(Application no. 30028/06)
3 November 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 Piotr Osuch v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 13 October 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
The court decided, however, that the applicant could be released upon payment of bail in the amount of 40,000,000 Polish zlotys (PLN), (approximately 10,000,000 euros (EUR) at the material time). It gave the following reasons for its decision:
“...given the request to replace detention on remand with bail [in an amount] that [the applicant] would be able to pay, lodged by one of his lawyers, it is now possible to examine again the issue of the application of another preventive measure [to the applicant]. The Court of Appeal is convinced that the accused has a substantial fortune; indeed, that can be deduced from the notes smuggled out of prison (gryps), addressed to his wife, which have been secured [by the authorities]. His means, not only financial, which [the applicant] refers to in this note justify [releasing the applicant on bail] and setting the amount of bail at PLN 40,000,000. The amount of bail, based on the applicant’s financial worth, is justified by the need to ensure the proper course of the proceedings and takes into account the scale of the damage and the type of offences committed.”
The court established that between 1997 and 2003 the applicant had created a false identity for himself and developed a model for international frauds which had allowed him to commit a series of offences. He had pretended to be a Cambridge or Oxford graduate, the owner of huge wealth located in different parts of the world which included 3,500 tons of gold deposited in a Zurich bank, the owner of a company, W, and the holder of the title Prince Peter von Hochburg – from an aristocratic Italian family. The applicant claimed to be an international investment adviser and broker able to secure bank guarantees of 150,000,000 United States dollars (USD). He falsely claimed to be employed by financial institutions. In reality the applicant did not have a university education and was not even registered as a taxpayer.
He was convicted of, inter alia, having obtained USD 4,800,000 under false pretences from a former footballer, R, and a further USD 5,000,000 from an Australian company, S. The applicant was also convicted of a series of other investment frauds and forgeries against individuals and companies in Poland and in Germany.
II. RELEVANT DOMESTIC LAW AND PRACTICE
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 is therefore of the opinion that it is doubtful whether the applicant could have successfully lodged a constitutional complaint in respect of the provisions which had been vetted and found to be compatible with the Polish Constitution in the judgment of 24 July 2006.
1. The parties’ submissions
The Government decided not to comment on the issue of the bail conditions imposed on the applicant.
2. The Court’s assessment
(a) General principles
(b) Application of the above principles in the present case
Accordingly, the period to be taken into consideration amounts to three years and 20 days.
Nevertheless, with the passage of time, and given the authorities’ failure to advance any new grounds for extending the applicant’s detention on remand, the grounds relied on became less relevant and cannot justify the total period of over three years during which the most serious preventive measure was imposed against the applicant (see Michalak, cited above, § 36).
Not until 16 February 2005 did the court for the first time examine the possibility of releasing the applicant on bail and dismiss it, having considered that he did not have sufficient assets. Subsequently, on 20 July 2005 the domestic court agreed to release the applicant on bail but fixed its amount at the equivalent of EUR 10,000,000. However, there is no evidence that before deciding on that sum the domestic court made any effort to determine what would be an appropriate amount of bail in the circumstances, for example by requiring the applicant to furnish information on his financial standing.
In this context the Court would emphasise that under Article 5 § 3, the authorities, when deciding whether a person should be released or detained, are obliged to consider alternative measures of ensuring his appearance at trial. Indeed, that Article lays down 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).
There has accordingly been a violation of Article 5 § 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law...”
However, the applicant informed the Court that he had chosen not to avail himself of the possibility of lodging a complaint about the length of the proceedings under the 2004 Act.
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.”
A. The parties’ submissions
B. 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 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Polish zlotys 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 3 November 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza