedings in the applicant's case had exceptional features
that distinguished it from other cases of detention on remand.
Consequently, the length of the applicant's pre-trial detention did
not reveal the existence of a structural problem.
- Maintaining
that the number of cases in which the domestic courts had ordered
pre-trial detention 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.
- The
Government concluded that, bearing in mind the efforts of the Polish
authorities and the legislative reforms which had been and were being
introduced 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 third party's submissions
- The
comments submitted by the Helsinki Foundation for Human Rights (“the
Foundation”) were limited only to the question of the existence
in Poland of the structural problem relating to the application of
pre-trial detention. They did not refer to the particular
circumstances of the present case.
- The
Foundation first submitted some 2001-2007 statistics, according to
which approximately 90% of all prosecutor's requests for pre-trial
detention were allowed by the courts. Each year this preventive
measure was applied in approximately forty thousand cases.
- According
to the Foundation the institution of pre-trial detention in Poland
was abused, with serious social and financial consequences for remand
prisoners and serious financial consequences for the State Treasury.
- Secondly,
the Foundation, examining the particular grounds for pre trial
detention usually relied on by domestic authorities ordering or
extending pre-trial detention, went on to say that these grounds were
not always exhaustively examined and justified; in most cases the
authorities simply limited themselves to repeating the wording of the
Code of Criminal Procedure's relevant provisions. By way of example,
the domestic courts often relied on the risk that the defendant might
abscond. In their view, this risk was usually justified by the
severity of the expected sentence. The Foundation stressed that the
risk of absconding must be assessed with reference to a number of
other relevant factors which may either confirm the existence of a
danger of absconding or make it appear so slight that it cannot
justify pre-trial detention.
- The
Foundation also pointed to the rarity of cases in which consideration
had been given to other, less severe, preventive measures such as
bail, personal guarantees or police supervision.
- It
further referred to a number of provisions of Polish law influencing
irregularities in the application of pre-trial detention such as
insufficient independence of prosecutors vis-à-vis their
supervisors, the fact that decisions extending detention were taken
by assistant judges, the fact that court hearings at which pre-trial
detention was ordered or extended were practically closed to the
public, the limited access to relevant documents allowed to remand
prisoners and their representatives and the limited possibility of
having pre-trial detention cases examined by the Supreme Court.
- The
Foundation concluded that in their opinion the abuse of pre-trial
detention in Poland amounted to a structural problem.
C. 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 (see paragraphs 36-41 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 5,642,159 euros (EUR) in respect of pecuniary
damage and EUR 140,000 in respect of non-pecuniary damage.
- The
Government considered the applicant's claim in respect of pecuniary
damage “highly speculative” and his claim in respect of
non pecuniary damage far too excessive, and requested that they
be rejected.
- 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 1,500 in respect of
non pecuniary damage.
B. Costs and expenses
- The
applicant, who was represented by a lawyer, also claimed 61,244
Polish zlotys (PLN) for the costs of legal representation before the
Court. He produced a copy of his lawyer's authority to represent him
before the Court for the remuneration of PLN 35,000 plus 22% tax, and
copies of two invoices for legal representation for PLN 18,300 and
PLN 24,400.
- The
Government considered these claims exorbitant and requested that they
be rejected.
- 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 considers it
reasonable to award the sum of EUR 800 for the proceedings before the
Court.
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 Article 5
§ 3 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 1,500 (one
thousand five hundred euros) in respect of non-pecuniary damage and
EUR 800 in respect of costs and expenses, 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 amounts 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 15 September 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
