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FOURTH
SECTION
CASE OF M.B. v. POLAND
(Application
no. 11887/07)
JUDGMENT
STRASBOURG
26 July
2011
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 M.B. v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Sverre Erik
Jebens,
Zdravka Kalaydjieva,
Nebojša
Vučinić,
Vincent A. De Gaetano, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 5 July 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 11887/07) 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, Ms M.B. (“the
applicant”), on 7 March 2007. The
President of the Section acceded to the applicant’s request not
to have her name disclosed (Rule 47 § 3 of the Rules of Court).
- The
applicant was represented by Ms F. Bourg, a lawyer practising in
Paris. The Polish Government (“the Government”)
were represented by their Agent, Mr J. Wołąsiewicz of the
Ministry of Foreign Affairs.
- On
21 April 2008 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 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1958 and lives in Katowice.
- On 18 October 2004 the Katowice Regional Prosecutor
(Prokurator Prokuratury Okręgowej) ordered the
applicant’s detention in connection with a criminal
investigation pending against her. The prosecutor also issued a
search warrant for the applicant’s apartment with a view to
locating any book-keeping records or other documents which could be
used as evidence in the ongoing investigation.
- On
19 October 2004 the applicant was arrested on suspicion of abuse of
her powers and office in her role as head of a certain division at
the Katowice Office of Fiscal Control (Urząd Kontroli
Skarbowej) and accepting a bribe (in the amount of 130,000 Polish
zlotys (PLN)).
- On
20 October 2004 the Katowice District Court (Sąd Rejonowy)
remanded the applicant in custody, relying on the reasonable
suspicion that she had committed the offences in question. It
also considered that keeping the applicant in detention was necessary
to secure the proper conduct of the proceedings, given the risk that
if released, the applicant might induce witnesses to give false
testimony. The court also stressed that a severe sentence was
likely to be imposed.
- The
applicant’s appeal against the detention order was dismissed by
the Katowice Regional Court (Sąd Okręgowy) on 1
December 2004.
- In
the course of the investigation, the applicant’s detention was
extended on several occasions by the Katowice District Court, namely
on 12 January, 14 April, and 12 July 2005.
- On
14 January 2005 the Regional Prosecutor’s Office issued a
decision whereby the possible penalty to be imposed on the applicant
was to be secured by means of a charge on the applicant’s
assets, amounting to PLN 25,000, as well as through the
forfeiture of benefits deriving from her crime in the amount of PLN
130,000. On 25 February 2005 this decision was upheld together with
the relevant enforcement order by the Katowice District Court.
The
applicant appealed. The Prosecutor’s decision was eventually
upheld by the Katowice Regional Court on 29 September 2005.
- The
applicant’s detention was subsequently extended by decisions of
the Katowice Court of Appeal (Sąd Apelacyjny) delivered
on 3 October and 28 December 2005, 29 March, 28 June, and
27 September 2006 and 4 January, 1 March and 4 April 2007.
- In
all their decisions the authorities repeatedly relied on the original
grounds given for the applicant’s detention. They also
considered that keeping her in detention was necessary to secure the
proper conduct of the proceedings, given the risk that she might
tamper with evidence or induce witnesses to give false testimony.
Further, they attached great importance to the considerable number of
witnesses and the extensive body of evidence to be considered.
In
its decision of 4 January 2007 the court noted that the investigation
has been lengthy and informed the prosecutor that any subsequent
motion for having the applicant’s detention extended would be
critically reviewed.
- The
applicant’s subsequent appeals against decisions extending her
detention, as well as her other numerous applications for release
were all unsuccessful. In her appeals she argued that the charges
against her were based on unreliable and contradictory evidence. She
subsequently invoked the principle of the presumption of innocence
and also relied on her personal circumstances, in particular her age
and health problems.
- On
19 April 2007 a bill of indictment was lodged with the Katowice
Regional Court. The bill of indictment comprised charges of abuse of
powers and office, bribery and numerous tax offences. The applicant
was accused of having gained through her criminal activities a
permanent source of income. The charges were brought against
twenty-one defendants.
- On 26 April 2007 the Katowice Court of Appeal ordered
that the applicant be kept in custody until 30 July 2007. It further
held that she could be released if she put up bail of PLN 200,000
(approximately 52,000 euros (EUR) at the time) by 31 March 2007, to
be deposited in cash into the Katowice District Court’s
account. The court held that the amount of bail was appropriate in
view of the applicant’s financial situation and the role she
had played in the alleged criminal activities. In addition, the court
placed the applicant under police supervision and prohibited her from
leaving the country.
- The
applicant appealed, contesting the amount of bail to be paid and
requesting its reduction to PLN 30,000. She stressed that since the
date of her arrest she had no longer been gainfully employed and
further relied on the difficult financial situation of her family.
She also requested that bail be accepted in the form of a charge on
her apartment.
- On
18 May 2007 the Court of Appeal upheld the decision of 26 April
2007, refusing to alter the conditions for the applicant’s
release.
