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GORECKA v. POLAND - 41230/04 [2007] ECHR 863 (23 October 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/863.html
Cite as:
[2007] ECHR 863
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FOURTH
SECTION
CASE OF GÓRECKA v. POLAND
(Application
no. 41230/04)
JUDGMENT
STRASBOURG
23 October
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 Górecka v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L.
Mijović,
Mr J. Šikuta,
Mrs P. Hirvelä,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 2 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 41230/04) 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, Ms Barbara
Górecka (“the applicant”), on 2 November 2004.
The
applicant was represented by Mr A. Kasperkiewicz, 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
10 March 2006 the
President of the Fourth Section decided to give notice of the
application to the Government. Under the provisions of Article 29 §
3 of the Convention, it was decided to examine the merits of the
application at the same time as its admissibility.
THE FACTS
I THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1952 and lives in Częstochowa.
A. The first set of criminal proceedings (no. I K
106/03)
The
applicant was arrested on 26 April 2001. On 28 April 2001 the
Częstochowa District Court remanded her in custody on suspicion
of fraud, forgery and making unlawful threats. It held that there was
a risk that the applicant would attempt to influence the witnesses,
given the significant differences between her statements and those of
the victims and witnesses. Furthermore, the District Court relied on
the severity of the anticipated penalty. Lastly, it found that other
preventive measures would be insufficient to secure the proper
conduct of the proceedings.
On
8 June 2001 the Częstochowa District Prosecutor ordered that the
investigation in the applicant's case be conducted in conjunction
with an investigation carried out by the Department of Organised
Crime of the Katowice Regional Prosecutor's Office. That
investigation concerned the operation in Częstochowa of an
organised criminal group led by a certain M.M.
On
19 July 2001 the Częstochowa Regional Court prolonged the
applicant's detention until 26 October 2001. It relied on the risk
that the applicant would obstruct the investigation and on the
severity of the anticipated penalty.
On
18 October 2001 the Regional Court ordered that the applicant be
remanded in custody until 10 December 2001, having regard to the
evidence obtained in the investigation. It found that there was a
reasonable risk that the applicant would attempt to obstruct the
proceedings, in particular by influencing witnesses, since she had
not confessed. Furthermore, the Regional Court found that the
prolongation of the applicant's detention was justified by the fact
that the investigation concerned a significant number of suspects.
Lastly, it found that there were no special circumstances, as
specified in Article 259 of the Code of Criminal Procedure, that
would justify her release. The applicant appealed against that
decision.
On
14 November 2001 the Katowice Court of Appeal upheld the impugned
decision. It held, however, that there were no grounds indicating
that there was a risk that the applicant would obstruct the
proceedings. It further pointed out that the Regional Court had erred
in holding that such risk could flow from the fact that the applicant
had not confessed, since such a view infringed the applicant's
defence rights. On the other hand, the Court of Appeal found that the
applicant's continued detention was justified under Article 258 §
2 of the Code of Criminal Procedure. That provision established a
presumption to the effect that the likelihood of a severe penalty
being imposed on the applicant might induce her to obstruct the
proceedings.
On
29 November 2001 the Regional Court prolonged the applicant's
detention until 26 April 2002.
Since
on 26 April 2002 the applicant's detention pending investigation had
reached the statutory time-limit of one year, further prolongation of
her detention was ordered by the Katowice Court of Appeal. On 17
April 2002 the Court of Appeal extended the applicant's detention
until 10 June 2002. In addition to the grounds previously invoked, it
had regard to the evidence given by the State's witnesses and the
fact that not all of the accomplices had been arrested. The Court of
Appeal also relied on the need to obtain further expert evidence and
the complexity of the case.
On
22 May 2002 the Court of Appeal ruled that the applicant and some of
her co-suspects be kept in custody until 10 December 2002. Taking
into account the fact that they had acted in an organised criminal
group and that some of the members of the group had incriminated
them, the Court of Appeal found that the above factors gave substance
to the risk that they might obstruct the proceedings. It also
referred to the particular complexity of the case.
On
4 December 2002 the Court of Appeal ordered that the applicant and
her 7 co-suspects be held in custody until 24 April 2003. It referred
to the gravity of the charges and the number of suspects involved.
On
17 March 2003 the Katowice Regional Prosecutor laid additional
charges against the applicant.
On
14 April 2003 the prosecution filed a bill of indictment with the
Częstochowa District Court. The applicant was charged with
leading an organised criminal group, aggravated assault, possessing a
firearm without a licence, making unlawful threats, several forgeries
and numerous property-related frauds. There were 11 defendants
in the case. The prosecution asked the court to hear evidence from
145 witnesses.
On
23 April 2003 the Katowice Court of Appeal prolonged the applicant's
detention until 31 December 2003. It noted that the period of her
detention up to the first conviction had exceeded the statutory
time-limit of 2 years (Article 263 § 3 of the Code of
Criminal Procedure). However the length of the period had been
justified, in the court's view, by the particular complexity of the
case. It considered that since the applicant had been charged with
leading an organised criminal group, her continued detention had been
necessary in order to avoid the risk of obstruction of the
proceedings. It noted that the applicant, as a leader of the
organised criminal group, if released, could give instructions to its
members during the proceedings. It also had regard to the number of
charges. Furthermore, the Court of Appeal underlined the strong
likelihood of a severe sentence of imprisonment being imposed on the
applicant, having regard to Article 258 § 2 of the Code of
Criminal Procedure.
On
13 August 2003 the Katowice Court of Appeal, on an application from
the Częstochowa District Court, ordered that the applicant's
case be examined by the Częstochowa Regional Court.
According
to a medical report prepared in October 2004 the applicant could be
held in custody. However, it was recommended that she undergo
surgery. It appears that the applicant refused to do so.
During
the trial the Court of Appeal prolonged the applicant's detention
several times. The relevant decisions were given on 23 December
2003 (prolonging her detention until 30 June 2004), 9 June 2004
(ordering her continued detention until 30 December 2004),
10 November 2004 (extending that period until 30 June 2005) and
15 June 2005 (prolonging the applicant's detention until 31
October 2005). The Court of Appeal held that the grounds previously
given for the applicant's continued detention were still valid. In
its decision of 10 November 2004, the Court of Appeal found that
the trial could not be concluded due to the illness of the applicant
and two other defendants.
On
19 March 2005 the applicant suffered a cardiac arrest. She underwent
surgery and was hospitalised from 19 to 22 March 2005 in a civil
hospital in Częstochowa, and subsequently in the prison
hospitals in Lubliniec and Wrocław. According to reports
prepared by cardiologists (one of unspecified date and the other of 9
July 2005), the applicant could receive adequate treatment while in
detention on remand.
The
trial court held 69 hearings between 24 November 2003 and 24 October
2005.
During
the investigation and the trial the applicant filed several
unsuccessful applications for release and appealed, likewise
unsuccessfully, against the decisions prolonging her detention.
On
24 October 2005 the Częstochowa Regional Court gave judgment. It
convicted the applicant of 31 out of the 33 offences she had been
charged with and sentenced her to seven years' imprisonment. On the
same day the trial court ordered the applicant's release. She was
released on 25 October 2005.
The
applicant appealed against the first-instance judgment. On
22 November 2006 the Katowice Court of Appeal upheld the
conviction in respect of certain charges and reduced the sentence of
imprisonment to three and a half years. In respect of other charges
it remitted the case for re-examination by the trial court.
B. The second set of criminal proceedings
On
26 April 2004 the Częstochowa District Prosecutor charged the
applicant with incitement to murder and fraud. On the same day the
Częstochowa District Court remanded her in custody on suspicion
of incitement to murder and fraud. It relied on evidence given by the
applicant's co-suspect, a certain Z.K.
Subsequently,
the Częstochowa Regional Court prolonged the applicant's
detention on several occasions until 7 March 2005. The applicant
maintained that the charges against her lacked a sufficiently strong
basis since they were founded on unreliable evidence given by Z.K.
On
7 March 2005 the Częstochowa Regional Prosecutor decided to
release the applicant. On 11 March 2005 the Regional Prosecutor
discontinued the investigation against her.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The
relevant domestic law and practice regarding the imposition of
detention on remand (tymczasowe aresztowanie), the grounds for
its prolongation, release from detention and rules governing other,
so-called “preventive measures” (środki
zapobiegawcze) at the material time 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
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The
applicant complained that the length of her detention on remand had
been excessive. She 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.”
The
Government, having regard to the Court's case-law concerning the
length of pre-trial detention, refrained from taking a position on
the admissibility of the complaint.
A. Admissibility
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
The
applicant's detention started on 26 April 2001, when she was arrested
on suspicion of fraud, forgery and making unlawful threats. On
24 October 2005 the Częstochowa Regional Court convicted
her of most of the charges and sentenced her to a term of
imprisonment. On the same day the trial court ordered the applicant's
release which was effected on 25 October 2005. Accordingly, the
period to be taken into consideration amounts to 4 years, 5 months
and 30 days.
2. The parties' submissions
(a) The applicant
The
applicant argued that the length of her pre-trial detention had been
unreasonable.
(b) The Government
The
Government firstly presented some statistical data, indicating that
in the years 2000-2005 the number of indictments and convictions in
cases concerning organised crime increased both in absolute terms and
in relation to other crimes. In 2004 there were 617 indictments in
such cases and 220 persons were convicted. They argued that in
organised crime cases the authorities were faced with particular
problems relating to the taking and assessment of evidence and
various logistical issues.
With
reference to the present case, the Government submitted that the
applicant's pre-trial detention had been justified by the strong
likelihood that she had committed the offences with which she had
been charged, the gravity of those offences and the severity of the
anticipated penalty. Furthermore, her detention had been warranted by
the risk that she would obstruct the proceedings and tamper with
evidence, given the fact that she had been charged with leading an
organised criminal group. Only the isolation of the members of the
group could prevent them from coordinating their testimonies or
influencing witnesses. They underlined that the length of the
applicant's detention should be assessed with reference to the fact
that she and her co-defendants had acted in an organised criminal
gang.
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.
Furthermore, the applicant's case had been extremely complex. Lastly,
they submitted that the authorities had displayed special diligence
in the conduct of the proceedings.
3. The Court's assessment
(a) General principles
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 judgments (see, among many other authorities,
Kudła v. Poland [GC], no. 30210/96, § 110
et seq, ECHR 2000 XI; and McKay v. the United Kingdom
[GC], no. 543/03, §§ 41-44, ECHR 2006-..., with further
references).
(b) Application of the above principles in
the present case
In
their detention decisions, the authorities, in addition to the
reasonable suspicion against the applicant, relied principally on
four grounds, namely (1) the severity of the penalty to which she was
liable and the consequential risk that she might obstruct the
proceedings, (2) the risk that the applicant might interfere with
witnesses, given the fact that she had been charged with leading an
organised criminal group, (3) the gravity of the charges and (4) the
complexity of the case.
The
applicant was charged, inter alia, with leading an organised
criminal group (see paragraph 15 above). In the Court's view,
the fact that the case concerned a member of such a criminal group
should be taken into account in assessing compliance with Article 5 §
3 (see Bąk v. Poland, no. 7870/04, § 57,
ECHR 2007 ... (extracts)).
The
Court accepts that the reasonable suspicion against the applicant of
having committed the serious offences could initially warrant her
detention. In addition, it notes that the authorities were faced with
the difficult task of determining the facts and the degree of alleged
responsibility of each of the defendants. In these circumstances, the
Court also accepts that the need to obtain voluminous evidence from
many sources, coupled with the fact that in the course of the
investigation new suspects had been identified, constituted relevant
and sufficient grounds for the applicant's initial detention.
However,
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).
According
to the authorities, the likelihood of a severe sentence being imposed
on the applicant created a presumption that the applicant would
obstruct the proceedings. They relied in this respect on the Supreme
Court's resolution and its construction of Article 258 § 2 of
the Code of Criminal Procedure (see paragraphs 9 and 16 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, for
instance, Ilijkov v. Bulgaria, no. 33977/96, §§
80-81, 26 July 2001). Having regard to the above, the Court
cannot accept the position adopted by the judicial authorities in the
present case, namely that the presumption referred to above would
alone, after a certain lapse of time, justify the applicant's
continued detention without the need to indicate concrete facts
supporting the risk of obstruction of the proceedings.
Furthermore,
the Court observes that the trial court convicted the applicant of
most of the charges and sentenced her to seven years' imprisonment,
while on appeal the conviction was upheld only in part and the
sentence reduced to three and a half years' imprisonment. It cannot
but note that the sentence imposed on the applicant by the Court of
Appeal was in reality shorter than the period that she had spent in
pre-trial detention (four years and nearly six months). That
practice, i.e. of holding an accused in pre-trial detention for a
period which practically corresponds or, as in the present case, is
longer than the sentence subsequently imposed on him/her is, in the
Court's view, questionable. In this respect, it recalls that
continuation of detention cannot be used to anticipate a custodial
sentence (Letellier v. France, judgment of 26 June 1991,
Series A no. 207, § 51 and Kwiatek v. Poland,
no. 20204/02, § 43, 6 February 2007).
