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FOURTH
SECTION
CASE OF MARCZUK v. POLAND
(Application
no. 4646/02)
JUDGMENT
STRASBOURG
8 January
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 Marczuk 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 4 December 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 4646/02) 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 Mariusz Marczuk (“the applicant”),
on 15 January 2002.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
17 March 2005 the
President of the Fourth Section decided to communicate 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 1972 and lives in Lublin. He is currently
detained in Włodawa Prison.
- On
25 March 1998 the applicant was arrested on suspicion of having
committed armed robbery. He was subsequently brought before the
Lublin District Prosecutor (Prokurator Rejonowy) and charged
with armed robbery. The prosecutor applied to the Lublin District
Court (Sąd Rejonowy) for the applicant to be detained
pending investigation.
- On
27 March 1998 the District Court remanded him in custody for three
months on the ground of a reasonable suspicion that he had committed
the offence with which he had been charged. The
court also considered that his detention was justified by the
existence of substantial evidence against him and the seriousness of
the charges. It also gave as a ground for detention the risk that the
applicant might tamper with evidence.
- On
23 April 1998, following an appeal by the applicant, the Lublin
Regional Court upheld that decision.
- In
the course of the investigation, the applicant's detention was
extended on three occasions. The relevant decisions were given by the
Lublin Regional Court on 19 June 1998 and by the Lublin Court of
Appeal (Sąd Apelacyjny) on 23 September and 21 December
1998.
- In
their detention decisions the courts attached importance to the fact
that the reasons for the applicant's pre-trial detention, as set out
in the provisions of the Code of Criminal Procedure (Kodeks
postępowania karnego), had not changed. They referred to the
serious nature of the offences and the complexity of the case. They
further considered that the need to secure the proper conduct of the
investigation justified his continued detention.
- In
the course of the proceedings, the courts informed the applicant's
lawyer about the dates of the sessions (posiedzenie)
concerning the review of the applicant's pre-trial detention. The
applicant's lawyer did not appear at the sessions.
- On
18 March 1999 the applicant was indicted before the Lublin Regional
Court. He was charged with two counts of armed robbery committed on
23 March and 25 March 1998. The bill of indictment concerned four
defendants and, in all, twenty-seven charges were brought against
them. The prosecution asked the court to hear evidence from
fifty-seven witnesses. Further, the bill of indictment included 157
items of evidence to be disclosed at the hearing.
- On
27 July 1999 a fifth defendant was indicted in the same proceedings
before the Lublin Regional Court.
- At
a hearing session held on 28 September 1999, at which the applicant's
lawyer was not present, the Lublin Regional Court extended the
applicant's detention until 27 March 2000, giving as grounds for
extending detention the compelling evidence against the applicant and
the strong likelihood that he had committed the offence with which he
had been charged. It also stressed that a lengthy sentence of
imprisonment might be imposed on him. That decision and the reasons
for it were upheld on appeal on 20 October 1999 at a hearing which
the applicant's lawyer did not attend.
- The
trial started on 29 November 1999.
- At
a hearing held on 11 September 2000 the Lublin Regional Court decided
to restart the trial following an objection by the applicant that the
intervals between the court's hearings had been too long.
- During
the court proceedings the authorities further extended the
applicant's detention pending trial on many occasions.
- The
relevant decisions were given on the following dates.
- At
a hearing held on 6 March 2000 the Lublin Regional Court decided to
ask the Supreme Court for an extension of the applicant's detention
until 30 November 2000. This was due to the fact that only the
Supreme Court could extend his detention beyond the statutory term of
2 years laid down in Article 263 § 3 of the Code of
Criminal Procedure.
- On
24 March 2002 the Supreme Court extended the applicant's detention
until 31 July 2000. On 20 July 2000 it extended his detention until
30 December 2000. The applicant's lawyer did not appear at the
hearings.
