CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 15 juin 2017

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POLAND   (Application no. 74568/11)                           JUDGMENT         STRASBOURG   15 June 2017       This judgment is final but it may be subject to editorial revision. In the case of Wrona v. Poland, The European Court of Human Rights (First Section), sitting as a Committee composed of:   Aleš Pejchal, President,   Krzysztof Wojtyczek,   Jovan Ilievski, judges, and Renata Degener, Deputy Section Registrar, Having deliberated in private on 23 May 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 74568/11) 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 Arkadiusz Wrona (“the applicant”), on 30 November 2011. 2.     The applicant was represented by Ms W.   Pasik, a lawyer practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Ms J.   Chrzanowska of the Ministry of Foreign Affairs. 3.     The applicant alleged, that he had been deprived of his liberty in breach of Article 5 § 1 of the Convention. He further submitted that his detention on remand had exceeded a “reasonable time” within the meaning of Article 5 § 3 of the Convention and that, contrary to Article 5 § 5, he could not obtain compensation for his allegedly unjustified detention. 4.     On 5 January 2016 the complaints under Articles 5 §§ 1, 3 and 5 were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1979 and lives in Warsaw. A.     Criminal proceedings against the applicant 6 .     On 11 February 2004 the applicant was charged with domestic violence. 7.     On 27 February 2004 a bill of indictment in respect of the applicant was lodged with the Warsaw District Court. Subsequently, on an unknown date the case was returned to the prosecution authorities in order to amend the charges. 8 .     On 20 August 2004 the Warsaw District Court ordered the applicant to undergo a psychiatric assessment in a psychiatric hospital. The applicant did not lodge an interlocutory appeal against this decision. 9 .     On 11 April 2005 the applicant was brought by the police to the Warsaw Psychiatric Hospital in order to undergo the psychiatric assessment. However, he refused to stay and left the waiting room. On the same day he was ordered to come to the hospital on 18 April 2005, on pain of detention on remand. On 18 April 2005 the applicant came to the hospital. However, he refused to stay for the assessment, explaining that he had many urgent matters to attend to. 10 .     On 7 June 2005 the Warsaw District Court ordered the applicant’s detention on remand in accordance with Articles 249 § 1 and 258 § 1 (1) and   (2) of the Code of Criminal Procedure (“the CCP”) (see paragraphs 25 and 26   below). The court held that in view of the applicant’s parents’ and his sister’s   testimonies there was a reasonable suspicion that the applicant had committed the offences with which he was charged. In addition, there was a reasonable risk that the applicant would obstruct the proceedings or that he would go into hiding. The court noted that the applicant’s mother had admitted that he had stayed irregularly at his home address: he had been coming home late in the evening and leaving early in the morning. Furthermore, the applicant had failed to comply with the order of 20   August 2004 to undergo a six ‑ week psychiatric assessment (see paragraph   8 above). The court noted the applicant’s parents’ submissions that his mental condition was bad, he was not able to function independently and he was in need of urgent medical assistance. The court also attached importance to the fact that the applicant had previously behaved in a similar manner. He had been admitted to a psychiatric hospital on 23 October 2001, however the next day he had left the hospital on his own initiative. Consequently, in the court’s view the applicant’s submissions that he would comply with the order to undergo a psychiatric assessment were not convincing. 11 .     An appeal lodged by the applicant was dismissed by the Warsaw Regional Court on 20 September 2005. The court mainly referred to the fact that the applicant had still to undergo a psychiatric assessment. It also noted the fact that the applicant stayed irregularly at his home address, therefore once released he might go into hiding. 12.     The applicant’s detention was subsequently prolonged on the following dates: 28   September 2005 (until 4 January 2006), 27   December 2005 (until 4 February 2006) and 1   February 2006 (until 4   March 2006). The court relied on the grounds previously given. The applicant unsuccessfully appealed against all those decisions. 13 .     On 18 October 2005 the Warsaw District Court ordered that the applicant undergo a psychiatric assessment at the hospital wing of the Warsaw Detention Center. The applicant underwent this assessment between 21   November 2005 and 1 February 2006. 14 .     On 3 February 2006 the amended bill of indictment was lodged with the Warsaw District Court. The applicant was charged with domestic violence and possession of 1.15 grams of marijuana. 15.     On 16   February 2006 the Warsaw District Court again extended the applicant’s detention (until 4 May 2006). The court stressed that there was a reasonable risk that the applicant would obstruct the proceedings and that he would go into hiding. This risk was particularly valid in view of the difficulties which the applicant had caused in the past by his repeated refusal to undergo a psychiatric assessment. 16 .     During a hearing held on 23 March 2006 the applicant’s father and sister refused to testify. The applicant was released from detention on the same day. Subsequently, on 5 April 2006, the applicant’s mother also refused to testify. 17.     