(Application no. 8456/08)
24 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 Żurawski v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 3 November 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
In its decisions of 17 August and 19 September 2007 the Katowice Court of Appeal stressed that the investigation had already lasted a long time and urged the prosecutor to draw up a bill of indictment. It also noted, in its decisions of 19 September and 19 December 2007, that the prosecutor's arguments for having the applicant's detention extended had been of a very general nature and instructed the prosecutor to provide a detailed list of tasks that still needed to be completed during the investigation if he wished to have the applicant's detention extended further.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Preventive measures, including pre-trial detention
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 has already found that in Polish law, the objective of an appeal against decisions extending detention is to secure a review of the lawfulness of detention at any given time of the proceedings, both at the pre-trial and trial stages, and to obtain release if the circumstances of the case no longer justify continued detention (see Wolf v. Poland, nos. 15667/03 and 2929/04, § 78, 16 January 2007). In that respect the Court observes that the applicant challenged most of the decisions prolonging his pre-trial detention.
The Court observes, however, that in the present case, in all their detention decisions, the domestic authorities relied on the reasonable suspicion that the applicant had committed the offence he was charged with and the need to secure the proper conduct of the proceedings, given the risk that he could tamper with evidence; that is on the grounds specified in Articles 249 and 258 of the Code of Criminal Procedure. They further relied on the necessity of gathering evidence in a particularly complex case, that is on the part of Article 263 § 4 of the Code that the Constitutional Court considered compatible with the Constitution and thus, a prerequisite of the pre-trial detention.
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 had been examined by the Constitutional Court and found to be compatible with the Polish Constitution in its judgment of 24 July 2006.
In the circumstances of the case, any attempt by the applicant to seek redress by lodging a constitutional complaint lacked the requisite effectiveness.
In addition, the Court is of the opinion that, having challenged most of the decisions prolonging his pre-trial detention, the applicant was not required to embark on another attempt to obtain redress by challenging the constitutionality of Article 263 of the Code of Criminal Procedure.
The Court further notes that the complaint 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.
1. Period to be taken into consideration
Accordingly, the period to be taken into consideration amounts to three years and seventeen days.
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).
There has accordingly been a violation of Article 5 § 3 of the Convention.
II. 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
1. The applicant
2. The Government
B. The Court's assessment
III. 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) 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 24 November 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas
Deputy Registrar President