- In
its decisions extending the applicant's detention the Supreme Court
found that the case was particularly complex and that it was
necessary to obtain more evidence, in particular to hear evidence
from numerous witnesses. It also found that there were “no
grounds for release” under Article 259 of the Code of Criminal
Procedure.
- On
20 December 2000, following amendments to the Code of Criminal
Procedure, the Lublin Court of Appeal ordered that the applicant be
kept in custody until 30 May 2001. The next decision was given on
9 May 2001 and the court extended the applicant's detention
until 1 September 2001. This was followed by a decision of
22 August 2001, whereby the Lublin Court of Appeal extended the
applicant's detention until 1 November 2001. On 23 January 2002 the
Lublin Court of Appeal further extended the applicant's detention
until 1 April 2002. The next decision was given on 6 March 2002,
extending the applicant's detention until 1 June 2002.
- All
the decisions reiterated the grounds previously given for the
applicant's detention, notably the reasonable
suspicion of his having committed the offences in question, the
complexity of the case and the severity of the anticipated penalty
which, in the courts' opinion, justified keeping him in custody in
order to secure the proper conduct of the proceedings. The Court of
Appeal also held that the proceedings had not been unduly protracted
and that the adjournments and restarting of the trial had been caused
by events for which the Regional Court could not be held responsible.
- All
the appeals and applications for release lodged by the applicant were
to no avail.
- In
the meantime, the Lublin Regional Court held around twenty-five
hearings in the case, some of which had to be
adjourned due to the necessity to examine procedural motions
concerning matters such as a request for the disqualification of a
judge, the failure to bring the applicant's co-defendants to court
from prison, restarting the trial and the absence of witnesses.
- On
19 April 2002 the Lublin Regional Court gave judgment. The applicant
was convicted as charged and sentenced to ten years' imprisonment and
a fine. Both the applicant and the prosecutor appealed. The
applicant's detention was subsequently extended on three occasions.
- On
28 January 2003 the Lublin Court of Appeal heard the applicant's
appeal. It quashed the first-instance judgment on the ground of
procedural mistakes and remitted the case. It ordered that the
applicant's detention should continue until 17 June 2003.
- The
retrial started on 26 May 2003. On the same date the Lublin Regional
Court decided to extend the applicant's detention until 11 August
2003.
- On
11 August 2003 the applicant was released from detention.
- It
appears that on 11 September 2005, at the request of the applicant,
the trial was restarted.
- On
7 October 2005 the Lublin Regional Court convicted the applicant as
originally charged. He was sentenced to ten years' imprisonment and a
fine.
- On
22 August 2006 the Lublin Court of Appeal upheld the impugned
judgment. The applicant has not informed the Court as to whether he
lodged a cassation appeal with the Supreme Court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice concerning the imposition of
detention (aresztowanie tymczasowe), the grounds for its
extension, release from detention and rules governing other,
“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 § 1 OF THE
CONVENTION
- The applicant complains in vague terms that his
detention and its extension were in breach of Article 5 §
1 of the Convention.
- However,
the Court notes that the applicant's detention was based on Article
258 § 1 of the Code of Criminal Procedure. Furthermore, the
Court observes that in the present case the applicant was detained on
reasonable suspicion of having committed a serious offence. The Court
accordingly finds that the decision to place the applicant in custody
had a legal basis and was issued by a competent judicial authority.
There is nothing to suggest that the legal basis for his detention
was not clearly defined and, therefore, lacked the necessary
foreseeability required under the Convention. The Court is therefore
satisfied that the applicant's detention complied with the
requirements of Article 5 § 1. Moreover, the Court
does not see any appearance of arbitrariness on the part of the
relevant judicial authorities when deciding on the applicant's
continued detention. It also observes, and without prejudice to its
conclusion under Article 5 § 3, that its lawfulness was
repeatedly reviewed by the competent domestic courts (see, mutatis
mutandis Malik v. Poland, no. 57447/00, § 26,
judgment of 4 April 2006).
