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ROZMARYNOWSKI v. POLAND - 37149/02 [2008] ECHR 39 (15 January 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/39.html
Cite as:
[2008] ECHR 39
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FOURTH
SECTION
CASE OF ROZMARYNOWSKI v. POLAND
(Application
no. 37149/02)
JUDGMENT
STRASBOURG
15
January 2008
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 Rozmarynowski v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza,
President,
Giovanni Bonello,
Kristaq Traja,
Lech
Garlicki,
Ljiljana Mijović,
Ján
Šikuta,
Päivi Hirvelä, judges,
and
Lawrence Early, Section Registrar,
Having
deliberated in private on 11 December 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 37149/02) 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 Piotr
Rozmarynowski (“the applicant”), on 3 July 2001.
The
Polish Government (“the Government”) were represented by
their Agent, Mr. Jakub Wołąsiewicz of the Ministry of
Foreign Affairs.
The
applicant alleged that his detention on remand exceeded a “reasonable
time” within the meaning of Article 5 § 3 of the
Convention.
On
5 September 2006 the
President of the Fourth Section of the Court decided to communicate
the complaint concerning the length of the applicant's pre-trial
detention 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 1975 and lives in Rawicz.
1. First set of criminal proceedings against the
applicant and his detention on remand
On
28 April 1995 the applicant was arrested on suspicion of attempted
robbery and threats to kill, committed in an organised criminal group
carrying out robberies, extorting money by threats and drug
trafficking.
On
23 May 1995 the Poznań District Court remanded him in custody,
relying on the reasonable suspicion that he had committed the
offences in question. The subsequent decisions of the court of 27 May
and 26 June 1995 further extending his detention (by the latter until
27 July 1995) were based on a reasonable suspicion that the applicant
had committed the offences and on the severity of the likely
sentence. It was also considered that
keeping the applicant in detention was necessary to secure the proper
conduct of the proceedings, given the risk that he might tamper with
evidence or induce witnesses to give false testimony.
The
applicant was released from a detention centre on 25 July 1995 by the
Poznań District Court's decision and assigned a probation
officer with the obligation to report to the latter on a weekly
basis. He failed however to do so. Following his release he went into
hiding and the criminal investigation against him had to be
suspended. Subsequently an arrest warrant was issued by the
authorities.
2. Second set of criminal proceedings against the
applicant and his detention on remand
On
15 January 1999 the applicant was again arrested on suspicion of drug
trafficking and of leading a criminal group organised along military
lines. Subsequently the criminal investigation was reopened and
conducted jointly with the proceedings concerning offences allegedly
committed by the applicant after his release in 1995.
By
a decision of the Poznań District Court of 17 January 1999 he
was detained on remand.
In
the course of the investigation, the applicant's detention was
prolonged on several occasions by the Poznań Regional Court's
decisions of 5 May, 13 July, 20 December 1999, 12 July, 12 August
2000 and 9 July 2001, and by the Poznań Court of Appeal's
decisions of 10 October 2000 and 4 October 2001. In all the
afore-said decisions the authorities repeatedly relied on a strong
suspicion that the applicant had committed the offences in question,
which was supported by evidence from witnesses and experts. They
attached importance to the grave nature of those offences and the
likelihood of a severe sentence of imprisonment being imposed on the
applicant. They further considered that the need to secure the proper
conduct of a very complicated investigation, especially the need to
verify evidence from suspects and witnesses and to obtain fresh
evidence from experts, justified holding him in custody. The
courts further stressed that there was a serious risk of the
applicant going into hiding, in particular having regard to the fact
that he had been sought pursuant to a wanted notice before his
arrest.
The
applicant unsuccessfully appealed against all these decisions,
arguing that the charges against
him were based on unreliable and contradictory evidence.
He
further requested to have the preventive measure replaced by a more
lenient one, but his motions were dismissed on 6 April 1999 by the
Poznań Regional Prosecutor and on 13 October 1999 and 8 January
2001 by the Poznań Regional Court.
On
9 July 1999 the Poznań Regional
Prosecutor lodged a bill of indictment with the Poznań
Regional Court. The applicant was
charged with leading an organised criminal group involved in drug
trafficking, extortion of money, armed robberies, illegal possession
of weapons and damaging cars. There were 11 defendants in the case,
all charged with numerous offences committed in the said organised
criminal group. Seven out of the eight charges concerned crimes
committed after the applicant's release from detention on remand in
1995. The prosecutor requested that 50 witnesses be heard by the
court.
The
Poznań Regional Court held twenty one hearings between
19 November 1999 and 12 December 2000. Only one hearing –
scheduled for 11 July 2000 – was cancelled due to the
non-appearance of witnesses.
During
a hearing held on 29 September 2000 the applicant was punished for
contempt of court (using abusive and vulgar language). During the
same hearing the applicant's lawyer declared that his client would
not cooperate with him. Hence, the court decided to adjourn the
hearing due to the applicant's conflict with his counsel.
During
a hearing held on 12 December 2000 the court decided to examine the
applicant's case separately from that of the other co-accused. The
court found that as the applicant's lawyer was in conflict with the
applicant regarding the conduct of the defence and had to be
replaced, it would adjourn the proceedings in his case while
continuing the trial with respect to the other co-accused.
Following
the severance of the applicant's case and the appointment of a new
counsel, the Poznan Regional Court held hearings in the applicant's
case on 10 January, 13 February, 7 and 17 March 2001, when the
proceedings were finally closed.
On
2 April 2001 the Poznań Regional Court found the applicant
guilty as charged and sentenced him to 9 years' imprisonment.
On
22 November 2001 the Poznań Court of Appeal dismissed the
applicant's appeal. On 6 May 2003 the Supreme Court quashed the
judgment and remitted the case to the appellate court for
reconsideration. The court found that the “military character”
of the group in which the applicant had participated was not
sufficiently proved since the use of firearms had been isolated. At
the same time, it prolonged the applicant's detention on remand.
On
17 June 2003 the Poznań Court of Appeal amended its previous
judgment in that it acquitted the applicant of the charge of
membership of a criminal group of a military character and sentenced
him to 8 years' imprisonment.
On
2 April 2004 the Supreme Court refused to entertain the applicant's
cassation appeal as being manifestly ill-founded. No reasoning for
this decision was given.
II. RELEVANT DOMESTIC LAW AND PRACTICE
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: 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
August 2006.
THE LAW
I. 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 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 contested that argument.
A. Admissibility
The
Court notes that the applicant's pre-trial detention can be divided
into two consecutive periods, the first lasting from 28 April 1995
until 25 July 1995 and the second from 15 January 1999. Since the
applicant's two periods of detention were imposed in a single set of
criminal proceedings both periods should be examined jointly.
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
1. Period to be taken into consideration
The
applicant's first term of detention started on 28 April 1995. He was
subsequently released on 25 July 1995.
The
second term started on 15 January 1999, when he was again arrested on
suspicion of drug trafficking and of leading a criminal group
organized along military lines. On 2 April 2001 the Poznań
Regional 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 (Kudła v. Poland, cited above,
§ 104).
On
6 May 2003 the Supreme Court quashed the applicant's conviction.
Following that date his detention was again covered by Article 5 § 3.
It continued until 17 June 2003 when the applicant was again
convicted by the Poznań Court of Appeal.
Accordingly,
the total period to be taken into consideration amounts to
approximately 2 years and 7 months.
2. The parties' submissions
(a) The Government
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 with reference to the
fact that he had acted in an organised criminal group. The risk that
the defendant might obstruct the proceedings or tamper with evidence
was aggravated by the fact that he was charged along with 11 other
co-defendants, all members of an organised criminal group. The
domestic courts had considered it necessary to remand the applicant
in custody until all relevant witnesses had been heard.
