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FOURTH
SECTION
CASE OF BUTA v. POLAND
(Application
no. 18368/02)
JUDGMENT
STRASBOURG
28
November 2006
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 Buta v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr G.
Bonello,
Mr M. Pellonpää,
Mr K. Traja,
Mr L.
Garlicki,
Ms L. Mijović,
Mr J. Šikuta,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 7 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 18368/02) against the Republic
of Poland lodged with the Court on 30 October 2001 under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by the applicant Mr D. Buta
(“the applicant”).
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
25 October 2005 the Court declared the application partly
inadmissible and decided to communicate the complaint concerning the
length of the applicant’s pre-trial 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.
- By
a decision of 26 May 2006 the applicant was granted legal aid in the
proceedings before the Court and he appointed Mr L. Cyrson,
advocate, as his representative.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1975 and lives in Poznań.
- On
14 April 1999 the applicant was detained on suspicion of robbery and
deprivation of liberty with aggravated violence.
- On
15 April 1999 the Wałcz District Prosecutor’s Office
requested the Wałcz District Court to remand the applicant in
custody. He indicated that the crimes the applicant was charged with
had been committed with exceptional cruelty and that there was a risk
that he would influence the witnesses and his co-accused if released.
- On
15 April 1999 the Wałcz District Court remanded the applicant in
custody for 3 months. In its decision the court underlined that there
was a strong likelihood that the applicant had committed the crimes
and, moreover, had done so soon after he had been released from
prison. In addition, since the applicant was charged with a crime
against a person who had refused to testify in his favour, the court
considered that there was a reasonable fear that the applicant would
obstruct the proceedings.
- On
9 July 1999 the District Court prolonged the applicant’s
detention. In its reasons for this decision it stated, inter alia,
that there was a need to extend the scope of the investigation in the
applicant’s case and at the same time to prevent him from
contacting other suspects. The applicant’s appeal against this
decision was dismissed on 21 July 1999. The Poznań Regional
Court found that the applicant’s detention pending trial was
fully justified bearing in mind the severity of the charges, the
likely penalty and the applicant’s recidivism. The court agreed
with the District Court’s view that there was a possibility
that the applicant would collude with his co-accused or try to
influence witnesses. No grounds for release listed in the Code of
Criminal Procedure were established by the court.
- In
the course of the investigation the suspects and 18 witnesses were
heard.
- On
29 October 1999 the investigation was closed and a bill of indictment
against the applicant and four other persons was lodged with the
Wałcz District Court. The applicant was charged with six
offences. The prosecutor named 25 witnesses to be summoned for the
hearing and 6 persons were identified as victims of the crimes.
A local inquiry (wywiad środowiskowy) was concluded.
- By
decisions of 7 December 1999 and 12 April 2000 the applicant’s
detention pending trial was further prolonged. The courts stated,
inter alia, that the grounds for applying this measure
remained valid. They found that there was a need to secure the proper
conduct of the proceedings, bearing in mind the severity of the
charges against the applicant, his recidivism and the fact that he
had committed the offences within two months of his release from
prison. The circumstances of one of the offences - deprivation of
liberty - pointed to the risk that the applicant would attempt to
pervert the course of justice. No special circumstances dictated the
lifting of the detention. The court also took into account the
complicated nature of the case, which related to numerous persons and
criminal acts. On 24 May 2000 the decision of 12 April 2000 was
upheld by the Poznań Regional Court. The court considered that
the evidence gathered in the proceedings indicated a strong
likelihood that the applicant had committed the crimes with which he
had been charged. In addition, the applicant’s continued
detention pending trial was found to be necessary, bearing in mind
the seriousness of the charges, the severity of the anticipated
penalty and the applicant’s criminal record. His attempts to
influence the testimonies of a witness in another case and the fear
of the applicant expressed by some of the victims justified the
perceived risk of collusion. At the same time the Poznań
Regional Court underlined that the trial court should make every
effort to conduct the proceedings promptly and swiftly.
- In
a subsequent decision of 5 October 2000 prolonging the applicant’s
detention the District Court indicated, inter alia, that
despite the fact that the victims had already been heard there was
still a risk of collusion and unlawful obstruction of the proceedings
by the applicant, bearing in mind in particular his behaviour during
the previous hearing. The court considered that police supervision
would not be enough to secure the proper conduct of the proceedings.