Moreover,
the judicial authorities relied on the fact that the applicant had
been charged with leading 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 her detention at the
initial stages of the proceedings (see, Górski v. Poland,
no. 28904/02, § 58, 4 October 2005) and in some
circumstances also for subsequent prolongations of the detention
(see, Celejewski, cited above, § 37). It is also accepted
that in such cases, involving numerous accused, the process of
gathering and hearing evidence is often a difficult task. 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 those above factors could justify even a relatively long period
of detention, they did not give the domestic courts an unlimited
power to prolong this measure. 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 (Wolf v. Poland,
nos. 15667/03 and 2929/04, § 90, 16 January 2007). In
this respect, the Court observes that the applicant was held in
custody for 4 years and nearly 6 months.
Having
regard to the foregoing, even taking into account the fact that the
courts were faced with the particularly difficult task of trying a
case involving members of an organised criminal group, the Court
concludes that the grounds given by the domestic authorities could
not justify the overall period of the applicant's detention. In these
circumstances it is not necessary to examine whether the proceedings
were conducted with special diligence.
There
has accordingly been a violation of Article 5 § 3 of the
Convention.
II. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant also complained that in respect of the first set of
criminal proceedings she had not been allowed any visits from her
children for the first year of her detention on remand (until April
2002). In respect of the second set of criminal proceedings, the
applicant further alleged that the charges against her had lacked any
basis and that the prosecutor in charge of the investigation had
commented on the case in the media, suggesting that she had been
involved in murder.
As
regards the complaint concerning the ban on visits, which falls to be
examined under Article 8 of the Convention, the Court notes that the
applicant submitted no evidence to substantiate it. Furthermore, this
complaint was introduced outside the six-months' time-limit.
As
regards the complaints concerning the second set of criminal
proceedings, the Court notes that the charges against the applicant
were dropped by the prosecution and the investigation was
discontinued. Thus, the applicant cannot claim to be a victim of any
violation in this respect. As regards the alleged dissemination in
the media of comments incriminating the applicant, the Court observes
that the applicant failed to adduce any evidence whatsoever to
substantiate this complaint.
It
follows that, regardless of other possible grounds of
inadmissibility, all these complaints are manifestly ill-founded and
must be rejected in accordance with Article 35 §§ 3 and 4
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 20,000 EUR in respect of non-pecuniary damage,
referring to the alleged violation of Articles 5 § 3 and 6 §
1. She also claimed an unspecified amount in respect of pecuniary
damage to cover her lost profits during her detention which she could
have made if she had continued her professional activity as a real
estate agent.
The
Government submitted that there was no causal link between the
alleged violation of Article 5 § 3 and the applicant's claim for
pecuniary damage. In respect of the claim for non-pecuniary damage,
they argued that a finding of a violation constituted in itself
sufficient just satisfaction. Alternatively, should the Court find a
violation of Article 5 § 3, they invited the Court to assess the
amount of just satisfaction on the basis of its case-law in similar
cases and having regard to national economic circumstances.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
In
respect of the claim for non-pecuniary damage, the Court observes
that it has found a violation of Article 5 § 3 on account of the
excessive length of pre-trial detention in respect of the first set
of criminal proceedings. The applicant did not allege a violation of
Article 6 § 1 at the earlier stages of the proceedings before
the Court and referred to this provision for the first time when
submitting her claims for non-pecuniary damage. The Court considers
that the applicant has suffered some non-pecuniary damage which is
not sufficiently compensated by the finding of a violation of Article
5 § 3 of the Convention. Considering the circumstances of the
case, in particular the fact that the period of the applicant's
pre-trial detention was longer than the sentence subsequently imposed
on her, and making its assessment on an equitable basis, the Court
awards the applicant EUR 3,000 under this head.
B. Costs and expenses
The
applicant submitted no claim for costs and expenses.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning the excessive
length of pre-trial detention admissible and the remainder of the
application inadmissible;
Holds that there has been a violation of Article
5 § 3 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,000
(three thousand euros) in respect of non-pecuniary damage, to be
converted into the national currency of the respondent State at the
rate applicable at the date of settlement, plus any tax that may be
chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 23 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
