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FOURTH
SECTION
CASE OF PYRAK v. POLAND
(Application
no. 54476/00)
JUDGMENT
STRASBOURG
12
February 2008
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 Pyrak v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza,
President,
Giovanni Bonello,
Kristaq Traja,
Lech
Garlicki,
Ljiljana Mijović,
Ján
Šikuta,
Päivi Hirvelä, judges,
and
Fatoş Aracı, Deputy Section Registrar,
Having
deliberated in private on 22 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 54476/00) 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 Bogusław Pyrak (“the
applicant”), on 7 April 1999.
- The
applicant was represented by Mr A. Rzepliński, of the
Polish Helsinki Foundation of Human Rights. The Polish Government
(“the Government”) were represented by their Agent, Mr J.
Wołąsiewicz of the Ministry for Foreign Affairs.
- The
applicant alleged, in particular, that the length of his detention
had been excessive. He further claimed that his appeal against the
prolongation of his pre-trial detention had not been examined
“speedily”.
- On
20 February 2007 the Court declared the application partly
inadmissible and decided to communicate the complaints under
Article 5 § 3 and § 4 to the Government.
Under the provisions of Article 29 § 3 of the Convention, it
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, Mr Bogusław Pyrak, is a Polish national who
was born in 1940 and lives in Brochów, Poland.
- The
applicant was the president of the Agricultural Co operative in
Troszyn Nowy. In 1993, upon being notified of the commission of an
offence, the Gostynin District Prosecutor (Prokurator Rejonowy)
opened an investigation regarding the alleged embezzlement of the
co-operative's funds.
- On
22 April 1994 the applicant was subjected to police supervision and
bail.
- On
11 July 1995 the Gostynin District Prosecutor lodged a bill of
indictment with the Płock Regional Court (Sąd Okręgowy).
The applicant was indicted on charges of embezzlement of the
co operative's property in the amount of approximately 80,000
PLN [approx. EUR 20,000].
- On
5 January 1996 the Płock Regional Court returned the case to the
prosecution authorities in order to rectify omissions in the
investigation. The prosecutor appealed. On 29 February 1996 the
Warsaw Court of Appeal (Sąd Apelacyjny) quashed this
decision and ordered the Regional Court to proceed with the case.
- The
first hearing was held on 3 June 1996.
- Due
to the fact that correspondence sent to the applicant was returned
indicating that the applicant had left his place of abode for an
indefinite period of time, on 10 February 1997 the Regional Court
ordered that the applicant be detained on remand. The court found
that the applicant's detention was necessary in order to ensure his
appearance in court, as he had failed to appear at hearings scheduled
for 9, 17, 22 and 27 January 1997. The decision did
not specify the period of the applicant's detention.
- The
applicant appealed. He maintained that he had informed the court that
he would not be able to attend hearings and that his absence had been
caused by an operation which he had had to undergo. On 4 March 1997
the Warsaw Court of Appeal quashed the decision of the Regional Court
and remitted the case for reconsideration. The Court of Appeal
observed that the applicant had been hospitalised between
10 and 17 February 1997. He had had a myocardial
infarction and had undergone heart surgery. It further held that in
view of the applicant's state of health, the Regional Court should
reconsider its decision to place him in detention.
- On
7 April 1997 A.M., an expert cardiologist, submitted his medical
report. He had examined the applicant twice and concluded that the
applicant could participate in hearings. However, according to A.M.
placing the applicant in pre-trial detention could aggravate his
state of health and therefore such a measure should only be applied
under medical supervision.
- On
24 April 1997 the court obtained a medical report from another doctor
- J.K. (a specialist in forensic pathology and anatomical pathology).
The expert considered that it was highly unlikely that the applicant
had had a myocardial infarction in February of that year.
- On 5 June 1997 the Płock Regional Court ordered
that the applicant be remanded in custody for a period of six months
because he had obstructed the proceedings. The court further refused
to accept a personal surety submitted by a member of the upper house
of the Polish Parliament Senator J.S. The applicant appealed. He
stressed that he had complied with the requirements of police
supervision and had reported every week to the police station in
Iława. He had also paid the bail. On 4 July 1997 the Court of
Appeal quashed that decision. It found that keeping the applicant in
custody was not necessary to ensure the proper course of the
proceedings. Notwithstanding the seriousness of the applicant's heart
condition, the Regional Court had failed to consider the
appropriateness of applying the other preventive measures already
imposed on the applicant i.e. bail and police supervision. In
addition, at least since 10 February 1997 there had been no progress
in the case, as the proceedings so far had been limited to
establishing whether there were valid reasons for placing the
applicant in detention.
