CASE OF POROWSKI v. POLAND
No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence)
András Sajó;Egidijus Kūris;Ganna Yudkivska;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1964 and lives in Otwock. 6. The applicant was arrested on 11 July 2000. 7. On 12 July 2000 the Jarosław District Court (Sąd Rejonowy) remanded him in custody on suspicion that, together with two accomplices, he had attempted to extort money from J.G. and M.G. by depriving the alleged victims of their liberty and threatening to kill them. 8. Subsequently, the applicant’s detention on remand was extended by the Jarosław District Court on 9 October and 29 December 2000 and 3 April, 25 June, 18 September and 29 October 2001. Interlocutory appeals brought by the applicant against those decisions were rejected. The Jarosław District Court justified its decisions to impose and, later, to extend the preventive measure with reference to the strong evidence against the applicant, the severe punishment which was likely to be imposed if he was convicted and the risk that he would abscond or go into hiding if released. In the domestic court’s opinion, the latter risk was real in the light of the fact that in the past, the applicant had rarely lived at his permanent address. 9. On 13 December 2001 the Jarosław District Court convicted the applicant as charged and sentenced him to five years’ imprisonment. The period which he had already spent in detention, namely one year, five months and three days (from 11 July 2000 until 13 December 2001), was deducted from his sentence. 10. On 23 April 2002 the Krosno Regional Court (Sąd Okręgowy) quashed that judgment and remitted the case to the first-instance court. 11. The applicant’s detention was continued by the Krosno Regional Court on 22 March 2002 and the Jarosław District Court on 4 June and 8 October 2002 and 9 January, 3 April, 7 July and 9 October 2003. At this stage of the proceedings the domestic courts referred to the original grounds for the applicant’s detention. They also noted that the trial was pending and that delays had occurred for reasons not attributable to the court. Interlocutory appeals against those decisions were rejected, as were requests for release lodged by the applicant and his lawyer. 12. On 7 November 2003 the Jarosław District Court convicted the applicant as charged and sentenced him to five years’ imprisonment. The time which he had already spent in detention, namely three years, three months and twenty seven days (from 11 July 2000 to 7 November 2003), was deducted from his sentence. 13. On 23 March 2004 the Krosno Regional Court upheld the firstinstance judgment in respect of the applicant. 14. On 9 December 2004 the Supreme Court dismissed the applicant’s cassation appeal. 15. Throughout the entire proceedings the applicant was represented by two lawyers of his choice. 16. The applicant did not lodge any complaint about the length of these proceedings under the Law of 17 June 2004 on complaints of 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”) 17. On 10 November 2000 the Mińsk Mazowiecki District Court remanded the applicant in custody on the grounds that there was a reasonable suspicion that he had committed armed robbery and deprived the victims of their liberty. The court also considered that the measure was justified by the severity of the punishment which was likely to be imposed if he was convicted and the need to ensure the proper conduct of the proceedings. The applicant lodged an interlocutory appeal. On 29 November 2000 the Siedlce Regional Court upheld the detention order. 18. The applicant lodged several applications for release. He claimed that his mother suffered from a “back illness” and required his personal care. All those applications were dismissed, both at first instance and on appeal. 19. On 29 January 2001 the Siedlce Regional Prosecutor (Prokurator Rejonowy) lodged an indictment against the applicant and two co-accused, charging them with armed robbery and false imprisonment. At that stage the prosecutor ordered that nine witnesses be heard. 20. Subsequently, the applicant’s detention on remand was extended by the Mińsk Mazowiecki District Court on 6 February, 11 April, 12 July and 15 October 2001, and on 10 January 2002. Three of these decisions were upheld by the Siedlce Regional Court on 1 March, 29 August and 7 November 2001 respectively. The domestic courts referred to the same grounds as previously, noting that prior to his arrest the applicant had not lived at his permanent address and that his whereabouts were unknown. It was also observed that the trial had still not begun because the applicant had challenged the judges who would be hearing his case. 21. On 14 June 2002 the Mińsk Mazowiecki District Court dismissed a request by the applicant for release. 22. Meanwhile, on 2 April 2002 the applicant’s case was severed from that of his coaccused, to be dealt with in a different trial. The first hearing was scheduled for 18 June 2002 but was ultimately adjourned. The subsequent hearing was likewise adjourned. 23. Subsequently, the Mińsk Mazowiecki District Court further extended the applicant’s detention on 9 April and 12 July 2002. The earlier decision was upheld by the Siedlce Regional Court on 8 May 2002. The courts reiterated the grounds previously given for the applicant’s continued detention, also noting that there was a real risk that he would obstruct the proceedings if released in the light of the fact that many of his alleged accomplices were still at large. 24. On 30 July and 29 August 2002 the trial court held the first two hearings in the case and on 27 August 2002 it ordered that the applicant undergo psychiatric observation. 25. On 6 September 2002 the Mińsk Mazowiecki District Court extended the applicant’s detention on remand. This decision was upheld by the Siedlce Regional Court on 2 October 2002. Both courts referred to the original grounds, also noting that the applicant’s case had not yet reached the trial stage since proceedings against him before a different criminal court were pending at the time and there was a need to obtain an expert report which, in turn, required him to undergo psychiatric observation in a specialist institution. 26. On 22 October 2002 the Siedlce Regional Court rejected an application by the applicant to have his detention on remand replaced with a different preventive measure. 27. On the same date, as the period of the applicant’s detention on remand was approaching two years, the trial court lodged an application with an appellate court under Article 263 § 4 of the Code of Criminal Procedure (Kodeks postępowania karnego hereinafter, “the Code”), seeking to extend the preventive measure for another five months. 28. On 30 October 2002 the Lublin Court of Appeal (Sąd Apelacyjny) declared that it lacked jurisdiction and transferred the applicant’s remand file to the Mińsk Mazowiecki District Court. The appellate court referred to the uniform and well-established line of interpretation given to Article 263 of the Code by the Supreme Court. It reiterated that the statutory time-limit of two years for detention on remand was considered to run only in so far as a person had been effectively deprived of his or her liberty in the particular case in the framework of which the preventive measure had been applied (see paragraphs 73 and 74 below). The appellate court concluded that since the applicant had been deprived of his liberty, either on remand or after conviction, from 12 July 2000 onwards in the first criminal case, the term of his “effective detention on remand” in the second criminal case had not yet begun. 29. On 5 November 2002 the Mińsk Mazowiecki District Court once more extended the applicant’s detention. On 4 December 2002 the Siedlce Regional Court upheld that decision. Both courts held that the three original grounds for the applicant’s detention and the need for him to undergo psychiatric observation were sufficient to extend the preventive measure in question even though the proceedings had not yet reached the trial stage. In addition, the second-instance court addressed the arguments which had been raised in an interlocutory appeal brought by the applicant against the District Court’s decision. To that effect, the Regional Court reiterated the view of the Lublin Court of Appeal that the applicant’s detention on remand was not effective because he had been first deprived of his liberty within the framework of the first criminal case. It also considered that only the most severe preventive measure and not bail, as the applicant had suggested, could ensure the proper conduct of the proceedings. 30. On 17 December 2002 the Mińsk Mazowiecki District Court stayed the proceedings pending the enforcement of the court’s decision of 27 August 2002 ordering the applicant to undergo psychiatric observation (see paragraph 24 above). On 5 February 2003 the Siedlce Regional Court dismissed an interlocutory appeal brought by him against this decision. It was observed that he could not at that stage be placed under psychiatric observation because his presence was necessary in the court before which his other criminal case was pending and because that court had not authorised the measure. 31. In the meantime, on 28 January 2003 the Mińsk Mazowiecki District Court once again extended the applicant’s detention on remand, referring to the risk that he might attempt to obstruct the proceedings if released. 32. On 27 February 2003 the Siedlce Regional Court quashed that decision and ordered the applicant’s release from custody. The court found that the grounds for his detention were no longer valid in the light of the fact that the proceedings had been stayed. 33. The Government submitted that on 3 March 2003 the applicant had actually been released to his home. He on the other hand maintained that he had remained in custody as he had concurrently been in detention on remand in connection with his first criminal trial, pending at the time before the Jarosław District Court (see paragraphs 6-13 above). 34. On 12 November 2003 the Mińsk Mazowiecki District Court barred the applicant from leaving the territory of Poland. 35. On 11 December 2003 the Jarosław District Court ordered that the applicant undergo psychiatric observation in the psychiatric wing of the Warszawa-Mokotów Remand Centre. 36. On 30 December 2003 the Mińsk Mazowiecki District Court resumed the proceedings in the applicant’s case in view of that decision and the fact that the psychiatric observation could be scheduled to start in March 2004. On the same date the court again remanded him in custody on the grounds that the evidence showed a significant probability that he had committed armed robbery. It also had regard to the severity of the punishment that could be expected and the need to ensure the proper conduct of the proceedings. 37. On 28 January 2004 the Siedlce Regional Court dismissed an interlocutory appeal brought by the applicant against this decision. The appellate court acknowledged that the applicant had not to date attempted to obstruct the proper course of the proceedings. Nevertheless, the likelihood that a severe punishment would be imposed if he were convicted was considered to be sufficient reason for his continued detention. 38. On 6 February 2004 the applicant applied to the Mińsk Mazowiecki District Court for the preventive measure to be changed. On 24 February 2004 the court dismissed his request. 39. On 23 March 2004 the Mińsk Mazowiecki District Court further extended the applicant’s detention on remand. The court gave the argument that strong evidence had been obtained against him, that it was likely that a severe sentence would be imposed in the case, and that, if released, he would attempt to persuade witnesses to give false evidence or would, by other unlawful means, try to obstruct the proceedings, especially in the light of the fact that the psychiatric observation was underway. 40. Appealing against the latter decision, the applicant’s lawyer argued that his client had already been detained for almost four years and that the District Court did not have jurisdiction to decide on the preventive measure. Moreover, it was argued that since the applicant had never attempted to obstruct the proceedings, there was no risk that he would try to do so in the current stage of the case. 41. On 28 April 2004 the Siedlce Regional Court dismissed that appeal. It was observed that the actual period of the applicant’s detention on remand in the case in question had not reached two years because he had been concurrently deprived of his liberty in the framework of the first set of criminal proceedings. As to the grounds for extending his detention on remand, the appellate court held that, even though he had not attempted to obstruct the proper course of the proceedings, the likelihood that a severe punishment would be imposed if he were to be convicted was sufficient reason to uphold the preventive measure in question. 42. On 24 June 2004 the Mińsk Mazowiecki District Court again decided to extend the applicant’s detention on remand in view of the reasonable suspicion that he had committed armed robbery and the severity of the punishment that could be expected. This decision was upheld on 15 July 2004 by the Siedlce Regional Court. 43. On 23 August 2004 the Mińsk Mazowiecki District Court rejected a request by the applicant for release, relying on the same grounds as in the decision described above. 44. Subsequently, the applicant’s detention on remand was extended by the Mińsk Mazowiecki District Court on 9 September and 22 December 2004 and 24 March and 23 June 2005. The decisions were upheld by the Siedlce Regional Court on 29 September 2004, on an unspecified date and on 13 April and 28 July 2005 respectively. All the decisions in question were based on the grounds that there was strong evidence against the applicant, that a severe punishment would be imposed if he were convicted and, since the court proceedings were only at the initial stage, that if released, he would attempt to persuade witnesses to give false evidence or, by other unlawful means, obstruct the proper course of the proceedings. It was also stressed in the earlier decisions that the trial court had not yet started its examination of the applicant’s case on the merits. 45. On 1 September 2005 the Mińsk Mazowiecki District Court convicted the applicant as charged and sentenced him to six years’ imprisonment. The period he had already spent in detention on remand, namely one month and twenty-one days (from 11 July until 1 September 2005), was deducted from his sentence. The remainder of his incarceration was considered to have comprised the prison sentence which had been imposed by the Jarosław District Court in the separate criminal case (see paragraph 12 above). It appears that the first-instance court held fourteen and adjourned five hearings. It decided applications by the applicant challenging the judges, opposing the psychiatric observation and requesting a fresh examination of the case. 46. On 10 February 2006 the Siedlce Regional Court quashed the judgment of 1 September 2005 (see paragraph 45 above) and remitted the case to the first-instance court, ordering it to gather additional evidence. 47. On 7 March 2006 the Mińsk Mazowiecki District Court extended the applicant’s detention. That decision was upheld on 29 March 2006. The domestic courts considered that the actual period of detention on remand in the framework of the second case had only started running on 11 July 2005, when he was no longer deprived of his liberty in connection with the first criminal case. The courts also referred to the two original grounds for the applicant’s continued detention, namely a reasonable suspicion that he had committed armed robbery and the severity of the punishment that could be expected. In the courts’ view, the latter element in turn created a presumption that the applicant would attempt to obstruct the proper conduct of the proceedings if released. 48. On 29 March 2006 the Siedlce Regional Court fully adhered to the reasoning of the first-instance court and upheld the above-mentioned decision. 49. On 11 April 2006 the case was transferred to the Siedlce Regional Court as the competent court because, in the meantime, the charges against the applicant had been modified. 50. Pending trial the applicant’s detention was extended by the Siedlce Regional Court on 31 May and 21 June 2006, on an unspecified date and on 13 November 2006 and 19 January 2007. The decisions were upheld by the Lublin Court of Appeal. The domestic courts reiterated the original grounds for the applicant’s detention on remand and stressed that the preventive measure in question had not lasted more than two years, regard being had to the fact that from 7 November 2003 to 11 July 2005 he had been serving a prison sentence imposed in the first set of criminal proceedings. 51. The first hearing took place on 29 June 2006. 52. On 6 July 2007 the Siedlce Regional Court convicted the applicant as charged and sentenced him to six years’ imprisonment. It appears that the court held seven hearings in the case. The period the applicant had already spent in detention on remand, namely one year, eleven months and twenty five days (from 11 July 2005 until 6 July 2007) was deducted from his sentence. 53. On 9 April 2008 the Lublin Court of Appeal quashed that judgment, lifted the preventive measure and remitted the case to the lower courts. The following day the applicant was released from the remand centre. He has remained at liberty ever since. 54. On 23 October 2009 the Siedlce Regional Court convicted the applicant on a number of charges and sentenced him to six years’ imprisonment. It held fourteen hearings in the case. Two years and nine months of the applicant’s detention on remand (from 11 July 2005 to 10 April 2008) were deducted from his sentence. It appears that he was not ordered to serve the remainder of his sentence. 55. On 12 February 2010 the applicant appealed. 56. On an unspecified date before March 2011 the Lublin Court of Appeal upheld the first-instance judgment. 57. The applicant did not wish to take his case to the Supreme Court, believing that a cassation appeal would not have any prospects of success. 58. He did not lodge a complaint about the length of the second set of criminal proceedings under the 2004 Act. 59. On 29 November 2006 the applicant made a constitutional complaint (skarga konstytucyjna) under Article 191, read in conjunction with Article 79 of the Constitution (see paragraph 86 below), asking for Article 263 §§ 3 and 4 of the Code (see paragraph 73 below) to be declared unconstitutional (SK 39/07). He alleged that the provision infringed, inter alia, the right to personal inviolability and security under Article 41 § 1 of the Constitution (see paragraph 71 below). On 30 January 2007 the applicant finalised his complaint. The applicant challenged two aspects of Article 263 of the Code of Criminal Procedure. 60. Firstly, he alleged that Article 263 §§ 3 and 4 were unconstitutional in so far as, under the legal principle (zasada prawna) of the Supreme Court (see paragraph 74 below), they concerned only effective detention on remand, that is to say only the actual period of deprivation of liberty on the basis of a detention decision issued in a particular case because they denied a detainee sufficient protection of his liberty if he had earlier been convicted or otherwise deprived of his liberty on the basis of decisions issued in another set of proceedings. 