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FOURTH
SECTION
CASE OF BYSTROWSKI v. POLAND
(Application
no. 15476/02)
JUDGMENT
STRASBOURG
13
September 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 Bystrowski v.
Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Sverre Erik
Jebens,
Zdravka Kalaydjieva,
Nebojša
Vučinić,
Vincent A. De Gaetano, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 23 August 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 15476/02)
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 Artur Bystrowski (“the applicant”),
on 26 November 2001.
2. The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of
Foreign Affairs.
3. The
applicant mainly complained under Articles 3 and 5 § 3
of the Convention of the inadequate conditions and the unreasonable
length of his pre-trial detention.
- On
20070831 the President of the
Fourth Section 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 FACTS
I. THE CIRCUMSTANCE OF THE CASE
A. The circumstances of the case
- The
applicant, Mr Artur Bystrowski, is a Polish national
who was born in 1963 and lives in Strzelin.
1. The applicant’s pre-trial detention and
criminal proceedings against him
- On
8 September 2000 the Wrocław District Court (Sąd
Rejonowy) detained the applicant on remand on suspicion of having
committed theft and forgery and of leadership of an organised
criminal gang.
- Subsequently,
the applicant’s pre-trial detention was extended on several
occasions. In successive decisions, given on 29 November 2000,
15 February and 7 December 2001, 23 August and 2 October
2002, the court repeatedly relied on the strong probability that the
applicant had committed the offences and that there was a real risk
that he would receive a severe sentence. This – together with
the fact that he had acted in a gang and that there were several
co-accused in the case –gave rise to a presumption that he
would obstruct the proper conduct of the proceedings.
- In
the meantime, on 9 February 2001 a bill of indictment was issued,
charging the applicant with multiple theft, forgery, possession of a
firearm without a licence and leadership of an organised criminal
gang.
- The
first court’s hearing took place on 6 April 2001. Subsequently,
nine sessions were scheduled in 2001; eighteen in 2002; sixteen in
2003; and eleven in 2004. In 2001 the trial court heard testimonies
of thirty-four witnesses; in 2002 - of forty-six; in 2003 – of
five; and in 2004 of four. The court also examined other voluminous
evidence and considered various procedural motions filed by the
applicant and other co-defendants.
- As
the length of the applicant’s detention had reached the
statutory 2-year time-limit laid down in Article 263 § 3 of the
Code of Criminal Procedure, the Wrocław Regional Court (Sąd
Okręgowy) applied to the Wrocław Court of Appeal (Sąd
Apelacyjny) asking for the applicant’s detention to be
extended beyond that period. On 20 November and 6 December 2002
and 5 March 2003 the Court of Appeal granted the applications,
finding that the grounds previously given for the detention on remand
were still valid and that the use of the most severe preventive
measure was necessary to ensure the proper conduct of the
investigation.
- The
applicant challenged his detention on remand. He lodged appeals
against the Wrocław Regional Court’s decisions of
15 February 2001, 4 September 2002 and 5 March 2003. His
appeals were dismissed by decisions of the Wrocław Court of
Appeal of 23 March 2001, 2 October 2002 and 26 March 2003,
respectively.
- He
also lodged numerous requests for release from detention, which were
dismissed by the Wrocław Regional Court’s decisions of
7 December 2001, 28 June and 8 August 2002.
- Further,
he also requested the application of a more lenient preventive
measure in place of detention on remand. The request was dismissed by
the Wrocław District Prosecutor’s decision of 18 October
2000.
- By
a decision of the Wrocław Regional Court of 29 April 2003 the
applicant was released from detention.
- On
21 September 2004 the Wrocław Regional Court found the applicant
guilty as charged and sentenced him to seven years’
imprisonment. The applicant appealed.
- On
an unspecified date, presumably in 2008 the Wrocław Court of
Appeal upheld the first-instance judgment.
- The
applicant did not lodge a complaint about a breach of the right to a
trial within a reasonable time with the domestic court, under the Law
of 17 June 2004 (Ustawa o skardze na naruszenie
prawa strony do rozpoznania sprawy w postępowaniu sądowym
bez nieuzasadnionej zwłoki) (“the 2004 Act”).
