(Application no. 43610/06)
29 September 2009
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 Wiśniewski v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 8 September 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. The first set of criminal proceedings against the applicant (no. II K 255/03) and his pre-trial detention
B. The second set of criminal proceedings against the applicant (no. II K 194/05) and his pre-trial detention
II. RELEVANT DOMESTIC LAW AND PRACTICE
The Constitutional Court ruled that the unconstitutional provision was to be repealed within six months from the date of the publication of the judgment in the Journal of Laws (Dziennik Ustaw).
B. Measures taken by the State to reduce the length of pre-trial detention and relevant Council of Europe documents
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
“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 Court observes, however, that in the present case the domestic courts did not base their decisions extending the applicant’s pre-trial detention on the part of Article 263 § 4 that was declared unconstitutional. They relied only on the necessity of gathering evidence in a particularly complex case, that is to say, a prerequisite that the Constitutional Court considered compatible with the Constitution (see paragraph 24 above).
The Court is therefore of the opinion that it is doubtful that the applicant could have successfully lodged a constitutional complaint in respect of provisions whose constitutionality has been vetted by the Constitutional Court and found to be compatible with the Polish Constitution in its judgment of 24 July 2006.
1. Period to be taken into consideration
Accordingly, the period to be taken into consideration amounts to 3 years and 11 months.
2. The parties’ submissions
(a) The applicant
(b) The Government
3. The Court’s assessment
(a) General principles
(b) Application of the above principles in the present case
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, 16 January 2007).
Furthermore, according to the authorities, the likelihood of a severe sentence being imposed on the applicant created a presumption that he would obstruct the proceedings. However, the Court would reiterate that, while the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or re-offending, the gravity of the charges cannot by itself justify long periods of detention on remand (see Michta v. Poland, no. 13425/02, §§ 49, 4 May 2006).
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Between 23 February 2006 and 21 November 2007 the applicant served a prison sentence which had been imposed on him in the first set of criminal proceedings. This term, being covered by Article 5 § 1 (a), must therefore be subtracted from the period of the applicant’s pre-trial detention for the purposes of Article 5 § 3. Accordingly, the period to be taken into consideration amounts to one year and four months.
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.
III. APPLICATION OF ARTICLE 46 OF THE CONVENTION
“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”
1. The parties’ submissions
(a) The applicant
(b) The Government
2. The Court’s assessment
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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 1,500 (one thousand five hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(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;
Done in English, and notified in writing on 29 September 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza