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FOURTH
SECTION
CASE OF CHOUMAKOV v. POLAND (No. 2)
(Application
no. 55777/08)
JUDGMENT
STRASBOURG
1
February 2011
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 Choumakov v. Poland (no. 2),
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ledi Bianku,
Mihai
Poalelungi,
Vincent A. de Gaetano, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 11 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 5777/08) 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 Russian national, Mr Oleg
Choumakov (“the applicant”), on 6 November
2008.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign
Affairs.
- On
13 July 2009 the Court
decided to give notice of the application to the Government. It
was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1). The Government of
the Russian Federation did not exercise their right to intervene
(Article 36 § 1 of the Convention and Rule 44
§ 1 (b)).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Criminal proceedings and the applicant's detention
- The applicant, Mr Oleg Choumakov,
is a Russian national who was born in 1971. He is currently serving a
prison sentence in the Gdańsk Detention Centre.
- On 29 May 2003 the applicant was
arrested by the police on suspicion of robbery and the murder of
a taxi driver.
- On 30 May 2003 the Braniewo
District Court (Sąd Rejonowy)
decided to remand the applicant
in custody, relying on a reasonable suspicion that the applicant had
committed the offences in question and the high probability that a
heavy sentence would be imposed on him. The court further considered
that there was a risk that the applicant might interfere with the
course of the proceedings and bring pressure to bear on witnesses.
- The applicant's pre-trial
detention was subsequently extended on several occasions.
- On 30 June 2005 the Elbląg
Regional Court convicted the applicant and his co accused and
sentenced them to twenty-five years' imprisonment. The applicant
lodged an appeal against the judgment.
- On 21 December 2005 the Gdańsk
Court of Appeal quashed the impugned judgment and remitted the
case for fresh consideration. On the same day, the appeal court
extended the applicant's pre trial detention.
- The applicant's pre-trial
detention was further extended.
- On 30 April 2007 the Elbląg
Regional Court again convicted the applicant as charged and sentenced
him to twenty-five years' imprisonment. The applicant lodged an
appeal.
- On 28 December 2007 the Gdańsk
Court of Appeal allowed the appeal and quashed the impugned judgment.
It remitted the case to the Elbląg Regional Court. The court
further extended the applicant's detention until 28 June 2008. In
addition to the grounds invoked previously, the court found that the
applicant and the second co-accused had made an attempt to
contact each other illegally and to exchange information about the
trial, which justified the finding that the applicant might interfere
with the proper course of the proceedings. Moreover, the court found
that the co accused had contacted the witnesses through other
persons.
- On 30 April 2008 the Gdańsk
Court of Appeal dismissed a request by the applicant for release.
- On 17 June 2008 the Elbląg
Regional Court extended the applicant's detention until 30 December
2008, relying on the high probability that the applicant had
committed the offence in question. It also noted that he had already
been convicted twice by the first-instance court. The court also
considered that the likelihood of a severe sentence being
imposed on the applicant created a presumption that he would obstruct
the proceedings, and that the fact that the applicant had contacted
third persons created a presumption that he might tamper with
evidence.
- The applicant appealed against that decision.
- On 2 July 2008 the Gdańsk
Court of Appeal upheld the challenged decision, repeating the grounds
invoked by the Regional Court.
- On 1 December 2008 the
applicant's lawyer requested the court to release the applicant
from detention and apply a less severe measure, namely police
supervision combined with the seizure of the applicant's passport. He
relied, inter alia,
on the fact that on 29 July 2008 the European Court of Human Rights
had given judgment and found that the applicant's detention had
exceeded a reasonable time.
- On 5 December 2008 the Elbląg
Regional Court refused the applicant's lawyer's request. The court
considered that the grounds for the applicant's detention remained
valid and, therefore, the continued detention of the applicant did
not violate the procedural guarantees safeguarded by Articles 5 and 6
of the European Convention on Human Rights. As regards the Court's
judgment, the Regional Court expressed the opinion that neither the
Convention nor the Code of Criminal Procedure placed an obligation on
the court to release an applicant following a judgment of the
European Court of Human Rights. The Regional Court noted that the
applicant had been granted 1,500 euros (EUR), which constituted
sufficient just satisfaction for the violation found.
- On 22 December 2008 the Elbląg
Regional Court again extended the applicant's detention until 30 June
2009. The court copied the reasoning from its own decision of 5
December 2008.
- On 5 January 2009 the
applicant's lawyer appealed.