2. Restrictions on the applicant’s right of visit
during his detention
- During
the detention, the applicant’s requests for visits from his
wife were rejected on 23 February, 2 March and 30 April 2001. As
stated in the decisions of the Wrocław Regional Court of 2 March
and 30 April 2001 this was due to the fact that the wife was a
witness in the applicant’s case.
3. Monitoring of the applicant’s correspondence
- The
applicant further submitted that during his pre-trial detention his
correspondence with the Court had been censored. To that effect the
applicant supplied an envelope of a letter from the Registry of 12
March 2003 bearing a stamp “censored” (ocenzurowano),
a date “21 March 2003” and an illegible signature.
4. The conditions of the applicant’s detention
- In
his letters to the Court of 21 February and 23 June 2002 and
23 November 2005, the applicant complained about the conditions
of his detention in Wrocław Remand Centre.
- He
alleged in particular that he was detained with six other
persons in a room measuring 16m2; he could only take walks
in a closed area measuring 20m2 for 25 persons; there was
no warm water available and the ventilation and sanitation were
insufficient.
- The
applicant complained to the detention centre’s authorities
about those conditions, however to no avail. He also claimed that if
he were to complain to higher authorities he would run a risk of
harassment by the guards, given that his correspondence had been
censored.
B. Relevant domestic law and practice
1. 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 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.
2. General rules concerning conditions of detention
- The
relevant law and practice pertaining to conditions of detention and
to civil law action for compensation against the State Treasury are
laid out in the judgment in the case of Orchowski v. Poland,
no. 17885/04, §§ 64-75.
3. Detainees’ correspondence and contact with
family
- The legal provisions concerning monitoring of
detainees’ correspondence applicable at the material time and
questions of practice are set out in paragraphs 65-66 of the judgment
delivered by the Court on 4 May 2006 in Michta v. Poland, no.
13425/02. The relevant domestic law and practice concerning
detainees’ right to receive visitors in remand centres are
stated in the Court’s judgment in the case of Gradek v.
Poland, no. 39631/06, §§ 21-25, 8
June 2010.
4. Remedies for the excessive length of judicial
proceedings
- The
relevant domestic law and practice concerning remedies for excessive
length of judicial proceedings, in particular the applicable
provisions of the 2004 Act, are stated 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. COMPLAINTS UNDER ARTICLES 3 AND 8 OF THE CONVENTION
- The
applicant complained about the conditions of his detention, in
particular about overcrowding. He relied on Article 3 of the
Convention which, in so far as relevant, provides as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- He
also complained under Article 8 about monitoring of his
correspondence with the Court. The relevant part of the provision
invoked reads as follows:
“1. Everyone has the right to respect
for ... his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- By
letter dated 16 March 2011 the Government informed the Court that
they proposed to make a unilateral declaration with a view to
resolving the issues raised by the application under Article 3
concerning the conditions of the applicant’s detention and
Article 8 concerning the monitoring of the applicant’s
correspondence with the Court. They further requested the Court to
strike out the application in accordance with Article 37 of the
Convention.
The
declaration provided as follows:
“(...) the Government hereby wish to express –
by way of unilateral
declaration their acknowledgement of the fact
that the applicant’s conditions of detention, in particular
overcrowding as indentified by the Court in the pilot judgment given
in the case of Orchowski v. Poland (no. 17885/04) on 22
October 2009 (see paragraphs 135 and 147 et seq. ), were not
compatible with Article 3 of the Convention. Furthermore, the
Government would like to express their acknowledgement of the fact
that the censorship of the applicant’s correspondence was not
compatible with the requirements of Article 8 of the Convention.
In these circumstances, and having particular regard to
violation of Article 3 of the Convention in respect of the
applicant’s conditions of detention, the Court’s pilot
judgment in the case of Orchowski v. Poland (no. 17885/04) as
well as domestic jurisprudence submitted to this case and violation
of Article 8 on account of the censorship of the applicant’s
correspondence, the Government declare that they offer to pay the
applicant the amount of 8,000 PLN (eight thousand Polish zlotys),
which they consider to be reasonable in the circumstances of the
case.
