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FOURTH
SECTION
CASE OF LACHOWSKI v. POLAND
(Application
no. 27556/03)
JUDGMENT
STRASBOURG
5
December 2006
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 Lachowski v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr M. Pellonpää,
Mr K. Traja,
Mr L.
Garlicki,
Ms L. Mijović,
Mr J. Šikuta,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 14 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 27556/03) 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 Ireneusz Lachowski (“the
applicant”), on 8 August 2003.
- The
applicant was represented by Ms D. Wojdyło-Nafalska, a lawyer
practising in Chełm. The Polish Government (“the
Government”) were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
3. On
19 December 2005 the
President of the Fourth Section decided to give notice of the
application to the Government. Under the provisions of Article 29 §
3 of the Convention, it was decided to examine the merits of the
application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1961 and lives in Rejowiec Fabryczny.
- The
applicant was arrested on 20 September 1999 on suspicion of homicide.
On 22 September 1999 the Chełm District Court (Sąd
Rejonowy) ordered that the applicant be remanded in custody for a
period of 3 months in view of a reasonable suspicion that he had
committed homicide. It further held that the likelihood that he would
be given a heavy sentence justified his detention on remand.
- On
14 December 1999 the Lublin Regional Court (Sąd Okręgowy)
prolonged the applicant’s detention until 19 March 2000. It
relied on the reasonable suspicion of his having committed the
offence in question and the likelihood of a heavy sentence being
imposed on the applicant. In addition, it had regard to the need to
obtain expert evidence and a psychiatric examination of the suspects.
- On
8 March 2000 the Lublin Court of Appeal (Sąd Apelacyjny)
extended the applicant’s detention until 19 June 2000. It found
that in the light of the evidence obtained there was a strong
likelihood that the applicant had committed the offence. Furthermore,
it relied on the severity of the likely sentence and the need to
obtain further expert evidence. On 24 May 2000 the Court of
Appeal prolonged the applicant’s detention until 4 September
2000, reiterating the grounds previously given. It appears that his
detention was subsequently prolonged on an unspecified later date.
- In
the course of the investigation the Regional Prosecutor obtained
voluminous evidence and took a series of investigative measures. On
10 July 2000 the prosecution service filed a bill of indictment
with the Lublin Regional Court. The applicant was charged with two
counts of homicide and armed robbery. There were four other
defendants in the case.
- On
20 March 2001 the Regional Court ordered that the applicant be kept
in custody until 19 September 2001. It held that the gravity of the
charges and the likelihood that the applicant would be given a heavy
sentence confirmed the risk that he might obstruct the proceedings.
It further held that the applicant’s detention on remand was
the only measure which could secure the proper conduct of the
proceedings. Lastly, when extending the applicant’s detention,
the Regional Court had regard to its caseload.
- On
19 September 2001 the Court of Appeal granted the Regional Court’s
application and prolonged the applicant’s detention until
31 December 2001. It noted that the period of the applicant’s
detention had reached the 2-year statutory time-limit (Article 263 §
3 of the Code of Criminal Procedure) and criticised the trial court
for not having indicated any particular circumstances which would
justify the prolongation beyond the statutory time-limit. However, it
held that the prolongation was justified on account of other
significant obstacles to progress in the proceedings, namely the fact
that one of the defendants had failed to appear at the hearing which
had led to the adjournment of the trial. The Court of Appeal also
noted that although the bill of indictment had been filed on 10 July
2000, the trial court listed the first hearing only for 16 May 2001.
- The applicant’s detention was subsequently
prolonged on 28 November 2001 (until 15 March 2002), on 13 March
2002 (until 30 April 2002) and on 24 April 2002 (until 30
September 2002). In all those decisions the Court of Appeal relied on
the same grounds as had been given in the earlier decisions.
- The
trial court held 20 hearings in the period from 16 May 2001 to
19 September 2002. On 23 September 2002 the Lublin Regional
Court convicted the applicant as charged and sentenced him to 25
years’ imprisonment. The applicant, who remained in detention,
appealed against the first-instance judgment.
- On
22 October 2003 the Lublin Court of Appeal quashed the judgment of
the Regional Court and ordered a retrial.
- It
appears that the applicant’s detention was prolonged on further
unspecified dates. On 7 May 2004 the Regional Court ordered that the
applicant be kept in custody until 31 December 2004. The applicant’s
detention was subsequently prolonged on 3 December 2004 (until
31 March 2005), on 29 March 2005 (until 30 September 2005) and
on 19 September 2005 (until 31 December 2005). In all those
decisions, the Regional Court relied on the reasonable suspicion that
the applicant had committed the offences in question and the
likelihood of a heavy sentence being imposed.
