[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF MARKOŃ v. POLAND
(Application
no. 2697/06)
JUDGMENT
STRASBOURG
30
September 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 Markoń v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
David Thór Björgvinsson,
Ledi Bianku,
Mihai Poalelungi, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 9 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 2697/06) 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 Arkadiusz
Markoń (“the applicant”), on 4 January 2006.
- The
applicant was represented by Mr Adam Tułodziecki, a lawyer
practising in Gdańsk. The Polish Government (“the
Government”) were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
- The
applicant alleged, in particular, that his detention on remand had
exceeded a “reasonable time” within the meaning of
Article 5 § 3 of the Convention.
- On
30 March 2007 the
President of the Fourth Section 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 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1975 and lives in Gdańsk. He is currently
serving a prison sentence in Gdańsk Prison.
Criminal proceedings against the
applicant and his detention on remand
1. The applicant's detention
- On
6 May 2000 the Gdańsk District Court (Sąd Rejonowy)
remanded the applicant in custody until 5 August 2000 in view of the
reasonable suspicion that he had committed the offences with which he
was charged and the risk that he would obstruct the investigation.
The applicant was suspected of acting in an organised criminal group,
illegal possession of weapons and several offences of armed robbery.
The court considered that keeping the applicant in detention was
necessary to secure the proper conduct of the proceedings, given the
risk that he might induce witnesses to give false testimony The court
also stressed the severity of the likely sentence and that the
applicant had been wanted by the police since 1999.
- The
applicant's detention was repeatedly extended by decisions of the
Gdańsk Regional Court (Sąd Okręgowy) and the
Gdańsk Court of Appeal (Sąd Apelacyjny). Appeals and
applications by the applicant for release and for the preventive
measure to be varied were unsuccessful. In their decisions the courts
relied on the reasonable suspicion that the applicant had committed
the offences with which he had been charged, on their serious nature
and the complexity of the case.
- Once
the length of the applicant's detention had reached the statutory
two-year maximum laid down in Article 263 § 3 of the Code of
Criminal Procedure (Kodeks Postępowania Karnego), the
first-instance court no longer had jurisdiction to extend it.
Consequently, it was the Gdańsk Court of Appeal which issued
further extensions. In its first extension decision, on 24 April
2002, the Gdańsk Court of Appeal relied on the reasonable
suspicion that the applicant had committed the offences with which he
had been charged and on the considerable complexity of the case. The
court also held that the risk that the applicant and other co-accused
would obstruct the investigation was justified. It did not however
refer to any reasons justifying its allegations.
- On
31 October 2002 the Gdańsk Regional Court gave judgment. The
applicant was convicted as charged and sentenced to ten years'
imprisonment.
- The
applicant and several other co-accused appealed. The applicant was
kept in detention pending appeal for thirteen months.
- On
1 December 2003 the Gdańsk Court of Appeal quashed the
first-instance judgment and remitted the case for re-examination to
the first-instance court.
- On
16 December 2003 the Gdańsk Court of Appeal extended the
applicant's detention until 30 March 2004. The applicant remained in
detention until his further conviction.
- On
10 April 2006 the Gdańsk Regional Court again convicted the
applicant and sentenced him to ten years' imprisonment.
- On
an unspecified date the applicant appealed against this judgment.
- On
20 November 2007 the Gdańsk Court of Appeal gave judgment
apparently upholding the applicant's conviction.
2. The applicant's complaint under the 2004 Act
- The
applicant twice lodged a complaint that his right to a trial within a
reasonable time had been breached under the Law of 17 June 2004
on complaints about a breach of the right to a trial within a
reasonable time (Ustawa o skardze na naruszenie prawa
strony do rozpoznania sprawy w postępowaniu sądowym bez
nieuzasadnionej zwłoki) (“the 2004 Act”).
- On
16 March 2005 the Gdańsk Court of Appeal left the complaint
unexamined because the applicant had failed to pay court fees. On 14
February 2006 the same court rejected the applicant's second
complaint for a procedural mistake (the applicant had failed to
specify the circumstances justifying his claim as required by section
6 of the 2004 Act).
3. The alleged censorship of the applicant's
correspondence
- The applicant produced an envelope in which he had
received an application form from the Court. The envelope had been
sealed with sticky tape but there was no “censored” stamp
on it or any other mark that could mean that the applicant's
correspondence had been interfered with.
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 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 detention on remand 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 6 May 2000, when he was arrested on
suspicion of having committed several offences of armed robbery,
illegal possessions of arms and acting in an organised criminal
group. On 31 October 2002 the Gdańsk Regional Court
convicted him as charged.
As
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 Kudła v. Poland, [GC], no.
30210/96, § 104).
On 1
December 2003 the Gdańsk Court of Appeal quashed the applicant's
conviction. Following that date his detention was again covered by
Article 5 § 3. It continued until 10 April 2006
when the applicant was again convicted.
Accordingly,
the period to be taken into consideration amounts to four years,
ten months and four days.
2. The parties' submissions
(a) The applicant
- The
applicant's lawyer submitted in general terms that the applicant's
application lodged with the Court was justified.
(b) The Government
- The
Government in their observations wished to refrain from making any
comments as regards the applicant's complaint under Article 5 §
3 of the Convention.
3. The Court's assessment
(a) General principles
- The
Court reiterates 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, cited above, § 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 relied principally on
three grounds, in addition to the reasonable suspicion against the
applicant, namely: (1) the serious nature of the offences with which
he had been charged; (2) the heavy penalty to which he was liable;
(3) the risk that the applicant might tamper with evidence.
- The
applicant had been charged with numerous offences of armed robbery
and illegal possession of weapons committed in an organised criminal
group (see paragraph 6 above).
In
the Court's view, the fact that the case concerned a member of such a
criminal group should be taken into account in assessing compliance
with Article 5 § 3 (see Bąk v. Poland, no. 7870/04,
§ 57, 16 January 2007).
- The
Court accepts that the reasonable suspicion that the applicant had
committed serious offences could initially warrant his detention.
Also, the need to determine the degree of alleged responsibility of
each of the defendants, who had acted in a criminal group and against
whom numerous charges of serious offences were laid, constituted
valid grounds for the applicant's initial detention.
- Furthermore,
according to the authorities, the likelihood of a severe sentence
being imposed on the applicant created a presumption that he would
obstruct the proceedings and tamper with evidence. In this
connection, the Court accepts that in cases such as the present one
concerning organised criminal groups, the risk that a detainee, if
released, might bring pressure to bear on witnesses or other
co-accused or might otherwise obstruct the proceedings often is, in
the nature of things, high. However, it is to be noted that the
domestic courts did not give any indications as to why they believed
that the applicant, if released, might tamper with evidence and
obstruct the proceedings. The Court would reiterate that, while the
severity of the sentence faced is a relevant element in the
assessment of the risk of absconding or reoffending, the gravity of
the charges cannot by itself justify long periods of detention (see
Michta v. Poland, no. 13425/02, §§ 49, 4 May
2006).
- While
all those above factors could justify even a relatively long period
of detention, they did not give the domestic courts unlimited power
to extend this measure. In this context, the Court would observe that
by the date of his original first-instance conviction the applicant
had already spent almost two and a half years in pre-trial detention.
Following the quashing of that conviction on appeal he was kept in
custody for a further two years and over four months (see paragraphs
9-13 above).
- Having
regard to the foregoing, even taking into account the fact that the
courts were faced with the particularly difficult task of trying a
case involving an organised criminal group, the Court concludes that
the grounds given by the domestic authorities could not justify the
overall period of the applicant's detention. In these circumstances
it is not necessary to examine whether the proceedings were conducted
with special diligence.
There
has accordingly been a violation of Article 5 § 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- In
his observations the applicant's lawyer raised an additional
complaint submitting that the applicant had been kept in detention
without a valid detention order for twenty-one days, from 5 October
2001 until 25 October 2001. He failed however to produce
any evidence to support these allegations.
- In
their comments to the applicant's just satisfaction claims the
Government submitted that the detention had been valid throughout.
They produced copies of the relevant decisions (which were already
there in the case file) extending the detention for the period
complained of by the applicant's lawyer.
- The
Court notes that the applicant's complaint under Article 5 § 1
of the Convention as regards the applicant's allegedly unlawful
detention in October 2001 was submitted in the applicant's lawyer's
observations of March 2008.
Accordingly,
it must be rejected under Article 35 §§ 1 and 4 of the
Convention for non-compliance with the six-month time requirement.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF EXCESSIVE LENGTH OF THE PROCEEDINGS.
- The
applicant complained that the criminal proceedings against him had
been excessively long.
- The Court notes that he twice lodged a complaint under
the 2004 Act. On 16 March 2005 the Gdańsk Court of Appeal left
the complaint unexamined because the applicant had failed to pay
court fees. On 14 February 2006 the same court rejected the
applicant's further claim because of a procedural mistake; the
applicant had failed to specify the circumstances justifying his
claim as required by section 6 of the “Kudła law”.
- The
Court has already found that when a complaint under the 2004 Act has
been rejected for a procedural mistake and it is still open to the
applicant to lodge another complaint, the applicant is required to do
so (see Komorowska v. Poland (dec.) 38226/06). In the present
case the proceedings complained of were still pending for at least
two and a half years after the applicant's second complaint under the
2004 Act had been rejected.
- Accordingly,
the Court considers that the applicant failed to exhaust domestic
remedies in that he did not lodge a further complaint under section 5
of the 2004 Act after the rejection of his previous complaints by the
domestic court for procedural mistakes. It follows that the complaint
about the excessive length of the proceedings must be rejected under
Article 35 §§ 1 and 4 of the Convention for
non-exhaustion of domestic remedies.
IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained about the monitoring of his correspondence with
the Court.
- The
Court has examined this complaint as submitted by the applicant.
However, having regard to all material in its possession, the Court
finds that the applicant has failed to substantiate his complaints.
It follows that this part of the application is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
V. 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 35,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government considered the applicant's claims exorbitant. They asked
the Court to rule that a finding of a violation would constitute in
itself sufficient just satisfaction.
- 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, 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 1,500 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 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 1,500 (one
thousand five hundred euros) in respect of non-pecuniary damage, to
be converted into Polish zlotys at a 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 30 September 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
