CASE OF CHERNYSHOV v. POLAND
No violation of Art. 5-3
Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
5. The applicant was born in 1977. He is currently detained in Hrubieszów Prison. 6. On 19 August 1998 the applicant was arrested on suspicion of murder. 7. On 20 August 1998 the Słubice District Court (Sąd Rejonowy) remanded him in custody, relying on the reasonable suspicion that he had committed the offence in question. It considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the risk that he might tamper with evidence or go into hiding. As regards the latter, the court relied on the fact that he did not have his place of residence in Poland. It also stressed the severity of the anticipated prison sentence. 8. The applicant’s appeal against the detention order, likewise his further appeals against decisions extending his detention and all his subsequent applications for release and appeals against refusals to release him, were unsuccessful. 9. In the course of the investigation, the applicant’s detention was extended on 14 October 1998 to 15 January 1999. The Słubice District Court relied on the original grounds given for the applicant’s detention. It also underlined that the applicant was a foreign national and therefore there was a risk of his absconding if released. 10. The applicant asserted that at the early stage of the investigation he had admitted to having committed the offence he had been charged with. He further submitted that he had agreed to cooperate with the authorities in order to have his future sentence mitigated. 11. On 28 December 1998 the Słubice District Prosecutor lodged a bill of indictment with the Gorzów Wielkopolski Regional Court (Sąd Okręgowy). The applicant was charged with murder. The bill of indictment comprised several charges brought against three defendants. 12. The applicant was tried on the basis of the relevant provisions of the Criminal Code of 6 June 1997 (the so-called “New Criminal Code”) which entered into force on 1 September 1998, replacing the Criminal Code of 19 April 1969 (the so-called “Old Criminal Code”). According to Article 4 of the New Criminal Code, in the event that a case is being examined at a time when the New Criminal Code is in force but concerns an offence which was committed prior to its entry into force, the new law shall nevertheless apply if it is more lenient for the perpetrator (względniejszy dla sprawcy). 13. On 18 February and 18 March 1999 the trial court held hearings. The applicant pleaded guilty before the trial court. In particular, he testified that he had committed the murder together with a certain W.B. and a certain A.T. 14. During the trial the authorities further extended the applicant’s detention pending trial on 13 January 1999 (to 15 June 1999). The courts repeated the grounds previously given for the applicant’s continued detention. 15. On 18 March 1999 the Gorzów Wielkopolski Regional Court gave judgment. The applicant was convicted as charged and sentenced to 15 years’ imprisonment. The court noted, inter alia, that although the applicant pleaded guilty, his testimonies had not been fully coherent and contained a number of inconsistencies. It therefore considered that the conditions for the extraordinary mitigation of sentence had not been met in the case. 16. The applicant, other co-accused and the District Prosecutor appealed. The applicant’s legal-aid counsel argued that the first-instance court had not mitigated the applicant’s sentence as required by Article 60 § 3 of the New Criminal Code, despite the fact that the applicant had cooperated with the authorities. According to that provision, a domestic court shall mitigate the sentence if the defendant committed the offence with accomplices, and revealed to the prosecution information about the persons involved in the commission of the offence and any significant circumstances in which the offence was committed. 17. The applicant was kept in detention pending appeal. 18. On 23 November 1999 the Poznań Court of Appeal (Sąd Apelacyjny) heard the appeals. It quashed the first-instance judgment and remitted the case for retrial. The appellate court observed at the outset that the appeals lodged by the applicant and the District Prosecutor contested only the severity of the penalty imposed and not the applicant’s guilt which was clearly established. It further considered the arguments advanced on behalf of the applicant to be reasonable. However, it found that the evidence examined by the first-instanceIt further ordered that the applicant’s detention should continue until 30 April 2000. The court repeated the grounds previously given for the applicant’s continued detention. In addition, it underlined the need to obtain a report from an expert in graphology. 19. On 15 February, 21 March and 11 April 2000 the trial court held hearings. 20. On 18 April 2000 the Gorzów Wielkopolski Regional Court convicted the applicant as originally charged and sentenced him to 15 years’ imprisonment. The other defendants were likewise convicted. 21. The applicant, other co-accused and the District Prosecutor appealed. The applicant remained detained pending appeal. 22. It appears that the applicant changed his testimony in that he no longer claimed that A.T. had been an accomplice to the offence he had been charged with. He continued to admit his own guilt. 