FOURTH SECTION

CASE OF MIERZEJEWSKI v. POLAND

(Application no. 15612/13)

JUDGMENT

STRASBOURG

24 February 2015

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Mierzejewski v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
	Guido Raimondi, President,
	Päivi Hirvelä,
	Ledi Bianku,
	Nona Tsotsoria,
	Paul Mahoney,
	Krzysztof Wojtyczek,
	Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,
Having deliberated in private on 3 February 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 15612/13) 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 Tomasz Mierzejewski (“the applicant”), on 28 January 2013.
2.  The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs.
3.  On 9 December 2013 the complaint under Article 5 § 3 of the Convention concerning lengthy pre-trial detention was communicated to the Government.
4.  On the same day the remainder of the application was declared inadmissible.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1987 and lives in Łomża.
6.  On 7 March 2011 he was arrested on suspicion of committing a number of offences connected with handling drugs and psychoactive substances.
7.  On 8 March 2011 the Rzeszów District Court (Sąd Rejonowy) remanded the applicant in custody for three months, until 7 June 2011. The court relied on a reasonable suspicion that the applicant had committed offences of serious nature and on the likelihood that a severe penalty would be imposed on him. The court did not share the prosecutor’s view that there was a reasonable risk that the applicant would obstruct the proceedings or that he would go into hiding. At this stage of the proceedings the applicant was not suspected of being a member of an organised criminal group.
8.  The applicant’s lawyer appealed against the decision to detain him on remand.
9.  On 14 April 2011 the Rzeszów Regional Court (Sąd Okręgowy) upheld the challenged decision. It agreed with the applicant’s lawyer’s view that the applicant had not engaged in any activity that might obstruct the proceedings. It found however that the severe penalty likely to be imposed on the applicant might create a risk that he would attempt to impede the proper conduct of the proceedings.
10.  On 2 June 2011 the applicant’s detention on remand was extended by the Rzeszów Regional Court until 7 September 2011. The court referred to the applicant’s previous convictions which made the imposition of a severe penalty on him more probable. It also noted that, taking into consideration the complexity of the case in which 27 persons had already been apprehended, the proceedings had been conducted properly and without undue delays. The trial court had obtained expert witness opinions and it was still necessary to hear further evidence.
11.  The applicant appealed and requested to vary the preventive measure applied to him.
12.  On 30 June 2011 the Rzeszów Court of Appeal (Sąd Apelacyjny) amended the challenged decision and ordered the applicant’s detention until 31 August 2011. The court agreed with the arguments relied on by the Regional Court. It found however that since the prosecutor had requested that the detention be extended until 31 August 2011, the Regional Court had had no right to extend it beyond that date.
13.  On 24 August 2011 the Rzeszów Regional Court again extended the applicant’s detention for a further two months. The court still relied on the reasonable suspicion that the applicant committed the offences with which he had been charged and on the likelihood that a heavy penalty would be imposed on him. The prosecutor who requested extension of the detention relied on, among other things, the reasonable fear that the applicant might obstruct the proceedings. The Court referred to this part of the request and found that there were no grounds which would justify invoking this argument for the extension of the applicant’s detention.
14.  The applicant appealed.
15.  On 13 September 2011 the Rzeszów Court of Appeal upheld the challenged decision.
16.  On 8 September 2011 the charges against the applicant were extended to include participation in an organised criminal group.
17.  On 20 October 2011 the Rzeszów Regional Court extended the applicant’s detention until 30 November 2011. The court relied on the grounds previously invoked and, additionally, on the reasonable suspicion that the applicant might tamper with evidence and obstruct the proceedings which was based on the extended charges of being a member of an organised criminal group. The court further stressed that the proceedings had been conducted properly and without undue delays and their duration was attributable to objective reasons, namely the particular complexity of the case and the necessity to obtain evidence as regards organised criminal group consisting of numerous members.
18.  On 7 November 2011 a bill of indictment against the applicant and several other co‑accused was lodged with the Zamość Regional Court (case no. II K 71/11). The applicant was charged also with being a member of an organised criminal group.
19.  On 23 November 2011 the Zamość Regional Court extended the applicant’s detention for three further months, until 29 February 2012. The courts relied on the same grounds as previously. They noted however that the charge of being a member of an organised criminal group justified the extension of the applicant’s detention with an additional reason, namely suspicion that he might obstruct the proceedings.
20.  Further extensions of the applicant’s pre‑trial detention were ordered by the Zamość Regional Court on 24 August and 27 November 2012 and by the Lublin Court of Appeal on 6 March 2013. The Court of Appeal examined the course of the proceedings before the trial court and found that since September 2012 nine hearings had been held, they had been properly planned and each hearing had lasted the whole day. The court concluded that extending the detention beyond the statutory period of two years had proved necessary in view of the objective difficulties in concluding all indispensable activities in time.
21.  On 5 June, 28 August and 4 December 2013 the Lublin Court of Appeal granted further extensions of the applicant’s detention. Each time the Court of Appeal examined the conduct of the proceedings, found no undue delays on the part of the trial court and concluded that extension of the detention beyond the statutory time-limit had been justified by the objective necessity of hearing further evidence.
22.  The applicant’s lawyer appealed against the decision of 4 December 2013. He claimed that the court had failed to examine whether a less severe measure would be capable of securing the proper conduct of the proceedings. In this respect he referred to the fact that in November 2013 the court had ruled that the three other co-accused could be released on bail.
23.  On 18 December 2013 the Lublin Court of Appeal granted the applicant’s lawyer’s request and amended the decision of 4 December finding that the detention could be lifted if a bail of 40,000 Polish zlotys was paid.
24.  On 3 January 2014 the bail was paid and the applicant was released from detention.
25.  On 14 January 2014 the Zamość Regional Court convicted the applicant and sentenced him to 5 years and 6 months of imprisonment. The charge of being a member of an organised criminal group was confirmed in the first instance judgment.
26.  The criminal proceedings against the applicant are pending before the second‑instance court.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
27.  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.
THE LAW
ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
28.  The applicant complained that the length of his detention 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.”
29.  The Government contested that argument.
A.  Admissibility
30.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 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
31.  The applicant’s detention started with his arrest on 7 March 2011. On 3 January 2014 he was released after the bail ordered by the Lublin Court of Appeal had been paid.
Accordingly, the period to be taken into consideration amounts to two years, nine months and twenty-nine days.
2.  The parties’ submissions
(a)  The applicant
32.  The applicant argued that the length of his detention had been unreasonable and amounted to serving a prison sentence before its announcement.
(b)  The Government
33.  The Government submitted that the applicant’s pre-trial detention had been justified by the existence of substantial evidence of his guilt, the nature of the offences with which he had been charged and the severity of the anticipated penalty. They underlined that the length of the applicant’s detention should be assessed in the light of the fact that he had acted in an organised criminal group. The risk that the defendants might obstruct the proceedings or tamper with evidence had been aggravated by the fact that they had been closely linked as members of a criminal gang. Only the isolation of the members of the group could prevent them from coordinating their testimonies or influencing witnesses. Thus, the domestic courts had considered it necessary to detain the applicant until all relevant witnesses had been questioned and other members of the group remanded in custody.
34.  The Government asserted that the necessity of the applicant’s continued detention had been thoroughly examined by the courts, which on each occasion had given sufficient reasons for their decisions. In particular, the fear that the applicant would obstruct the proceedings was well-founded as one of the co-accused, M.J., tried to bribe a prison guard to transfer information outside of the prison and some illegal correspondence was found.
35.  The Government further referred to the complexity of the case which concerned six co-accused charged with twenty-eight various offences and involved evidence from secret sources, gathered by way of various operative techniques and from anonymous witnesses. They also submitted that the authorities had displayed special diligence in the conduct of the proceedings. In particular, they held hearings at reasonable intervals and without undue delays; between lodging a bill of indictment on 7 November 2011 and the first-instance judgment of 14 January 2014 altogether fifty-six hearings were held at regular intervals. A large number of hearings was devoted exclusively to hearing the evidence of recorded material in extenso upon the request of the accused.
3.  The Court’s assessment
(a)  General principles
36.  The Court notes 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-...; and Bąk v. Poland, no. 7870/04, §§ 51-53, ECHR 2007‑... (extracts), with further references).
(b)  Application of the above principles in the present case
37.  The Court observes that in their decision to remand the applicant in custody the judicial authorities relied on the following principal grounds: the reasonable suspicion against the applicant, the serious nature of the offences with which he had been charged and the severity of the penalty to which he was liable (see paragraph 7 above). After six months’ detention, when the charges of being a member of an organised criminal group were presented to the applicant, the courts additionally relied on the risk of his influencing the testimonies of witnesses and of the co-accused or obstructing the proceedings by other means. Furthermore, they referred to the particular complexity of the case and the need to obtain extensive evidence.
38.  The Court notes that the suspicion that the applicant committed serious offences initially warranted his detention. Another valid ground for the applicant’s initial detention was the need to obtain a large volume of evidence and determine the degree of the alleged responsibility of each of the defendants involved in the organised criminal group and against whom there were numerous charges of serious offences. Accordingly, the risk of pressure being brought to bear on witnesses or other co-accused can reasonably be considered to have been high, as indeed was found by the domestic courts. Finally the Court notes that the Lublin Court of Appeal decided to release the applicant on bail as soon as the reasons for his continued detention ceased to exist.
39.  Furthermore, according to the authorities, the likelihood of a severe sentence being imposed on the applicant created a presumption that he would 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 absconding or re-offending, the gravity of the charges cannot by itself justify long periods of pre-trial detention (see Michta v. Poland, no. 13425/02, § 49, 4 May 2006).
40.  While all the above factors could justify even a relatively long period of detention, they did not give the domestic courts unlimited power to extend the measure (see Kopij v. Poland (dec.), no. 7676/06, 1 July 2008). 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 were “relevant” and “sufficient” (see Kudła, cited above, § 111).
41.  The Court further notes that at the initial stage of the proceedings the applicant was not charged with being a member of an organised criminal group and the courts refused to accept the prosecutor’s arguments relying on the reasonable suspicion that the applicant might tamper with evidence or obstruct the proceedings (see paragraphs 7 and 13 above). Only when the additional charge of being a member of an organised criminal group was presented to the applicant on 8 September 2011, six months after his arrest, did the courts uphold the reasons previously relied on by the prosecutor (see paragraphs 17 and 19 above) to justify the detention.
42.  The court is ready to accept that in the circumstances of the present case, namely the serious crime of membership of a criminal group involved in drug trafficking, the investigative authorities and later the courts were faced with significant difficulties in obtaining voluminous evidence from many sources and determining the facts and the degree of responsibility of each member of the group. In cases of this kind, continuous supervision and limitation of the defendants’ contact with each other and with other persons may be essential to prevent their absconding, tampering with evidence and, most importantly, influencing witnesses. Accordingly, longer periods of detention than in other cases may be reasonable.
43.  The Court accepts that the risk relied on by the courts that the applicant might obstruct the proceedings or tamper with evidence related to his criminal activities did in fact exist and justified holding him in custody for the relevant period. As regards the Government’s arguments concerning the alleged attempt to bribe a prison guard by one of the co-accused and some illegal correspondence (see paragraph 34 above), the Court notes that these attempts concerned other co-accused and cannot be relied on directly to justify the extension of the applicant’s detention. It acknowledges however that attempts to obstruct the proceedings by other members of the same group might have constituted well–founded grounds for the authorities to increase their vigilance when examining the grounds for the applicant’s continuous detention.
44.  Taking into consideration all the above submissions, the Court considers that in the circumstances of the present case involving an organised criminal group, the grounds given for the applicant’s pre-trial detention were “relevant” and “sufficient” to justify holding him in custody for the entire relevant period (see Nowak v. Poland, no. 18390/02, § 37, 18 September 2007).
45.  It therefore remains to be ascertained whether the national authorities displayed “special diligence” in the conduct of the proceedings.
46.  In this respect the Court observes that the proceedings were of considerable complexity, regard being had to the number of defendants, the extensive evidentiary proceedings and the implementation of special measures required in cases concerning organised crime. Nevertheless, the hearings in the applicant’s case were held regularly and at short intervals (see paragraphs 20-21 and 35 above). The Court therefore concludes that the national authorities displayed special diligence in the conduct of the proceedings. The length of the investigation and of the trial was justified by the exceptional complexity of the case.
47.  Having regard to the foregoing, the Court considers that there has been no violation of Article 5 § 3 of the Convention.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the complaint under Article 5 § 3 of the Convention admissible;

2.  Holds that there has been no violation of Article 5 § 3 of the Convention.
Done in English, and notified in writing on 24 February 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos	Guido Raimondi
	Registrar	President