- The
applicant appealed against the decision of 3 December 2004 to prolong
his detention. He argued, in particular, that the Regional Court had
failed to explain why other non-custodial measures were considered
insufficient in his case. On 21 December 2004 the Court of Appeal
upheld the contested decision. It agreed with the applicant that the
reasons given by the Regional Court were very brief and general.
However, referring to Article 5 § 3 of the Convention, it
held that the applicant’s continued detention served the public
interest of protecting society, given that the applicant had been
charged with the homicide of two women, having first cruelly treated
them.
- In
its decision of 20 April 2005 upholding the decision of 29 March
on the prolongation of the applicant’s detention, the Court of
Appeal held that his continued detention on the basis of Article 258
§ 2 of the Code of Criminal Procedure remained valid. Having
regard to the nature of the alleged offences, it held that Article
258 § 2 established a presumption to the effect that the
likelihood of a severe penalty being imposed on an accused might
induce him to obstruct the proceedings.
- On
5 October 2005 the Court of Appeal, having examined the applicant’s
appeal against the decision of 19 September 2005 on prolongation of
his detention, ordered the applicant’s release under police
supervision. It also imposed a ban on leaving the country. The Court
of Appeal had regard to the excessive length of the applicant’s
detention on remand and the fact that the process of hearing evidence
was very advanced. In those circumstances, it was not necessary to
prolong further the applicant’s detention. The Court of Appeal
also noted that despite the significant length of the applicant’s
detention, the Regional Court had failed to ensure the diligent
conduct of the trial and, in particular, had not held hearings at
reasonable intervals. Furthermore, it observed that the reasons for
the continued detention as given by the Regional Court in its
decision of 19 September 2005 were very terse. The applicant was
released on 6 October 2005.
- The
Regional Court held 22 hearings in the period from 28 January
2004 to 11 April 2006. The proceedings are still pending.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law and practice concerning the imposition of
detention on remand (aresztowanie tymczasowe), the grounds for
its prolongation, release from detention and rules governing other,
so-called “preventive measures” (środki
zapobiegawcze) are stated in the Court’s judgments in 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 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 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
Court observes that the applicant was arrested on 20 September 1999
and remanded in custody on 22 September 1999. On 23 September 2002
the Lublin Regional Court convicted him of two counts of homicide and
armed robbery and sentenced him to twenty-five years’
imprisonment. As from that date he was detained “after
conviction by a competent court”, within the meaning of Article
5 § 1 (a) and therefore that period of his detention falls
outside the scope of Article 5 § 3 (cf. Kudła v. Poland
[GC], no. 30210/96, § 104, ECHR 2000 XI). On 22 October
2003 the Lublin Court of Appeal quashed the applicant’s
conviction. As from that date his detention was again covered by
Article 5 § 3. It continued until 6 October 2005, when the
applicant was released.
- Consequently,
the period to be taken into consideration under Article 5 §
3 lasted 4 years, 11 months and 19 days.
2. The reasonableness of the length of detention
(a) The parties’ arguments
- The
Government argued that there had been valid reasons for holding the
applicant in detention for the entire period in question. They
stressed that the applicant’s detention had been justified by
the persistence of a reasonable suspicion that he had committed the
offences and by the gravity of the charges against him which
attracted a heavy sentence. The Government further argued that there
had been a risk that the applicant, if released, might obstruct the
proceedings and tamper with evidence. That risk, in their submission,
stemmed from the fact that there had been five defendants in the case
and that on the date of the applicant’s remand in custody, the
investigation was still in progress and a number of suspects were in
hiding. There was thus a risk of collusion if the applicant were to
be released. The Government also asserted that the sentence given by
the trial court, although later quashed, justified the continuation
of the applicant’s detention, since the severity of the likely
sentence could have him tempted to go into hiding. The Government
contended that there had been a risk that the defendants might exert
pressure on witnesses. They submitted that according to the case file
one of the defendants had attempted to intimidate a witness. Lastly,
they maintained that the authorities displayed adequate diligence in
dealing with the applicant’s case, having regard to its
complexity and the need to obtain voluminous evidence. In conclusion,
the Government refrained from expressing their opinion on the merits
of the applicant’s complaint, having regard to the Court’s
case-law in similar cases.
- The
applicant disagreed and maintained that the length of his detention
had been unreasonable.
(b) The Court’s assessment
(i) Principles established under the
Court’s case-law
- The
presumption is in favour of release. As established in Neumeister
v. Austria (judgment of 27 June 1968, Series A no. 8, p.37, §
4), the second limb of Article 5 § 3 does not give judicial
authorities a choice between either bringing an accused to trial
within a reasonable time or granting him provisional release pending
trial. Until conviction, he must be presumed innocent, and the
purpose of the provision under consideration is essentially to
require his provisional release once his continuing detention ceases
to be reasonable (see McKay v. the United Kingdom [GC],
no. 543/03 , § 41, ECHR 2006-...).