The Warsaw District Court held further hearings on 27 April, 7 July and 16 October 2006 and on 24 January and 12 March 2007. 18.     On 12 March 2007 the Warsaw District Court gave judgment, acquitting the applicant on charges of domestic violence and convicting him of possession of a small amount of marijuana. The court sentenced the applicant to five months’ imprisonment stayed for three years. 19.     Following an appeal by the applicant, the judgment was quashed (in its part concerning possession of drugs) by the Warsaw Regional Court on 9   August 2007. The proceedings were subsequently discontinued by the Warsaw District Court on 6 November 2007. The court found that the prohibited act committed by the applicant had not constituted an offence because of its insignificant social consequences ( znikoma szkodliwość społeczna czynu ). B.     Proceedings for compensation for unjustified detention 20.     On 5 November 2008 the applicant instituted proceedings for compensation for unjustified detention under Article 552 of the CCP (see paragraph 27 below) before the Warsaw Regional Court. He stated that while the main reason for his detention on remand had been a six-week psychiatric assessment, he had been kept in detention for nearly one year. Moreover, the assessment had begun only five months after his arrest. He also stressed that there had been no risk that he would have attempted to obstruct the proceedings. 21 .     His claim was dismissed by the Warsaw Regional Court on 18   March   2010. The court referred at the outset to the Supreme Court’s Resolution of 15   September 1999 (see paragraph 28 below). It further noted that in the present case there had been no breach of procedural provisions of the CCP since the detention on remand had been applied mainly in view of the applicant’s repeated refusal to comply with the courts’ orders. Consequently, the applicant’s detention on remand had been undoubtedly justified, even though eventually he had been acquitted. 22 .     On 16 July 2010 the Warsaw Court of Appeal dismissed the applicant’s appeal. The court repeated the reasons given by the Regional Court. It stressed that the applicant had clearly obstructed the proceedings by refusing to undergo a psychiatric assessment. Furthermore, there had been a risk that he could have gone into hiding. Lastly, the court noted that as soon as the applicant’s parents and sister had refused to testify, the applicant had been released. 23.     On 31   May 2011 the applicant’s cassation appeal was dismissed as manifestly ill-founded by the Supreme Court. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Preventive measures 24.     The CCP of 1997, which entered into force on 1   September 1998, defines pre ‑ trial detention ( tymczasowe aresztowanie ) as one of the so ‑ called “preventive measures” ( środki zapobiegawcze ) enumerated in Chapter 28. Theother measures are bail ( poręczenie majątkowe ), police supervision ( dozór policji ), a guarantee by a responsible person ( poręczenie osoby godnej zaufania ), a guarantee by a social entity ( poręczenie społeczne ), a temporary ban on engaging in a given activity ( zawieszenie oskarżonego w określonej działalności ) and prohibition on leaving the country ( zakaz opuszczania kraju ). 25 .     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 also, exceptionally, in order to prevent an accused from committing another, serious offence; they may be imposed only if the evidence gathered shows a   significant probability that an accused has committed an offence.” 26 .     The provisions on pre ‑ trial detention are based on the precept that pre ‑ trial detention, the most severe preventive measure, 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   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 or her identity cannot be established or when he or she has no permanent abode [in Poland]; (2)     there is a reasonable risk that an accused will attempt to induce [witnesses or co ‑ defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means; If an accused has been charged with a serious offence or an offence for the commission of which he or she may be liable to a statutory maximum sentence of at least eight   years’ imprisonment, or if a court of first instance has sentenced him or her to at least three   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.” 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 or her life or health; or (2)     entail excessively harsh consequences for the accused or his or her family.” B.     Compensation for unjustified detention 27 .     Article   552 of the CCP 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 or she has suffered as a result of having served all or part of   the sentence unjustifiably imposed on him or her. 2.     The provisions of paragraph   1 shall also be applicable if, after the sentencing judgment has been overturned 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.” 28 .     In accordance with the Supreme Court’s Resolution of 15   September 1999 (no.   I KZP 27/99), “undoubtedly unjustified” pre ‑ trial detention was detention effected in breach of the provisions of Chapter   28 of the CCP and which caused hardship which the defendant should not have suffered in the light of the totality of the circumstances established in the case and, in particular, of those established in the   final ruling. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 5 § 1 (c) OF THE CONVENTION 29.     The applicant complained under Article 5 § 1 (c) of the Convention that his detention on remand had been unlawful and arbitrary. This provision of the Convention reads in so far as relevant as follows: “1.     Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c)     the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...” A.     Admissibility 30.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions 31.     The applicant submitted that his detention on remand had been unlawful and arbitrary. In particular, he relied on the fact that while he had been charged with committing the offences in question on 11   February 2004, the detention on remand had been imposed on him only on 7 June 2005. Furthermore, there had been no reasonable grounds to believe that he would have absconded or otherwise obstructed the proceedings. 32.     The Government submitted that the applicant had been deprived of his liberty between 7   June   2005 and 23 March 2006 in accordance with Article 5 § 1 (c) of the Convention. His detention on remand had been ordered by a court decision, issued in accordance with domestic law for the purpose of bringing him before a competent court. At the time of his arrest, the investigating authorities had gathered considerable evidentiary material. The witnesses’ testimonies had clearly stated that the applicant had been violent towards his parents. In the Government’s view the authorities had been under an obligation to ensure effective protection for victims of domestic violence. It had also been established that the applicant had been in possession of marijuana. 2.     The Court’s assessment (a)     General principles 33.     The Court reiterates that in order to comply with Article 5 § 1, the detention at issue must first of all be “lawful”, including the observance of a procedure prescribed by law; in this connection the Convention refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. It requires in addition, however, that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness (see Stanev v.   Bulgaria [GC], no. 36760/06, § 143, ECHR 2012). Furthermore, the detention of an individual is such a serious measure that it is only justified where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained. That means that it does not suffice that the deprivation of liberty is in conformity with national law; it must also be necessary in the circumstances (see Witold Litwa v. Poland , no.   26629/95, § 78, ECHR 2000-III). (b)     Application of the above principles to the present case 34.     Turning to the circumstances of the present case the Court notes that on 27 February 2004 the applicant was charged with domestic violence. On 7   June 2005 the Warsaw District Court ordered his detention on remand in accordance with the relevant provisions of the CCP, notably Articles   249 §   1 and 258 § 1 (1) (see paragraphs 6 and 10 above). It is not in dispute that the court followed the procedure provided for by the CCP. The Court therefore considers that the applicant’s detention had a legal basis in Polish law. 35.     The Court must now consider whether in the circumstances of the present case, the applicant’s detention was “free from arbitrariness”. 36.     The Court observes that the Warsaw District Court ordered the applicant’s detention on remand, having regard to his failure to comply with an order to undergo a psychiatric assessment and in view of the risk that he might go into hiding (see paragraph 10 above). The sufficiency and relevance of these grounds will be discussed below from the standpoint of Article 5 § 3 of the Convention (see paragraphs 47-50 below). 37.     The Court also attaches considerable importance to the findings of the Warsaw Regional Court and the Warsaw Court of Appeal (see paragraphs 21 and 22 above). When examining whether the applicant’s detention was justified, the courts held that the applicant had clearly obstructed the proceedings and consequently his pre-trial detention had been necessary to secure the proper conduct of the proceedings. 38.     The Court does not find that the domestic courts were arbitrary in their decisions regarding the applicant’s pre-trial detention. In the Court’s view the national courts carefully examined the circumstances of the applicant’s case. Their conclusion that the applicant was avoiding reporting for the psychiatric assessment does not in any respect appear arbitrary. 39.     In view of the above the Court considers that in the circumstances of the present case the detention order imposed on the applicant could be considered a proportionate measure to achieve the stated aim of securing the proper conduct of the criminal proceedings against him. 40.     The Court concludes that the applicant’s detention was in accordance with Article 5 § 1 (c) of the Convention. There has therefore been no violation of this provision. II.     ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 41.     The applicant complained that the length of his detention on remand 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.” A.     Admissibility 42.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It 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 and scope of the case 43.     The applicant’s detention started on 7 June 2005, when he was placed in pre-trial detention (see paragraph 10 above). He was released on 23   March 2006 (see paragraph 16 above).     Accordingly, the period to be taken into consideration amounts to nine months and two weeks. 2.     The parties’ submissions (a)     The applicant 44.     The applicant argued that the length of his detention had been unreasonable. In his opinion, the courts had not given “relevant” and “sufficient” reasons for keeping him in detention for the entire period. He submitted that while he had been detained on remand on 7 June 2005, his psychiatric assessment had been carried only between 11 November 2005 and 1 February 2006 (see paragraph 13 above). (b)     The Government 45.     