23. On 9 November 2000 the Poznań Court of Appeal again quashed the first-instance judgment and remitted the case for retrial. It ordered that the applicant’s detention should continue until 31 January 2001. 24. On 14 March, 15 March and 27 April 2001 the trial court held hearings. 25. In the retrial proceedings the applicant made numerous, unsuccessful applications for release and appealed, likewise unsuccessfully, against decisions extending his detention. The relevant decisions on the extension of his detention were given by the Gorzów Wielkopolski Regional Court on 30 January 2001 (to 30 April 2001), on 27 April 2001 (to 27 July 2001), on 10 July 2001 (to 10 October 2001) and on 9 October 2001 (to 9 January 2002). 26. On 5 December 2001 the Gorzów Wielkopolski Regional Court convicted the applicant as originally charged and sentenced him to 25 years’ imprisonment. As concerns the other defendants, the court convicted W.B. but acquitted A.T. 27. The applicant appealed. The applicant’s legal-aid counsel argued, inter alia, that the trial court had erred in that it had not mitigated the applicant’s sentence. The lawyer noted that the material in the case file clearly indicated that the applicant had cooperated with the authorities and therefore had complied with the requirements of Article 60 § 3 of the New Criminal Code. Admittedly, the applicant had changed his pleadings after the judgment of 18 April 2000. That, however, should not have had any bearing on the outcome of the case, since the applicant had undoubtedly been coerced into changing his testimony by his co-defendants. 28. On 16 May 2002 the Poznań Court of Appeal upheld the firstinstance judgment. It acknowledged that the applicant had given an account of his own wrongdoing. The court observed however that the remainder of his testimony, in particular in part regarding the responsibility of other co-accused had not been credible and had not been taken into consideration by the trial court. The appellate court concluded that the applicant’s testimonies had not been wholly credible and therefore he was not entitled to an extraordinary mitigation of his sentence. 29. By letter of 3 December 2002 the applicant’s legal-aid lawyer informed the Poznań Court of Appeal that he had not found any grounds for lodging a cassation appeal in the case. 30. It appears that throughout the trial the applicant was represented by a lawyer assigned to him under the legal-aid scheme. The applicant submitted that between 1999 and 2000 his legal-aid lawyer had never met him to prepare the case and had put forward an ineffective defence. 31. On 19 August 1998 the applicant was committed to Międzyrzecz Remand Centre. Since that date he has been continuously detained in several penitentiary facilities. On 10 December 2007 the applicant was transferred to Hrubieszów Prison where he is currently detained. 32. The parties gave partly differing accounts of the conditions of the applicant’s detention. 33. The applicant maintained that during most part of his detention he was held in overcrowded cells in conditions which did not comply with the basic standards of hygiene. 34. The Government submitted that they could not formally confirm whether during his detention from 19 August 1998 to 28 November 2000, from 22 March to 25 April 2001, from 6 June to 29 November 2001, from 28 February to 15 May 2002, from 27 August to 29 November 2002, from 7 to 18 March 2003 and from 26 August 2005 to 2 February 2006 the applicant was detained in cells with a surface area of at least 3 m² per person. The Government further submitted that the period of the applicant’s detention in cells in which the statutory minimum requirement of 3 m² per person had not been respected amounted to some 979 days. Finally, they maintained that the applicant was currently detained in a cell in which the statutory minimum requirement of 3 m² per person was respected. This submission was not contested by the applicant. 35. At the beginning of his detention the applicant lodged numerous complaints with the penitentiary authorities regarding the conditions of his detention. He submitted that he had later given up as his complaints had no prospects of success and he had feared being persecuted by the prison authorities. The applicant did not bring a civil action in tort to seek compensation for the infringement of his personal rights. 36. The relevant domestic law and practice concerning the imposition of detention on remand (tymczasowe aresztowanie), 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 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. 37. A detailed description of the relevant domestic law and practice concerning general rules governing the conditions of detention in Poland and domestic remedies available to detainees alleging that conditions of their detention were inadequate are set out in the Court’s pilot judgments given in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v. Poland (no. 17599/05) on 22 October 2009 (see §§ 75-85 and §§ 45-88 respectively). More recent developments are described in the Court’s decision in the case of Łatak v. Poland (no. 52070/08) on 12 October 2010 (see §§ 25-54).