The sum referred to above, which is to cover any
pecuniary and non-pecuniary damage as well as costs and expenses,
will be free of any taxes that may be applicable. It will be payable
within three months from the date of notification of the decision
taken by the Court pursuant to Article 37 § 1 of the European
Convention on Human Rights. In the event of failure to pay this sum
within the said three-month period, the Government undertake to pay
simple interest on it, from expiry of that period until settlement,
at a rate equal to the marginal lending rate of the European Central
Bank during the default periods plus three percentage points.
The Government would respectfully suggest that the above
declaration might be accepted by the Court as “any other
reason” justifying the striking out of the case of the Court’s
list of cases, as referred to in Article 37 § 1 (c) of
the Convention.
...”
- In
a letter of 13 April 2011 the applicant submitted that he did not
understand the conditions of the Government’s unilateral
declaration because he did not speak either of the Court’s
official languages.
- The
Court recalls that Article 37 of the Convention provides that it may
at any stage of the proceedings decide to strike an application out
of its list of cases where the circumstances lead to one of the
conclusions specified, under (a), (b) or (c) of paragraph 1 of that
Article. Article 37 § 1 (c) enables the
Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it
is no longer justified to continue the examination of the
application”.
- It
also recalls that in certain circumstances, it may strike out an
application or part thereby under Article 37 § 1(c) on the basis
of a unilateral declaration by a respondent Government even if the
applicant wishes the examination of the case to be continued.
- To
this end, the Court will examine carefully the declaration in the
light of the principles emerging from its case-law, in particular the
Tahsin Acar judgment (Tahsin Acar v. Turkey,
[GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA
Spółka z o.o. v. Poland (dec.) no. 11602/02,
26 June 2007; and Sulwińska v. Poland (dec.)
no. 28953/03).
- The Court has established in a number of cases,
including those brought against Poland, its practice concerning
complaints about the violation of Article 3 on account of
overcrowding and inadequate detention conditions (see, for example,
the pilot judgments in the cases of Orchowski
v. Poland, no. 17885/04, ECHR 2009 ... (extracts)
and Norbert Sikorski v. Poland, no. 17599/05,
22 October 2009 and the leading follow-up decision in the case
of Łatak v. Poland (dec.), no.
52070/08, 12 October 2010) and complaints about the monitoring
of a detainee’s correspondence (see among many others
Matwiejczuk v. Poland, no. 37641/97, §§
65-66, 2 December 2003).
- Having
regard to the nature of the admissions contained in the Government’s
declaration, as well as the amount of compensation proposed –
which is consistent with the amounts awarded in similar cases –
the Court considers that it is no longer justified to continue the
examination of the application (Article 37 § 1(c)).
- Moreover,
in light of the above considerations, and in particular given the
clear and extensive case-law on the topic, the Court is satisfied
that respect for human rights as defined in the Convention and the
Protocols thereto does not require it to continue the examination of
this part of the application (Article 37 § 1 in fine).
In
view of the above, it is appropriate to strike this part of the
application out of the list.
II. COMPLAINT UNDER ARTICLE 5 § 3 OF THE CONVENTION
- The
applicant also complained under Article 5 § 3 of the Convention
about the unreasonable length of his detention on remand. The
relevant part of this provision 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 ...”
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 8 September 2000, when the
Wrocław District Court detained him on remand on suspicion of
having committed theft and forgery and of leadership of an organised
criminal gang. It lasted until 29 April 2003 when the applicant
was released. Accordingly, the period to be taken into consideration
amounts to two years, seven months and twenty days.
2. The parties’ submissions
(a) The applicant
- The
applicant submitted that the length of his pre-trial detention had
been excessive and that the measure had not been sufficiently
justified by the authorities.
(b) The Government
- The Government submitted that the applicant’s
pre-trial detention had been justified by the nature of the charges,
the scale of the alleged criminal activities 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 had allegedly acted in an organised criminal gang.
The latter element aggravated the risk that the applicant might
obstruct the proceedings or tamper with evidence.
- Moreover,
there was a genuine risk that, if released, the applicant might go
into hiding since prior to his arrest he had been formally registered
under several addresses and had not resided at any of them.
- The
domestic courts had considered it necessary to remand the applicant
in custody during the relevant period. However, the applicant had
been released when the authorities had considered that further
extension of his detention would not be justified. Thus, the
authorities had attempted to find a balance between the competing
interests in the case.