The
Government further emphasised the serious nature of the charges and
the number of defendants as well as the complexity of the case and
the volume of evidence. The necessity of the applicant's continued
detention was thoroughly examined by the courts which on each
occasion had provided exhaustive reasons for their decisions.
Furthermore,
the conduct of the proceedings had been significantly hindered by the
unwarranted exercise of procedural rights by the defendants and their
defence counsel, which contributed to their length.
Finally,
the Government stressed that the applicant was initially arrested in
1995. He was subsequently released in June 1995 as allegedly he had
to take care of his mother and grandmother. In fact, the applicant
went into hiding and the investigation in his case had to be
suspended. This constituted an aggravating circumstance influencing
the courts' decisions extending his detention on remand, as the risk
of the applicant absconding was exceptionally high.
(b) The applicant
The
applicant argued that the length of his detention had been
unreasonable. He further alleged that the courts had failed to
substantiate with adequate reasons the decisions extending his
detention pending trial.
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 provisional 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, 6 October 2006 with further references).
According
to the settled case-law of the Court, the issue of whether a period
of detention is reasonable cannot be assessed in abstracto.
Whether it is justified that the accused remains in detention must be
assessed in each case according to its special features. Continued
detention therefore 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, Kudła, cited
above §§110-11, W. v. Switzerland , no. 14379/88, 26
January 1993).
It
falls in the first place to the national judicial authorities to
ensure that, in a given case, the detention pending trial of an
accused person does not exceed a reasonable time. To this end they
must examine all the facts arguing for or against the existence of a
genuine requirement of public interest justifying, with due regard to
the principle of the presumption of innocence, a departure from the
rule of respect for individual liberty and set them out in their
decisions dismissing the applications for release. It is essentially
on the basis of the reasons given in these decisions and of the
established facts mentioned 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
McKay, cited above, § 43,).
The
persistence of a 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 (see Labita v. Italy, no.
26772/95, § 153, 6 April 2000). The complexity and special
characteristics of the investigation are factors to be considered in
this respect (see, for example, Scott v. Spain, no. 21335/93 §
74, 18 December 1996, and I.A. v. France, no. 28213/95, §
102, 23 September 1998).
In
sum, domestic courts are under an obligation to review the continued
detention of persons pending trial with a view to ensuring release
when circumstances no longer justify continued deprivation of
liberty. For at least an initial period, the existence of reasonable
suspicion may justify detention but there comes a moment when this no
longer suffices. As the question whether or not a period of detention
is reasonable cannot be assessed in the abstract but must be assessed
in each case according to its special features, there is no fixed
time-frame applicable to each case (see McKay, cited above, §
45, Gładczak v. Poland, no. 14255/02, §49, 31 May
2007).
(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 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 having in mind the risk that the applicant might tamper
with evidence and influence or threaten witnesses; and (4) the risk
that the applicant might abscond. In particular as regards the
latter, they relied on the fact that the applicant had absconded
after his release from detention in 1995 and subsequently was sought
pursuant to an arrest warrant (see paragraph 8 above).
The
applicant was charged with numerous counts of armed robbery,
extortion, illegal possession of weapons and drug smuggling committed
together with other persons.
Thus it was a classic example of
organised crime, by definition presenting more difficulties for the
investigation authorities and, later, for the courts in determining
the facts and the degree of responsibility of each member of the
group. 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, § § 56
and 57, 16 January 2007).
The
Court accepts that the reasonable suspicion against the applicant of
having committed serious offences could initially warrant his
detention. Moreover, the need to secure the proper conduct of the
proceedings, in particular the process of obtaining voluminous
evidence from witnesses certainly constituted valid grounds for the
applicant's initial detention.
However
with the lapse of time these grounds no longer suffice to justify the
extended periods of detention awaiting trial. Hence the courts must
provide more valid reasons to justify prolonged deprivation of
liberty.
The
Court notes that the judicial authorities relied heavily on the
likelihood that a severe sentence would be imposed on the applicant
given the serious nature of the offences at issue. 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 group. 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, no. 28904/02, § 58, 4 October
2005) and in some circumstances also for subsequent prolongations of
the detention (see, Celejewski v. Poland, 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. 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 11
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 other accused. Moreover, the Court considers that in cases
such as the present concerning an organised criminal group, the risk
that a detainee, if released, might bring pressure to bear on
witnesses or other co-accused, or otherwise obstruct the proceedings,
is by the nature of things often particularly high (see, Gładczak,
cited above, § 55).
The
Court further noted that the applicant was initially arrested as
early as 1995. It cannot be overlooked that he was subsequently
released from detention in July 1995 to enable him to take care of
his mother and grandmother. However, he absconded and the
investigation had to be suspended. Subsequently he had been sought
pursuant to a wanted notice (see paragraph 8 above). This constituted
an aggravating circumstance supporting the courts' decisions
extending the applicant's detention on remand, as the risk of his
absconding again was exceptionally high. Further, the Court notes
that seven out of the eight charges against the applicant concerned
crimes committed after his release from detention on remand in 1995
(see paragraph 14 above). The
domestic courts cannot be reproached for harbouring grave concerns
that the applicant would, if released again, go into hiding and
engage in further serious criminal activity.
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 relevant period.
It
therefore remains to be ascertained whether the national authorities
displayed “special diligence” in the conduct of the
proceedings. In this connection, 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. The course of the
proceedings was swift and their length reasonable. The Court
therefore concludes that the national authorities displayed special
diligence in the conduct of the proceedings. It should not be
overlooked that, while an accused person in detention is entitled to
have his case given priority and conducted with particular
expedition, this must not stand in the way of the judges' efforts to
clarify fully the facts in issue, to provide both the defence and the
prosecution with all necessary facilities for putting forward their
evidence and stating their case and to give judgment only after
careful reflection on whether the offences were in fact committed and
on the sentence to be imposed.
For
these reasons, the Court considers that the domestic authorities
handled the applicant's case with relative expedition.
Having
regard to the foregoing, the Court finds that there has been no
violation of Article 5 § 3 of the Convention.
II. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
Lastly,
the applicant complained under Article 6 § 1 of the Convention
about the excessive length and unfairness of the proceedings
terminated on 2 April 2004.
His
complaint about the alleged unfairness of the proceedings is clearly
of a fourth-instance nature. Nothing in the case file suggests any
appearance of a violation of the Convention, in particular there is
no indication that the courts' assessment of the evidence was
arbitrary or that they reached conclusions which were manifestly
unreasonable. The applicant was not prevented in any way from
presenting his arguments to the courts and had the benefit of
adversarial proceedings in compliance with the requirements of the
Convention.
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3
and 4 of the Convention.
As
regards the alleged undue length of the proceedings, the Court has
already ruled that a civil action for damages brought under section
16 of the Law of 17 June 2004 on complaints about a breach of the
right to a trial within a reasonable time (“the 2004 Act”)
read together with Article 417 of the Civil Code was an effective
remedy in respect of persons who, on 17 September 2004, when the
2004 Act entered into force, could still lodge such an action within
a prescribed time–limit (see Krasuski v. Poland, no.
61444/00, 14 June 2005). As the final judgment in the present case
was given on 2 April 2004, the applicant could have filed an action
for damages with a domestic court until 2 April 2007. However, he did
not avail himself of this remedy.
It
follows that this part of the application must be rejected under
Article 35 §§ 1 and 4 of the Convention for
the applicant's failure to exhaust domestic remedies.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning the length of
detention admissible and the remainder of the application
inadmissible;
Holds that there has been no violation of
Article 5 § 3 of the Convention.
Done in English, and notified in writing on 15 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza Registrar President
