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FOURTH
SECTION
CASE OF KURCZEWSKI v. POLAND
(Application
no. 18157/04)
JUDGMENT
STRASBOURG
22 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 Kurczewski v. Poland,
The European Court
of Human Rights (Fourth Section), sitting as a Chamber composed
of:
Nicolas Bratza, President
Josep
Casadevall,
Giovanni Bonello,
Kristaq
Traja,
Lech Garlicki,
Ján Šikuta,
Päivi Hirvelä,
judges,
and Lawrence Early, Section Registrar,
Having
deliberated in private on 4 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 18157/04) against the
Republic of Poland lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Polish national, Mr Paweł Kurczewski (“the applicant”),
on 7 May 2004.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
4 May 2006 the Court
declared the application partly inadmissible and decided to
communicate the complaint concerning the excessive length of the
applicant's detention 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 was born in 1979 and lives in Gdańsk.
- On
16 April 2002 the applicant was arrested on suspicion of having
committed robbery.
- On
17 April 2002 the Gdańsk District Court (Sąd Rejonowy)
remanded him in custody until 16 July 2002 on reasonable suspicion
that he had committed the offence in question.
The court also considered that keeping the applicant in
detention was justified by the existence of strong and substantial
evidence, in particular testimonies of a victim and witnesses. It
also gave as a ground for detention the severity of the likely
sentence. Further, the court considered that, given the risk that the
applicant might tamper with evidence, in particular intimidate
witnesses, keeping him in detention was necessary to secure the
proper conduct of the investigation.
- On
13 May 2002, following an appeal by the applicant, the Gdańsk
Regional Court upheld that decision.
- The
applicant's further appeals against decisions extending his detention
and all his subsequent, numerous applications for release and appeals
against refusals to release him, were unsuccessful.
- In
the course of the investigation, the applicant's detention was
extended on four occasions. The relevant decisions were given by the
Gdańsk District Court on 15 July and 15 October 2002, and later
on 15 January and 10 April 2003.
- In
all their detention decisions the authorities repeatedly relied on
the original grounds given for the applicant's detention. They also
attached importance to the need to extend the investigation in the
light of new charges against the applicant, and to obtain fresh
evidence, in particular evidence from experts.
- On
25 March 2003 the applicant was indicted before the Gdańsk
District Court. He was charged with robbery and illegal possession of
firearms and ammunition. The bill of indictment concerned five
defendants and, in all, twelve charges were brought against them. The
prosecution asked the court to hear evidence from around forty
witnesses. Further, the bill of indictment included fifty items of
evidence to be produced at the hearing.
- On
5 June 2003 the trial court held the first hearing. It subsequently
scheduled sixteen hearings in the case. Four of them were cancelled
for various reasons.
- In
particular, it appears that no hearing took place between 14 August
2003 and 15 January 2004. Hearings scheduled for 9 October and 11
December 2003 were cancelled due to, among other things, the failure
to bring the co-accused to trial from prison, and the fact that a
hearing scheduled for 6 November 2003 had to be cancelled
because a trial judge was on mission.
- During
the court proceedings the court ordered several expert opinions.
- In
the meantime, 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 on 9 October 2003 the Gdańsk District Court extended
the applicant's detention until 15 January 2004. Subsequently, on
11 March 2004 it extended his detention until 15 April
2004. Since on 16 April 2004 the applicant's detention had
reached the statutory time-limit of two years laid down in Article
263§ 3 of the Code of Criminal Procedure (Kodeks postępowania
karnego), further extension of his detention was ordered by the
Gdańsk Court of Appeal (Sąd Apelacyjny).
On 23 March 2004 it extended his detention until 30
June 2004. The next decision was given by the Gdańsk Court of
Appeal on 29 June 2004, when it extended his detention until 15
August 2004. In all those decisions the courts stated that the
grounds originally given for the applicant's detention were still
valid. They repeated the grounds previously given for his continued
detention.
- All
the appeals and applications for release lodged by the applicant were
to no avail.
- On
28 July 2004 the Gdańsk District Court convicted the applicant
as charged and sentenced him to four years' imprisonment.
- The
applicant appealed on 7 December 2004. His detention was subsequently
extended on several occasions.
- The
appellate hearings scheduled for 12 October and 12 December 2005 and
2 February 2006 were cancelled for various reasons, such as illness
or absence of defence lawyers, and the need to obtain evidence.
