CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 13 février 2007

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display:inline-block }     FOURTH SECTION     CASE OF CZAJKA v. POLAND     (Application no. 15067/02)       JUDGMENT       STRASBOURG   13 February 2007       FINAL     13/05/2007     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 Czajka v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Sir   Nicolas Bratza , President ,   Mr   J. Casadevall ,   Mr   G. Bonello ,   Mr   K. Traja ,   Mr   S. Pavlovschi ,   Mr   L. Garlicki ,   Ms   L. Mijović, judges , and Mr T.L. Early , Section Registrar , Having deliberated in private on 23 January 2007, Delivers the following judgment, which was a ‑ opted on that date: PROCEDURE 1.     The case originated in an application (no. 15067/02) 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 Marek Czajka (“the applicant”), on 1   October 2001. 2.     The Polish Government (“the Government”) were represented by their Agent, Mr   J.   Wołąsiewicz of the Ministry of Foreign Affairs. 3.     On 16 June 2004 the President of the Fourth Section decided to communicate to the Government the applicant’s complaints concerning the length of his detention on remand and the criminal proceedings against him. Under the provisions of Article   29 §   3 of the Convention, it was decided to examine the merits of the application at the same time as its admissibility. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1974 and lives in Gdynia, Poland. A.     The criminal proceedings 5.     On 8 May 1999 the applicant was arrested by the police. On 9   May 1999 the Gdańsk District Court ( Sąd Rejonowy ) decided to detain the applicant on remand in view of the reasonable suspicion that he had committed robbery, kidnapping and larceny. 6.     The applicant’s appeal against this decision was dismissed by the Gdańsk Regional Court ( Sąd Okręgowy ) on 24 May 1999. 7.     On 25 January 2000 the applicant was indicted before the Gdańsk Regional Court. 8.     The applicant’s detention was prolonged on 27 January 2000. The court reiterated the grounds originally given for his detention and stressed the gravity of the charges. 9.     On 10 April 2000 the first hearing took place before the trial court. 10.     On 18 May 2000 the Gdańsk Regional Court dismissed the applicant’s application for release. The court considered that the evidence obtained in the case sufficiently justified the charges laid against the applicant. In addition, the gravity of the charges made it probable that a heavy sentence would be imposed. 11.     Between 27 June 2000 and 17 April 2001 eight hearings took place. 12.     Subsequently, the Gdańsk Regional Court made a request under Article   263 § 4 of the Code of Criminal Proceedings to the Gdańsk Court of Appeal ( Sąd Apelacyjny ) in which it asked that the applicant’s detention on remand be extended beyond 2   years. On 25 April 2001 the Gdańsk Court of Appeal allowed the request. However, it extended the applicant’s detention only until 31   July 2001 and not until October 2001 as requested by the Regional Court. The appellate court considered that it was probable that the applicant had committed the crimes with which he had been charged. In addition, the case did not disclose any of the grounds for the applicant’s release listed in Article   259 §   1 of the Code of Criminal Proceedings. At the same time, the court of appeal pointed out that the proceedings had already taken a long time and that any extension of his detention on remand beyond a two ‑ year period should only be allowed for the purposes of taking all necessary procedural steps to conclude the trial. 13.     Afterwards, hearings were held in June and July 2001. 14.     On 25 July 2001 the Gdańsk Court of Appeal further extended the applicant’s detention until 30 September 2001. It considered, however, that the proceedings in the applicant’s case had already taken a long time and that the Regional Court had been inefficient in dealing with the case. In this connection, the Gdańsk Court of Appeal pointed out that the trial court had adjourned the case for almost 50 days without giving any reasons. As a result of the adjournment the proceedings had to be recommenced. 15.     Subsequently, hearings took place before the trial court. 16.     On 26 September 2001 the Gdańsk Court of Appeal further prolonged the applicant’s detention until 30   November 2001 relying on the reasonable suspicion that the applicant had committed the offences and on the complexity of the case. 17.     Between 10 October 2001 and 21 January 2002 fourteen hearings were held. 18.     On 28 January 2002 the Gdańsk Regional Court gave a judgment. The applicant was convicted and sentenced to fifteen   years’ imprisonment. 19.     Subsequently, the applicant’s detention was prolonged on several occasions. 20.     On 9 April 2003 the Gdańsk Court of Appeal quashed the applicant’s conviction and remitted the case. At the same time the appellate court prolonged the applicant’s detention until 21   July 2003. The court considered that it was necessary to keep the applicant in detention since he had been charged with several crimes which represented “a significant danger to society” ( o znacznej szkodliwości społecznej ) and which attracted a heavy prison sentence. In addition, the evidence obtained in the case sufficiently supported the probability that the applicant had committed those crimes. Moreover, the court considered that there was a risk that the applicant would go into hiding and that he could interfere with the proceedings if released. It was recalled in this connection that the applicant had been arrested while trying to leave the country. 21.     