61. Secondly, the applicant challenged Article 263 § 3 in so far as it defined a maximum statutory period for the length of detention on remand only until the delivery of a first judgment by the trial court. Consequently, people such as him who remained in detention while their criminal proceedings were pending de novo after the quashing of the first judgment of the first-instance trial court, were not protected against unreasonably lengthy detention on remand. Article 263 § 3 of the Code was silent in that respect and because of that, the authorities could extend the preventive measure for an indefinite period following the quashing of the first judgment of a trial court. 62. On 15 January 2008 the Ombudsman joined the proceedings, asking that Article 263 § 3 of the Code be declared unconstitutional in so far as it left a legal loophole which was filled in by an erroneously developed wellestablished court practice not to include in the calculation of the statutory two-year period of detention on remand (prior to the first judgment of the first-instance court) periods of the detainee’s concurrent deprivation of liberty on the basis of a criminal sentence. 63. On 10 March 2009 the Constitutional Court discontinued the application under section 39 of the Constitutional Court Act of 1 August 1997, which provided for such a possibility in the event a ruling was considered to be redundant (zbędne). 64. It was observed that, despite the obvious differences in scope, the essence of the first part of the applicant’s complaint, concerning Article 263 §§ 3 and 4 of the Code (see paragraph 60 above), had already been examined on the merits by the Constitutional Court in case no. SK 17/07. The provision had been declared unconstitutional in so far as it was interpreted to the effect that the statutory maximum period of two years allowed for a person’s detention on remand prior to the first judgment of the first-instance court had not comprised the term of the prison sentence the detainee was serving in another case, concurrently to his detention on remand, thus allowing for an extension of the preventive measure beyond two years by a first-instance court on general grounds (see paragraphs 7781 below). 65. In connection with the second part of the complaint (see paragraph 61 above), the Constitutional Court held that the applicant did not have the standing to challenge Article 263 § 3 of the Code because this provision had not been applicable to his detention in the relevant period. The preventive measure in question had been extended during the proceedings which had been pending before the first-instance court de novo, after the original judgment had been quashed by the appellate court. In these circumstances, the legal basis for extending the applicant’s detention was Article 263 § 7 of the Code (see paragraph 74 below). 66. On 8 June 2001 the applicant informed the Przemyśl prosecutor’s office about an offence allegedly committed by staff of Przemyśl Prison. He claimed that they had been selling alcohol, cigarettes and drugs to prisoners. On 29 November 2002 the Przemyśl prosecutor’s office discontinued the criminal investigation against the alleged culprits. This decision was upheld by the Przemyśl District Court on 27 February 2003. 67. When, on 26 November 2001, the applicant lodged his application with the Court he had been detained on remand in relation to the first and second sets of criminal proceedings against him. On 31 July and 30 November 2001 and on 10 and 14 March 2003 he sent letters to his defence lawyer, W.J. The envelopes bear the stamp “Jarosław District Court” and a handwritten note stating “censored on...” (ocenzurowano dn.). 68. On 18 July 2003 the Lubaczów District Prosecutor discontinued criminal proceedings against several judges of the Jarosław District Court who, in the applicant’s view, had monitored his correspondence with his lawyer. The court held that none of the individuals concerned had opened and read the applicant’s correspondence. This decision was upheld by the Lubaczów District Court on 25 November 2003. The court found that the applicant’s correspondence had not been read and the words “censored” had been automatically stamped on the applicant’s letters. 69. On 4 December 2001, the Registry of the Court received its first letter from the applicant, dated 26 November 2001. The envelope bears the stamp “Jarosław District Court” and a handwritten note stating “Censored on 30 November 2001” (Cenzurowano dn. 30 XI 2000). 70. On 8 August 2002 the Registry of the Court received another letter from the applicant, dated 22 July 2002. It was delivered in an envelope bearing the stamp “Jarosław District Court” and a handwritten note stating “Censored on 26 July 2002” (Cenzurowano dn. 26 VII 2002).