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FOURTH
SECTION
CASE OF GOLISZEWSKI v. POLAND
(Application
no. 14148/05)
JUDGMENT
STRASBOURG
8 December
2009
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 Goliszewski 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,
Päivi
Hirvelä,
Ledi
Bianku,
Nebojša
Vučinić,
judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 17 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 14148/05) 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 Łukasz
Goliszewski (“the applicant”), on 24 February 2005.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewcz of the Ministry for Foreign
Affairs.
- The
applicant alleged that his pre-trial detention had exceeded
a “reasonable time” within the meaning of Article 5
§ 3 of the Convention.
- On
10 January 2008 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 1982 and lives in Legionowo.
- On
4 October 2002 the applicant was arrested on suspicion of assault. On
5 October 2002 the Warsaw District Court ordered his
pre-trial detention on suspicion of aggravated assault committed with
two other suspects. It noted that he had been charged with an
offence which attracted a statutory sentence of up to ten years'
imprisonment. The court also observed that each of the three suspects
had given a different account of the events at issue and that,
consequently, there was a risk that they would collude or exert
pressure on witnesses.
- The
applicant's detention was subsequently extended on 30 December 2002
and 1 April 2003. The courts relied on the high likelihood that the
applicant had committed the crime in question and the risk that he
might tamper with evidence.
- On
18 June 2003 the prosecution filed a bill of indictment with the
Warsaw District Court. The applicant was charged with aggravated
assault occasioning death (Article 158 § 3 of the Criminal
Code). The bill of indictment concerned two other co-accused.
- On
30 June 2003 the Warsaw Regional Court remanded the applicant in
custody until 3 December 2003. It relied on the severity of the
anticipated penalty. Having regard to Article 258 § 2 of the
Code of Criminal Procedure, it noted that the applicant had been
charged with an offence which attracted a statutory maximum sentence
exceeding eight years' imprisonment.
- On
1 December 2003 the Warsaw Regional Court extended the applicant's
detention until 3 June 2004. It invoked the severity of the
anticipated penalty and the need to secure the proper conduct of the
proceedings.
- On
22 December 2003 the first hearing was held. The court heard the
applicant, two co-accused and eleven witnesses.
- At
a hearing held on 5 April 2004, the applicant's lawyer asked the
court to apply police supervision instead of the pre-trial detention.
However, the court refused.
- At
a hearing held on 19 May 2004 the applicant's lawyer again asked the
court to replace the detention with police supervision. However, the
court refused and extended the applicant's detention, referring to
the grounds given previously.
- On
26 July 2004 the Regional Court extended the applicant's detention
until 3 October 2004, relying on the same grounds as previously.
- On
23 September 2004 during a hearing, the applicant's lawyer again
asked for detention to be replaced with police supervision but the
court again refused.
- Since,
on 4 October 2004, the applicant's detention would have reached the
statutory two-year time-limit laid down in Article 263 § 3 of
the Code of Criminal Procedure, any further extension of his
detention had to be ordered by the Warsaw Court of Appeal.
- On
1 October 2004 the Warsaw Court of Appeal remanded the applicant in
custody until 30 November 2004. It invoked the severity of the likely
sentence, noting that he had been charged with an offence which
attracted a statutory sentence of up to ten years' imprisonment. It
also observed that the trial had been at an advanced stage. However,
it could not have been terminated earlier, as planned, since one of
the witnesses had repeatedly failed to appear. That circumstance,
which had been beyond the trial court's control, justified the
prolongation of the applicant's detention.
- On
30 November 2004 the Warsaw Regional Court convicted the applicant of
aggravated assault occasioning death and sentenced him to four years'
imprisonment. The applicant lodged an appeal against this judgment.
- On
3 December 2004 the applicant's lawyer appealed against the decision
to extend the pre-trial detention. He argued that, in view of the
sentence imposed on him, the applicant could already apply for
conditional release. On 22 December 2004 the Warsaw Court of Appeal
upheld the decision of 30 November 2004.