The applicant appealed against this decision, but his appeal was dismissed on 23 April 2003 by the Gdańsk Court of Appeal. 22.     On 7 October, 18 and 20 November 2003 hearings took place before the Gdańsk Regional Court. 23.     The applicant’s pre-trial detention was prolonged on 8   July 2003, 20   January, 30 July and 7 December 2004. The court reiterated the original grounds for keeping him in custody, in particular the seriousness of the charges against the applicant and the risk that he might receive a heavy sentence. 24.     At the hearings held on 11 January and 19 July 2005 the Regional Court prolonged the applicant’s detention relying on the reasonable suspicion against the applicant, the seriousness of the charges, the severity of the likely sentence and the complexity of the case. The court further stated that since not all of the witnesses had been heard, there was a risk that the applicant might attempt to influence them. 25.     On 27 October 2005 the applicant’s detention on remand was prolonged. The court repeated the grounds relied on in its previous decision given in 2005 in an almost identical manner. 26.     The applicant’s numerous appeals and requests for release were to no avail. 27.     On 27 December 2005 the Gdańsk Regional Court gave a judgment. It convicted the applicant and sentenced him to 14 years’ imprisonment. On 12   April 2006 the applicant lodged an appeal. 28.     On 20 November 2006 the Gdańsk Court of Appeal partly upheld the impugned judgment and reduced the applicant’s prison sentence to 11   years’ imprisonment. B.     The complaint about the unreasonable length of the proceedings 29.     On 15 November 2004 the applicant lodged with the Gdańsk Court of Appeal a complaint alleging that his right to have his case examined within a reasonable time had been breached. He relied on the 2004 Act on complaints about a breach of the right to a trial within a reasonable time. 30.     On 28 December 2004 the Gdańsk Court of Appeal allowed his complaint, found that the length of the criminal proceedings pending before the Regional Court had been unreasonable and awarded the applicant PLN   3,000 in compensation. The court examined the course of the proceedings and found delays between 10 April 2000 and 6   June 2001 for which the trial court had been responsible. The Court of Appeal further instructed the trial court to accelerate its handling of the case so that the trial was concluded within a period much shorter than the one-year period envisaged. 31.     On 29 December 2005 the applicant lodged a second complaint about the unreasonable length of the proceedings in his case. 32.     On 28 February 2006 the Gdańsk Court of Appeal dismissed the applicant’s second complaint. The court examined the course of the proceedings after 28 December 2004 and established that they had been conducted diligently and that there were no delays attributable to the trial court. II.     RELEVANT DOMESTIC LAW A.     Preventive measures, including detention on remand 33.     The Code of Criminal Procedure of 1997, which entered into force on 1   September 1998, defines detention on remand as one of the so ‑ called “preventive measures” ( środki zapobiegawcze ). 34.     A more detailed rendition of the relevant domestic law provisions is set out in the Court’s judgment in Kudła v. Poland [GC], no.   30210/96, §   75, ECHR 2000 ‑ XI, Celejewski v. Poland , no.   17584/04, §§   22 and   23, 4   May 2006. B.     The remedy for unreasonable length of proceedings 35.     On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time ( Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings. A more detailed description of the relevant domestic law provisions is set out in the Court’s judgment in Krasuski v.   Poland , no.   61444/00, §§   34 ‑ 46, ECHR   2005–... (extracts) and its decision in Charzyński v.   Poland (dec.), no.   15212/03, §§   12 ‑ 23, ECHR 2005–.... THE LAW I.     ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 36.     The applicant complained that the length of his detention on remand had been unreasonable. He relied on Article 5 § 3 of the Convention, which 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.” 37.     The Government contested that argument. The Government submitted that the applicant’s pre-trial detention satisfied the requirements of Article   5 § 3. It was justified by “relevant” and “sufficient” grounds. These grounds were, in particular, the gravity of the charges against the applicant as well as the complexity of the case. The Government further argued that the domestic authorities had shown due diligence, as required in cases against detained persons. A.     Admissibility 38.     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.     Principles established under the Court’s case-law 39.     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, W. v. Switzerland , judgment of 26 January 1993, Series   A no.   254 ‑ A, p. 15, §   30, and Kudła v. Poland [GC], no. 30210/96, §   110, ECHR   2000 ‑ XI) 40.     The presumption is in favour of release. As established in Neumeister v.   Austria (judgment of 27 June 1968, Series A no.   8, p.   37, §   4), the second limb of Article 5 § 3 does not give judicial authorities a choice between either bringing an accused to trial within a reasonable time or granting him provisional release pending trial. Until conviction, he must be presumed innocent, and the purpose of the provision under consideration is essentially to require his provisional release once his continuing detention ceases to be reasonable (see McKay v. the United Kingdom [GC], no.   543/03, §   41, ECHR 2006-...). 41.     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 mentioned 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 McKay, cited above, §   43). 