FOURTH SECTION

CASE OF GAWRECKI v. POLAND

(Application no. 56713/09)

JUDGMENT

STRASBOURG

14 April 2015

This judgment is final but it may be subject to editorial revision.

In the case of Gawrecki v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
	Ledi Bianku, President,
	Paul Mahoney,
	Krzysztof Wojtyczek, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 24 March 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 56713/09) 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 Henryk Gawrecki (“the applicant”), on 13 October 2009.
2.  The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs.
3.  On 6 July 2011 the application was communicated to the Government.
4.  The Government objected to the examination of the application by a Committee in part. After having considered the Government’s objection, the Court rejects it.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1973 and is currently detained in Rawicz Prison.
6.  On 13 November 2006 the applicant was arrested and charged with sexual abuse of twenty minor girls.
7.  On 15 November 2006 the Wrocław-Śródmieście District Court (Sąd Rejonowy) decided to detain him on remand. The court relied on a reasonable suspicion that the applicant had committed the aforementioned offences. It attached particular importance to the likelihood that a severe sentence of imprisonment would be imposed on him and to the risk that he would attempt to obstruct the proceedings. The applicant’s appeal, lodged against the detention order, was dismissed by the second-instance court.
8.  The applicant’s detention was subsequently extended by the Wrocław-Śródmieście District Court on 12 February, 8 May and 21 August 2007, by the Wrocław Court of Appeal (Sąd Apelacyjny) on 13 November 2007 and on 12 February 2008, by the Kalisz District Court on 9 May and 13 August 2008, as well as by the Łódź Court of Appeal on 5 November 2008, 18 February, 20 May and on 14 October 2009.
9.  The courts justified their decisions by the particularly high risk of the applicant’s absconding abroad or otherwise obstructing the course of the proceedings and by the severity of the anticipated penalty. They also had regard to the nature of the offences with which he had been charged and considered that, given the applicant’s personality, a release on bail would not sufficiently secure the proper course of the proceedings.
10.  Meanwhile, on 5 May 2008 a bill of indictment against the applicant and another person was lodged with the Kalisz District Court (Sąd Rejonowy). The prosecutor requested the court to hear 127 witnesses.
11.  The trial started on 17 November 2008. Subsequently, the trial court held seven hearings in 2008, forty-six hearings in 2009 and four hearings in 2010.
12.  On 19 January 2010 the Kalisz District Court convicted the applicant of sexual abuse of twenty minor girls. The court determined that the applicant had committed those offences in various ways. He had sexual intercourse with some of the victims and he sexually abused the others in different ways. He was also found guilty of aiding sexual abuse and of serving alcohol to minors. The first-instance court sentenced the applicant to a cumulative penalty of eight years and six months’ imprisonment.
13.  	On the same day, the Kalisz District Court extended the applicant’s detention. His detention was later prolonged by the same court’s decision of 27 April 2010. The applicant’s appeals against these two decisions were dismissed on 10 February 2010 and 26 May 2010, respectively, by the Kalisz Regional Court (Sąd Okręgowy). On 29 July and 27 October 2010 the same court granted further extensions of the applicant’s detention.
The courts relied on the likelihood that a severe sentence would be imposed on the applicant, given that he had been sentenced at first‑instance to eight years and six months’ imprisonment. They considered that there was therefore a risk that the applicant might obstruct the proceedings by absconding. In establishing the existence of this risk they referred to the applicant’s knowledge of foreign languages and to the fact that he had previously travelled abroad. They also stressed the particularly drastic nature of the offences in question.
14.  The applicant and the prosecutor lodged appeals against the first‑instance judgment.
15.  On 2 December 2010 the Kalisz Regional Court altered the judgment in part and increased the applicant’s cumulative sentence to ten years’ imprisonment.
16.  The applicant lodged a cassation appeal (kasacja) with the Supreme Court (Sąd Najwyższy). He later withdrew his cassation appeal.
Article II.	II.  RELEVANT DOMESTIC LAW AND PRACTICE
17.  The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), 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 Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006; and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
THE LAW
Article III.	I.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
18.  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.”
19.  The Government contested that argument.
Section 3.01	A.  Admissibility
20.  The Court notes that it does not have at its disposal any information or documents capable of showing that the applicant lodged an appeal against any of the decisions prolonging his detention during the period to be taken into consideration under Article 5 § 3 of the Convention and thus exhausted the relevant domestic remedy (see Bronk v. Poland (dec.), no. 30848/03, 11 September 2007).