- On
20 June 2005 the Warsaw Regional Court again extended the applicant's
detention. On 5 July 2005 the applicant's lawyer appealed,
maintaining that there was no need to continue the applicant's
detention. However, on 22 July 2005 the Warsaw Court of Appeal upheld
the decision of 20 June 2005. The court considered that the severity
of the penalty imposed by the first-instance court justified the
continuation of pre-trial detention.
- On
27 September 2005 the Warsaw Court of Appeal gave judgment. It
altered the legal classification of the applicant's offence from
aggravated assault occasioning death to assault (Article 158 § 1
of the Criminal Code). That offence carried a maximum statutory
penalty of three years. The Court of Appeal consequently amended the
Regional Court's judgment. The applicant was convicted of assault and
sentenced to three years' imprisonment.
- The
applicant was released on 4 October 2005.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Preventive measures, including pre-trial detention
- 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 set out 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.
B. Relevant statistical data
- The relevant statistical data, recent amendments to
the Code of Criminal procedure designed to streamline criminal
proceedings and references to the relevant Council of Europe
materials can be found in the Court's judgment in the case of
Kauczor, including the 2007 Resolution of the Committee
of Ministers (see Kauczor v. Poland, no. 45219/06,
§ 27-28 and 30-35, 3 February 2009).
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 Government argued as a preliminary objection that
the applicant had failed to exhaust the remedies provided for by
Polish law as regards his complaint under Article 5 § 3 of the
Convention in that he did not appeal against the decisions extending
his detention. They also submitted that the applicant should have
lodged a constitutional complaint with the Constitutional Court.
- The
applicant disagreed with the Government's submissions.
- 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 requests for the detention
order to be lifted or for a more lenient preventive measure to be
imposed. He further lodged appeals against some of the decisions
extending his detention taken in the final stage of the proceedings
in 2004 and 2005, when the length of the detention had reached its
most critical point (see paragraphs 19 and 20 above). 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 (see Duda v. Poland,
no. 67016/01, § 29, 19 December 2006).
- The
Court further notes that the arguments raised by the Government are
similar to those already examined and rejected in a previous cases
against Poland (see Feliński v.
Poland, no. 31116/03, § 40,
7 July 2009) and that the Government have not referred to any new
circumstances which would lead the Court to depart from that finding.
- Moreover, according to the established case-law,
having exhausted the available remedy, the applicant was not required
to embark on another attempt to obtain redress by bringing a
constitutional complaint (see, for example, Cichla v. Poland
no. 18036/03, § 26, 10 October 2006).
- It
follows that this complaint cannot be rejected for non-exhaustion of
domestic remedies. The Court further notes that it is not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention and 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 4 October 2002, when he was arrested
on suspicion of aggravated assault. On 30 November 2004 the Warsaw
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 (cf.
Kudła v. Poland [GC], no. 30210/96, § 104, ECHR
2000 XI). Accordingly, the period to be taken into consideration
amounts to two years, one month and twenty-six days.
2. The parties' submissions
(a) The applicant
- The
applicant submitted that he had been detained for an unjustifiably
long period. He stressed that at the time of the arrest he had been
in his last year of high school, had no criminal record and was a
basketball player at Legia Warszawa sports club. Because of the
lengthy detention he could not graduate from high school and lost an
opportunity to continue a professional sports career in the USA. He
further complained that, with the passage of time, the authorities
had failed to advance any new ground for prolonging the most serious
preventive measure against him. He also argued that he was ultimately
sentenced to a prison sentence equal to the time he had spent in
detention.
(b) The Government
- The
Government considered that the applicant's pre-trial detention
satisfied the requirements of Article 5 § 3. They submitted that
his pre-trial detention was fully justified and that during the
entire period the authorities had given relevant and sufficient
reasons for prolonging it. In addition, there was a strong likelihood
that the applicant had committed the offence for which he was being
detained. The Government further submitted that the domestic courts
had acted diligently and speedily.
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;
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
three grounds, namely the serious nature of the offence with which he
had been charged, the severity of the penalty to which he was liable
and the need to secure the proper conduct of the proceedings. As
regards the latter, they did not, however, specify any concrete
grounds justifying their opinion.
