FOURTH SECTION
CASE OF MGŁOSIK v. POLAND
(Application no. 8403/02)
JUDGMENT
STRASBOURG
16 July 2009
FINAL
16/10/2009
This judgment may be subject to editorial revision.
In the case of Mgłosik 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 23 June 2009,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 8403/02) 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 Rafal Mgłosik (“the applicant”), on 4 February 2002.
2. The applicant was represented by Ms N. Ołowska-Zalewska, a lawyer practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
3. The applicant alleged, in particular, that his detention exceeded a “reasonable time” within the meaning of Article 5 § 3 of the Convention. He also complained under Article 6 § 1 of the Convention of the allegedly unreasonable length of the criminal proceedings against him.
4. On 19 November 2007 the Court decided to give notice of the application to the Government and to ask the parties whether the length of detention in the present case revealed the existence of a structural problem related to the application of that measure. 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
5. The applicant was born in 1976 and lives in Tychy. He is currently serving a prison sentence.
A. The applicant’s arrest in Germany and extradition to Poland
6. On 10 November 1998 the Katowice District Court (Sąd Rejonowy) gave a decision to hold the applicant in pre-trial detention for seven days from the day of arrest. He was suspected of being a member of an organised criminal group and of having committed several offences of battery and extortion. The court relied on the reasonable suspicion that the applicant had committed the offences with which he was charged and on the fact that he was not living in his permanent place of residence and had gone into hiding. The court also held that the decision on pre-trial detention was indispensable in order to enforce the arrest warrants which had been issued against the applicant.
7. On 20 November 1998 the applicant was arrested in Oldenburg, Germany.
8. On 21 January 1999 the Government of the Federal Republic of Germany, applying the “rule of speciality” set forth in Article 14 of the European Convention on Extradition, consented to the applicant’s extradition.
9. On 3 February 1999 the applicant was extradited to Poland.
B. The applicant’s detention and criminal proceedings against him
10. On 5 February 1999 the Katowice District Court decided to hold the applicant in pre-trial detention for three months. In its eight-line reasoning, the court relied on the reasonable suspicion that the applicant had committed the offences with which he was charged. The court also found that the fact that the applicant had been charged with participation in an organised criminal group created the risk that the applicant would unlawfully obstruct the investigation.
11. The applicant’s detention was repeatedly extended by several decisions of the Gliwice District Court and subsequently the Katowice Court of Appeal. In those decisions, the courts relied on the reasonable suspicion that the applicant had committed the offences with which he was charged and on the reasonable suspicion that he would obstruct the proceedings.
12. In its decision of 27 April 1999 extending the applicant’s detention the Gliwice District Court also relied on the fact that “the applicant had gone into hiding and thus he might try to abscond”.
13. On 19 May 1999 the Gliwice District Court again extended the applicant’s detention, finding that the grounds previously given for his detention were still valid.
14. On 19 October 1999 the applicant was indicted. The bill of indictment concerned six co-accused who were charged with a total of forty-one offences. Five co-accused were remanded in custody. The applicant was charged with several counts of extortion, several counts of attempted extortion, issuing threats and participation in an organised criminal group.
15. On 16 December 1999 the proceedings were joined with another set of proceedings and it was decided that the case be examined by a panel of three professional judges, without the participation of lay judges.
16. On 2 February 2001 the length of the applicant’s detention reached the statutory two‑year time‑limit laid down in Article 263 § 3 of the Code of Criminal Procedure (Kodeks postępowania karnego) and the first‑instance court was no longer competent to extend it. Consequently, it was further extended by decisions of the Katowice Court of Appeal (Sąd Apelacyjny) of, inter alia, 11 October 2000, 27 June and 30 October 2001 and 26 June 2002.
17. The applicant’s appeals against decisions extending his detention were unsuccessful. In one of his appeals, on 7 November 2001, the applicant’s lawyer raised the question of a violation of the European Convention on Human Rights, arguing that the excessive length of criminal proceedings did not justify the continued detention of the applicant.
18. On 28 November 2001 the Katowice Court of Appeal upheld the challenged decision. The court held that the reasons for the applicant’s detention had not changed and that, considering the serious nature of the offences, the applicant should be treated as a “particularly dangerous criminal”. Referring to the alleged violation of the Convention, the court found that this objection was ill-founded because “in the legal systems of the Council of Europe’s member States the perpetrators of serious crimes are also treated severely”.
19. On an unspecified date the applicant requested the court to release him from detention.
20. On 13 March 2002 the Tychy District Court dismissed his request.
21. On 19 February 2003 the Tychy District Court gave judgment. The applicant was convicted as charged and sentenced to eight years’ imprisonment.
22. After his conviction by the first-instance court the applicant continued to be held in detention.
23. On 30 June 2003 the applicant again requested the court to release him from detention.
24. On 28 July 2003 the Tychy District Court dismissed his request.
25. On 26 September 2003 the applicant’s lawyer lodged an appeal against the District Court’s judgment arguing, inter alia, that the first-instance court had violated provisions of the Code of Criminal Procedure and the 1957 European Convention on Extradition, because the applicant had been convicted of offences which had not originally been listed in the applicant’s extradition documents issued by the German authorities.
26. On 5 March 2004 the Katowice Regional Court heard the appeal, partly amended the first-instance judgment and reduced the applicant’s sentence to seven years. Referring to the arguments raised in the applicant’s appeal the Regional Court declared them ill-founded because during the proceedings the prosecutor had produced documents containing the German authorities’ consent to extend the scope of the charges against the applicant.
27. On 22 March 2004 the applicant requested the court to appoint a lawyer in order to lodge a cassation appeal on his behalf.
28. On 10 August 2004 the Katowice Regional Court informed the applicant that, on 2 August 2004, his court-appointed lawyer had found no grounds to lodge a cassation appeal on his behalf.
29. On an unspecified date the applicant lodged a cassation appeal himself.
30. On 10 August 2004 the Katowice Regional Court requested the applicant to rectify the procedural shortcomings of his cassation appeal within seven days (the cassation appeal should have been lodged by a lawyer of the applicant’s choice).
31. The applicant failed to rectify the shortcomings. Consequently, on 30 September 2004, the Katowice Regional Court refused to hear the applicant’s cassation appeal.
32. On 18 October 2004 the applicant appealed against that decision.
33. On 15 February 2005 the Katowice Regional Court requested the applicant to rectify, within seven days, the procedural shortcomings of his appeal, either by having a lawyer of his choice sign it or by lodging a request with the court to appoint a lawyer for him.
34. It appears that the applicant failed to rectify the shortcomings of his appeal and that the decision refusing to hear his cassation appeal became enforceable.
C. Monitoring of the applicant’s correspondence
35. On 17 July 2002 and on 24 July 2002 the Court received the applicant’s letters. The envelopes bear the following stamps: “Tychy District Court. Censored” (Sąd Rejonowy w Tychach. Cenzurowano).
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Preventive measures, including pre-trial detention
36. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in 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. Censorship of detainees’ correspondence
37. The relevant domestic law concerning the censorship of detainees’ correspondence is set out in the Court’s judgment in the case of Michta v. Poland, no. 13425/02, §§ 33-39, 4 May 2006.
C. Measures designed to reduce the length of pre-trial detention
38. 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 Documents can be found in the Court’s judgment in the case of Kauczor (see Kauczor v. Poland, no. 45219/06, §§ 27-28 and and 30-35, 3 February 2009.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
39. The applicant complained that the length of his 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.”
40. The Government contested that argument.
A. Admissibility
41. The Government submitted that the applicant had not exhausted all the remedies provided for by Polish law in that he had failed to appeal against five decisions of 1999 extending his detention.
42. The applicant’s lawyer submitted that the lawyer who had represented the applicant before the domestic courts had considered that it was not advisable to appeal against every single decision extending the detention, especially at the early stage of the proceedings, in order not to slow down the proceedings. She further submitted that the applicant had appealed several times against decisions extending his detention at a later stage of the proceedings but those appeals had been of a rather illusory nature, because the courts which dismissed them had relied each time on the same ground, namely the severity of the anticipated penalty.
43. The Court observes that the applicant did not challenge every decision extending his detention. However, he did lodge several appeals against decisions extending his pre-trial detention at the later stage of proceedings. He also unsuccessfully requested that his detention be lifted. The Court has already considered that those remedies, namely an appeal against a detention order or a request for release, whether submitted to the prosecutor or to the court, depending on the stage of the proceedings, and also an appeal against a decision to extend detention, serve the same purpose under Polish law. Their objective is to secure a review of the lawfulness of detention at any given time in the proceedings, both in their pre-trial and trial stage, and to obtain release if the circumstances of the case no longer justify continued detention (see Iwańczuk v. Poland (dec.), no. 25196/94, 9 November 2000, and Wolf v. Poland, nos. 15667/03 and 2929/04, § 78, 16 January 2007). It follows from the Court’s case-law that the applicant is not required to appeal against each and every decision extending his detention (see, by contrast, Bronk v. Poland (dec.), no. 30848/03, 11 September 2007).
44. 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
45. The applicant’s detention started on 5 February 1999, when he was arrested in Poland (see paragraph 10 above) on suspicion of, inter alia, several counts of kidnapping, robbery and battery, committed in an organised criminal group. On 19 February 2003 the Tychy District 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, cited above, § 104).
Accordingly, the period to be taken into consideration amounts to four years and thirteen days.
2. The parties’ submissions
(a) The Government
46. The Government submitted that the applicant’s detention had been duly justified over the entire period. They emphasised that, apart from the reasonable suspicion that he had committed the offences with which he had been charged, the applicant’s detention had been justified by the severity of the likely penalty and the risk of the applicant’s going into hiding and obstructing the proceedings.
47. The Government further invited the Court to assess the length of the applicant’s detention in the light of the fact that he had been charged with serious crimes committed when acting as part of an organised criminal group and that the proceedings, which were very complex, concerned six members of the group.
48. The Government asserted that the necessity for the applicant’s continued detention had been thoroughly examined by the courts, which on each occasion had given sufficient reasons for their decisions. They submitted, lastly, that the authorities had displayed due diligence in the conduct of the proceedings.
(b) The applicant
49. The applicant’s lawyer argued that the length of the applicant’s detention had been clearly unreasonable. She submitted that the courts had justified his detention by repeatedly relying on the same grounds; the reasonable suspicion that he had committed the homicide with which he had been charged, the severity of the anticipated penalty, the risk of obstruction of the proceedings and of absconding. The applicant’s lawyer further submitted that the applicant had not contributed to the overall length of the proceedings; on the contrary, he had always been at the disposal of the domestic courts.
3. The Court’s assessment
(a) General principles
50. 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 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
51. In their detention decisions, the authorities, in addition to the reasonable suspicion against the applicant, relied principally on three grounds, namely (1) the serious nature of the offences with which he had been charged, (2) the severity of the penalty to which he was liable; (3) the risk that the applicant might tamper with evidence or go into hiding. As regards the latter, they relied on the fact that the applicant had already gone into hiding and had been arrested abroad.
52. In the Court’s view, the fact that the case concerned a member of an organised 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).
53. The Court accepts that the reasonable suspicion against the applicant of having committed serious offences could initially warrant his detention. Also, the serious nature of the offences with which the applicant had been charged, the need to obtain voluminous evidence and to determine the degree of the alleged responsibility of each of the defendant, who had acted in a criminal group and against whom numerous charges of serious offences were laid and 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.
54. 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 risk of the applicant’s going into hiding and that he would tamper with evidence and the severity of the anticipated penalty – were “relevant” and “sufficient” (see Kudła, cited above, § 111).