- At
the hearing on 6 January 1998 the applicant informed the Regional
Court that he did not feel well. He was subsequently examined by the
court doctor M.W. who confirmed that the applicant was not able to
participate in the hearing. The court heard evidence from another
doctor, J.K., (who had already delivered an opinion on the
applicant's state of health on 22 April 1997). J.K. considered that
the applicant could participate in the hearing.
- At
the hearing held on 7 January 1998 the applicant presented a note
signed by yet another doctor, W.W., ordering him to undergo a further
medical examination in a hospital. On the same day the Regional Court
ordered the applicant's detention for 3 weeks. He was to be placed in
a prison hospital in Łódź and medically examined.
The court held that the applicant was attempting to obstruct the
trial. In particular, in view of the expert's opinion of 22 April
1997 the surgery performed on the applicant had not been necessary.
There was also a risk that the applicant might again undergo
unnecessary surgery, which would only prolong the trial. The Warsaw
Court of Appeal upheld that decision on 27 January 1998.
- Subsequently,
the applicant underwent a medical examination in the prison hospital.
On 5 February 1998 he was informed by the prison doctors that he was
suffering from duodenal ulcers and a stomach inflammation.
- The
applicant's detention was prolonged on 29 January, 27 February,
29 April and 29 July 1998. The court stated that the
reasons previously given for applying pre-trial detention were still
valid. In particular, the court stated that no reliable documentation
had been presented confirming the applicant's health problems. In
addition, the applicant seemed to be contributing to the prolongation
of the proceedings. The applicant's appeals against those decisions
were dismissed. The decision of the Warsaw Court of Appeal of
13 February 1998 did not contain any reasons.
- At
hearings held on 23 and 27 February 1998 the applicant complained
that he felt very ill. On the latter date he was led into the
courtroom by police officers, he was shaking and could not answer the
court's questions. The court dismissed the applicant's motion for
release. It had regard to a medical opinion confirming the
applicant's ability to participate in the hearing and again prolonged
his detention.
- During
the hearing held on 12 March 1998 the court began to take evidence
from a witness. However the hearing could not be continued because of
the applicant's state of health.
- On
6 May 1998 an expert report was submitted to the court. According to
that report, the applicant's health was not an obstacle to his
detention in a regular detention centre.
- On
29 July 1998 the applicant submitted a personal surety signed by
J.K., an opposition leader and a member of the Polish Parliament.
- On
8 August 1998 the applicant asked the Plock Regional Court to be
released from detention. He also submitted personal sureties signed
by W.B., the former Minister of Foreign Affairs, and M.E., a medical
doctor and the commander of the Warsaw Ghetto Uprising of 1943.
- The
Regional Court refused the applicant's requests for release upon
personal sureties.
- On
30 October 1998 the Regional Court prolonged the applicant's
detention until 31 December 1998. The court found that the applicant
had persisted in submitting motions which contributed to the
prolongation of the proceedings. At the same time he had been
informing the prison authorities about his various health problems in
order to obtain a medical certificate confirming that he should be
released from prison. On 3 November 1998 the applicant
appealed against that decision.
- On
13 November 1998 the Court of Appeal decided that in order to
consider the applicant's appeal against the decision of 30 October
1998 it needed an expert opinion on the applicant's state health. It
would appear that the opinion was delivered on 28 December 1998.
- On
28 December 1998 the Regional Court again prolonged the applicant's
detention. On 15 January 1999 the Court of Appeal upheld the last
decision. It also decided not to take cognisance of the merits of the
applicant's appeal against the prolongation decision of 30 October
1998 as it would not have served any purpose.
- On
22 January 1999 the Regional Court convicted the applicant as charged
and sentenced him to 2 years and 8 months' imprisonment. It also
ordered his release from detention.
- On
19 April 2000 the Court of Appeal quashed that judgment and remitted
the case to the District Prosecutor for a further investigation.
- On
24 April 2001 the Gostynin District Prosecutor lodged a new bill of
indictment with the Płock Regional Court.
- On
28 November 2005 The Regional Court gave judgment and sentenced the
applicant to one year's imprisonment. The prosecutor appealed.
- On
10 May 2006 the Warsaw Court of Appeal quashed the judgment and
remitted the case. It would appear that the proceedings are pending
before the first-instance court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- 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 the cases
of Kudła v. Poland [GC], no. 30210/96, §§
75-79, ECHR 2000-XI; Bagiński v. Poland,
no. 37444/97, §§ 42-46, 11 October 2005; 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, in its relevant part, 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
period of the applicant's detention to be considered under Article 5
§ 3 started on 7 January 1998, when he was arrested on suspicion
of embezzlement and ended on 22 January 1999 when the Płock
Regional Court convicted him as charged.
- Accordingly,
the period to be taken into consideration amounts to 1 year and
15 days.
2. The parties' submissions
- The
applicant submitted that he had been kept in detention pending trial
for an unjustified period of time. He stressed that the domestic
courts had ignored the fact that personal sureties in his case had
been given by highly respected and trustworthy persons. In addition,
the courts had not given consideration to the use of non-custodial
measures.
- Furthermore,
the authorities in their decisions on prolongation of detention had
referred only to the applicant's absence at the hearings in January
1997 and no account had been taken of the fact that his absence had
been caused by illness.
- Lastly,
the applicant claimed that the domestic courts referred generally to
the risk that he might obstruct the proceedings. However, they had
not specified which of the medical certificates submitted was untrue
and which illnesses had been simulated.
- The
Government considered that the applicant's pre-trial detention
satisfied the requirements of Article 5 § 3. It was justified by
“relevant” and “sufficient” grounds. These
grounds were, in particular, the strong suspicion that the applicant
had committed the offences and the genuine risk that he might
obstruct the proceedings. Moreover, the Government considered that
the case had been complex.
- The
Government further argued that the domestic authorities had shown due
diligence, as required in cases against detained persons, and that
some delays had been caused by obstacles that could not be
attributable to the domestic authorities. The proceedings had been
conducted efficiently. In particular, the hearings had been held
regularly and at short intervals. Moreover, the numerous motions
lodged by the applicant had contributed to the length of the
proceedings and at the same time to the period of the applicant's
pre-trial detention.
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 two
grounds, namely (1) the need to secure the proper conduct of the
proceedings, (2) the risk that the applicant might go into hiding. As
regards the latter, they relied on the fact that the applicant had
changed his place of residence and had failed to appear at several
hearings.
- The
Court reiterates that Article 5 § 3 of the Convention cannot be
seen as authorising pre-trial detention unconditionally provided that
it lasts no longer than a certain period. Justification for any
period of detention, no matter how short, must be convincingly
demonstrated by the authorities (see Belchev v. Bulgaria, no.
39270/98, § 82, 8 April 2004 and Sarban v. Moldova,
no. 3456/05, § 97, 4 October 2005).
- 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 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 relevant and could not justify the entire period of the
applicant's detention.
- The
Court observes that in the present case the applicant, a former
president of an agricultural co-operative, was 58 years old at the
time of his arrest. He did not have a criminal record. In addition,
he was charged with a non-violent crime. According to the domestic
authorities, the applicant used his various health problems in order
to obstruct the trial. They considered that the applicant's behaviour
was aimed at prolonging the trial and avoiding criminal
responsibility (see paragraphs 17, 19, 26. above).
- While
Article 5 § 3 cannot be read as obliging the national
authorities to release a detainee on account of his state of health,
the authorities when deciding whether a person should be released or
detained are obliged to consider alternative measures of ensuring his
appearance at trial (see Jabloński v. Poland,
no. 33492/96, § 82-83, 21 December 2000). In the
present case bail and police supervision were imposed on the
applicant at the initial stage of the proceedings. After the
applicant had failed to appear at several hearings, due to his
serious health problems, the authorities considered that pre-trial
detention was necessary in order to ensure the proper conduct of the
trial (see paragraphs 11 and 12). The trial court refused several
petitions for release, although the applicant had produced personal
sureties given not just by private individuals, but by two members of
the Polish Parliament, the former Minister for Foreign Affairs and
the former commander of the Warsaw Ghetto uprising. The authorities
did not give consideration to use of other non-preventive measures
for ensuring that the applicant would appear for trial. They did not
mention why alternative measures would not have secured his presence
before the court nor, had the applicant been released, why his trial
would not have followed its proper course.