3. The Court’s assessment
(a) General principles
- The
Court recalls 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 v. Poland [GC], no. 30210/96,
§ 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, in addition to the
reasonable suspicion against the applicant, relied principally on
four grounds, namely (1) the strong suspicion that the applicant had
committed the offences with which he was charged; (2) the serious
nature of those offences (3) the severity of the penalty to which he
was liable; and (4) the risk that the applicant might obstruct
the proper conduct of the proceedings since he had acted in a gang
and there were several co-accused in the case.
- The
applicant was charged and then indicted of multiple counts of theft,
forgery, possession of a firearm without a licence and leadership of
an organised criminal gang.
- In
the Court’s view, the fact that the case concerned a member of
a 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).
- Indeed,
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, by the nature of things, high.
- The
Court accepts that the reasonable suspicion against the applicant of
having committed serious offences could initially warrant his
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 re-offending, the gravity of the charges cannot by
itself justify long periods of detention on remand (see Michta
v. Poland, no. 13425/02, §§ 49, 4 May 2006).
- On
the other hand, the need to obtain voluminous evidence, which is
inherent in a trial concerning organised crime and the need to secure
the proper conduct of the proceedings, in particular the presence of
the accused who did not have a fixed residence prior to his arrest,
constituted valid grounds for maintaining the applicant’s
detention for the period of two years and nearly eight months.
- The
Court takes note of the fact that when the authorities could no
longer justify the applicant’s protracted detention, they
released the applicant.
- The
foregoing considerations are sufficient for the Court to conclude
that the grounds given for the applicant’s pre-trial detention
were “relevant” and “sufficient” to justify
holding him in custody for the entire relevant period, that is two
years, seven months and twenty days (in contrast to Bogusław
Krawczak v. Poland, no. 24205/06, §§
82-90, 31 May 2011).
- It
therefore remains to be ascertained whether the national authorities
displayed “special diligence” in the conduct of the
proceedings.
- In
this regard, the Court observes that the investigation was of
considerable complexity, regard being had to the number of witnesses,
the extensive evidentiary proceedings and the implementation of
special measures required in cases concerning organised crime. The
Court does not discern any significant periods of inactivity in the
investigation or the initial phase of the trial. For these reasons,
the Court considers that during the relevant period the domestic
authorities handled the applicant’s case with relative
expedition.
- Having regard to the foregoing, the Court finds that
there has been no violation of Article 5 § 3 of the Convention
III. COMPLAINT UNDER ARTICLE 6 § 1 OF THE CONVENTION
- Moreover,
the applicant complained under Article 6 § 1 of the Convention
about the unreasonable length of his criminal proceedings. This
provision, in its relevant part, provides:
“In the determination ... of any
criminal charge against him, everyone is entitled to a ... hearing
within a reasonable time by [a] tribunal ...”
- However,
pursuant to Article 35 § 1 of the Convention:
“The Court may only deal with the matter after all
domestic remedies have been exhausted, according to the generally
recognised rules of international law ...”
- In
this connection, the Court observes that the applicant did not lodge
a complaint about the unreasonable length of the proceedings with the
relevant domestic court under the 2004 Act, thus failing to avail
himself of the available domestic remedy.
- The
Court has already examined that remedy for the purposes of
Article 35 § 1 of the Convention and found it
effective in respect of complaints about the excessive length of
judicial proceedings in Poland. In particular, the Court considered
that the remedy was capable both of preventing the alleged violation
of the right to a hearing within a reasonable time or its
continuation, and of providing adequate redress for any violation
that has already occurred (see Charzyński v. Poland
(dec.), no. 15212/03, §§ 36-42).
- It
follows that this complaint must be rejected under Article 35 §§ 1
and 4 of the Convention for non-exhaustion of domestic remedies.
IV. COMPLAINT UNDER ARTICLE 8 OF THE CONVENTION
- The
applicant also complained that during his detention he had been
deprived of personal contact with his wife for a significant period
of time, in breach of Article 8 of the Convention which provides as
relevant:
“1. Everyone has the right to respect
for his ... family life...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
Court reiterates that detention, like any other measure depriving a
person of his liberty, entails inherent limitations on private and
family life. However, it is an essential part of a detainee’s
right to respect for family life that the authorities enable him or,
if need be, assist him in maintaining contact with his close family
(see, mutatis mutandis, Messina v. Italy (no. 2),
no. 25498/94, § 61, 28 September 2000).