- On 21 January 2009 the Gdańsk
Court of Appeal upheld the challenged decision. It again repeated the
grounds previously invoked by the Regional Court. As regards the
judgment given by the Court, it considered that it was of a
“declaratory nature” and “did not constitute
a source of law but rather an application of the law”.
- On an unspecified date the
applicant's lawyer requested again that a less severe preventive
measure be applied to the applicant, namely police supervision
combined with the seizure of the applicant's passport.
- On 13 May 2009 the Elbląg
Regional Court refused to grant that request, finding that two expert
reports had still to be prepared and the case was a particularly
difficult one. It also noted that the applicant, as a foreigner
without a fixed address in Poland, might abscond if released.
Further, it repeated the same grounds as previously.
- On 20 May 2009 the applicant's
lawyer appealed. He argued, inter
alia, that the applicant's
professional and family life prior to his arrest had been based in
Elblag and that the sole fact that the applicant was a Russian
citizen could not be regarded as creating a danger that he might
abscond.
- On 2 June 2009 the Elbląg
Regional Court upheld the challenged decision. It relied on the same
grounds as invoked previously.
- On 16 June 2009 the Elbląg
Regional Court again extended the applicant's detention for a further
six months, that is, until 30 December 2009. It again
relied on the same grounds as previously and added that the expert
witnesses had to be heard again because “the accused persons
[had] again changed their version of events”.
- On 22 June 2009 the applicant
and his lawyer lodged appeals against the further extension of the
detention.
- On 1 July 2009 the Gdańsk
Court of Appeal found the appeals partly justified and decided that
the applicant's detention should be extended only until 30 October
2009. It noted that the proceedings had “without doubt been
considerably lengthy” and considered that the Regional Court
should terminate them before the expiry of the detention time-limit.
- On 13 November 2009 the Elbląg
Regional Court convicted the applicant as charged and sentenced him
to twenty-five years' imprisonment.
- On 11 March 2010 the applicant's
lawyer lodged an appeal.
- On 27 October 2010 the Gdańsk
Court of Appeal upheld the challenged judgment.
B. Proceedings under the 2004 Act
- On
1 September 2008 the applicant lodged a complaint under section 5
of 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”). He sought a declaration that the criminal proceedings
against him were lengthy, and compensation in the amount of 10,000
Polish zlotys (PLN).
- On
28 October 2008 the Gdańsk Court of Appeal dismissed the
applicant's complaint (II S 30/08). It considered that there had been
no unjustified delays in the proceedings and pointed to the
complicated nature of the case.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice concerning remedies for the
excessive length of judicial proceedings, in particular the
applicable provisions of the 2004 Act, are set out in the Court's
decisions in the cases of Charzyński v. Poland no.
15212/03 (dec.), §§ 12-23, ECHR 2005-V; Ratajczyk v.
Poland no. 11215/02 (dec.), ECHR 2005-VIII; and the judgment in
the case of Krasuski v. Poland, no. 61444/00, §§
34-46, ECHR 2005-V.
THE LAW
I. THE GOVERNMENT'S REQUEST FOR THE
APPLICATION TO BE STRUCK OUT UNDER ARTICLE 37 OF THE CONVENTION
- On
14 December 2009 the Government submitted a unilateral declaration
similar to that in the case of Tahsin Acar v. Turkey (Tahsin
Acar v. Turkey (preliminary objection) [GC],
no. 26307/95, ECHR 2003 VI), and informed the Court
that they were ready to accept that there had been a violation
of the applicant's rights under Article 5 § 3 and
Article 6 § 1 of the Convention as a result of
the unreasonable length of the applicant's detention and the criminal
proceedings in which the applicant was involved. In respect of
non-pecuniary damage, the Government proposed to award EUR 2,500
to the applicant. The Government invited the Court to strike out the
application in accordance with Article 37 of the Convention.
- The
applicant did not agree with the Government's proposal. He considered
that the amount proposed did not constitute sufficient just
satisfaction for the damage he had sustained and requested the Court
to continue the examination of the application.
- The
Court observes that, as it has already held on many occasions, it may
be appropriate under certain circumstances to strike out
an application or part of an application under Article 37 §
1 (c) of the Convention on the basis of a unilateral declaration by
the respondent Government even if the applicant wishes the
examination of the case to be continued. It will depend on the
particular circumstances whether the unilateral declaration offers a
sufficient basis for finding that respect for human rights as defined
in the Convention and its Protocols does not require the Court to
continue its examination of the case (see
Tahsin Acar,
cited above, § 75,
and Melnic v. Moldova,
no. 6923/03, § 22, 14 November 2006).