- In
the reasons for the decision of 9 January 2001 prolonging the
applicant’s detention for a further three months, the court
underlined, inter alia, that there was a risk that the
applicant would influence witnesses, especially bearing in mind his
aggressive attitude during the hearings, and that no other preventive
measure would sufficiently secure the proper conduct of the
proceedings. The court also stressed the need to examine the
witnesses requested by the applicant’s defence counsel. The
applicant appealed against this decision on 19 January 2001. On 31
January 2001 the Poznań Regional Court upheld the decision and
ruled that the District Court had correctly indicated both the
general and specific circumstances which justified the extension of
the applicant’s detention pending trial. At the same time the
appellate court drew the trial court’s attention to the need to
accelerate the proceedings.
- On
27 March 2001 the District Court granted the co-accused’s
request to undergo a psychiatric examination and at the same time
decided to request the Poznań Court of Appeal to prolong the
applicant’s detention until 12 October 2001. Since the
applicant had reacted violently and declared that he too was mentally
ill and should therefore be examined by a psychiatrist, the court
decided to order a psychiatric expert opinion to be prepared on him.
- In
the reasons for the decision of 3 April 2001 on prolongation of the
applicant’s detention the Poznań Court of Appeal
considered, inter alia, that the conditions laid down in
Article 263 § 4 of the Code of Criminal Procedure were met and
that the prolongation of the detention pending trial was necessary in
order to allow for the completion of the complicated procedure for
the taking of evidence. It was also necessary because the applicant
and the co-accused had deliberately prolonged the proceedings by
requesting a psychiatric examination at a time when the proceedings
had almost been concluded. The court also noted other important
obstacles beyond the court’s control, such as the illness of
the referring judge and the need to conduct the proceedings again. In
the court’s opinion, the Wałcz District Court could not be
held responsible for the excessive length of the proceedings. The
applicant’s defence counsel appealed on 18 April 2001.
On 8 May 2001 the Poznań Court of Appeal upheld the impugned
decision.
- In
the course of the proceedings, the applicant lodged several
applications for the lifting of his detention pending trial or the
imposition of a more lenient preventive measure. His applications
were dismissed by the court on 24 May, 2 September and 27 September
1999, 28 October, 30 November 2000, 14 February and 28 June
2001. The applicant unsuccessfully appealed against these decisions.
- The
hearings in the proceedings were held on 27 January, 15 May, 12 June,
21 August, 20 September 2000, 14 February, 27 March, 18 September,
25 October, 26 November 2001, 7 January, 6 February, 11 March,
23 May, 25 June, 5 September 2002, and 28 January, 4 March and
28 August 2003.
- At
a hearing held on 15 May 2000 three of the co-accused did not appear
and in consequence it had to be adjourned. The court decided to
remand the co-accused in custody for 3 months. In addition, the court
received information that one of the witnesses had moved away and it
ordered that her new whereabouts be established. The court also
refused to allow the motions of the applicant’s and the
co-accused’s counsel to have their cases examined separately.
It observed that all the offences were closely linked and that the
co-accused had acted together and in concert. Consequently,
conducting the proceedings separately for each of the co accused
would be contrary to the principle of promptness of proceedings.
20. The
applicant was released from detention on 12 October 2001.
21. On
6 September 2005 the Wałcz District Court found the applicant
guilty of three of the four robberies with which he had been charged
and one of the two kidnappings and acquitted him of the charge of
drug trafficking. The applicant was sentenced to three years and six
months’ imprisonment.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law 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 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 was
in breach of Article 5 § 3, which, in so far as relevant,
provides:
“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
Government submitted in the first place that the applicant had not
exhausted the remedies provided for by Polish law as regards his
complaint under Article 5 § 3 of the Convention, in that he had
failed to appeal against the decision of 15 April 1999 remanding him
in custody and against the decisions of 6 October 1999, 7 December
1999 and 5 October 2000 prolonging his detention.
25.
The Court reiterates that it is well established in its case-law that
an applicant must make normal use of those domestic remedies which
are likely to be effective and sufficient. When a remedy has been
attempted, use of another remedy which has essentially the same
objective is not required (see Yaşa v. Turkey judgment
of 2 September 1998, Reports of Judgments and Decisions
1998-VI, § 71).
- In
the present case the applicant lodged appeals against most of the
decisions prolonging his detention, including the decisions taken in
the final stage of the proceedings, when the length of the detention
had reached its most critical point. He also lodged requests for the
detention measure to be lifted or for a more lenient preventive
measure to be imposed, and appealed against the relevant refusals.
The Court considers that the purpose of the remedies used by the
applicant was to obtain a review of his detention pending trial. In
the circumstances of the case these remedies constituted adequate and
effective remedies within the meaning of Article 35 of the Convention
as their aim was to obtain his release.