- The
Court accepts that the reasonable suspicion against the applicant of
having committed a serious offence could initially warrant his
detention. Also, the need to secure the proper conduct of the
proceedings, in particular the process of obtaining evidence from
witnesses, constituted valid grounds for the applicant's initial
detention.
- However,
with the passage of time, those grounds became less and less
relevant. The Court must then establish whether the other grounds
adduced by the courts – namely, the severity of the anticipated
sentence – were “sufficient” and “relevant”
(see, Kudła cited above, § 111).
- The Court further emphasises that, when deciding
whether a person is to be released or detained, the authorities are
obliged under Article 5 § 3 to consider alternative
means of guaranteeing his appearance at the 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). In the
present case, the Court notes that there is no clear indication that
despite the applicant's numerous requests the authorities envisaged
any other guarantees designed to secure his appearance at the trial.
Nor did they give any consideration to the possibility of ensuring
his presence at trial by imposing on him other “preventive
measures” expressly intended to secure the proper conduct of
criminal proceedings.
- As
noted above, the domestic courts did not give any concrete reasons
for justifying the risk relied on, other than a vague reference to
the different accounts given by the applicant and his co-accused in
the early stage of the proceedings (see paragraph 6 above). 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 reiterates that, while
the severity of the sentence faced is a relevant element in the
assessment of the risk of absconding or re-offending, the gravity of
the charges cannot by itself justify long periods of pre-trial
detention (see Michta v. Poland, no. 13425/02, §§
49, 4 May 2006).
- Having
regard to the foregoing, the Court concludes that the grounds given
by the domestic authorities could not justify the overall length 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. APPLICATION OF ARTICLE 46 OF THE CONVENTION
- Article
46 of the Convention provides:
“1. The High Contracting Parties undertake to
abide by the final judgment of the Court in any case to which they
are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
A. The parties' submissions
1. The applicant
- The
applicant did not submit any observations concerning this aspect of
the case.
2. The Government
- The Government referred to the
arguments submitted previously in the case of Figas
v. Poland (no. 7883/07,
§§ 41-44, 23 June 2009).
- The
Government concluded that, bearing in mind the efforts of the Polish
authorities and the legislative reforms which were being and had been
undertaken by them to solve the problem of the length of detention
during judicial proceedings, Poland could not be said to have failed
to comply with its obligation under Article 46 of the Convention to
comply with the Court's judgments.
B. The Court's assessment
- Recently,
in the case of Kauczor v. Poland (see Kauczor, cited
above, § 58 et seq., with further references), the Court held
that the 2007 Resolution of the Committee of Ministers, taken
together with the number of judgments already delivered and of the
pending cases raising an issue of excessive detention incompatible
with Article 5 § 3, demonstrated that the violation of the
applicant's right under Article 5 § 3 of the Convention had
originated in a widespread problem arising out of the malfunctioning
of the Polish criminal justice system which had affected, and may
still affect in the future, an as yet unidentified but potentially
considerable number of persons charged in criminal proceedings.
- In
the present case, as in numerous similar detention cases, the
authorities did not justify the applicant's
continued detention with relevant and sufficient reasons (see
paragraphs 38-43 above). Consequently, the Court sees no reason to
diverge from its findings made in Kauczor
as to the existence of a structural problem and the need for the
Polish State to adopt measures to remedy the situation (see Kauczor,
cited above, §§ 60-62 ).
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 20,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
-
The Government contested this claim.
- 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 awards the applicant EUR 1,500 in respect of
non pecuniary damage.
B. Costs and expenses
- The
applicant also claimed an unspecified sum for the costs and expenses
incurred before the domestic courts.
- The
Government contested that claim.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court rejects the claim
for costs and expenses in the domestic proceedings. It awards him EUR
100 for the Convention 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
- Declares the application admissible;
- 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 of
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
together with EUR 100 (one hundred euros) for costs and
expenses, plus any tax that may be chargeable, to be converted into
Polish zlotys at the rate applicable on 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 amounts 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 8 December 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