- On
3 February 2006 the Gdańsk Regional Court (Sąd Okręgowy)
quashed the applicant's detention order. He was released on the same
date.
- It
appears that the first-instance judgment was upheld by the Gdańsk
Regional Court on 11 July 2007.
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 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 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's detention started on 16 April 2002, when he was arrested
on suspicion of having committed robbery. On 28 July 2004 the Gdańsk
District Court convicted him as charged and sentenced him to four
years' imprisonment (see paragraphs 5, 6 and 19 above). From that
date he was detained “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, 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).
Accordingly,
the period to be taken into consideration amounts to two years, three
months and thirteen days.
2. The parties' submissions
(a) The applicant
- The
applicant asked the Court to continue the examination of his case,
but did not make any specific submissions.
(b) The Government
- The
Government submitted that the applicant's detention was not
unreasonably lengthy. They argued 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.
- 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 charge against him attracted a heavy
sentence. In this connection, the Government submitted that the
applicant had been caught in
flagrante delicto
and charged with robbery committed in conspiracy with other
co-accused. The domestic courts had also relied on the
risk that the applicant might obstruct the proper conduct of the
proceedings, in particular tamper with evidence.
- The
Government further justified the length of the applicant's detention
by the complexity of the case, which stemmed from the number of
defendants and the charges brought against them. This was also shown
by the need to obtain expert evidence. They maintained that the
authorities had displayed adequate diligence and dealt speedily 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 judgments (see, among many other authorities,
Kudła v. Poland, cited above, § 110; and McKay
v. the United Kingdom, cited above, §§ 41-44).
(b) Application of the above principles in
the present case
- The
Court observes that, as the Government maintained, the applicant's
detention was indeed 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 reasonable suspicion
against the applicant, they relied principally on three grounds: (1)
the serious nature of the offence with which he had been charged and
the likely severity of the penalty, (2) the risk that the applicant
might tamper with evidence and intimidate witnesses, and (3) the need
to secure the proper conduct of the proceedings, in particular the
need to obtain further evidence.
- The
Court accepts that the strong suspicion of the applicant having
committed a serious offence could initially warrant his detention.
Also the need to secure the proper conduct of the proceedings, in
particular the need to collect further evidence, constituted valid
grounds for the applicant's initial detention.
- However,
with the passage of time those grounds inevitably became less and
less relevant. The Court must therefore establish whether the other
grounds advanced by the judicial authorities were “relevant”
and “sufficient” to continue to justify the deprivation
of his liberty (see Kudła, cited above, § 111).
-
In this connection, the Court agrees that the severity of the
sentence faced is a relevant element in the assessment of the risk of
absconding or reoffending. However, the Court has repeatedly held
that the seriousness of the charges cannot by itself justify long
periods of pre-trial detention (see, for instance, Ilijkov
v. Bulgaria, no. 33977/96, §§ 80-81, 26 July
2001). A hypothetical sentence ranging from two to twelve years
imprisonment must, with the passage of time, inevitably have called
for reassessment of the need for the applicant's continued detention
in the light of the evidence progressively obtained by the court. It
is to be observed in this connection that the actual sentence imposed
on the applicant, four years' imprisonment (see paragraph 19 above),
was at the lower end of the applicable scale (see, mutatis
mutandis, Klamecki (no.2) v. Poland, no. 31583/96, § 122).
- As
regards the risk of obstruction of the proceedings, the Court cannot
agree that it constituted a valid ground for the entire length of the
applicant's pre-trial detention. Firstly, it notes that the Gdańsk
District Court, when originally remanding the applicant in custody,
only referred, in general terms, to a risk that, if released, he
might tamper with the evidence, and, in particular, intimidate
witnesses. The courts did not provide any reasons for substantiating
the existence of that risk and the Court cannot therefore accept that
ground as a justification for holding the applicant in custody for
the entire relevant period.
- Nor
is the Court persuaded by the Government's argument that the
proceedings were of considerable complexity given 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 and failed to indicate how the nature of the
case required the applicant's continued detention.
- As
to the Government's argument that the applicant was detained
principally on charges of robbery committed together with four
accomplices and had been apprehended in flagrante delicto, the
Court notes that the defendants had not been formally charged with
acting in an organised criminal group. In these circumstances, the
Court does not consider 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).
- 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 nearly two
years and four 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.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- The
applicant did not submit a claim for just satisfaction or costs and
expenses.
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.
Done in English, and notified in writing on 22 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