- Continued
detention therefore can be justified in a given case only if there
are specific indications of a genuine requirement of public interest
which, notwithstanding the presumption of innocence, outweighs the
rule of respect for individual liberty laid down in Article 5 of the
Convention (see, among other authorities, Kudła v. Poland
[GC], no. 30210/96, §§ 110-111 with further
references, ECHR 2000-XI).
- It
falls in the first place to the national judicial authorities to
ensure that, in a given case, the pre-trial detention of an accused
person does not exceed a reasonable time. To this end they must,
paying due regard to the principle of the presumption of innocence,
examine all the facts arguing for or against the existence of the
above-mentioned requirement of public interest justifying a departure
from the rule in Article 5 and must set them out in their decisions
on the applications for release. It is essentially on the basis of
the reasons given in these decisions and of the established facts
stated by the applicant in his appeals that the Court is called upon
to decide whether or not there has been a violation of Article 5 §
3 (see, for example, Labita v. Italy [GC], no. 26772/95, §
152, ECHR 2000-IV, and Kudła, cited above, § 110).
- The
persistence of a reasonable suspicion that the person arrested has
committed an offence is a condition sine qua non for the lawfulness
of the continued detention, but after a certain lapse of time it no
longer suffices. The Court must then establish whether the other
grounds given by the judicial authorities continued to justify the
deprivation of liberty. Where such grounds were “relevant”
and “sufficient”, the Court must also be satisfied that
the national authorities displayed “special diligence” in
the conduct of the proceedings. The complexity and special
characteristics of the investigation are factors to be considered in
this respect (see, for example, Scott v. Spain, judgment of 18
December 1996, Reports 1996-VI, pp. 2399-2400, § 74,
and I.A. v. France, judgment of 23 September 1998,
Reports 1998-VII, p. 2978, § 102).
- In
sum, domestic courts are under an obligation to review the continued
detention of persons pending trial with a view to ensuring release
when circumstances no longer justify continued deprivation of
liberty. For at least an initial period, the existence of reasonable
suspicion may justify detention but there comes a moment when this is
no longer enough. As the question whether or not a period of
detention is reasonable cannot be assessed in the abstract but must
be assessed in each case according to its special features, there is
no fixed time-frame applicable to each case (see McKay, cited
above, § 45).
(ii) Application of the principles to the
circumstances of the present case
- The
Court observes that the judicial authorities relied, in addition to
the reasonable suspicion against the applicant, on the severity of
the penalty to which the applicant was liable and the serious nature
of the charges against him. On account of those circumstances, they
considered that there had been a risk that the applicant might
obstruct the proceedings. Furthermore, the Government submitted that
the applicant’s detention was also justified by the risk that
the defendants would exert pressure on witnesses, since according to
the case file one of the defendants had attempted to intimidate a
witness.
- The
Court accepts that the reasonable suspicion that the applicant had
committed the offences with which he had been charged may have
warranted his detention in the early stage of the proceedings.
However, with the passage of time that ground inevitably became less
relevant. In particular, the Court considers that that ground cannot
suffice to justify the entire period in issue. It must then establish
whether the other grounds advanced by the judicial authorities were
“relevant” and “sufficient” to continue to
justify the deprivation of the applicant’s liberty.
- The
Court notes that the judicial authorities continuously relied on the
likelihood that a heavy sentence might be imposed on the applicant
given the serious nature of the offences with which he had been
charged. In this respect, the Court recalls that the severity of the
sentence faced is a relevant element in the assessment of the risk of
absconding or re-offending. It acknowledges that in view of the
seriousness of the charges against the applicant the authorities
could justifiably consider that such a risk existed. However, the
Court has repeatedly held that the gravity of the charges cannot by
itself serve to justify long periods of detention on remand (see
Ilijkov v. Bulgaria, no. 33977/96, §§ 80-81,
26 July 2001).
- As to the risk that the applicant might obstruct the
proceedings, the Court observes that the judicial authorities appear
to have presumed that risk by basing themselves on the likelihood
that a heavy sentence would be imposed on the applicant as well as on
the nature of the offences in question. It notes however that the
relevant decisions did not mention any argument capable of showing
that these fears were well-founded. The Court considers that such a
generally formulated risk based on the nature of the offences with
which the applicant had been charged may possibly have justified his
detention in the initial stages of the proceedings. Nevertheless, in
the absence of other factors capable of showing that the risk relied
on actually existed, the Court cannot accept those grounds as a
justification for holding the applicant in custody for the entire
period under consideration. Furthermore, it appears that this risk
did not materialise following his release under police supervision on
6 October 2005. As regards the Government’s assertion that
there was a risk of exerting pressure on witnesses given the fact
that one of the defendants had intimidated a witness, the Court notes
that the Government have failed to produce any evidence to
substantiate their contention. In any event, the alleged intimidation
of a witness was the work of one of the defendants, and not the
applicant.