- According
to the Court's case-law, the amount proposed in a unilateral
declaration may be considered a sufficient basis for striking out an
application or part thereof. The Court will have regard in this
connection to the compatibility of the amount with its own awards in
similar length of proceedings cases, bearing in mind the
principles which it has developed for determining victim status
and for assessing the amount of non-pecuniary compensation to be
awarded where it has found abreach of the “reasonable
time” requirement (see
Cocchiarella v. Italy [GC],
no. 64886/01, §§ 85 107, ECHR 2006 ...;
Scordino v. Italy (no. 1)
[GC], no. 36813/97, §§ 193-215,
ECHR 2006 -...;
and Dubjakova v. Slovakia
(dec.), no. 67299/01, 10 October 2004).
- As
to whether it would be appropriate to strike out the present
application on the basis of the unilateral declaration made by the
Government, the Court considers that the sum proposed in the
declaration in respect of the non-pecuniary damage suffered by the
applicant as a result of the alleged violations of the
Convention does not bear a reasonable relation to the amounts awarded
by the Court in similar cases in respect of non-pecuniary
damage. Furthermore, the domestic proceedings are pending (see
paragraph 31 above).
- On
the facts, and for the reasons set out above, the Court finds that
the Government failed to submit a statement offering a sufficient
basis for finding that respect for human rights as defined in the
Convention and its Protocols does not require the Court to continue
its examination of the case (see, by contrast, Spółka
z o.o. WAZA v. Poland (striking
out), no. 11602/02, 26 June 2007).
- This
being so, the Court rejects the Government's request for the
application to be struck out under Article 37 of the Convention
and will accordingly pursue its examination of the admissibility and
merits of the case.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the length of his pre trial detention
was 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.”
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 29 May 2003, when he was
arrested on suspicion of having committed murder and robbery.
On 30 June 2005 the Elbląg Regional Court
convicted him as charged.
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 (cf. Kudła v. Poland
[GC], no. 30210/96, § 104 et seq, ECHR
2000 XI).
- On
21 December 2005 the Gdańsk Court of Appeal quashed the
applicant's conviction. After that date his detention was again
covered by Article 5 § 3. The period to be
taken into consideration ended on 30 April 2007 when the
applicant was again convicted by the trial court. On 28 December
2007 the Gdańsk Court of Appeal again quashed the Regional
Court's judgment and, on 13 November 2009, the Elbląg
Regional Court again convicted the applicant as charged. On
27 October 2010 the judgment of 13 November 2009 was upheld
by the Gdańsk Court of Appeal.
- Accordingly,
the applicant's detention for the purposes of Article 5 § 3
lasted over five years and four months.
- However,
the length of the applicant's detention has already been examined
by the Court. In its judgment of 29 July 2008 (Choumakov
v. Poland, no. 33868/05) the Court found a violation of
Article 5 § 3 of the Convention on account of the
excessive length of detention, which, at the relevant time, had
already lasted almost four years, between 29 May 2003 and
30 April 2007, with the exclusion of periods covered by
Article 5 § 1 (a) of the Convention (see
paragraph 46 above). After the Court's judgment of 29 July
2008 the applicant's conviction was quashed by the second instance
court on 28 December 2007 and the case was remitted for fresh
consideration. The applicant was again convicted on 13 November 2009.
It follows that the period to be taken into consideration by the
Court in the present case commenced on 29 December 2007 and ended
on 13 November 2009 (see, mutatis mutandis, Rotondi
v. Italy, no. 38113/97, § 13, 27 April
2000). It thus lasted one year, ten months and fifteen days.
- The
Court observes that this period of detention might not, in itself,
give rise to the finding of a violation of Article 5 § 3
of the Convention, especially taking into account that the applicant
was charged with murder and that he and the
second co-accused had made an attempt to contact each other
illegally and to exchange information about the trial (see
paragraph 13 above). However, this period cannot be examined in
isolation from the fact that the applicant had already been detained
for almost four years.
2. The parties' submissions
(a) The applicant
- The
applicant submitted, in general terms, that his detention had
exceeded a reasonable time. He also claimed that the judgment given
by the Court on 29 July 2008 had not been complied with by the
Polish authorities because he was still detained, and that the
courts, in extending his detention, had relied on the same grounds as
previously.
(b) The Government
- The
Government, having submitted a unilateral declaration, did not
produce observations on that matter.
3. The Court's assessment
- The
Court notes 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, have been set out in a
number of its previous judgments (see, among many other authorities,
Kudła, cited above, § 110 et seq., and
McKay v. the United Kingdom [GC], no. 543/03,
§§ 41 44, ECHR 2006-..., with further
references).