- Against
that background, the Court concludes that the applicant's detention
was “lawful” within the meaning of Article 5 § 1 of
the Convention.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4
of the Convention simultaneously.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the length of his pre-trial detention had
been excessive. He relied on Article 5 § 3 of the
Convention, which, in so far as relevant, reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
- The
Government contested that argument.
A. Admissibility
- The 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 was arrested on 25 March 1998 and remanded in custody on 27
March 1998. On 19 April 2002 the Lublin Regional Court convicted him
as charged and sentenced him to ten years' imprisonment (see
paragraphs 5, 6 and 25 above). From that date his detention was
“after conviction by a competent court”, within the
meaning of Article 5 § 1 (a) and, consequently, that period of
his detention falls outside the scope of Article 5 § 3 (see
Kudła, cited above, § 104).
On 28
January 2003 the Lublin Court of Appeal quashed the applicant's
conviction. Following that date his detention was again covered by
Article 5 § 3. It continued until 11 August 2003
when the applicant was released (see paragraphs 26 and 28 above).
-
Accordingly, the period to be taken into consideration under Article
5 § 3 lasted four years, seven months and eight days.
2. The parties' submissions
(a) The applicant
- The
applicant maintained that the length of his detention had been
unreasonable, and thus in breach of Article 5 § 3 of the
Convention. He submitted that his detention had in effect been a
prison sentence.
(b) The Government
- The
Government argued that the length of the applicant's detention had
not been excessive and that there had been valid reasons for holding
him in detention for the entire period in question. The domestic
courts had on each occasion given relevant and sufficient reasons
justifying the applicant's detention and had regularly reviewed it,
taking into account fresh developments in the proceedings.
- The applicant's
detention had been justified by the strong suspicion that he had
committed the offences with which he had been charged and the fact
that the seriousness of the charges against him attracted a heavy
sentence. In this connection, the Government submitted that the
applicant had been charged with the commission of a number of armed
robberies in an organised group. The domestic courts had also relied
on the risk that the applicant might obstruct the proper conduct of
the proceedings.
- The
Government further justified the length of the applicant's detention
by the particular complexity of the case, which stemmed from the
number of defendants and offences as well as the fact that the trial
had been restarted in September 2000 at the applicant's request. They
maintained that the authorities had displayed adequate diligence in
dealing with the applicant's case. They further argued that his
detention had been based on the grounds specified in the Code of
Criminal Procedure.
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 judgements (see, among many other authorities,
Kudła v. Poland, cited above, § 110 et seq.,
and McKay v. the United Kingdom [GC], no. 543/03, §§
41-44).
(b) Application of the above principles in
the present case
- At
the outset the Court notes that the applicant was detained for a very
long time, which can only be justified by special circumstances.
-
The Court observes that indeed, as the Government maintained, the
applicant's detention was reviewed by the courts at regular
intervals. However, in their decisions extending the applicant's
detention they repeated the same grounds. In addition to the
strong suspicion against the applicant, they relied principally on
three grounds: the serious nature of the offences with which he had
been charged and the likely severity of the penalty; the complexity
of the case; and the need to secure the proper conduct of the
proceedings.
- The
Court accepts that the strong suspicion of the applicant having
committed serious offences could initially warrant his detention.
- However,
with the passage of time, that ground became less and less relevant.
The Court must then establish whether the other grounds adduced by
the courts were “relevant” and “sufficient”
(see, Kudła, cited above, § 111).
- In
this connection, the Court agrees that the seriousness of the charges
and the severity of the likely sentence are relevant elements in the
assessment of the risk of absconding or reoffending. However, the
Court has repeatedly held that these considerations cannot of
themselves justify long periods of pre-trial detention (see, for
instance, Ilijkov v. Bulgaria, no. 33977/96, §§
80-81, 26 July 2001), which in this case amounted to over four years
and seven months.
- As
regards the risk of obstruction of the proceedings, the Court is not
persuaded that this risk constituted a valid ground justifying the
entire length of the applicant's pre-trial detention. Firstly, it
notes that the Lublin District Court, when originally remanding the
applicant in custody, only referred, in general terms, to the risk of
obstruction of the proceedings by the applicant given the likelihood
that he faced a lengthy term of imprisonment if convicted. Secondly,
the Court notes that in the other relevant decisions of the judicial
authorities no arguments were advanced by way of substantiation of
the risk that, if released, the applicant would obstruct the
proceedings. In the absence of any other factor capable of showing
that the risk relied on actually existed, the Court cannot accept
that ground as a justification for holding the applicant in custody
for the entire relevant period.
- It
is true that the proceedings were of considerable complexity, regard
being had to the number of defendants and the volume of evidence to
be taken. However, it appears that the authorities referred to the
complexity of the case in a very general manner, without indicating
how the nature of the case and the fact that the trial had had to be
restarted in 2000 at the applicant's request required the applicant's
continued detention.
- It
appears that the applicant had not been formally charged with acting
in an organised criminal gang. 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 applicant as would undoubtedly
have been the case had the proceedings concerned organised crime (see
Bąk v. Poland, no. 7870/04, § 56,
16 January 2007).
- Furthermore,
there is no specific indication that during the entire period in
question the authorities envisaged the possibility of imposing other
preventive measures on the applicant, such as bail or police
supervision.
In
this context the Court would emphasise that other “preventive
measures” to secure the proper conduct of criminal proceedings
are expressly foreseen by Polish law and that under Article 5
§ 3 the authorities, when deciding whether a person should
be released or detained, are obliged to consider alternative measures
for 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
Jabłoński v. Poland, no. 33492/96, § 83,
21 December 2000, and McKay, § 41, cited above).
- In
the circumstances, the Court concludes that the grounds given by the
domestic authorities were not “relevant” and “sufficient”
to justify the applicant's being kept in detention for four years and
over seven months. In these circumstances, it is not necessary to
examine whether the proceedings were conducted with special
diligence.
- There
has therefore been a violation of Article 5 § 3 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE
CONVENTION
- Firstly,
the applicant complained in general terms under Article 6 § 2 of
the Convention about a violation of the principle of the presumption
of innocence.
- However,
the Court finds that the applicant's assertions about violation of
the above provision of the Convention are wholly unsubstantiated.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
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 submitted that he had not suffered pecuniary damage but
that the length of his detention had caused him severe stress and
psychological and emotional suffering. He asked the Court to make the
relevant assessment in the light of its case-law.
- The
Government maintained that the applicant had contributed to the
length of the proceedings and had been found guilty and sentenced to
a lengthy term of imprisonment. They asked the Court to rule that the
finding of a violation would constitute, in itself, sufficient just
satisfaction.
- The
Court accepts that the applicant may have suffered some non-pecuniary
damage as a result of the protracted period in detention, which is
not sufficiently compensated by the finding of violation of the
Convention. In the circumstances of this particular case and deciding
on an equitable basis, it awards the applicant 2,000 euros (EUR)
under the head of non-pecuniary damage.
B. Costs and expenses
- The
applicant submitted that he had incurred postage expenses. He did not
submit any precise claim in respect of other costs and expenses.
- The
Government pointed out that the applicant had not been able to submit
any invoices confirming that he had incurred any legal costs and
expenses.
- 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 actually and necessarily been
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 applicant,
who was not represented by a lawyer, the sum of EUR 100 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 complaint concerning the length of
the applicant's pre-trial detention admissible and the remainder of
the application inadmissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,000 (two
thousand euros) in respect of non-pecuniary damage and EUR 100 (one
hundred euros) for costs and expenses, plus any tax that may be
chargeable, to be converted into Polish zlotys 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.
Done in English, and notified in writing on 8 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
