CASE OF KAUCZOR v. POLAND
Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
5. The applicant, Mr Adam Kauczor, is a Polish national who was born in 1967 and lives in Siemianowice Śląskie. 6. On 9 February 2000 the applicant was arrested. On 10 February 2000 the Katowice District Court (Sąd Rejonowy) remanded him in custody on suspicion of murder. That decision was upheld by the Katowice Regional Court (Sąd Okręgowy) on 1 March 2000. 7. The applicant’s pretrial detention was subsequently extended by the Katowice Regional Court’s decisions of 25 April 2000, 3 July 2000 (upheld by the Katowice Court of Appeal (Sąd Apelacyjny) on 2 August 2000), and 23 April 2001. 8. Meanwhile, on 21 June 2000 the applicant was indicted for murder and illegal possession of weapons. The Prosecutor requested that thirty-four witnesses be heard by the trial court and the testimonies of a further one hundred and four witnesses be read out at the trial. 9. The first hearing was scheduled on 28 December 2000. It was adjourned, however, due to the absence of a key witness. Subsequently the court held sixty hearings. Approximately twenty hearings were cancelled or adjourned either because of the absence of the applicant’s counsel or summoned witnesses, or because of the illness of a judge. 10. On 26 November 2001 the Katowice Regional Court decided to extend the applicant’s detention until 30 April 2002. However that decision was changed by the Katowice Court of Appeal’s decision of 19 December 2001. The Katowice Court of Appeal agreed to continue the applicant’s detention, but only until 9 February 2002. It was held that the firstinstance court was no longer competent to extend the preventive measure, since the length of the applicant’s detention was about to reach the statutory two-year timelimit laid down in Article 263 § 3 of the Code of Criminal Procedure (Kodeks postępowania karnego). 11. Between 2001 and 2003 the court held a hearing every two or three months. 12. During this time, the applicant’s detention was extended by the Katowice Court of Appeal’s decisions of 6 February 2002 (confirmed by the same court on 13 March 2002), 15 May 2002 (upheld on 23 October 2002), 23 October 2002 (upheld on 12 March 2003), 12 March 2003 (upheld on 23 April 2003). 13. On 21 May 2003 the applicant’s trial commenced de novo because the judge rapporteur had retired. 14. The first hearing scheduled on 5 July 2003 was adjourned due to the absence of a key witness and one of the lay judges. 15. From the beginning of 2004 until mid2005 the court held on average one hearing per month. 16. On 16 September 2005 the President of the Criminal Section (przewodniczący wydziału) ordered that hearings be scheduled more often than once a month. 17. In 2006 the court scheduled twenty-three hearings, of which eleven did not take place. It appears that between January and October 2007 the court scheduled nine hearings. 18. Meanwhile, the applicant’s detention was extended by the Katowice Court of Appeal decisions of 23 July 2003 (upheld on 27 August 2003), 26 November 2003 (upheld on 17 December 2003), 18 February 2004 (upheld on 17 March 2004), 11 August 2004 (upheld on 25 August 2004), 24 November 2004 (upheld on 5 January 2005), 16 March 2005 (upheld on 20 April 2005), 27 July 2005 (upheld on 10 August 2005), 19 October 2005 (upheld on 23 November 2005), 25 January 2006 (upheld on 22 February 2006), 19 April 2006 (upheld on 19 May 2006), 19 July 2006 (upheld on 23 August 2006), 25 October 2006 (upheld on 15 November 2006), and 24 January 2007. 19. The domestic courts justified the applicant’s pretrial detention in its initial phase by the existence of strong evidence against the applicant and the likelihood that a severe penalty would be imposed, as well as by the need to secure the proper course of the proceedings. The latter was derived from the fact that there was a suspicion that the applicant had been aided in committing the offence charged and that the alleged accomplices were being sought by the authorities. During that time numerous witnesses were heard and an identification parade was held. 20. At the later stage of the applicant’s detention, the authorities relied on the complexity of the case as the reason for extending the measure. It was also emphasised that many of the scheduled court hearings did not take place for various objective reasons, such as the illness of a judge, the applicant’s request for the withdrawal of a judge, the absence of witnesses or of the applicant himself, as well as difficulties in obtaining the report of ballisticforensic experts as requested by the applicant at an advanced stage of the proceedings. 21. On 11 December 2007 the Katowice Regional Court decided to lift the preventive measure and to release the applicant. On an unspecified date that decision was upheld by the Katowice Court of Appeal. 22. The case is currently pending before the Katowice Regional Court as the court of first instance. 23. On an unspecified date in 2006 the applicant lodged a complaint about unreasonable length of proceedings under 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”). 24. On 25 October 2006 the Katowice Court of Appeal dismissed the complaint. Although the court examined the entire length of the proceedings, it held that there had been no inactivity or undue delay on the part of the relevant court. It was observed that until April 2003 the court had been dealing with the case speedily and there had been no periods of inactivity. It was acknowledged that the proceedings had been obstructed when the case had had to be opened de novo and a new judge rapporteur had had to be assigned. The court emphasised that from the end of 2003 until the end of 2006 over fifty hearings had been scheduled. The fact that some of them were cancelled was attributable to objective factors such as the absence of a lay judge, illness of a presiding judge or absence of the applicant’s lawyer. Finally, it was pointed out that the case was of a complex nature and, moreover, that the applicant himself had contributed to the delay because of his multiple requests for new evidence to be admitted. 25. The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines pre-trial detention (aresztowanie tymczasowe) one of the so-called “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition on leaving the country (zakaz opuszczania kraju). Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads: “Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused’s committing another, serious offence; they may be imposed only if evidence gathered shows a significant probability that an accused has committed an offence.” Article 258 lists grounds for pre-trial detention. It provides, in so far as relevant: “1. Pre-trial detention may be imposed if: (1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland]; (2) there is a reasonable risk that an accused will attempt to induce [witnesses or codefendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means; 2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years’ imprisonment, or if a court of first instance has sentenced him to at least 3 years’ imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.” The provisions on pre-trial detention are based on the precept that pretrial detention, the most extreme among the preventive measures, should not be imposed if more lenient measures are adequate. Article 257 reads, in so far as relevant: “1. Pre-trial detention shall not be imposed if another preventive measure is sufficient.” Article 259 § 1 reads: “1. If there are no special reasons to the contrary, pre-trial detention shall be lifted, in particular if depriving an accused of his liberty would: (1) seriously jeopardise his life or health; or (2) entail excessively harsh consequences for the accused or his family.” Article 259 § 3 provides: “Pre-trial detention shall not be imposed if an offence attracts a penalty of imprisonment not exceeding one year.” Article 259 § 4 specifies that the rule provided for in Article 259 § 3 is not applicable when the accused is attempting to evade justice, when he persistently fails to comply with summonses or when his identity cannot be established. A more detailed description of the relevant domestic law and judicial practice concerning the imposition of pre-trial detention, the grounds for its extension, release from detention and rules governing other “preventive measures” are stated in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 2733, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 2223, 4 August 2006. 26. On 24 July 2006 the Polish Constitutional Court, having examined jointly two constitutional complaints (skarga konstytucyjna) lodged by former detainees, declared Article 263 § 4 of the Code of Criminal Procedure unconstitutional in so far as it related to the investigation stage of criminal proceedings (No. SK 58/03). The provision in question provided that the detention measure might be extended beyond two years if the pretrial proceedings could not have been completed because of “important obstacles” which could not have been overcome. The provision in question did not set any statutory time-limit for extending the detention measure. The Constitutional Court considered that the impugned provision, by its imprecise and broad wording, could lead to arbitrary decisions of the courts on pre-trial detention and thus, infringe the very essence of constitutional rights and freedoms. The Constitutional Court ruled that the unconstitutional provision was to be repealed within six months from the date of the publication of the judgment in the Journal of Laws (Dziennik Ustaw). 27. As a result of the Constitutional Court’s judgment, Article 263 § 4 of the Code of Criminal Procedure was amended as follows: “The pre-trial detention shall be extended beyond the period specified in paragraphs 2 and 3, only by the court of appeal in whose jurisdiction the proceedings are conducted, upon a motion from the court before which the case is pending, and at the investigation stage, upon a motion from the appellate prosecuting authorities. This can be done if deemed necessary in connection with a suspension of criminal proceedings, in connection with actions aiming at establishing or confirming the identity of the accused, prolonged psychiatric observation of the accused, prolonged preparation of an opinion of an expert, conducting evidentiary action in a particularly intricate case or conducting them abroad, or intentional protraction of proceedings by the accused.” However, a new provision was added in § 4(a) of Article 263: “The court of appeal, in whose jurisdiction the proceedings are being conducted may also, on a motion from the court before which the case is pending, order the extension of the detention on remand for a fixed period, exceeding that specified in paragraph 3, because of other important obstacles whose removal has not been possible”. The above amendment was adopted on 12 January 2007 and entered into force on 16 February 2007 (Journal of Laws of 2007, No. 20, item 116). 28. In the framework of the procedure before the Committee of Ministers (see paragraph 34 below) the Polish Government supplied statistical data concerning the number and the length of pre-trial detentions ordered in a given year by the domestic courts. According to these statistics, in 2005 the total number of cases in which pre-trial detention was ordered by regional courts amounted to 3,833. That number comprised 30% of cases in which the measure lasted between twelve and twenty-four months, and 23 % of cases in which the measure exceeded two years. In 2006 the total number cases in which pre-trial detention was ordered by district courts was 4,000. It comprised over 33 % of cases in which the detention measure lasted between twelve and twentyfour months, and over 21 % of cases in which the measure exceeded two years. District courts ordered pre-trial detention in 7,635 cases in 2005 and 7,632 cases in 2006. In both years, approximately in 12% of cases the detention measure lasted between twelve and twenty-four months and in approximately 2.5 % over two years. 29. The relevant domestic law and practice concerning remedies for excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 1223, ECHR 2005V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005VIII, and its judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 3446, ECHR 2005V. 30. In addition to new Article 263 § 4 of the Code of Criminal Procedure (see paragraph 27 above) new amendments, designed to streamline criminal proceedings, entered into force on 20 June 2007 (Law of 9 May 2007 on amendments to the Code of Criminal Procedure; Journal of Laws of 2007, No. 99, item 664; Ustawa o zmianie ustawy - Kodeks postępowania karnego oraz niektórych innych ustaw). Those amendments strengthened the powers of the authorities to discipline the participants. In particular, newly added Article 285 § l (a), which applies in the investigative and judicial phase of criminal proceedings, empowers a trial court to impose a fine of up to 10,000 Polish zlotys (PLN) on a defence counsel or a representative of a party who has failed to obey the summons of the authority conducting the proceedings or who, without the approval of the competent authority, has left the venue of the proceedings before they were completed. A similar admonishing measure may be applied in respect of experts, witnesses, interpreters and other persons participating in the proceedings (see among others, Articles 285 § 1, 287 and 20 § 1 (a)). In addition, new Article 117 (a) entered into force on 20 June 2007. According to this provision it is sufficient if one of the defence lawyers or representatives of a party (who has more than one defence lawyer or representative) is present before the authority to proceed with the case. 31. Another amendment, preventing the obstruction of proceedings was introduced, to Article 378 § 1 of the Code of Criminal Procedure. According to the new provision a trial court shall appoint ex officio a defence counsel if the accused has dismissed his lawyer or the lawyer himself has resigned and the accused has not appointed a new defence counsel. Previously, in such a situation, the court had to fix a time-limit for the accused to choose a new defence counsel and only after this time had lapsed, could the court act ex officio. 32. According to the information supplied by the Polish Government to the Committee of Ministers (see paragraph 28 above and paragraph 34 below), in addition the Polish trial courts and prosecution authorities have undertaken a series of practical measures in order to organise criminal proceedings in a more efficient manner, i.e. by scheduling time-limits for hearings well in advance, holding hearings on Saturdays or severing charges against co-accused to separate proceedings under Article 34 § 3 of the Code of Criminal Procedure if the joint examination proves difficult and time-consuming. 