55. The Court is not persuaded by the Government’s argument that the risk that the applicant might go into hiding or tamper with evidence constituted a valid ground for the more than four-year period of detention of the applicant. In this respect the domestic courts relied on the ground that the applicant had already gone into hiding and that he had been arrested abroad. The Court accepts that these reasons might justify the detention in its initial phase. It would add, however, that at no stage of the proceedings was any consideration given to the possibility of imposing on the applicant alternative, less severe, preventive measures. In this connection, the Court would reiterate that Article 5 § 3 of the Convention not only lays down 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 Jabloński v. Poland, no. 33492/96, § 83, 21 December 2000).
The Court cannot therefore accept that ground as a justification for holding the applicant in custody for the entire period.
56. 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 by itself justify long periods of detention (see Michta v. Poland, no. 13425/02, § 49, 4 May 2006)). Having regard to the above, the Court cannot accept the position adopted by the judicial authorities in the present case, namely that the presumption referred to above was by itself sufficient, after a certain lapse of time, to justify the applicant’s continued detention, without the need to indicate any concrete facts supporting the supposed risk of obstruction of the proceedings (see Szydłowski v. Poland, no. 1326/04, § 55; Malikowski v. Poland, no. 15154/03, § 54; and Osiński v. Poland, no. 13732/02, § 53, all judgments delivered on 16 October 2007).
57. While all the above factors could justify even a relatively long period of detention, they did not give the domestic courts an unlimited power to prolong this measure. In this context, the Court would observe that until the date of his first-instance conviction the applicant had already spent four years and thirteen days in pre-trial detention.
58. 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 criminal group, the Court concludes that the grounds given by the domestic authorities could 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.
59. There has accordingly been a violation of Article 5 § 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
60. The Court raised of its own motion a complaint under Article 8 of the Convention. This provision, in its relevant part, reads:
“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.”
A. Admissibility
1. The Government’s objection as to non-exhaustion of domestic remedies
61. The Government submitted that the applicant had not exhausted all available domestic remedies. He had failed to bring an action under Article 24 § 2 read in conjunction with Article 448 of the Civil Code. These provisions would have allowed him both to assert that by censoring his correspondence the authorities had breached his personal rights protected by the Civil Code, and to claim compensation for non-pecuniary damage.
62. In this connection the Government relied on the Warsaw Regional Court’s judgment of 27 November 2006 in which a prisoner had been awarded 5,000 Polish zlotys (PLN) in damages from the State Treasury for a breach of the secrecy of his correspondence with the Central Board of the Prison Service and the Central Electoral Office. The Regional Court held that the secrecy of an individual’s correspondence was one of the personal rights protected under Article 23 of the Civil Code and that in the event of a breach a claimant could be entitled to an award of compensation for non‑pecuniary damage.
63. The applicant’s lawyer did not comment.
2. The Court’s assessment
64. The Court notes that the complaint under Article 8 of the Convention concerning the alleged censorship of the applicant’s correspondence was raised of its own motion. The letter at issue was sent by the applicant to the Court and he could not have been aware that it had been censored by the authorities. In those circumstances, the applicant cannot be required to bring any domestic proceedings to obtain redress for the alleged breach of his right to respect for his correspondence.
65. Even assuming that the applicant had complained about the censorship of his letters to the Court, it has to be noted that the alleged interference with the applicant’s correspondence occurred in July 2002, whereas the Government relied on the Warsaw Regional Court’s judgment of 27 November 2006. Any relevance that the latter judgment might possibly have in respect of the present case is therefore reduced by the fact that it was given after the relevant time (see, for example, V. v. the United Kingdom [GC], no. 24888/94, § 57, ECHR 1999‑IX).
66. For these reasons, the Government’s plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed.
3. Conclusion as to admissibility
67. 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. Whether there was interference
68. The Court notes that the envelopes in which the applicant’s letters were sent to the Court bore stamps that read: “Tychy District Court. Censored”.
69. The Court has held on many occasions that as long as the Polish authorities continue the practice of marking detainees’ letters with a “Censored” stamp, the Court has no alternative but to presume that those letters have been opened and their contents read (see Matwiejczuk v. Poland, no. 37641/97, § 99, 2 December 2003; Pisk-Piskowski v. Poland, no. 92/03, § 26, 14 June 2005; and Michta v. Poland, cited above, § 58). It follows that in respect of the applicant’s letters there was “interference” with his right to respect for his correspondence under Article 8.
2. Whether the interference was “in accordance with the law”
70. The Government did not indicate a specific legal basis in domestic law for the impugned interference. The Court notes that the interference took place while the applicant was in detention.
71. The Court observes that, by virtue of Article 214 of the Code on Execution of Criminal Sentences, persons in detention should enjoy the same rights as those convicted by a final judgment. Accordingly, the prohibition of censorship of correspondence with the European Court of Human Rights contained in Article 103 of the same Code, which expressly relates to convicted persons, is also applicable to detained persons (see Michta, cited above, § 61, and Kwiek v. Poland, no. 51895/99, § 44, 30 May 2006). Consequently, censorship of the applicant’s letters to the Court was contrary to domestic law. It follows that the interference in the present case was not “in accordance with the law”.
72. Having regard to that finding, the Court does not consider it necessary to ascertain whether the other requirements of paragraph 2 of Article 8 were complied with. Consequently, the Court finds that there has been a violation of Article 8 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
73. Lastly, the applicant complained under Article 6 § 1 of the Convention that the proceedings against him were both unfair and excessively long. He also raised a complaint that his court-appointed lawyer had refused to lodge a cassation appeal on his behalf.
74. As regards the length complaint, the Court notes that the impugned proceedings came to an end less than three years before 17 September 2004, the date on which 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”) came into force.
75. It further observes that, pursuant to section 16 of the 2004 Act, it was open to persons such as the applicant to seek compensation in tort from the State Treasury, relying on Article 417 of the Civil Code for damage caused by allegedly excessive length of proceedings in which a judicial decision on the merits of the case has already been given (see Turzyński v. Poland (dec.), no. 10453/03, 22 November 2005).
76. The Court has already examined whether a civil action for damages brought under section 16 of the 2004 Act read together with Article 417 of the Civil Code was an effective remedy in respect of the length of judicial proceedings. It held, having regard to the characteristics of these remedies and notwithstanding the absence of established judicial practice in respect of such claims, that these remedies were effective in respect of persons who, on 17 September 2004, when the 2004 Law entered into force, could still lodge such an action with the competent domestic court (see Krasuski v. Poland, judgment of 14 June 2005, §§ 69-72).
77. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
78. As regards the complaint concerning the alleged unfairness of the proceedings, the Court considers that it is clearly of a fourth-instance nature and must be declared inadmissible as manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention.
79. The complaint concerning the applicant’s lawyer’s refusal to lodge a cassation appeal also must be declared inadmissible for failure to exhaust the domestic remedies. The Court observes that the applicant failed to rectify the procedural shortcomings of his appeal of 18 October 2004. Accordingly he did not make use of the legal avenue which entitled him to be granted legal aid and have his cassation appeal eventually lodged. The complaint is therefore inadmissible under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
IV. APPLICATION OF ARTICLE 46 OF THE CONVENTION
80. 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.”
81. The parties’ submissions
A. The parties’ submissions
1. The Government
82. The Government submitted that the length of the applicant’s detention did not reveal the existence of a structural problem but was rather the result of the particular circumstances of the present case and that there were no grounds to apply Article 46 of the Convention. It further stressed that Polish law is compatible with Article 5 § 3 of the Convention. Firstly, because the Polish Code of Criminal Procedure contains provisions according to which detention may be applied only if all remaining preventive measures which do not contain the element of deprivation of liberty, are insufficient and that each decision extending detention must be sufficiently reasoned. Secondly, the Code of Criminal Procedure contains provisions which aim at facilitating and accelerating the criminal proceedings and thus shortening the period of detention.