21.  However, the Government have not disputed that the applicant had lodged an appeal against the detention order of 15 November 2006 (see paragraph 7 above).
22.  They also have not pleaded the applicant’s failure to exhaust domestic remedies and it is not for the Court to consider this matter of its own motion (see, mutatis mutandis, Mooren v. Germany [GC], no. 11364/03, §§ 57-59, 9 July 2009 and Rydz v. Poland, no. 13167/02, § 72, 18 December 2007).
23.  It follows that this complaint cannot be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
24.  The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 3.02	B.  Merits
(a)	1.  Period to be taken into consideration
25.  The applicant’s detention started on 13 November 2006, when he was arrested on suspicion of having sexually abused minors. On 19 January 2010 the Kalisz District Court convicted him as charged.
As from that date he was detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a) and, consequently, that period of his detention falls outside the scope of Article 5 § 3 (cf. Kudła v. Poland [GC], no. 30210/96, § 104 et seq, ECHR 2000‑XI).
26.  Accordingly, the period to be taken into consideration amounts to three years, two months, and seven days.
(b)	2.  The parties’ submissions
(i)	(a)  The applicant
27.  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 such a long period. He also alleged that they failed to display the required degree of diligence in the conduct of the proceedings.
28.  In particular, he maintained that the domestic courts had presumed the risk of his absconding on the ground that he had travelled abroad and he had knowledge of foreign languages. He considered that such a presumption was entirely arbitrary.
29.  He further generally submitted that, in extending his detention on remand, the domestic courts had referred to the way in which he had conducted his defence.
30.  The applicant considered that the case in itself was not of a complex character and that many actions of the domestic authorities had not been relevant for the outcome of the case. He maintained that the domestic authorities had not displayed any special diligence in handling his case. He thus considered that the length of his detention on remand had exceeded a “reasonable time” requirement.
(ii)	(b)  The Government
31.  The Government maintained that the length of the applicant’s detention was not in breach of Article 5 § 3 and was duly justified during the entire period in issue.
They argued that the domestic courts had given “relevant” and “sufficient grounds for the applicant’s detention. In particular, they considered that the applicant’s detention on remand was initially justified by the existence of serious evidence of his guilt.
32.  The Government further submitted that, in extending the applicant’s detention, the domestic courts had referred to the serious nature of the offences with which he had been charged and the severity of the anticipated penalty. They underlined that the applicant had eventually been sentenced to ten years’ imprisonment.
33.  Furthermore, they submitted that the domestic courts had also relied on the risk that the applicant would attempt to obstruct the proceedings. They maintained that this risk had been aggravated by the fact that, when committing the alleged crimes, he had contacted his victims via internet. They argued that, had the applicant been released, he would have been easily able to contact his victims again and to induce them to submit false testimony. In that case not only the course of the criminal proceedings would have been endangered, but also the rights of the victims would be affected. They considered that the courts extending the applicant’s detention had found reasonable balance between the applicant’s rights and the rights of his victims.
34.  The Government underlined that the case in issue had been exceptionally complex. They submitted that the evidence in the case had consisted not only of the statements of witnesses but also of reports of experts in psychology, psychiatry and sexology, concerning the applicant and his victims. The case-file consisted of fifty-four volumes. They noted that the domestic authorities had acted without undue delay: the investigation had been completed within eighteen months and the first‑instance court had given judgment after further twenty months. The trial court had held fifty-eight hearings during the latter period. They concluded that the authorities had acted with due diligence in handling the applicant’s case.
35.  Finally, in response to the applicant’s claim that his detention had been prolonged by the domestic courts with reference to his knowledge of foreign languages the Government stated that the applicant was creating a false image of himself as an educated person injured by the conduct of the domestic authorities.
(c)	3.  The Court’s assessment
(i)	(a)  General principles
36.  The Court recalls 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 judgements (see, among many other authorities, Kudła, cited above, § 110 et seq; and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006-..., with further references).
(ii)	(b)  Application of the above principles in the present case
37.  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 three grounds, namely (1) the serious nature of the offences with which he had been charged, (2) the severity of the penalty to which he was liable, (3) the need to secure the proper conduct of the proceedings. Even though the parties failed to submit any copies of the relevant decisions or a more detailed account of the arguments put forward by the authorities in those decisions, they agreed that the domestic courts had regard to the high risk of the applicant absconding abroad or otherwise obstructing the proceedings, the nature of the offences with which he had been charged and to his personality (see paragraphs 9, 27-29 and 31-33 above).
38.  The Court accepts that the reasonable suspicion against the applicant of having committed serious offences could initially warrant his detention. Also, the need to secure the proper conduct of the proceedings, in particular the process of obtaining evidence from witnesses constituted valid grounds for the applicant’s initial detention.
39.  However, with the passage of time, those grounds became less and less relevant. The Court must then establish whether the other grounds adduced – namely, the severity of the anticipated sentence and the risk that the applicant would abscond or otherwise obstruct the proceedings – were “relevant” and “sufficient” (see Kudła, cited above, § 111).
40.  The judicial authorities relied on the likelihood that a severe sentence would be imposed on the applicant given the serious nature of the offences in issue (see paragraphs 7 and 32 above). 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 detention on remand (see Michta v. Poland, no. 13425/02, § 49, 4 May 2006).
41.  The applicant maintained that the domestic authorities justified the risk of his absconding referring to his knowledge of foreign languages and to his previous travels abroad (see paragraph 28 above). The Government did not expressly contest this assertion (see paragraph 35 above). It also appears from the documents on the domestic proceedings at the Court’s disposal that these grounds were relied on by the domestic courts in prolonging the applicant’s detention on remand after his conviction at first instance (see paragraph 13 above). Nevertheless, on the basis of these circumstances alone, the Court cannot, in any event, find that the existence of such risk was convincingly demonstrated.
42.  As regards the risk of obstruction of the proceedings, the domestic authorities referred to the nature and gravity of the offences with which the applicant had been charged (see paragraph 9 above). Having regard to the seriousness of the accusations against the applicant, the Court considers that the authorities could justifiably have considered that such an initial risk was established. The Court also acknowledges that, as the applicant was charged with a number of serious sexual offences against minors, the particular vulnerability of his victims must be seen as relevant in this context (see paragraph 33 above). Accordingly, the Court accepts that, in the special circumstances of the case, the risk flowing from the nature of applicant’s criminal activities actually existed and justified holding him in custody for the relevant period.
43.  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 period of three years and two months.
44.  It remains for the Court to ascertain whether the authorities, in dealing with the applicant’s case, displayed diligence required under Article 5 § 3 (see, McKay, cited above, § 44). The Court observes that the proceedings were of considerable complexity, regard being had to the extensive evidentiary proceedings and to the victims’ vulnerability, given the nature of the offences committed by the applicant (see paragraphs 10, 12 and 34 above). The prosecution authorities completed the investigation within the period of one year and some six months (see paragraphs 6 and 10 above). Subsequently, after the initial period needed to prepare the trial, the Kalisz District Court held the hearings in the applicant’s case regularly and at short intervals (see paragraph 11 above). It eventually gave judgment convicting the applicant after one year and eight months of judicial proceedings (see paragraph 12 above). The Court therefore concludes that the authorities displayed “special diligence” in the conduct of the proceedings against the applicant. The length of the investigation and of the trial was justified by the exceptional complexity of the case.
45.  Having regard to the foregoing, the Court considers that there has been no violation of Article 5 § 3 of the Convention.
Article IV.	II.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
46.  The applicant further complained under Article 6 § 1 of the Convention about the unreasonable length of the criminal proceedings. However, he failed to lodge a complaint 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 przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki).
47.  It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the complaint under Article 5 § 3 of the Convention about the length of the applicant’s pre-trial detention admissible and the remainder of the application inadmissible;

2.  Holds that there has been no violation of Article 5 § 3 of the Convention.
Done in English, and notified in writing on 14 April 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Ledi Bianku
	Deputy Registrar	President