CASE OF ZIELIŃSKI v. POLAND

FIRST SECTION

CASE OF ZIELIŃSKI v. POLAND

(Application no. 43924/12)

JUDGMENT

STRASBOURG

5 July 2018

This judgment is final but it may be subject to editorial revision.

In the case of Zieliński v. Poland,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

Aleš Pejchal, President,
Armen Harutyunyan,
Jovan Ilievski, judges,
and Renata Degener, Deputy Section Registrar,

Having deliberated in private on 12 June 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 43924/12) 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 Ryszard Zieliński (“the applicant”), on 25 June 2012.

2. The applicant was represented by Ms A. Plejewska, a lawyer practising in Gdynia. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs.

3. On 16 January 2014 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1954 and lives in Gdynia.

5. On 2 January 2007 the applicant was arrested on suspicion of having committed homicide together with other persons.

6. On 5 January 2007 the Gdynia District Court (Sąd Rejonowy) remanded him in custody. The court stressed the need to ensure the proper conduct of the proceedings, given that extensive evidence had still to be obtained in the case. It also referred to the fact that the proceedings in question concerned several alleged accomplices. The court further relied on the likelihood that a severe penalty would be imposed on the applicant.

7. On 12 February 2007 the applicant applied for the preventive measure to be lifted or varied. On 15 February the District Prosecutor refused the request, finding that the grounds for the imposition of this measure remained valid.

8. The applicant’s detention was further extended by decisions of the Gdańsk Regional Court (Sąd Okręgowy) of 20 March, 19 June and 21 August 2007. The applicant appealed against all of those decisions. His appeals were dismissed by the Gdańsk Court of Appeal (Sąd Apelacyjny) on 4 May, 1 August and 19 September 2007 respectively. The courts repeatedly relied in their decisions on the strong suspicion that the applicant had committed the offence in question, the likelihood of a severe prison sentence being imposed on him and the need to secure the proper conduct of the investigation, especially the need to obtain further expert evidence.

9. On 17 September 2007 the applicant again applied for release. His application was refused on 21 September 2007 by the Gdynia District Prosecutor.

10. On 27 November 2007 the Gdańsk Regional Court further extended the applicant’s detention until 31 March 2008. The applicant appealed, unsuccessfully.

11. On an unspecified date in late 2007 a bill of indictment was lodged with the Gdańsk Regional Court. The applicant was charged with homicide committed together with two other co-accused.

12. The applicant’s detention was continually extended during the course of the trial.

13. On 4 August 2008 the applicant requested the court to release him on health grounds. On 19 August 2008 the trial court refused his request. It relied on the medical certificate issued by a prison doctor, stating that the applicant could be adequately treated in detention.

14. On 25 September 2008 the Gdańsk Regional Court gave judgment (case no. IV 457/07). The applicant was convicted as charged and sentenced to fifteen years’ imprisonment. He lodged an appeal.

15. On 13 May 2009 the Gdańsk Court of Appeal quashed the impugned judgment and remitted the case for retrial (case no. II AKa 45/09).

16. The applicant’s detention was continually extended by the domestic courts, pending his appeal and in the course of the retrial. In particular, on 24 August 2009 the Gdańsk Regional Court extended his detention until 31 December 2009. The applicant appealed against this decision. On 23 September 2009 the Gdańsk Court of Appeal upheld the impugned decision, finding that the reasonable suspicion that the applicant had committed the offence in question persisted, despite the fact that the judgment convicting the applicant had been quashed. The Court of Appeal further considered that the Regional Court had correctly relied on the severity of the anticipated penalty as the principal ground for the applicant’s continuing detention and on the risk of the obstruction of the proceedings.

17. On 16 March 2010 the Gdańsk Regional Court gave judgment (case no. XIV K 48/09). The applicant was again convicted as charged and sentenced to twelve years’ imprisonment. The applicant lodged an appeal.

18. On 10 November 2010 the Gdańsk Court of Appeal quashed the judgment and remitted the case for retrial (case no. II AKa 277/10).

19. On 23 March 2012 the Gdańsk Regional Court further extended the applicant’s detention, reiterating the grounds given in its initial decisions. The applicant appealed unsuccessfully.

20. During the retrial proceedings the Gdańsk Regional Court held fifteen hearings in total.

21. On 12 July 2012 the court gave judgment (case no. XIV K 210/10). The applicant was again convicted and sentenced to twelve years’ imprisonment. He lodged an appeal against that judgment.

22. On 26 October 2012 the Gdańsk Regional Court extended the applicant’s detention until 30 December 2012. On 13 November 2012 the Gdańsk Court of Appeal upheld the impugned decision. It considered that the applicant’s involvement in the offences with which he had been charged had been supported by the non-final judgment of 12 July 2012, in which he had been convicted and had received a severe sentence. The court also held that further detention on remand was the only preventive measure capable of securing the proper course of the proceedings until the delivery of a final judgment.

23. On 6 June 2013 the Gdańsk Court of Appeal partly allowed the applicant’s appeal (case no. II AKa 84/13). The appellate court upheld the conviction but reclassified the offence as involuntary manslaughter (nieumyślne spowodowanie śmierci). The applicant’s sentence was reduced to four years’ imprisonment. The applicant was released on the same day.

II. RELEVANT DOMESTIC LAW AND PRACTICE

24. The relevant domestic law and practice concerning the imposition of pre-trial detention (tymczasowe aresztowanie), the grounds for its extension, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Kudła v. Poland [GC], no. 30210/96, §§ 75–79, ECHR 2000-XI; Bagiński v. Poland, no. 37444/97, §§ 42–46, 11 October 2005; and Celejewski v. Poland, no. 17584/04, §§ 22–23, 4 May 2006.

25. Article 552 of the Code of Criminal Procedure provides:

“1. An accused who, as a result of the reopening of proceedings or an appeal on points of law, has been acquitted or re‑sentenced under a more lenient provision, shall be entitled to receive from the State Treasury compensation for the pecuniary and non‑pecuniary damage which he has suffered as a result of having served all or part of the sentence unjustifiably imposed on him.

2. The provisions of paragraph 1 shall also be applicable if, after the sentencing judgment has been reversed or declared null and void, the proceedings have been discontinued by reason of material circumstances not duly considered in prior proceedings.

3. A right to compensation for pecuniary and non‑pecuniary damage shall also arise if a preventive measure has been applied under the conditions specified in paragraphs 1 and 2.

4. A right to compensation for pecuniary and non‑pecuniary damage shall also arise in the event of undoubtedly unjustified (niewątpliwie niesłuszne) pre‑trial detention or arrest.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

26. Relying on Article 5 § 3 of the Convention, the applicant complained that his pre-trial detention had been excessively lengthy.

Article 5 § 3 of the Convention, in so far as relevant, reads:

“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.”

A. Admissibility

27. The Government asserted that this complaint was inadmissible for non-exhaustion of domestic remedies. They stated that the applicant had instituted proceedings for compensation for unjustified detention under Article 552 § 4 of the Code of Criminal Procedure (“CCP”) and that these proceedings were pending. In their view, a claim for compensation under Article 552 § 4 of the CCP covered to some extent a complaint resulting from the length of the detention on remand. The Government submitted that the applicant’s accomplice had lodged a complaint under Article 552 § 4 of the CCP and had been awarded PLN 100,000 (approximately EUR 25,000) in that respect.

28. The applicant disagreed.

29. In the present case the applicant lodged appeals against most of the decisions extending his detention. He also lodged many requests for the detention measure to be lifted. The applicant’s aim in using the remedies was to obtain a review of his detention pending trial and to obtain his release.

30. The Court notes that under the Convention case-law, where the lawfulness of detention is concerned, an action for damages against the State is not a remedy which has to be used because the right to have the lawfulness of detention examined by a court and the right to obtain compensation for any deprivation of liberty incompatible with Article 5 are two separate rights (see Porowski v. Poland, no. 34458/03, § 129, 21 March 2017, with further references). It further reiterates that a request for compensation for manifestly unjustified detention on remand under Article 552 of the CCP enables a detainee to seek, retrospectively, a ruling as to whether his detention in already terminated criminal proceedings was justified, and to obtain compensation when it was not. The proceedings relating to such a request are essentially designed to secure financial reparation for damage arising from the execution of unjustified detention on remand (ibid.).

31. With regard to complaints under Article 5 § 3, the Court has already considered that an appeal against a detention order, 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 extending detention on remand, serve the same purpose under Polish law. Their objective is to secure a review of the lawfulness of detention at any point during the proceedings, both at the pre-trial and trial stage, and to obtain release if the circumstances of the case no longer justify continued detention (see, among other authorities, Wolf v. Poland, nos. 15667/03 and 2929/04, § 78, 16 January 2007, and Gracki v. Poland, no. 14224/05, § 33, 29 January 2008). In the present case, the applicant lodged appeals against most of the decisions extending his detention. On a number of occasions he also requested the authorities to lift the detention measure and appealed against decisions dismissing his requests.

32. The Court observes that the applicant does not complain that he has not obtained compensation for his detention in contravention of Article 5 § 5 of the Convention.

33. It follows that the complaint under Article 5 § 3 cannot be rejected for non-exhaustion of domestic remedies. The Court 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

34. The Court notes that the relevant period lasted from 2 January 2007 to 25 September 2008 (when the applicant was convicted by the first‑instance court) and from 13 May 2009 (when the conviction was quashed) to 16 March 2010 (when he was again convicted by the first‑instance court) and then from 10 November 2010 (when the conviction was again quashed) to 12 July 2012 (when the applicant was again convicted by the first-instance court). According to the Convention organs’ case-law, a person convicted at first instance cannot be regarded as being detained “for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence”, as specified in Article 5 § 1 (c), but is in the position provided for by Article 5 § 1 (a), which authorises deprivation of liberty “after conviction by a competent court” (see, for example, B. v. Austria, 28 March 1990, § 36‑39, Series A no. 175).

35. Consequently, the period to be taken into consideration lasted 4 years and 3 months.

2. The parties’ submissions

36. The applicant submitted that no reasons could have justified the length of his pre-trial detention. He maintained that it had been an inefficient organisation of the courts’ work which had contributed to the length of the proceedings

37. The Government refrained from taking a position on the merits of this complaint.

3. The Court’s assessment

38. 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; McKay v. the United Kingdom, [GC], no. 543/03, §§ 41-44, ECHR 2006-X, with further references; and Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 84-102, 5 July 2016).

39. 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 offence with which he had been charged, (2) the severity of the penalty to which he was liable and (3) the need to secure the proper conduct of the proceedings. As regards the latter, they relied on the severity of the anticipated punishment which had created a risk that he would attempt to obstruct the proper conduct of the proceedings if released (see paragraphs 16, 19 and 22 above).

40. The Court accepts that the reasonable suspicion that the applicant had committed serious offences could initially warrant his detention. However, with the passage of time, those grounds became less and less relevant. The Court must then establish whether the other grounds adduced by the courts – namely, the severity of the anticipated sentence and the risk that the applicant would tamper with the proceedings – were “sufficient” and “relevant” (see Kudła, cited above, § 111).

41. According to the authorities, the gravity of the charges against the applicant and, consequently, the likelihood of a severe sentence being imposed on him, created a risk that the applicant would attempt to 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 obstructing the proceedings, 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).