83. Maintaining that the number of cases in which the domestic courts had ordered detention on remand lasting from twelve months to two years or longer was decreasing, the Government made reference to the statistical data for 2005-2007 which they submitted to the Court. They further stressed that the awareness of courts of the standards concerning the length of the detention on remand was growing.
84. They also suggested that the fact that the Court had already given many judgments finding a violation of Article 5 § 3 of the Convention should not lead to the automatic application of Article 46, as had occurred in the case of Scordino v. Italy. The Polish authorities had taken many general and individual measures based on the conclusions stemming from the Court’s judgments finding that the length of the detention on remand had been excessive. In particular, on 17 May 2007 the Cabinet adopted the “Plan of Actions of the Government for the execution of judgments of the European Court of Human Rights in respect of Poland”.
85. The Government concluded that, bearing in mind the efforts of the Polish authorities and the legislative reforms which were and had been undertaken by them to solve the problem of the length of detention on remand, Poland could not be said to have failed to comply with its obligations under Article 46 of the Convention to obey the Court’s judgments.
2. The applicant
86. The applicant’s lawyer did not submit any comments in this respect.
B. The Court’s assessment
87. 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.
88. It is true that the present case concerns a person involved in an organised criminal group. However, as stated above, while this element is to be taken into account in assessing compliance with Article 5 § 3 and may justify a longer period of detention than in a case concerning an individual offender, a member of an organised criminal group is entitled to the protection against unreasonably lengthy detention afforded by this provision (see paragraphs 52 and 58 above). As in other numerous similar detention cases, the authorities did not justify the applicant’s continued detention by relevant and sufficient reasons (see paragraphs 53‑57 above). Moreover, as demonstrated by the ever increasing number of judgments in which the Court has found Poland to be in breach of Article 5 § 3 in respect of applicants involved in organised crime, the present case is by no means an isolated example of the imposition of unjustifiably lengthy detention but a confirmation of a practice found to be contrary to the Convention (see, among many other examples, Celejewski v. Poland, no. 17584/04, 4 May 2006; Kąkol v. Poland, no. 3994/03, 6 September 2007; Malikowski v. Poland, no. 15154/03, 16 October 2007 and also Hilgartner v. Poland, no. 37976/06, §§ 46-48, 3 March 2009). 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 ).
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
89. 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
90. The applicant claimed 105,299.60 euros (EUR) in respect of pecuniary and EUR 14,772.59 in respect of non‑pecuniary damage.
91. The Government considered the applicant’s claims “groundless”, far too exorbitant, and requested that they be rejected.
92. The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 2,000 in respect of non‑pecuniary damage.
B. Costs and expenses
93. The applicant, who was represented by a lawyer, also claimed PLN 12,000 for the costs of legal representation before the Court and PLN 500 for other costs and expenses incurred before the Court. The applicant produced a copy of the contract signed with his lawyer for legal representation before the Court for the amount of PLN 12,000 as well as two invoices for PLN 1,000 each, confirming that so far he had paid the lawyer PLN 2,000.
94. The Government submitted that the invoices produced by the applicant were not sufficient evidence that the costs and expenses referred to by the applicant were necessary and actually incurred.
95. 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 are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000 for the proceedings before the Court.
C. Default interest
96. 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 complaints under Article 5 § 3 and Article 8 of the Convention 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 8 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 the following amounts, to be converted into Polish zlotys at the rate applicable at the date of settlement:
(i) EUR 2,000 (two thousand euros) in respect of non-pecuniary damage plus any tax that may be chargeable and
(ii) EUR 2,000 (two thousand euros) in respect of costs and expenses plus any tax that may be chargeable to the applicant;
(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;
5. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 16 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence EarlyNicolas Bratza
RegistrarPresident
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