33. On 17 May 2007 the Council of Ministers (Rada Ministrów) adopted the “Plan of Actions of the Government for the execution of judgments of the European Court of Human Rights in respect of Poland” (Program Działań Rzqdu w sprawie wykonywania wyroków Europejskiego Trybunału Praw Człowieka). By virtue of that document the Minister of Justice was obliged to disseminate among judges and prosecutors on a regular basis information on the standards concerning the length of pre-trial detention stemming from the Convention and the case-law of the Court in Polish cases and to include this topic in the programmes of workshops and seminars for judges. 34. On 6 June 2007 the Committee of Ministers adopted an Interim Resolution concerning the judgments of the European Court of Human Rights in 44 cases against Poland relating to the excessive length of detention on remand (“the 2007 Resolution”). It reads, in its relevant parts, as follows: “... Having regard to the great number of judgments of the Court finding Poland in violation of Article 5, paragraph 3, of the Convention on account of the unreasonable length of detention on remand (...) Recalling that the obligation of every state, under Article 46, paragraph 1, of the Convention, to abide by the judgments of the Court involves an obligation rapidly to adopt the individual measures necessary to erase the consequences of the violations found as well as general measures to prevent new, similar violations of the Convention; Stressing the importance of rapid adoption of such measures in cases where judgments reveal structural problems which may give rise to a large number of new, similar violations of the Convention; Taking note of the steps taken so far by the authorities to remedy the structural problems related to detention on remand in Poland (...) Noting also that, although some courts have begun to refer to the Convention and the European Court’s case-law in rendering decisions on the use of detention on remand, this preventive measure still seems often to be ordered without taking into consideration the Convention’s requirements; Underlining that continued detention can be justified 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; Recalling that the persistence of reasonable suspicion that a person arrested has committed an offence, although a condition sine qua non for the lawfulness of the continued detention, may no longer suffice after a certain lapse of time and that consequently other relevant and sufficient grounds must be presented in order to extend such detention; Noting that the number of cases in which the European Court has found similar violations is constantly increasing, ENCOURAGES the Polish authorities, in view of the extent of the systemic problem concerning the excessive length of detention on remand: - to continue to examine and adopt further measures to reduce the length of detention on remand, including possible legislative measures and the change of courts’ practice in this respect, to be in line with the requirements set out in the Convention and the European Court’s case-law; and in particular - to take appropriate awareness-raising measures with regard to the authorities involved in the use of detention on remand as a preventive measure, including judges of criminal courts and prosecutors; - to encourage domestic courts and prosecutors to consider the use of other preventive measures provided in domestic legislation, such as release on bail, obligation to report to the police or prohibition on leaving the country; - to establish a clear and efficient mechanism for evaluating the trend concerning the length of detention on remand; ...” 35. On 20 June 2007 the Council of Europe’s Commissioner for Human Rights released the Memorandum to the Polish Government concerning, among other issues, the use of the detention measure in Poland. It reads, in its relevant parts, as follows: “36. The European Court of Human Rights has repeatedly found violations of Article 5 § 3 of the Convention (right of a person subject to pre-trial detention to be tried within a reasonable time) in respect of Poland. Examples of cases brought to Strasbourg where pre-trial detention has lasted between 4 to 6 years are not uncommon. ... 40. The Commissioner urges the Polish authorities to review the application and functioning of pre-trial detention in Polish law. The training of judges and prosecutors as regards European standards and case-law of the Strasbourg Court is crucial. The general rule should be the release rather than the detention on remand and this message needs to be strongly underlined to national judges...”