The Government considered that the length of the applicant’s pre ‑ trial detention had been compatible with the standards resulting from Article   5 §   3 of the Convention. They argued that the grounds stated in the decisions of the domestic courts had been “relevant” and “sufficient” to justify the entire period of the applicant’s detention. 46 .     They also argued that the domestic authorities had conducted the proceedings with due diligence. The delay in conducting the psychiatric assessment had been caused by the applicant himself since he had failed to undergo the examination on schedule. They also stressed that the nature of the offences that the applicant had been charged with (domestic violence and drug-related offence) required his separation from the family and from his drug dealers. 3.     The Court’s assessment (a)     General principles 47.     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 recently summarised in the case of Buzadji v. the Republic of Moldova (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§   84-102, 5 July 2016). (b)     Application of the above principles in the present case 48.     It has not been disputed by the parties that the authorities, in their detention decisions, in addition to the reasonable suspicion against the applicant, relied generally on two grounds, specifically (1) the risk that the applicant would obstruct the proceedings as he had refused to undergo a psychiatric assessment, and (2) the risk that that he would abscond. 49.     The Court observes that the authorities justified the risk of obstruction of the proceedings by the fact that the applicant had twice failed to report for a psychiatric assessment (see paragraph 10 above). As regards the risk of the applicant’s absconding they noted that he had been coming home late and leaving early in the morning and that he had been only occasionally sleeping at his home address (see paragraphs 10 and 11above). 50.     The Court considers that, the reasons relied upon by the domestic courts cannot be said to have been stereotyped and abstract, nor can it be said that at any point they cited grounds for detention without showing how they applied to the specific circumstances of the applicant’s case (see, in contrast, Buzadji , cited above, § 122). 51.     The foregoing considerations are sufficient for the Court to conclude that the grounds given for the applicant’s pre-trial detention were “relevant” and “sufficient” to justify holding him in custody for the entire impugned period, namely nine months and two weeks. 52.     It therefore remains to be ascertained whether the national authorities displayed “special diligence” in the conduct of the proceedings. 53.     In this regard, the Court does not discern any significant periods of inactivity in the investigation or during the trial. It further agrees with the Government that the applicant’s conduct contributed to the length of the proceedings since he had failed to undergo the psychiatric assessment on schedule (see paragraphs 9 and 46 above). The Court accepts that it would be unrealistic and too rigid an approach to expect the authorities to ensure that a place is immediately available in a relevant psychiatric facility for the purpose of conducting a psychiatric assessment (see, mutatis mutandis, Grzegorz Jończyk v. Poland , no. 19789/08, § 34, 30 November 2010). Moreover, as soon as, on 1 February 2006, the applicant’s assessment ended the amended bill of indictment was lodged with the District Court (see paragraphs 13-14 above). For these reasons, the Court considers that during the relevant period the domestic authorities handled the applicant’s case with the necessary diligence. 54.     Having regard to the foregoing, the Court finds that there has been no violation of Article 5 § 3 of the Convention. III.     ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION 55.     The applicant further complained of the fact that he could not have obtained compensation for his allegedly unjustified detention. He relied on Article 5   §   5 of the Convention, which provides as follows: “Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” A.     The parties’ submissions 56.     The applicant maintained that despite the fact that his detention had been unjustified he could not have obtained any compensation. 57.     The Government asserted that this complaint was inadmissible for non ‑ exhaustion of domestic remedies. In their view the applicant should first have lodged a constitutional complaint with the Constitutional Court challenging Article 552 § 4 of the CCP (see paragraph 27 above). B.     The Court’s assessment 58.     The Court does not find it necessary to examine the Government’s objection concerning the applicant’s failure to exhaust domestic remedies, as the present complaint is in any event inadmissible for the reasons set out below. 59.     The Court reiterates that Article 5 § 5 is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 (see Wassink v.   the   Netherlands , 27 September 1990, § 38, Series A no. 185-A; N.C.   v.   Italy [GC], no. 24952/94, § 49, ECHR 2002 ‑ X). The right to compensation under paragraph 5 therefore presupposes that a violation of one of the other paragraphs has been established either by a domestic authority or by the Convention institutions. However, in the present case no breach of Article   5 §§ 1 to 4 has been found either by the Polish tribunals or by the Court. 60.     It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.     Declares the complaints under Article 5 §§ 1 and 3 admissible and the remainder of the application inadmissible;   2.     Holds that there has been no violation of Article 5 § 1 of the Convention;   3.     Holds that there has been no violation of Article 5 § 3 of the Convention. Done in English, and notified in writing on 15 June 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Renata Degener   Aleš Pejchal Deputy Registrar   President