- Having
regard to the foregoing, the Court concludes that the grounds given
by the domestic authorities could not be considered relevant and
sufficient so as to justify the overall period of the applicant's
detention.
- Although,
the above finding would normally absolve the Court from assessing
whether the proceedings were conducted with special diligence, in the
present case the Court cannot but note that even though the applicant
was indicted on 11 July 1995, it took the trial court over a year to
hold the first hearing (see paragraphs 9 and 10 above). In addition,
it is to be noted that on 4 July 1997 the Warsaw Court of Appeal
criticised the way in which the Regional Court was conducting the
proceedings (see paragraph 15 above).
- In
the circumstances, the Court finds that the authorities failed to act
with all due diligence in handling the applicant's case.
- There
has accordingly been a violation of Article 5 § 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
- The
applicant complained that his appeal against the prolongation of his
arrest of 30 October 1998 was not examined by the Warsaw Court of
Appeal until 15 January 1999. He relied on Article 5 § 4 of the
Convention, which in its relevant part provides as follows:
“.Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.”
- 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 notes at the outset that the applicant's appeal against the
decision to prolong his detention of 3 November 1998 was examined by
the Court of Appeal only on 15 January 1999 (see paragraphs 26 - 28
above). The period under consideration accordingly lasted 2 months
and 2 weeks.
2. The parties' submissions
- The
applicant noted that the authorities had ruled on his appeal against
the prolongation of detention after a very substantial delay of two
months and two weeks. The fact that he had filed a motion for the
judge to step down should not be considered a reason for the failure
to examine his application within a reasonable time. He further
stressed that, because of the delay in examining his appeal, it had
became pointless, since the Regional Court had in the meantime again
prolonged his detention.
- The
Government refrained from taking a position on the merits of the
complaint. However, they claimed that the applicant had contributed
to the delay in the proceedings by filing a motion for the presiding
judge to step down.
3. The Court's assessment
- The Court recalls that Article 5 § 4, in
guaranteeing to persons arrested or detained a right to have the
lawfulness of their detention reviewed, also proclaims their right,
following the institution of such proceedings, to a speedy judicial
decision concerning the lawfulness of detention and to an order
terminating it if proved unlawful (see, for instance, Baranowski
v. Poland no. 28358/95, § 68, ECHR 2000-III).
- The finding whether or not the relevant decision was
taken “speedily” within the meaning of that provision
depends on the particular features of the case. In certain instances
the complexity of medical – or other – issues involved in
a determination of whether a person should be detained or released
can be a factor which may be taken into account when assessing
compliance with the Article 5 § 4 requirements. That does not
mean, however, that the complexity of a given dossier – even
exceptional – absolves the national authorities from their
essential obligation under this provision (see, mutatis mutandis,
Baranowski v. Poland cited above; and Musiał
v. Poland [GC], no. 24557/94, § 43, ECHR
1999-II).
- In that context, the Court also recalls that there is
a special need for a swift decision determining the lawfulness of
detention in cases where a trial is pending because the defendant
should benefit fully from the principle of the presumption of
innocence (see, for instance, Jabłoński v. Poland
no 33492/96, § 93, 21 December 2000).
- In
the present case the Government suggested that the applicant had
contributed to the delay in examining his appeal against the decision
of 30 October 1998 as he had lodged a motion for one of the trial
judges to step down (see paragraph 60 above).
- It
is true that while the applicant's appeal of 3 November 1998 was
pending he had made an application for the judge to step down. In
addition, the court needed to obtain a medical opinion on the
applicant's state of health (see paragraph 27 above).
- However,
in the Court's view, those circumstances cannot absolve the judicial
authorities from conducting the habeas corpus proceedings speedily.
- Having
regard to all the circumstances, the Court considers that the time
taken to examine the applicant's request for release, 2 months and 15
days, did not satisfy the speediness requirement of Article 5 §
4.
- The
Court consequently holds that there has been a violation of Article
5 § 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 20,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government considered that the claim was excessive.
- The
Court considers that the applicant 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 2,500 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant did not make any claim under this head.
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 remainder of the application
admissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds that there has been a violation of Article
5 § 4 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 2,500 (two
thousand five hundred euros) in respect of non-pecuniary damage, plus
any tax that may be chargeable, to be converted into Polish zlotys at
the rate applicable at the date of the 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 12 February 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy
Registrar President