- Accordingly,
in the circumstances of the present case, the Court finds that the
severity of the likely sentence alone, or in conjunction with the
other grounds relied on by the authorities, cannot constitute a
“relevant and sufficient ground” for holding the
applicant in detention for a period of 4 years and over 11
months.
- The
Court further observes that the applicant was detained on charges of
homicide and armed robbery committed together with 4 accomplices.
The defendants had not been formally charged with acting in an
organised criminal group. In these circumstances, the Court is not
persuaded that the instant case presented particular difficulties for
the investigation authorities and for the courts to determine the
facts and mount a case against the perpetrators as would undoubtedly
have been the case had the proceedings concerned organised crime (see
Celejewski v Poland, no. 17584/04, § 37, 4 May
2006).
- The
Court would also 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 provision proclaims not only
the right to “trial within a reasonable time or to release
pending trial” but also lays down that “release may be
conditioned by guarantees to appear for trial” (see Neumeister,
cited above, p. 36, § 3; and Jabłoński v.
Poland, no. 33492/96, § 83, 21 December 2000).
- In
the present case the Court notes that there is no specific indication
that during the entire period in question the authorities gave
consideration to the possibility of ensuring the applicant’s
presence at trial by imposing on him other “preventive
measures” expressly foreseen by Polish law to secure the proper
conduct of criminal proceedings (see paragraph 19 above).
- What
is more, it is not apparent from the relevant decisions why the
judicial authorities considered that those other measures would not
have ensured the applicant’s appearance before the court or in
what way the applicant, had he been released, would have obstructed
the course of the trial. Nor did they mention any factor indicating
that there was a real risk of his absconding or obstructing the
proceedings. In that regard the Court would also point out that,
although such a potential danger may exist where an accused is
charged with a serious offence and where the sentence faced is a long
term of imprisonment, the degree of that risk cannot be gauged solely
on the basis of the severity of the offence and the anticipated
sentence (see Muller v. France, judgment of 17 March
1997, Reports 1997-II, p. 388, § 43).
- The
Court accordingly concludes that the reasons relied on by the courts
in their decisions were not sufficient to justify the applicant’s
being held in custody for 4 years and over 11 months.
- That
finding would, as a rule, absolve the Court from determining whether
the national authorities displayed “special diligence” in
the conduct of the proceedings. However, in that context the Court
cannot but note that even though the applicant was indicted on 10
July 2000, the first hearing was listed only for 16 May 2001. It
observes that the Court of Appeal criticised the trial court for the
above-mentioned delay. Furthermore, during the re-trial stage of the
proceedings, the Court of Appeal again censured the Regional Court
for having failed to organise the conduct of the trial in a diligent
manner (see paragraph 17 above). On account of the above
circumstances, the Court considers that it cannot be said that the
authorities displayed “special diligence” in the conduct
of the criminal proceedings against the applicant.
- 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 also complained under Article 6 § 1 of the Convention
that the criminal proceedings against him had been unfair.
- However,
the Court notes that the impugned proceedings are still pending and
therefore it is premature to examine the applicant’s complaint.
It follows that this complaint must be rejected under Article 35
§ 3 and 4 of the Convention.
III. 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 144,000 Polish zlotys (PLN) in respect of pecuniary
damage and PLN 60,000 in respect of non-pecuniary damage.
- The
Government argued that the applicant’s claims were exorbitant
and should be rejected. They asked the Court to rule that a finding
of a violation of Article 5 § 3 constituted in itself sufficient
just satisfaction. In the alternative, they invited the Court to
assess the amount of just satisfaction on the basis of its case-law
in similar cases and having regard to national economic
circumstances.
- The
Court does not discern any causal link between the violations found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it considers that the applicant has suffered
non-pecuniary damage which is not sufficiently compensated by the
finding of a violation of the Convention. Considering the
circumstances of the case and making its assessment on an equitable
basis, the Court awards the applicant EUR 2,000 under this head.
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 excessive
length of the applicant’s detention on remand 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, to be converted
into Polish zlotys at the rate applicable at the date of settlement,
plus any tax that may be chargeable;
(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 5 December 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