- The
Court further notes that the arguments raised by the Government are
similar to those already examined and rejected in a previous case
against Poland (see Grzeszczuk v. Poland, no. 23029/93,
Commission decision of 10 September 1997) and that the Government
have not submitted any new circumstances which would lead the Court
to depart from its previous findings.
- It
follows that this complaint cannot be rejected for non-exhaustion of
domestic remedies. The Court further notes that it is not
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
- The
applicant and the Government agreed that the detention lasted from 14
April 1999 to 12 October 2001, that is almost 2 years and 6 months.
- The
Government were of the opinion that the whole period of the
applicant’s detention had been justified. They stressed that
the domestic courts dealing with the applicant’s case had found
his detention to be compatible with the provisions of Article 258 of
the Code of Criminal Procedure and that no grounds warranting the
applicant’s release from detention, as provided for by Article
259 of the Code, had been established. The evidence obtained in the
proceedings indicated that there was a strong likelihood that the
applicant had committed the crimes with which he had been charged.
- The
Government further pointed out that the charges against the applicant
had concerned several serious crimes, in respect of which he faced a
heavy sentence, and that some of those crimes had been committed in
co operation with other persons and as a result of the
applicant’s relapse into crime. There existed, in the
Government’s opinion, a genuine public interest requirement
which, notwithstanding the presumption of innocence, outweighed the
rule of respect for individual liberty and justified the applicant’s
continued detention. They noted that the applicant was eventually
sentenced to three years and six months’ imprisonment.
- The
Government also argued that the applicant’s detention had been
aimed at securing the proper conduct of the investigation as there
had been a risk that he would obstruct the proceedings and influence
witnesses, in particular since one of the crimes had been committed
against a witness who had refused to testify in the applicant’s
favour in another set of proceedings.
- According
to the Government’s submissions, prolongation of the detention
had, firstly been justified by the need to extend the scope of the
investigation, a need which had emerged during the preparatory
proceedings and thus to prevent contact between the suspects during
the investigation. Secondly, the applicant’s behaviour during
the hearings indicated that he would obstruct the proceedings and
jeopardise them. When subsequently prolonging the detention on 9
January 2001, the court also referred to the applicant’s
aggressive attitude during the hearings, which pointed to the risk
that he would intimidate witnesses. Finally, the need to conduct a
psychiatric examination of the applicant (at his request) and of two
other co accused constituted a ground for the final decision of
3 April 2001 prolonging the detention. The Government also
underlined that the applicant was released during trial, when the
objective grounds for his detention had ceased to exist.
- As
regards the review of the applicant’s detention, the Government
pointed out that on each occasion the decisions extending it or
dismissing the applications for release had been sufficiently
reasoned and in a detailed manner. The courts had considered not only
the conditions for further detention but also developments in the
applicant’s situation. The courts had not relied solely on the
reasons given in the first decision on detention but had also taken
into account new elements which had emerged in the course of the
proceedings. The appellate courts had examined the need for the
continuation of the detention as well as the conduct of the trial
court. On two occasions they had reminded the trial court of the need
to conduct the proceedings speedily. These facts, in the Government’s
opinion, proved that the Polish courts had been diligent in reviewing
the necessity of keeping the applicant in detention. The proceedings
had been very complex: they had concerned many persons and acts and
both the prosecutor and the trial court had engaged in an extensive
search for evidence. During the investigation 18 witnesses had been
heard and the suspects had been heard on 8 occasions in all.
- The
applicant contested the Government’s arguments and maintained
that the courts had not given sufficient and relevant reasons for his
detention. According to him, there had been no reasons to believe
that he would obstruct the proceedings.
- In
the applicant’s opinion, the suspicion that he had committed
the offences in question had been a sufficient basis for his
detention only at the early stage of the proceedings. Subsequently,
the courts had relied on the gravity of the charges and the need to
secure the proper conduct of the investigation. These grounds had not
been “relevant” and “sufficient” and in fact
his temporary arrest had turned into an actual term of imprisonment.
1. Principles established under the Court’s
case-law
- Under
the Court’s case law, the issue of whether a period of
detention is reasonable cannot be assessed in abstracto.
Whether it is reasonable for an accused to remain in detention must
be assessed in each case according to its special features. Continued
detention can be justified in a given case only if there are specific
indications of a genuine requirement of public interest which,
notwithstanding the presumption of innocence, outweighs the rule of
respect for individual liberty (see, among other authorities, the W.
v. Switzerland judgment of 26 January 1993, Series A
no. 254-A, p. 15, § 30).
