BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF WEDEKIND v. POLAND
(Application
no. 26110/04)
JUDGMENT
STRASBOURG
23 October
2007
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 Wedekind v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr G.
Bonello,
Mr K. Traja,
Mr L. Garlicki,
Ms L.
Mijović,
Mr J. Šikuta,
Mrs P. Hirvelä,
judges
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 2 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no
26110/04) 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 Krzysztof
Wedekind (“the applicant”), on 30 June 2004.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
30 November 2006 the
Court decided to give notice of the application 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 1971 and lives in Tychy.
- On
17 January 2001 the applicant was arrested on suspicion of drug
trafficking committed as part of an organised crime group.
- On
19 January 2001 the Katowice District Court remanded the applicant in
custody, relying on the reasonable suspicion that he had committed
the offence in question. It also considered that keeping the
applicant in detention was necessary to secure the proper conduct of
the proceedings, given the risk that he might tamper with evidence or
induce witnesses to give false testimony. The court also stressed the
severity of the anticipated sentence.
- The
applicant's appeal against the detention order, likewise his further
appeals against some of the decisions extending his detention and his
subsequent applications for release and appeals against refusals to
release him, were unsuccessful. In his applications and appeals he
relied, inter alia, on his personal circumstances, in
particular a difficult family situation in that a family break-up was
imminent. He also argued that his confessions to offences of which he
was suspected had not been taken into consideration.
- In
the course of the investigation, the applicant's detention was
extended on several occasions, namely on an unknown date, on 16 July
2001 (to 17 October 2001), 12 October 2001 (to 31 December 2001),
28 December 2001 (to 30 April 2002), 17 April 2002 (to 31 July
2002), an unknown subsequent date, and 25 September 2002 (to
30 November 2002). In all their detention decisions the
authorities repeatedly relied on a strong suspicion, supported by
evidence from witnesses, that the applicant had committed the
offences in question. They attached importance to the seriousness of
those offences and to the likelihood of a severe prison sentence
being imposed on the applicant. These facts gave rise to the courts'
assumption that the applicant, if released, might obstruct the proper
course of the proceedings, especially given the fact that some of the
suspects were still at large.
- On
22 November 2002 the Regional Prosecutor lodged a bill of indictment
with the Katowice Regional Court. The applicant was charged with drug
trafficking and membership of an organised crime group. There were 15
defendants in the case, all charged with numerous counts of drug
trafficking committed as an organised crime group.
- On
6 August 2003 the case was transferred to the Bielsko-Biała
Regional Court since all judges from the Katowice Regional Court had
been excluded from examination of the case.
- On
13 November 2003 the trial court held the first hearing. It
subsequently held 28 hearings in the case, at regular intervals.
- During
the court proceedings the courts further extended the applicant's
pre-trial detention, namely on 27 November 2002 (to 17 January
2003), two unknown subsequent dates, 17 December 2003 (to 31 August
2004) and 23 June 2004 (to 31 December 2004). The courts repeated the
grounds previously given for the applicant's continued detention.
They relied especially on the complexity of the case and the large
number of co accused.
- Between
22 January 2004 and 24 March 2004 the applicant was serving a term of
imprisonment imposed by the Warsaw Regional Court in a different
criminal case.
- On
16 December 2004 the Bielsko-Biała Regional Court gave judgment.
The applicant was convicted as charged and sentenced to five years
and six months' imprisonment and to a fine.
- The
applicant appealed. He was kept in detention pending appeal for a
period of one year and one month.
- On
26 January 2006 the Katowice Court of Appeal heard the applicant's
appeal. It reduced the sentence passed by the first-instance court to
five years and left the remainder of the judgment unchanged. The
applicant did not lodge a cassation appeal. The judgment is final.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice concerning the imposition of
pre-trial 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 17 January 2001, when he was
arrested on suspicion of drug trafficking and membership of an
organised crime group. On 16 December 2004 the Bielsko-Biała
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 (see. Kudła v. Poland (GC), no.
30210/96, § 110 et seq., ECHR 2000-XI, cited below, §
104).
- However,
between 22 January 2004 and 24 March 2004 the applicant was serving a
prison sentence which had been imposed on him in other criminal
proceedings. This term, being covered by Article 5 § 1 (a), must
therefore be subtracted from the period of the applicant's pre-trial
detention for the purposes of Article 5 § 3.
Accordingly,
the period to be taken into consideration amounts to three years
and nine months.
2. The parties' submissions
(a) The applicant
- The
applicant argued that an excessive period of detention, such as the
period in the present case, was in itself incompatible with Article 5
§ 3 of the Convention, given the principle of the presumption of
innocence. He maintained that however strong the suspicion against
him had been, it would have sufficed as a basis for holding him in
custody only in the early stages of the proceedings.
- As
regards the risk of collusion and tampering with evidence, the
applicant argued that it had not been based on any reliable facts and
that, with the passage of time, it had become irrelevant from the
point of view of the proper conduct of the trial. He strongly
contested the opinion of the Court of Appeal that the risk of
absconding or tampering with evidence did not have to be supported by
concrete facts, but resulted from the presumption established in
Article 258 § 2 of the Code of Criminal Procedure. The applicant
emphasised that the courts had not given sufficient and relevant
reasons for his continued detention.