- As it appears from the documents submitted, on 31 May
2007 the Court of Appeal ordered the applicant’s release as she
had eventually paid the bail (in cash).
- On
23 February 2009 the applicant filed a motion requesting that the
amount of bail be reduced to PLN 20,000. On 7 April 2009 the Katowice
Regional Court reduced the amount of bail to PLN 50,000.
- It
appears that subsequently the amount of bail was reduced to
PLN 20,000.
- On
20 July 2010 the Regional Court reduced the amount of bail to PLN
19,000. Subsequently, the measure prohibiting the applicant from
leaving the country was quashed.
- The
proceedings are still pending before the Katowice Regional Court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Preventive
measures, including pre-trial detention
- The
relevant domestic law and practice concerning the imposition of
detention during judicial proceedings (tymczasowe aresztowanie)
the grounds for its extension and release from detention are set out
in the Court’s judgments in the cases of Gołek v.
Poland, no. 31330/02, §§ 27-33, 25 April 2006,
Celejewski v. Poland, no. 17584/04, §§ 22-23, 4
August 2006 and Osuch v. Poland, no. 30028/06, §§
22-24, 3 November 2009.
- The
relevant domestic provisions governing the imposition of other
“preventive measures” (środki zapobiegawcze),
inter alia, bail, are covered by Chapter 28 of the Code of
Criminal Procedure of 1997, which entered into force on 1 September
1998.
- Article
257 § 1 of the Code provides that detention shall not be imposed
if another preventive measure (for example, bail) is considered to be
adequate. Pursuant to Article 266 of the Code, bail in the form of
cash, securities or by way of a charge on property can be deposited
by the accused or by another person. Determination of the amount,
form and the relevant methods for the payment of bail should be made
by a decision, having regard to the financial situation of the
accused and, as the case may be, that of another party depositing
bail, as well as to the assessment of the damage which may have been
caused by the offence concerned and to the character of the offence.
B. Relevant
statistical data
- The relevant statistical data, recent amendments to
the Code of Criminal procedure designed to streamline criminal
proceedings and references to the 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 her
pre-trial detention had been excessive. In this connection she
complained that the amount of bail had been set too high and had not
been proportionate to her financial means. She further alleged that
the authorities had refused to accept bail in the form of a charge on
her property.
She
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.”
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 19 October 2004 with her
arrest on suspicion of bribery. It ended on 31 May 2007 when she was
released after having paid bail.
Accordingly,
the period to be taken into consideration amounts to two years, seven
months and twelve days.
2. The parties’ submissions
(a) The Government
- The
Government failed to submit observations on the case.
(b) The applicant
- The applicant submitted that her detention had been
extended about eleven times at the prosecutor’s request and
that the courts had always substantiated the relevant decisions on
the same grounds. Further, she claimed that the fact that the
authorities had been collecting evidence against her, while keeping
her detained, had been contrary to Article 5 § 3 of the
Convention. She maintained, relying on the principle of the
presumption of innocence, that such evidence should have been
gathered before her arrest.
- In
addition to the above, the applicant submitted that the investigative
proceedings had not been conducted with special diligence by the
responsible authorities. In particular, because she was being
detained, a speedy and effective investigation should have been
carried out. In this connection the applicant emphasised that after
her initial questioning the next questioning had not taken place
until February 2005, that is, four months after her arrest. The
subsequent questioning occurred more than one year later, namely, in
April 2006. Further, she stressed that during the entire period of
her pre-trial detention no hearing had been held in her case.
- Lastly,
the applicant submitted that the amount of bail had been set too high
and the authorities had refused to accept it in the form of a charge
on her property.
3. The Court’s assessment
(a) General principles
- The
Court observes 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).
- The Court further observes that, according to its
case-law, the amount of bail must be assessed principally with
reference to the accused, his assets and his relationship with the
persons who are to provide the security, in other words to the extent
to which it is felt that the prospect of loss of the security or of
action against the guarantors in case of his non appearance at
the trial will act as a sufficient deterrent to dispel any wish on
his part to abscond (see Neumeister v. Austria, judgment of 27
June 1968, Series A, p. 40, § 14). The accused whom the judicial
authorities declare themselves prepared to release on bail must
faithfully furnish sufficient information, that can be checked if
need be, about the amount of bail to be set. As the fundamental right
to liberty as guaranteed by Article 5 of the Convention is at stake,
the authorities must take as much care in setting an appropriate
amount of bail as in deciding whether or not the continued detention
is indispensable (see Piotr Osuch v. Poland, no. 30028/06,
§§ 39 40, 3 November 2009, Iwańczuk
v. Poland, no. 25196/94, § 66, 15 November 2001,
and also Skrobol v. Poland, no. 44165/98, § 57,
13 September 2005).
(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 the
applicant was liable; (2) the need to secure the proper conduct of
the proceedings, given the risk that she might tamper with evidence
and induce witnesses to give false testimony; (3) the extensive body
of evidence to be considered in the case (see paragraphs 7 and 12
above).