- The
Court recalls that, on 29 July 2008, it gave a judgment in which it
found that the applicant's detention in the same set of proceedings
had been excessive. However, after the Court's judgment, the
applicant continued to be detained.
- In
their decisions given after 29 July 2008, the authorities which
extended the detention or refused to release the applicant and apply
a different, less severe preventive measure to him relied on the
same grounds as those previously invoked, namely the serious nature
of the offences with which the applicant had been charged, the
severity of the penalty to which he was liable, the need to
secure the proper conduct of the proceedings, and the risk that the
applicant might tamper with evidence or abscond (see paragraphs
17 29 above). It follows that after the delivery of the
judgment by the Court no new relevant reasons capable of justifying
the lengthy detention were considered.
In
these circumstances, and taking into consideration that after the
Court's judgment the detention lasted for a further one year, ten
months and fifteen days, the Court finds that the authorities failed
to respect the applicant's right of a detained person to a trial
within a reasonable time or to be released pending trial.
There
has accordingly been a violation of Article 5 § 3 of
the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE PROCEEDINGS
- The
applicant complained that the length of the proceedings was
incompatible with the “reasonable time” requirement laid
down in Article 6 § 1 of the Convention, which reads
as follows:
“In the determination of any criminal charge
against him ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
-
The Government, having submitted a unilateral declaration, did not
produce observations on that matter.
- The
period to be taken into consideration began on 29 May 2003 and
has not yet ended. It has thus lasted over seven years at two levels
of jurisdiction.
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
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96,
§ 43, ECHR 2000 VII).
- The
Court has frequently found violations of Article 6 § 1
of the Convention in cases raising issues similar to the one in the
present case (see Frydlender, cited above). Furthermore,
the Court considers that in dismissing the applicant's complaint
that the proceedings in his case exceeded a reasonable time the
Gdańsk Court of Appeal failed to apply standards which were in
conformity with the principles embodied in the Court's case law
(see Majewski v. Poland, no. 52690/99, § 36,
11 October 2005).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable
of persuading it to reach a different conclusion in the present
case. Having regard to its case-law on the subject, the Court
considers that in the instant case the length of the proceedings is
excessive and fails to meet the “reasonable time”
requirement.
There
has accordingly been a breach of Article 6 § 1.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant further complained that the remedy provided for by the
2004 Act was not “effective” within the meaning of
Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Court reiterates that the expression “effective remedy”
within the meaning of Article 13 does not mean a remedy which is
bound to succeed, but simply an accessible remedy before an
authority competent to examine the merits of a complaint (see, e.g.,
Šidlová v. Slovakia, no. 50224/99,
§ 77, 26 September 2006, and Figiel v. Poland
(no. 1), no. 38190/05, 17 July 2008). The mere
fact that the complaint was dismissed by the domestic court does not
of itself render the remedy provided for in the 2004 Act
ineffective.
- It
follows that the complaint is manifestly ill founded and must be
rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
V. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Article 3 that his detention
amounted to inhuman treatment, and under Article 6 § 2
that his lengthy detention violated the principle of the presumption
of innocence.
- Having
examined all the material in its possession and regardless
of other possible grounds of inadmissibility, the Court
finds nothing in the case file which might disclose any appearance of
a violation of the provisions relied on.
It
follows that this part of the application is manifestly ill founded
and must be rejected pursuant to Article 35 §§ 3
and 4 of the Convention.
VI. 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 50,000 euros (EUR) in respect of pecuniary
damage, and EUR 300,000 in respect of non-pecuniary damage.
- The
Government considered these claims inappropriate and unsubstantiated.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
The Court considers that the applicant must have sustained
non pecuniary damage. Ruling on an equitable basis, it awards
him EUR 4,500 under that head.
B. Costs and expenses
- The
applicant did not make any claim for the costs and expenses involved
in the proceedings.
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
- Rejects
the Government's request to strike the application out of the list;
- Declares the complaints under Article 5 § 3
of the Convention concerning the excessive length of the pre trial
detention and under Article 6 § 1 of the Convention
concerning the excessive length of the proceedings admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of
Article 5 § 3 of the Convention;
- Holds that there has been a violation of
Article 6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 4,500 (four
thousand five hundred euros) in respect of non pecuniary damage,
plus any tax that may be chargeable, to be converted into the
currency of the respondent State 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 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 1 February 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas
Bratza
Deputy Registrar President