(b) The Government
- The
Government submitted that the applicant's pre-trial detention had
been justified by the existence of substantial evidence of his guilt,
the nature of the offences at issue and the severity of the
anticipated penalty. They underlined that the length of the
applicant's detention should be assessed with reference to the fact
that he and his co-defendants had acted as an organised crime group.
The risk that the defendants might obstruct the proceedings or tamper
with evidence had been aggravated by the fact that not all the
members of the group had yet been captured. Thus, the domestic courts
had considered it necessary to detain the applicant and his
co-defendants until all relevant witnesses had been heard.
- The
Government emphasised that the serious nature of the charges as well
as the fact that there had been nineteen defendants charged with
numerous offences had required the authorities to take all necessary
measures to secure the proper conduct of the trial. The necessity of
the applicant's continued detention had been thoroughly examined by
the courts, which on each occasion had given sufficient reasons for
their decisions. The applicant's case had been extremely complex on
account of the number of charges and defendants, and by reason of the
volume of evidence.
- Lastly,
the Government maintained that the authorities had displayed the
requisite diligence in dealing with the applicant's case.
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 have been stated
in a number of its previous judgments (see, among many other
authorities, Kudła v. Poland, 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, in addition to the
reasonable suspicion against the applicant, relied principally on
four grounds, namely (1) the serious nature of the offences with
which he had been charged, (2) the complexity of the case owing to
the number of defendants and volume of evidence to be heard, (3) the
severity of the penalty to which he was liable and (4) the need to
secure the proper conduct of the proceedings. As regards the latter,
they relied on the fact that the applicant might interfere with
witnesses and other co-accused given the fact that he was a member of
an organised crime group.
- The
applicant was charged with numerous counts of drug trafficking
committed as part of an organised crime group (see paragraph 9
above). In the Court's view, the fact that the case concerned a
member of such a crime 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 against the applicant of
having committed the serious offences could initially warrant his
detention. In addition, it notes that the authorities were faced with
the difficult task of determining the facts and the degree of alleged
responsibility of each of the defendants. In these circumstances, the
Court also accepts that the need to obtain voluminous evidence from
many sources, coupled with the fact that in the course of the
investigation new suspects had been identified, constituted relevant
and sufficient 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 the
applicant would obstruct the proceedings. However, 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 of itself justify long
periods of detention (see for instance, Ilijkov v. Bulgaria,
no. 33977/96, §§ 80-81, 26 July 2001).
- In
addition, the judicial authorities relied on the fact that the
applicant had been charged with being a member of an organised crime
group. In this regard, the Court reiterates that the existence of a
general risk flowing from the organised nature of the alleged
criminal activities of the applicant may be accepted as the basis for
his detention at the initial stages of the proceedings (see, Górski
v. Poland, no. 28904/02, § 58, 4
October 2005) and in some circumstances also for subsequent
extensions of the detention (see Celejewski, cited above, §
37). It is also accepted that in such cases, involving numerous
accused, the process of gathering and hearing evidence is often a
difficult task. Moreover, the Court considers that in cases such as
the present one concerning organised crime 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,
is in the nature of things often particularly high. Indeed, in this
context the Court notes that some members of the organised crime
group have not yet been captured.
- While all the above factors could justify even a
relatively long period of detention, they did not give the domestic
courts unlimited powers to extend this measure. Even if the
particular circumstances of the case required detention to be
extended beyond the period generally accepted under the Court's
case-law, particularly strong reasons would be needed to justify this
(see Wolf v. Poland, no 15667/03 and 2929/04,
§ 90, 16 January 2007). In this respect, the Court observes
that the applicant was held in custody for three years and nine
months.
- 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 crime group, the Court concludes that the
grounds given by the domestic authorities do 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. However, the Court
cannot but note that even though the applicant was indicted in
November 2002, it took the trial court exactly one year to hold the
first hearing (see paragraphs 9 and 11 above). The Government have
failed to provide an explanation for the trial court's inactivity
during this period. That delay should be considered significant and
it cannot therefore be said that the authorities displayed “special
diligence” in the conduct of the criminal proceedings against
the applicant.
- There
has accordingly been a violation of Article 5 § 3 of the
Convention.
II. OTHER ALLEGED VIOLATION OF THE CONVENTION
- The
applicant also complained under Article 3 about the conditions in the
Bielsko-Biala Detention Centre, where he had been detained from
17 January 2001 to 16 December 2004. In addition, he complained
of allegedly inadequate health care in the said detention centre. The
applicant further complained under Article 6 about being placed
behind bars during hearings and alleged that it had impaired his
contact with his lawyer. He also alleged that meetings with his
lawyer had been too short to prepare his defence.
- As
regards the above complaints, the Court notes that the applicant
failed to raise them before any relevant domestic authority.
- It
follows that these complaints must be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
III. 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 380,000 Polish zlotys (PLN) in respect of
non-pecuniary damage.
- The
Government did not comment.
- The
Court 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 2,000 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 unreasonable length of 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, to be converted
into Polish zlotys at the 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 23 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas bratza
Registrar President