- Such restrictions as limitations on the number of
family visits, supervision of those visits and, if so justified by
the nature of the offence, subjection of a detainee to a special
prison regime or special arrangements for visits constitute an
interference with his rights under Article 8 but are not, by
themselves, in breach of that provision (ibid. §§ 62-63;
see also Kucera v. Slovakia, no. 48666/99, §§
127-128, 17 July 2007). Nevertheless, any restriction of that kind
must be “in accordance with the law”, must pursue one or
more legitimate aim listed in paragraph 2 and, in addition,
must be justified as being “necessary in a democratic
society”.
- Turning
to the circumstances of the present case the Court considers that the
decisions complained of amounted to “interference” with
the exercise of the applicant’s rights guaranteed by this
provision.
- The
contested measures were applied under Article 217 of the Code of
Execution of Criminal Sentences. This provision, as applicable at the
material time, gave the relevant authority (prosecutor or court) the
power to grant permission for family visits in prison.
- In this respect the Court notes that on 2 July 2009
the Constitutional Court declared Article 217 § 1 of the Code of
Execution of Criminal Sentences unconstitutional. The Court further
observes that it has already held that Article 217 § 1
of the Code of Execution of Criminal Sentences did not indicate with
reasonable clarity the scope and manner of exercise of the discretion
conferred on the relevant authorities to restrict visiting rights
(see Wegera v. Poland, no. 141/07, §
74-75, 19 January 2010). For these reasons the Court has recently
concluded in the case of Gradek v. Poland cited
above § 47) that an unreasoned refusal of family visits in
detention was not in accordance with the law.
- In
the present case, contrary to the case of Gradek, where the
prosecutor refused the applicant’s wife’s requests by
making blunt handwritten notes on her applications, the Wrocław
Regional Court informed the applicant about the reasons for refusal
of visits from his wife. The court considered that since the
applicant’s wife was a witness in his case, it was important to
prohibit her from contacting the applicant, at least until she or
other crucial witnesses were heard.
- In
the particular circumstances of the instant case the Court concludes
that the refusals of family visits during the applicant’s
pre-trial detention were reasoned and thus the interference was in
accordance with the law (see Jarkiewicz. Poland, no. 23623/07,
6 July 2010).
- The
Court further observes that the limitations on the applicant’s
contact with his wife were imposed only during the initial stage of
the trial (decisions of 2 March and 30 April 2001) until the key
witnesses were heard.
- The
impugned measure can accordingly be considered as having been taken
in pursuance of “the prevention of disorder and crime”,
which is a legitimate aim under Article 8 (see Jarkiewicz v.
Poland, cited above).
- Lastly, in the light of the information before it the
Court considers that the authorities struck a fair balance between
the need to secure the process of obtaining evidence in the
applicant’s case and his right to respect for his family life
while in detention. It has not been shown that the measure complained
of went beyond what was necessary in a democratic society “to
prevent disorder and crime” in the context of family visits in
prison during pre-trial detention.
- 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. COMPLAINT UNDER ARTICLE 9 OF THE CONVENTION
- Lastly, in 2005 the applicant complained under Article
9 of the Convention that during his detention he had been deprived of
the opportunity to attend mass in the prison chapel. He did not,
however, provide any details or documents to support his complaint.
- In
consequence, the Court finds that the information in the file does
not substantiate the above complaint or warrant its examination as
giving rise to issues separate from the applicant’s main
Article 3 complaint.
- It
follows that this part of the application must be rejected as
manifestly-ill founded in accordance with Article 35 §§ 3
and 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Takes note of the terms of the respondent
Government’s unilateral declaration as regards the complaints
concerning the conditions of the applicant’s detention and the
censorship of his correspondence and of the modalities for ensuring
compliance with its undertakings;
- Decides to strike this part of the application
out of its list of cases in accordance with Article 37 § 1 (c)
of the Convention;
3. Declares admissible the complaint under Article
5 § 3 of the Convention and the remainder of the application
inadmissible;
- Holds that there has been no violation of
Article 5 § 3 of the Convention.
Done in English, and notified in writing on 13 September 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas
Bratza
Deputy Registrar President
