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WOLF v. POLAND - 15667/03 [2007] ECHR 46 (16 January 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/46.html
Cite as:
[2007] ECHR 46
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FOURTH
SECTION
CASE OF WOLF v. POLAND
(Applications
nos. 15667/03 and 2929/04)
JUDGMENT
STRASBOURG
16 January 2007
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 Wolf v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr G.
Bonello,
Mr M. Pellonpää,
Mr K. Traja,
Mr L.
Garlicki,
Ms L. Mijović,
Mr J. Šikuta,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 12 December 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in two applications
(nos. 15667/03 and 2929/04) 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 Sylwester Wolf (“the
applicant”), on 5 May 2003 and 23 December 2003 respectively.
The applicant complained about the unreasonable length of his
pre-trial detention (application no. 15667/03)
and the excessive length of criminal proceedings (application no.
2929/04). He was represented before the Court by Mr M.
Łuczkiewicz, a lawyer practising in Częstochowa.
The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
On
11 November 2005 the
Court decided to give notice of the applications to the Government.
Applying Article 29 § 3 of the Convention, it decided to rule on
the admissibility and merits of the applications at the same time. It
further decided that the cases be examined simultaneously under Rule
42 § 2 of the Rules of Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1962 and lives in Czestochowa.
The
applicant was arrested on 24 April 2001 on charges of acting in an
organised criminal group involved in the commission of armed
robberies, offences against life or limb and property and drug
trafficking. By a decision of the Katowice District Court of 25 April
2001 the applicant was remanded in custody until 23 July 2001. The
court observed that on the basis of the evidence gathered so far
(inter alia, evidence from two crown witnesses) there was a
strong likelihood that the applicant had committed the offences in
question. It also referred to the risk that the further course of the
proceedings would be jeopardised if the applicant were released.
Subsequently,
the applicant’s pre-trial detention was prolonged on several
occasions by the Częstochowa Regional Court (decisions of 19
July 2001, 18 October 2001, 29 November 2001) and by the Katowice
Court of Appeal (decisions of 17 April 2002, 22 May 2002, 9 April
2003, 4 December 2002, 17 December 2003, 26 May 2004, 22
December 2004). The applicant challenged the decisions prolonging his
detention on remand, but they were upheld (decision of the Katowice
Regional Court of 30 May 2001; decisions of the Katowice Court of
Appeal of 8 May 2002, 15 January 2003, 7 May 2003, 14 January
2004, 29 December 2004).
The
applicant unsuccessfully applied for release and to have the
preventive measure imposed on him replaced by a more lenient one
(decisions of the Regional and Appeal Prosecutors of 21 May 2001, 11
June 2001, 9 July 2001, 1 October 2001, 3 December 2003 refusing
the applicant’s requests; decisions of the Częstochowa
Regional Court of 27 March 2003 and 4 September 2003). The
courts justified their decisions prolonging the applicant’s
detention on remand and their refusals to release him by referring to
the complexity of the case, the significant number of accused, the
existence of a reasonable suspicion that the applicant had committed
the offences concerned and the severity of the likely sentence. These
facts gave rise to the courts’ assumption that the applicant,
if released, could obstruct the proper course of the proceedings,
especially given that some suspects were still at large. The courts
were of the opinion that a comprehensive examination of the case
required that the investigation be continued and that the applicant’s
detention was the only way to secure the proper course of the
proceedings.
On
28 October 2002 the Katowice Regional Prosecutor charged the
applicant, in addition to the existing charges, with several counts
of obtaining compensation under false pretences from an insurance
company, illegal possession of firearms, extortion and drug
trafficking.
On
27 February 2003 a bill of indictment against the applicant was
submitted to the Częstochowa Regional Court. The charges on the
indictment included extortion, illegal possession of firearms and
drug trafficking, committed while acting in an organised criminal
group. The bill of indictment numbered 87 pages and the case file
numbered 59 volumes. The prosecutor requested the court to hear 75
witnesses, including two crown witnesses. There were 22 accused.
The
first hearing was held on 15 July 2003. 54 hearings were
held in the case up until 16 February 2005 and about 70 hearings in
total before the first-instance court up until December 2005. Some of
the defendants and witnesses repeatedly failed to comply with the
court summonses.