- It
falls in the first place to the national judicial authorities to
ensure that, in a given case, the pre-trial detention of an accused
person does not exceed a reasonable time. To this end they must
examine all the facts arguing for or against the existence of a
genuine requirement of public interest justifying, with due regard to
the principle of the presumption of innocence, a departure from the
rule of respect for individual liberty and set them out in their
decisions dismissing the applications for release. It is essentially
on the basis of the reasons given in these decisions and of the
established facts stated by the applicant in his appeals that the
Court is called upon to decide whether or not there has been a
violation of Article 5 § 3 of the Convention (see the
Contrada v. Italy judgment of 24 August 1998, Reports
1998-V, p. 2185, § 54, Mc Kay v. the United Kingdom,
[GC], no. 543/03, judgment of 6 October 2006, § 43).
- The
persistence of a reasonable suspicion that the person arrested has
committed an offence is a condition sine qua non for the
lawfulness of the continued detention, but after a certain lapse of
time it no longer suffices. In such cases, the Court must establish
whether the other grounds given by the judicial authorities continued
to justify the deprivation of liberty. Where such grounds were
“relevant” and “sufficient”, the Court must
also ascertain whether the competent national authorities displayed
“special diligence” in the conduct of the proceedings
(see Labita v. Italy [GC], no. 26772/95, ECHR 2000 IV,
§ 153).
2. Application of the principles to the circumstances
of the present case
- The
Court notes that a detention pending trial was imposed on the
applicant in view of the severity of the charges against him, the
fact that he had relapsed into crime and the risk that he would
obstruct the proceedings and exert unlawful pressure on witnesses, in
particular since the case concerned a crime against a witness
refusing to testify in the applicant’s favour in another set of
proceedings.
- The
applicant’s detention was subsequently supervised by the courts
at regular intervals. In their decisions prolonging the detention the
domestic authorities further relied on a reasonable suspicion that
the applicant had committed the offences concerned and on the
severity of the likely penalty. However, they also took into account
new elements that emerged in the course of the proceedings as well as
the conduct of the trial court. In particular, the courts pointed to
the risk of trickery and obstruction of the proceedings by the
applicant, who had influenced the testimony of a witness in another
case. Finally, the applicant’s aggressive attitude during the
subsequent hearings and the persistent risk of collusion and unlawful
obstruction of the proceedings justified the courts’ findings
that no other preventive measure would sufficiently secure the proper
conduct of the proceedings.
- The
Court therefore considers that, in the particular circumstances of
the instant case, the grounds given by the judicial authorities for
the applicant’s detention satisfied the requirement of being
“relevant” and “sufficient”.
- The
Court agrees with the Government’s opinion that the case was
complex, regard being had to the nature of the charges against the
accused and the scope of the evidence to be taken. The Court’s
attention has been drawn in particular to the significant number of
witnesses questioned in the course of the investigation and by the
first-instance court.
- The
Court notes that hearings were held regularly and that in the early
stage of the proceedings the appellate court had advised the trial
court to make every effort to conduct the proceedings promptly and
swiftly (see paragraph 12 above). The court also took necessary steps
to resolve difficulties in hearing witnesses in the course of the
proceedings and applied adequate disciplinary measures. It dismissed
the motion to examine the charges against the accused in separate
proceedings, having considered that it would be contrary to the
principle of a prompt examination of the case (see paragraph 19
above). The applicant was eventually released from detention on
12 October 2001 and the proceedings were terminated on
6 September 2005.
- Concluding,
the Court takes note of the seriousness of the charges against the
applicant and his conduct in the course of the proceedings, as well
as the number of other persons charged and the amount of evidence
examined. The complexity of the case undoubtedly prolonged its
examination and contributed to the length of the applicant’s
detention on remand.
It is
to be recalled that the applicant was charged with a crime committed
against a witness who had refused to testify in his favour in another
set of proceedings. It must be noted that the domestic courts in
ordering the prolongation of the applicant’s remand addressed
themselves to the continuing need for that measure and did not merely
rely on the grounds previously given. In this connection, the Court
notes that the domestic courts gave due consideration to the use of
less severe preventive measures (for example, police supervision) but
were not persuaded that such measures were appropriate in the
circumstance of the applicant’s case (see paragraphs 13 and 14
above).
The
Court finally notes that there were no significant periods of
inactivity on the part of the prosecution authorities and the trial
court. It observes that the investigations were completed by the
Regional Prosecutor within a relatively short period of time and the
trial court held hearings at regular intervals. For these reasons, it
considers that the domestic authorities cannot be criticised for a
failure to observe “special diligence” in the handling of
the applicant’s case.
- There
has, accordingly, been no violation of Article 5 § 3 of the
Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the remainder of the application
admissible;
- Holds that there has been no violation of
Article 5 § 3 of the Convention.
Done in English, and notified in writing on 28 November 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