42.     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, §   153, ECHR   2000 ‑ IV, and Jabłoński v. Poland , no.   33492/96, §   80, 21   December 2000). 2.     Application of the principles to the circumstances of the present case 43.     The Court notes that the applicant was arrested on 8   May 1999 and that on 28   January 2002 the trial court gave a judgment in his case. Subsequently, on 9 April 2003 the Court of Appeal quashed his conviction and remitted the case. On 27 December 2005 the trial court again convicted him. His detention thus lasted 5 years, 5 months and 11 days. 44.     The Court further observes that the domestic courts initially relied on the reasonable suspicion that the applicant had committed the offences and on the severity of the sentence that might be imposed. The judicial authorities also considered that in view of the complexity of the case, which involved numerous co-accused and multiple charges, the applicant’s detention was necessary to secure the proper conduct of the proceedings. On at least one occasion, in 2003, the Court of Appeal referred to the risk of flight, justifying it with reference to the applicant’s alleged attempt to leave the country before his arrest. With the passage of the time, however, the authorities failed to invoke any new grounds to justify his detention and their decisions on the matter contained almost identical reasoning. 45.     The Court accepts that the suspicion against the applicant of having committed the offences might initially have justified his detention, in particular in the light of the fact that the applicant was subsequently sentenced to a long term of imprisonment. However, with the passage of time, this ground became less relevant and cannot justify the particularly long period of 5 years and over 5   months during which the most serious preventive measure against the applicant had been imposed. 46.     As regards the risk of the applicant going into hiding, the Court observes that the courts on one occasion relied on an alleged attempt by the applicant to leave Poland before his arrest in 1999. The Court agrees that, assuming that the applicant had indeed attempted to evade arrest and prosecution, this factor could justify a decision to keep him in custody at the initial stages of the proceedings. However, that ground gradually lost its force and relevance as the proceedings progressed. In particular, given the absence of any further attempt on the part of the applicant to obstruct the proceedings, it is difficult to accept that this single incident could justify the conclusion that the risk of going into hiding persisted during the entire period that he spent in custody (see Harazin v. Poland , no.   38227/02, §   42, 10   January 2006). As regards the risk of the applicant influencing witnesses or otherwise tampering with evidence, the Court notes that any such risk was not substantiated in any way by the domestic courts. 47.     Moreover, the authorities relied heavily on the likelihood that a heavy sentence would be imposed on the applicant given the serious nature of the offences at issue. In this respect, the Court agrees that the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or re-offending. However, the Court has repeatedly held that the gravity of the charges cannot by itself serve to justify long periods of detention on remand (see Ilijkov v. Bulgaria , no.   33977/96, §§   80 ‑ 81, 26   July 2001). 48.     The Court also notes that there is no specific indication that during the entire period in question the authorities envisaged the possibility of imposing other preventive measures on the applicant, such as bail or police supervision. In this context the Court would emphasise that “other preventive measures” are expressly foreseen by Polish law to secure the proper conduct of criminal proceedings and that under Article   5 §   3 the authorities, when deciding whether a person should be released or detained, are obliged to consider alternative measures for ensuring 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 Jablonski, cited above, §   83). 49.     In the circumstances, the Court concludes that the grounds given by the domestic authorities were not “relevant” and “sufficient” to justify the applicant’s being kept in detention for 5 years and over 5 months. Furthermore, the Court cannot but note that the domestic courts have themselves discerned delays in the criminal proceedings against the applicant (see paragraphs 14 and 30 above). It cannot therefore be said that the authorities displayed “special diligence” in the conduct of the criminal proceedings against the applicant. 50.     There has therefore been a violation of Article   5 §   3 of the Convention. II.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE PROCEEDINGS 51.     The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article   6 §   1 of the Convention, which reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 52.     The Government contested that argument. They argued, moreover, that the applicant could no longer be considered a victim as the Gdańsk Court of Appeal had afforded appropriate redress in that he was granted compensation in the amount of PLN 3,000. Moreover, the complaint examined by the domestic court on 28 December 2004 had had an impact on the criminal proceedings against him as the trial court thereafter had proceeded speedily and on 27 December 2005 gave a judgment. 53.     The applicant disagreed. He argued, in particular, that the just satisfaction awarded was disproportionately low and that further delays occurred after the Court of Appeal had decided on his complaint. The proceedings against him have still not ended. 