The
hearing scheduled for 15 July 2003 was adjourned because of the
absence of two lawyers. Some of the defendants requested the court to
appoint legal-aid lawyers for them.
On
29 July 2003 the court held a hearing and heard an expert witness on
the issue of the applicant’s health. The expert asserted that
the applicant’s condition was not incompatible with his
continued detention. In consequence, the applicant’s request of
20 May 2003 for release was dismissed.
Three
accused voluntarily pleaded guilty. The relevant judgments were
delivered on 5 and 13 August 2003.
The
applicant pleaded not guilty and refused to testify.
On
30 July 2003 the court held a hearing. Another co-accused pleaded
guilty. The judgment in his case was delivered on 13 August 2003. One
of the defendants claimed to be ill and requested medical assistance;
an ambulance was called. After a break in the hearing a doctor
declared that the defendant was well enough to attend the hearing.
A
hearing scheduled for 12 August 2003 was adjourned because one of the
co-accused had withdrawn his lawyer’s power of attorney and had
refused to accept a legal-aid lawyer.
On
24 September 2003 another defendant pleaded guilty. The judgment was
delivered on 1 October 2003. Four other defendants were heard.
On
25 September 2003 two defendants were released on bail.
The
subsequent hearings were held and witnesses were heard despite the
absence of some of the co-accused.
On
29 October 2003 the court decided to release another defendant.
During
a hearing held on 19 November 2003 the applicant made oral
submissions to the court.
On
2 November 2003 two witnesses failed to comply with the summons. The
court ordered that one of them be escorted to the court by the police
and requested the police to verify the address of the other. Three
defendants were absent. The court requested an expert opinion
concerning the applicant’s health.
On
10 December 2003 one of the defendants objected to his locum
tenens lawyer, and the hearing was adjourned until 11.30 a.m.,
when his lawyer arrived. One witness was heard.
On
13 December 2003 the court released four defendants.
On
10 March 2004 the court held a hearing. Six of the co-accused and
three witnesses were absent. The court requested the police to serve
the summons on one of the absent witnesses and a fine of PLN 1,000
was imposed on another.
On
24 March 2004 the court dismissed the applicant’s request for
release.
The
hearing scheduled for 31 March 2004 was adjourned as one of the
defendants had fallen ill and eleven witnesses failed to appear in
court.
During
the hearing held on 17 April 2004 one of the accused claimed that he
did not feel well enough to take part in the hearing. The judge
referred to a medical certificate which indicated the contrary. Later
the same accused pretended to lose consciousness; however an
ambulance doctor found that his condition allowed him to participate
in the hearing.
The
hearing scheduled for 21 April 2004 was adjourned, as one of the
accused objected to his locum tenens lawyer. On the same day
the court, sitting in camera, dismissed a motion of one of the
co-accused who had challenged the impartiality of the court.
The
hearing scheduled for 5 May 2004 was adjourned as none of the
witnesses appeared in court.
The
hearings scheduled for 12, 15, 19 and 26 May 2004 were cancelled
because one of the accused had been transferred to Warsaw to undergo
medical treatment.
The
hearing scheduled for 9 June 2004 was adjourned as a lay judge failed
to attend.
On
14 July 2004 one witness failed to appear in court. The officers of
the Central Investigative Office (Centralne Biuro Śledcze)
informed the court that he was a suspect in another case and had gone
into hiding.
During
the hearing held on 21 July 2004 a co-accused challenged a judge. His
motion was dismissed on the same day. Another of the accused objected
to his lawyer being replaced by a locum tenens for the
hearing. The hearing was adjourned until the next day.
Fifteen
witnesses failed to appear for the hearing held on 11 August 2004.
The court imposed fines on four of them and requested the police to
serve summonses on the others.
On
23 August 2004 the applicant sent a complaint to the Ombudsman. The
Ombudsman asked the President of the Czestochowa Regional Court to
comment on the complaint and to speed up the proceedings. The
President of the Częstochowa Regional Court assured both the
applicant and the Ombudsman that he would supervise the proceedings.
In his opinion, there had been no undue delays in the proceedings, as
roughly four hearings per month had been held. The case was complex
and involved several accused; nevertheless, the proceedings had
progressed steadily.
During
a hearing held on 22 September 2004 the court heard a witness, who
suddenly felt unwell. A doctor declared that his condition did not
allow for the witness’ continued questioning and the hearing
was adjourned.
On
29 September 2004 the court heard six witnesses. Twenty witnesses and
nine accused failed to appear. Apparently one of the witnesses had
gone abroad. Two witnesses had changed addresses. The police had been
unable to establish the addresses of five witnesses.
On
6 October 2004 the court held a hearing in the absence of seven
defendants. Apparently another witness, a suspect in a different
case, had gone into hiding.
At
a hearing held on 20 October 2004 sixteen witnesses were absent. The
court imposed fines of PLN 500 on five of them.
On
24 November 2004 the court heard three witnesses in the absence of
several co-accused. Fifteen witnesses failed to appear in court. The
court requested the police to serve summonses on three witnesses and
to bring twelve of them to the next hearing.
On
1 December 2004 the court heard three witnesses in the absence of
seven of the accused. Four witnesses and an expert witness were
absent.
On
8 December 2004 the court heard four witnesses in the absence of
several co-accused. Eleven witnesses failed to appear; the court
requested the police to bring them to the next hearing.
On
15 December 2004 the court held a hearing and heard four witnesses in
the absence of seven of the defendants. Three witnesses were absent.
On
3 January 2005 the applicant lodged a complaint about the length of
the criminal proceedings under the Act of 17 June 2004. On 23
February 2005 the Katowice Court of Appeal dismissed his complaint.
In 17 pages of written reasons the court analysed the course of the
proceedings from 27 March 2003 to 16 February 2005 and found
that although the length of the proceedings had indeed been
considerable, there had been no undue delays on the part of the
court. The Regional Court had conducted the proceedings scrupulously,
the hearings had been held regularly, four or even five times per
month. The length of the proceedings had resulted from the complexity
of the case and other objective factors and not from any negligence
on the part of the court. The hearings were usually scheduled one
month in advance to allow the accused time to prepare their defence.
The court also noted that the case file had often been transferred to
the Court of Appeal as a result of numerous motions and appeals filed
by all the accused. The court acknowledged that the accused could not
be blamed for availing themselves of their procedural rights;
however, the number of filed motions had contributed to the
prolongation of the proceedings, as had the conduct of some of the
defendants. The Court of Appeal observed that special diligence was
required when an accused was detained on remand, but in its view the
first-instance court had been aware of that requirement and had fully
observed it. The Court of Appeal was of the opinion that detention,
even if lengthy, could be justified in the circumstances of a given
case as long as it was supervised by a court and was found necessary.
The
hearing scheduled for 19 January 2005 was adjourned due to the
absence of two defence lawyers.
On
26 January 2005 the court heard eight witnesses. Five witnesses and
seven defendants were absent.
On
9 February 2005 the court held a hearing in the absence of eight
defendants. It heard three witnesses; nine witnesses failed to
appear. One of the defendants challenged an expert. The court,
sitting in camera, dismissed the motion.
On
16, 23 and 30 March 2005 the Regional Court heard witnesses. On 23
March 2005 the court dismissed a motion of an accused challenging the
impartiality of the court.
On
24 March 2005 the applicant was released on bail.
Further
hearings were held and numerous witnesses were heard on 6 and 27
April 2005, on 11, 18 and 20 May 2005, on 1, 8, 16, 17, 18, 22, 24
and 29 June 2005, on 6 and 13 July 2005.
On
18 and 29 June 2005 and on 6 July 2005 the Regional Court dismissed
motions challenging the impartiality of the judges lodged by three
defendants.
The
hearing scheduled for 2 August 2005 was adjourned as the lawyers of
two of the accused failed to appear. On the same day the court
dismissed another motion challenging the impartiality of the judge.
The
hearing scheduled for 9 August 2005 was adjourned because two
witnesses failed to appear.
On
31 August 2005 the Czestochowa Regional Court heard witnesses.
On
28 December 2005 the court gave its judgment. The applicant was found
guilty of being a member of an organised criminal group involved in
the commission of armed robberies, offences against life or limb and
drug trafficking. He was also found guilty of purchasing 0.5 kg of
cocaine and distributing it on the market, and of possession of two
firearms. The Regional Court imposed on him concurrent sentences
totalling 5 years, and counted the period of provisional custody
towards the sentence. By that stage the case file numbered 121
volumes.
The
applicant appealed and the proceedings are pending.
II. RELEVANT DOMESTIC LAW
1. Remedies against unreasonable length of the
proceedings
The
legal provisions applicable at the material time as well as matters
of practice are set out in the Court’s judgment in Barszcz
v. Poland, no. 71152/01, § 26-35, 30 May 2006.
2. Preventive measures, including detention on remand
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 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
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
The
Government contested that argument.
The
period to be taken into consideration began on 24 April 2001, when
the applicant was arrested. The proceedings are pending. They thus
have lasted [on 12 December 2006] 5 years and 7 months for two levels
of jurisdiction.
A. Admissibility
The
Government submitted that since the applicant’s complaint
lodged under the Act of 17 June 2004 had been dismissed on 23
February 2006, the applicant had a possibility to lodge another
complaint about the length of the proceedings after a lapse of 12
months, according to section 14 of that Act. In a new complaint the
applicant could have raised his arguments concerning the conduct of
the courts after 23 February 2005. Therefore, in the Government’s
view, that period should not be taken into account by the Court in
the assessment of the overall length of the proceedings.
The
Court recalls that it has already established that the remedies
provided by the Law of 17 June 2004 were effective in respect of
excessive length of criminal proceedings (see Charzyński
v. Poland (dec.), no. 15212/03). However, the Court
observes that the applicant’s complaint was dismissed when the
proceedings in his case had already been pending for almost four
years. The Court does not find it necessary for the applicant, in
order to comply with the requirement of Article 35 § 1 of the
Convention, to lodge a new complaint every 12 months.
For
this reason, the Government’s plea of inadmissibility on the
ground of non-exhaustion of domestic remedies with regard to the
period after 25 February 2005 must be dismissed.
The
Court further 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
The parties’ submissions
The
applicant complained that the length of the criminal proceedings in
his case had been excessive. He did not point to any particular
period of inactivity or lack of due diligence on the part of the
authorities.
The
Government emphasised that the case had been very complex, because it
had concerned charges relating to organised crime. It had involved
twenty-two accused and seventy-five witnesses. Furthermore, two crown
witnesses had been involved, which required special security
precautions to be taken.
The
Government relied heavily on the volume of evidence gathered by the
prosecuting authorities and on the difficulties in conducting the
investigation, given the considerable number of accused and victims,
as well as the serious nature of the offences committed by the
criminal group.
The
investigation in cases of this kind required much more time and
resources, given the number of offences to be examined. Frequently,
evidence from anonymous witnesses had been required and extraordinary
measures had had to be taken to guarantee both the anonymity of a
witness and the rights of the accused. Moreover, the accused and
witnesses had often belonged to the same or a competing criminal
group and had had to be isolated from each other, both in the
relevant detention centre and during transport to the court, which
had caused additional logistical problems.
As
to the applicant’s conduct, the Government were of the opinion
that the applicant had partly contributed to the prolongation of the
proceedings as he had availed himself of his procedural rights by,
inter alia, lodging repeated requests for release. Therefore,
the case file had had to be forwarded on numerous occasions to the
Court of Appeal in order to examine the applicant’s appeals.
This had unavoidably prolonged the proceedings. He had also refused
to co-operate with the prosecuting authorities and the court and had
declined to submit any explanations or information.
As
regard the conduct of the authorities, the Government were of the
view that the examination of the case had been conducted swiftly and
without delays and the domestic courts had shown due diligence in
ensuring the proper conduct of the proceedings. They argued that
there had been some objective difficulties which had impeded the
conduct of the case, which could not be held against the courts. Many
witnesses had repeatedly failed to attend the hearings. Certain
hearings had had to be adjourned because defence counsel had failed
to comply with summonses. Finally, other co-accused had submitted
numerous ill-founded requests and motions.
The
Government concluded that the authorities had not failed to display
due diligence in the conduct of the proceedings.
The Court’s assessment
The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities (see, among
many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II; Kuśmierek v.
Poland, no. 10675/02, §62, 21 September 2004).
Considering
the nature of the case, the Court accepts the Government’s
argument that it was complex. This is clearly shown by the volume of
evidence obtained during the proceedings. During the investigations
the prosecuting authorities gathered extensive documentary evidence.
Numerous witnesses had to be interviewed. Even before the trial had
commenced, the files in the case numbered 59 volumes, and the number
reached 121 volumes by the time the judgment of the first-instance
court was delivered.
As
to the applicant’s conduct, the Court first observes that he
lodged several requests for release and appealed against the court’s
refusals. On two occasions the examination of his requests required
an opinion of a medical expert to assess the applicant’s
health. The Court also notes the applicant’s refusal to
co-operate with the authorities in their attempt to establish the
circumstances of the case.
While
this conduct could have contributed to the prolongation of the
proceedings and cast doubt on the applicant’s intention to have
the proceedings concluded speedily, the Court is of the view that it
did not have a decisive impact on the overall length of the
proceedings.
As
to the conduct of the authorities, the Court first observes that the
bill of indictment was submitted to the Regional Court on 27 February
2003 and that the first hearing on the merits of the case was held on
15 July 2003. However, there was considerable procedural
activity throughout that period, caused mainly by requests for
release lodged by the defendants.
The
Court further observes that a number of hearings in the case had to
be adjourned because many witnesses, often suspects in other
proceedings, had failed to comply with the summonses (see, for
instance, paragraphs 25, 28, 31 and 37 above) or the defendants’
lawyers did not attend the hearings (see paragraphs 11, 44, 51
above). In contrast, no hearings were adjourned for reasons which
could be attributed to the court’s failure to organise the
proceedings efficiently.
The
Court also notes that the domestic court made efforts to expedite the
proceedings. It did not adjourn hearings in situations where
defendants had failed to appear in court. It also imposed fines on
witnesses who had failed to comply with the summonses and often
requested that they be escorted to the court by the police.
The
hearings in the case were scheduled at regular intervals, four or
five times a month. When they were adjourned it was mostly for
reasons which could not be attributed to the court and the number of
adjourned hearings was not significant, bearing in mind that about
seventy hearings were held in the first-instance court within a
period of two years and five months.
Having regard to the foregoing, the Court concludes
that the proceedings complained of do not disclose an unreasonable
delay within the meaning of Article 6 § 1.
There
has accordingly been no breach of that provision.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
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 its relevant part
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
The
Government submitted that the applicant had not exhausted the
remedies provided for by Polish law as regards his complaint under
Article 5 § 3 of the Convention in that he had failed to
appeal against all the decisions prolonging his detention.
In
the present case the applicant lodged appeals against most of the
decisions prolonging his detention. He also requested on numerous
occasions that his detention be replaced by a more lenient preventive
measure and appealed against decisions dismissing his requests. The
Court has already considered that those remedies, i.e. an appeal
against a detention order, a request for release, whether submitted
to the prosecutor or to the court, depending on the stage of the
proceedings, and also an appeal against a decision to prolong
detention on remand, serve the same purpose under Polish law. Their
objective is to secure a review of the lawfulness of detention at any
given time of the proceedings, both in their pre-trial and trial
stage, and to obtain release if the circumstances of the case no
longer justify continued detention (see Iwańczuk v. Poland
(dec.), no. 25196/94, 9 November 2000). The applicant
availed himself of all those remedies.
It
follows that this complaint cannot be rejected for non-exhaustion of
domestic remedies. The Court further notes that it is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention and is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Period to be taken into consideration
The Court observes that the applicant was detained on
remand on 24 April 2001 and released on bail on 24 March 2005.
Consequently, the period to be taken into consideration under Article
5 § 3 lasted three years and eleven months.
2. The reasonableness of the length of detention
(a) The parties’ arguments
The applicant maintained that the period of over three
years during which he had been held in custody had been incompatible
with the requirement set out in Article 5 § 3. In his
submission, the grounds relied on by the authorities in their
detention decisions could not be considered “relevant”
and “sufficient” so as to justify the entire period of
his detention.
The Government considered that the applicant’s
detention satisfied the requirements of Article 5 § 3. It was
justified on relevant and sufficient grounds. These grounds were, in
particular, the gravity of the charges against him as well as the
risk that he might obstruct the proper course of the proceedings. The
latter risk was particularly justified as the applicant had been
charged with being a member of an organised criminal gang.
The Government further argued that the domestic
authorities had shown the due diligence required in cases against
detained persons. Finally, the Government referred to the complexity
of the case.
(b) The Court’s assessment
(i) Principles established under the
Court’s case-law
The
Court reiterates that the question of whether or not a period of
detention is reasonable cannot be assessed in the abstract. Whether
it is reasonable for an accused to remain in detention must be
assessed in each case according to its special features. Continued
detention can be justified in a given case 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 laid down in Article 5 of the
Convention (see, among other authorities, Labita v. Italy
[GC], no. 26772/95, § 152 et seq., ECHR 2000 IV;
Kudła v. Poland [GC], no. 30210/96, § 110,
ECHR 2000 XI).
It falls in the first place to the national judicial
authorities to ensure that, in a given case, the pre-trial detention
of an accused person does not exceed a reasonable time. To this end
they must, paying due regard to the principle of the presumption of
innocence, examine all the facts arguing for or against the existence
of the above-mentioned requirement of public interest justifying a
departure from the rule in Article 5 and must set them out in their
decisions on the applications for release. It is essentially on the
basis of the reasons given in these decisions and of the established
facts stated by the applicant in his appeals that the Court is called
upon to decide whether or not there has been a violation of Article 5
§ 3 of the Convention (see Muller v. France judgment of
17 March 1997, Reports 1997-II, p. 388, § 35; McKay v. the
United Kingdom [GC], no. 543/03, § 43, ECHR 2006-...).
The
persistence of reasonable suspicion that the person arrested has
committed an offence is a condition sine qua non for the lawfulness
of the continued detention, but after a certain lapse of time it no
longer suffices. The Court must then establish whether the other
grounds given by the judicial authorities continued to justify the
deprivation of liberty. Where such grounds were “relevant”
and “sufficient”, the Court must also be satisfied that
the national authorities displayed “special diligence” in
the conduct of the proceedings (Tomasi v. France, judgment of
27 August 1992, Series A no. 241 A, p. 35, § 84;
Kudla, cited above, §111).
(ii) Application of the principles to the
circumstances of the present case
The
Court observes that the authorities initially relied on the existence
of a reasonable suspicion that the applicant had committed the
offences with which he had been charged and on the risk that he might
interfere with the conduct of the proceedings. In addition, the
authorities relied heavily on the severity of the sentence that could
be expected and on the complexity of the case.
The judicial authorities appeared to presume the
existence of the risk of pressure being brought to bear on witnesses
or of obstruction of the proceedings on the basis of the severity of
the sentence that could be expected (see paragraphs 5, 8 and 9
above). In this respect, the Court reiterates that the severity of
the sentence faced is a relevant element in the assessment of the
risk of absconding or re-offending (Górski v. Poland,
no. 28904/02, § 57, 4 October 2005). The Court also
acknowledges that in view of the seriousness of the accusations
against the applicant the authorities could justifiably consider in
an initial stage that such a risk was present. However, the Court has
repeatedly held that the gravity of the charges cannot by itself
serve to justify long periods of detention on remand (see Ilijkov
v. Bulgaria, no. 33977/96, §§ 80-81, 26 July
2001).
Furthermore,
the judicial authorities relied on the fact that the applicant had
been charged with being a member of an organised criminal gang. In
this regard, the Court reiterates that the existence of a general
risk flowing from the organised nature of the alleged criminal
activities of the applicant may be accepted as the basis for his
detention at the initial stages of the proceedings (see Górski
v. Poland, cited above, § 58) and in some circumstances
also for subsequent prolongations of the detention (see, Celejewski
v Poland, no. 17584/04, § 37, 4 May 2006; Dudek v Poland,
no. 633/03, § 36, 4 May 2006). It is also accepted that in
such cases, involving numerous accused, the process of gathering and
hearing evidence is often a difficult task. In these circumstances,
the Court considers that the need to obtain voluminous evidence from
many sources and to determine the facts and degree of alleged
responsibility of each of the co-defendants, constituted relevant and
sufficient grounds for the applicant’s detention during the
period necessary to terminate the investigation, to draw up the bill
of indictment and to hear evidence from the accused. Moreover, the
Court considers that in cases such as the present concerning
organised criminal gangs, the risk that a detainee, if released,
might bring pressure to bear on witnesses or other co-accused, or
might otherwise obstruct the proceedings, is by the nature of things
often particularly high.
While all the factors considered above could justify a
relatively longer period of detention on remand, they do not however
give the authorities unlimited power to prolong this preventive
measure. Firstly, with the passage of time, the initial grounds for
pre-trial detention become less and less relevant and the domestic
courts should rely on other “relevant” and “sufficient”
grounds to justify the deprivation of liberty (see, among many other
authorities, I.A. v. France, judgment of 23 September
1998, Reports of Judgments and Decisions 1998-VII, p. 2979,
§ 102; Labita, cited above, § 153).
Secondly, even if the particular circumstances of the case required
detention on remand to be extended beyond the period generally
accepted under the Court’s case-law, particularly strong
reasons would be needed to justify this.
The Court would emphasise that under Article 5
§ 3 the authorities, when deciding whether a person is to
be released or detained, are obliged to consider alternative measures
of ensuring his appearance at the trial. Indeed, that provision
proclaims not only the right to “trial within a reasonable time
or release pending trial” but also provides that “release
may be conditioned by guarantees to appear for trial” (see
Jabłoński v. Poland, no. 33492/96, § 83,
21 December 2000).
In
the present case the Court notes that there is no express indication
that during the entire period of the applicant’s pre-trial
detention the authorities envisaged any other guarantees of his
appearance at trial. Nor did they give proper consideration to the
possibility of ensuring his presence at trial by imposing on him
other “preventive measures” expressly foreseen by Polish
law to secure the proper conduct of criminal proceedings, even if in
the particular circumstances of the case other preventive measures
might have been less appropriate.
In
this connection, the Court observes that the authorities did not
explain why the risk of absconding had ceased to exist in the cases
of six co-defendants who had been released at earlier stages of the
proceedings. The Court cannot overlook that the authorities justified
the risk of obstruction by, inter alia, the fact that the
applicant had not confessed. In so far as they appear to have drawn
adverse inferences from that fact, the Court considers that their
reasoning showed a manifest disregard for the principle of the
presumption of innocence and cannot, in any circumstances, be relied
on as a legitimate ground for deprivation of the applicant’s
liberty (see Górski, cited above, § 58).
The
Court concludes, even taking into account the particular difficulty
in dealing with a case concerning an organised criminal group that
the grounds given by the domestic authorities were not “sufficient”
and “relevant” to justify the applicant’s being
kept in detention for three years and eleven months.
There has therefore been a violation of Article 5 § 3 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 50,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
The
Government contested the claim. They requested the Court to rule that
the finding of a violation constituted of itself sufficient just
satisfaction.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
Having regard to its rulings in cases which concerned
similar violations (see, among many other authorities; Čevizović
v. Germany, no. 49746/99, 29 July 2004; Dumont-Maliverg
v. France, nos. 57547/00 and 68591/01, 31 May 2005; Świerzko
v. Poland, no. 9013/02, 10 January 2006; Pasiński v.
Poland, no. 6356/04, 20 June 2006), the Court considers that the
finding of a violation of Articles 5 § 3 of the
Convention constitutes in itself sufficient just satisfaction in
respect of any non-pecuniary damage suffered by the applicant.
B. Costs and expenses
The
applicant, who was represented by a lawyer, did not submit a claim
for costs and expenses.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the applications admissible;
Holds that there has been no violation of
Article 6 § 1 of the Convention;
Holds that there has been a violation of Article
5 § 3 of the Convention;
4. Holds unanimously that the finding of a
violation constitutes in itself sufficient just satisfaction in
respect of non-pecuniary damage;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 16 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