- The
Court accepts that the reasonable suspicion against the applicant of
having committed the offences with which she was charged could
initially have warranted her detention. Also, the need to examine the
voluminous evidence gathered and the need to secure the proper
conduct of the proceedings 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 likelihood that a severe
sentence would be imposed and the need to secure the proper conduct
of the proceedings – were “sufficient” and
“relevant” (see Kudła, cited above, §
111).
- In
this connection the Court reiterates that the gravity of charges
cannot by itself justify long periods of detention (see, for
instance, Michta v. Poland, no. 13425/02, § 49, 4
May 2006). Furthermore, the Court considers that the domestic
authorities, by continuously relying on the risk that the applicant
would interfere with the proper course of the proceedings by, inter
alia, influencing witnesses’ testimonies, and
without giving specific reasons for the latter, failed to justify
adequately the applicant’s prolonged confinement.
- Furthermore,
the Court takes into consideration the fact that the applicant was
not charged with being a member of an organised
criminal group and that she was in fact accused of non-violent
crimes, namely abuse of power and office, bribery and numerous tax
offences (see paragraph 14 above).
- The Court further notes that it was only on 26 April
2007 that the authorities envisaged the possibility of releasing the
applicant on bail, fixing its amount at PLN 200,000. However, there
is no evidence that before deciding on that sum the domestic court
made any effort to determine what would be an appropriate amount
of bail in the circumstances, for example by requiring the applicant
to furnish information on her financial standing.
- 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 Piotr
Osuch v. Poland, no. 30028/06, § 47, 3 November 2009; and
Jabłoński v. Poland, no. 33492/96,
§ 83, 21 December 2000).
The
Court furthermore notes that almost two years after having imposed
the bail the Regional Court decided to substantially reduce its
amount (see paragraph 19 above).
- Having
regard to the foregoing, the Court concludes that the grounds given
by the domestic authorities cannot justify the overall period of the
applicant’s detention.
There
has accordingly been a violation of Article 5 § 3 of the
Convention.
II. OTHER ALLEGED
VIOLATIONS OF THE CONVENTION
44. The
applicant complained that she did not receive the benefit of the
guarantees set forth in paragraph 2 of Article 6 of the Convention in
that information concerning the proceedings had been leaked to the
press and published in local newspapers, in which she had been
referred to as a bribe-taker.
45. Furthermore,
the applicant alleged, invoking Article 1 of Protocol No. 1 to the
Convention, that her property rights had been violated in that her
assets were seized in order to secure the penalty to be imposed in
the event of conviction.
46. Lastly,
the applicant complained under Article 6 § 1 of the Convention,
about the unreasonable length of the proceedings.
- The
Court reiterates that, under Article 35 § 1 of the
Convention, the Court may only deal with a matter after all domestic
remedies have been exhausted. The Court observes that the criminal
proceedings are still pending and it is open to the applicant to
raise the alleged violations of her right to the presumption of
innocence as well as of her property rights in those proceedings.
Furthermore, as regards the allegations published about her, the
applicant also has the possibility of recourse to legal action for
damages in defence of her personal rights.
- As
to the complaint under Article 6 § 1, the
Court notes that persons complaining about the length of proceedings
before the Polish courts are required by Article 35 of the Convention
to lodge a complaint about the breach of the right to a trial within
a reasonable time under the Law of 17 June 2004 on complaints
about a breach of the right to an investigation conducted and
supervised by a Prosecutor and to a trial within a reasonable time
(Ustawa o skardze na naruszenie prawa
strony do rozpoznania sprawy w postępowaniu przygotowawczym
prowadzonym lub nadzorowanym przez prokuratora i postępowaniu
sądowym bez nieuzasadnionej zwłoki)
(see Charzyński v. Poland
(dec.) no. 15212/03, 1 March
2005). The applicant failed to make use of this remedy.
- 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. 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.”
- In
the case of Kauczor v. Poland (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
paragraphs 34-40 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 155,487 euros (EUR) in respect of pecuniary damage
(the equivalent of lost income while she was in detention, future
income, since she had lost her employment and the amount of bail she
had been ordered to pay). She further claimed 100,000 euros (EUR) in
respect of non-pecuniary damage.
- The
Government failed to submit observations in this connection.
- 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, ruling on an equitable basis, it awards the applicant
EUR 2,000 in respect of non-pecuniary damage resulting from the
violation found of Article 5 § 3 of the Convention.
B. Costs and expenses
- The
applicant also claimed EUR 4,000 for costs and expenses incurred
before the Court. In that respect the applicant presented a bill for
legal representation before the Court amounting to EUR 4,784.
- The
Government failed to submit observations in this respect.
- 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 are
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, and given
the fact that the applicant’s complaints were only partly
allowed, the Court considers the request excessive and decides to
award the applicant the sum of EUR 2,000 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 the length of
the applicant’s 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 of
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 resulting from the
violation found, 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
the respondent State is to pay the applicant’s representative,
within three months of 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 costs and
expenses, plus any tax that may be chargeable;
(c) 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 26 July 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