42. As regards the risk that the applicant would obstruct the proceedings, the Court is not persuaded that it constituted a valid ground for the entire length of his pre-trial detention. Firstly, it notes that the Gdynia District Court, when initially remanding the applicant in custody, made only a general reference to the fact that the offence had been committed by several perpetrators and the risk that the applicant would attempt to avoid a severe penalty. Secondly, the Court notes that the relevant decisions did not contain any argument capable of showing that these fears were well‑founded. Such a generally formulated risk, flowing from the nature of the offence with which the applicant had been charged, might possibly be accepted as the basis for his detention at the initial stages of the proceedings. Nevertheless, in the absence of any other factor capable of showing that the risk of his attempting to tamper with the proceedings actually existed, the Court cannot accept that ground as a justification for holding the applicant in custody for the entire period in question (see Krzysztofiak v. Poland, no. 38018/07, § 48, 20 April 2010).

43. The Court observes that the applicant’s detention was supervised by the courts at regular intervals. However, in their decisions extending the applicant’s detention, the domestic authorities repeatedly relied on the same grounds, namely a reasonable suspicion that the applicant had committed the offence in question, the severity of the likely penalty and the risk that the applicant would obstruct the proper conduct of the proceedings. No other grounds for detention were given in those decisions, notwithstanding the significant length of the applicant’s detention on remand.

44. The Court also notes that the applicant was eventually sentenced to four years’ imprisonment (see paragraph 23), while his detention on remand for the purpose of Article 5 § 3 was three months longer than his eventual sentence.

45. The Court would also emphasise 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 trial. Indeed, that provision proclaims not only the right to “trial within a reasonable time or to release pending trial” but also lays down that “release may be conditioned by guarantees to appear for trial” (see G.K. v. Poland, no. 38816/97, § 85, 20 January 2004). A range of other, less stringent, preventive measures could have been alternatively considered and imposed on the applicant to ensure his presence and participation in the proceedings.

46. In the present case, the Court notes that during the entire period of the applicant’s detention, and despite his repeated applications for release, the authorities did not envisage any other guarantees to ensure that he would appear for trial. They did not give any consideration to the possibility of ensuring his presence at trial by imposing on him other “preventive measures” – such as bail or police supervision – expressly foreseen by Polish law to secure the proper conduct of criminal proceedings.

47. The Court further observes that the applicant was detained on a charge of homicide committed together with two accomplices. The defendants had not been formally charged with acting as part of an organised criminal group. In these circumstances, the Court is not persuaded that the instant case presented particular difficulties for the investigation authorities or for the courts to determine the facts and mount a case against the perpetrators, as would undoubtedly have been the case had the proceedings concerned organised crime (see Bąk v. Poland, no. 7870/04, §§ 56-65, 16 January 2007, and, a contrario, Kwiatek v. Poland, no. 20204/02, § 46, 6 February 2007).

48. Having regard to the foregoing, the Court concludes that the grounds given by the domestic authorities could not justify the overall period of the applicant’s detention.

49. In these circumstances, it is not necessary to examine whether the proceedings were conducted with special diligence.

50. There has accordingly been a violation of Article 5 § 3 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

51. 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

52. The applicant claimed PLN 100,000 (approximately EUR 25,000) in respect of non‑pecuniary damage.

53. The Government considered the claim groundless, taking into account that the applicant had already lodged a claim for compensation for unjustified detention under Article 552 § 4 of the CCP with the domestic courts and that these proceedings were pending.

54. The Court considers that the applicant has suffered non-pecuniary damage which is not sufficiently compensated by the finding of a violation of the Convention. Considering the circumstances of the case and making its assessment on an equitable basis, the Court awards the applicant EUR 5,200 under this head.

B. Costs and expenses

55. The applicant did not make any claim for costs and expenses.

C. Default interest

56. The Court considers it appropriate that the default interest rate 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 application admissible;

2. Holds that there has been a violation of Article 5 § 3 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 5,200 (five thousand two hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant, to be converted into the currency of the respondent State 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;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 5 July 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Renata DegenerAleš Pejchal
Deputy RegistrarPresident

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