54.     The Court notes that the proceedings in question started on 8   May 1999 and on 20 November 2006 the Gdańsk Court of Appeal gave a judgment. Thus, they lasted 7 years, 6 months and 15 days for two levels of jurisdiction. A.     Admissibility 55.     As to the Government’s argument that the applicant cannot be considered a “victim”, within the meaning of Article 34 of the Convention, of a violation of his right to a   hearing within a reasonable time, this issue falls to be determined in the light of the principles recently established under the Court’s case-law ( Cocchiarella v. Italy [GC], no.   64886/01, §§   69 ‑ 107, ECHR 2006 ‑ ... and Scordino v. Italy (no. 1) [GC], no.   36813/97, §§   178 ‑ 213, ECHR 2006 - ...). 56.     The Gdańsk Court of Appeal analysed the course of the impugned proceedings in the light of the criteria which the Court itself applies. It concluded that the Regional Court had violated the applicant’s right to a hearing without unjustified delay and awarded the applicant the equivalent of EUR   712 in respect of the length of the proceedings. The just satisfaction awarded by the Court of Appeal amounts to approximately 25 per cent of what the Court would be likely to have awarded the applicant at that time in accordance with its practice, taking into account the particular circumstances of the proceedings. Moreover, the proceedings were pending and it took the Gdańsk Regional Court exactly one more year to conclude the trial despite the Court of Appeal’s explicit instruction to finish it within a much shorter period. The combination of those factors lead to the conclusion that the redress provided to the applicant at domestic level, considered on the basis of the facts of which he complains before the Court, was insufficient. In these circumstances, the argument that the applicant has lost his status as a “victim” cannot be upheld. 57.     The complaint about the length of the criminal proceedings against the applicant is not manifestly ill-founded within the meaning of Article   35 §   3 of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 58.     The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v.   France [GC], no. 30979/96, § 43, ECHR 2000-VII). 59.     The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender , cited above). 60.     Having examined all the material submitted to it, the Court finds no argument capable of persuading it to reach a different conclusion in the present case. It reiterates that special diligence is required in the examination of a case where an accused is deprived of his liberty (see paragraph   49 above). Having regard to its case-law on the subject the Court concurs with the Court of Appeal that in the instant case the length of the criminal proceedings complained of was excessive and failed to meet the “reasonable time” requirement. 61.     In view of the above considerations, the Court concludes that there has been a breach of Article 6 § 1 of the Convention. III.     ALLEGED VIOLATION OF ARTICLE 6 §§ 1, 2 AND 3 OF THE CONVENTION ON ACCOUNT OF THE UNFAIRNESS OF THE PROCEEDINGS 62.     The applicant further complained of the fact that the proceedings in his case had been unfair. In particular, he complained that his right to defence had been violated and that the presiding judge had been biased. The applicant relied on Article 6 §§1, 2 and 3 of the Convention. 63.     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...” 64.     The Court notes that on 20 November 2006 the Gdańsk Court of Appeal gave a judgment in the criminal proceedings against the applicant. It is thus open to the applicant to lodge a cassation appeal with the Supreme Court. Accordingly, the applicant still can, and should, put the substance of his complaints under this head before the domestic authorities and ask for appropriate relief. 65.     It follows that these complaints must be rejected under Article   35 §§   1 and   4 of the Convention for non-exhaustion of domestic remedies. IV.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 66.     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 67.     The applicant claimed 50,000 Polish zlotys (PLN) in respect of pecuniary and non ‑ pecuniary damage. 68.     The Government considered the claim excessive. 69.     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 considers that the applicant must have suffered some non ‑ pecuniary damage, such as distress and frustration resulting from the unreasonable length of his detention on remand and of the criminal proceedings against him. Making its assessment on an equitable basis, and having regard to the sum awarded by the domestic authorities, the Court awards the applicant 5,000 euros (EUR) in respect of non-pecuniary damage. B.     Costs and expenses 70.     The applicant did not make any claim in respect of costs and expenses. C.     Default interest 71.     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 1.     Declares the complaint concerning the unreasonable length of pre ‑ trial detention and length of the criminal proceedings admissible and the remainder of the application inadmissible;   2.     Holds that there has been a violation of Article 5 § 3 of the Convention;   3.     Holds that there has been a violation of Article 6 § 1 of the Convention;   4.     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 5,000 (five thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into Polish zlotys at the rate applicable at the date of settlement; (b)     that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;   5.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 13 February 2007, pursuant to Rule   77 §§   2 and 3 of the Rules of Court.   T.L. Early   Nicolas Bratza   Registrar   President