AS TO THE ADMISSIBILITY OF
by Waldemar BARAN-BARANOWSKI
The European Court of Human Rights (Fourth Section), sitting on 24 March 2009 as a Chamber composed of:
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 18 September 2007,
Having deliberated, decides as follows:
The applicant, Mr Waldemar Baran-Baranowski, is a Polish national who was born in 1944 and is currently serving a prison sentence at the Prison in Katowice. He was represented before the Court by Mr J. Zaleski, a lawyer practising in Katowice. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 20 May 2003 the applicant was arrested on suspicion of trafficking in drugs and counterfeit US dollars while leading an organised criminal group.
Later, several other members of the same criminal group were detained and charged in connection with the investigation of the applicant’s activities. The investigation was conducted by the Organised Crime Department of the Katowice Regional Prosecutor’s Office.
On 21 May 2003 the Katowice District Court remanded the applicant in custody, relying on the reasonable suspicion that he had committed the offences in question. It 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, go into hiding or induce witnesses to give false testimony. The court also stressed the severity of the anticipated sentence.
An appeal by the applicant against the detention order was dismissed on 18 June 2003 by the Katowice Regional Court. Subsequent appeals against decisions extending his detention were all unsuccessful. In his appeals he argued that the charges against him were based on unreliable and contradictory evidence. He further pleaded not guilty.
On 23 December 2003 the applicant began serving a twenty-five-year prison sentence, given by the Olsztyn Regional Court in a different set of criminal proceedings.
In the course of the investigation, the applicant’s detention was extended on several occasions, inter alia on 5 August and 7 November 2003 and 13 February and 23 April 2004 by the Katowice Regional Court, 12 May and 22 September 2004, 13 May and 7 December 2005, 8 March, 27 September and 20 December 2006, and 4 April, 24 October and 28 December 2007 by the Katowice Court of Appeal.
On 6 February 2008, on a decision by the Katowice Court of Appeal the applicant’s detention was further extended until 30 April 2008.
In all their detention decisions the authorities repeatedly relied on the original grounds given for the applicant’s detention. They considered that the need to secure the proper conduct of the proceedings, in particular the need to verify evidence from thirty-three suspects and fifty witnesses and to have them all confronted justified holding him in custody. They further stressed the extensive body of evidence to be considered in the case and the need to obtain opinions from several experts, including those with expertise in toxicology and chemistry.
On 17 April 2008 the Katowice Regional Court decided to lodge a request with the Katowice Court of Appeal to have the applicant’s detention further extended until 31 July 2008.
On 14 December 2004 the Katowice Regional Prosecutor lodged a bill of indictment with the Katowice Regional Court. The bill of indictment comprised numerous charges of trafficking in drugs and other illicit substances and counterfeit US dollars brought against several defendants, who were all acting in an organised criminal group. The maximum anticipated prison sentence against the applicant was more than eight years.
On 16 July 2008 the Katowice Regional Court delivered a judgment. The applicant was found guilty as charged and sentenced to eight years’ imprisonment. He appealed. At present the appeal proceedings are pending.
B. Relevant domestic law and practice
The relevant domestic law and practice concerning the imposition of detention during judicial proceedings (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) 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.
“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 applicant’s detention started on 20 May 2003, when he was arrested on suspicion of trafficking in drugs and counterfeit US dollars while leading an organised criminal group. On 16 July 2008 the Katowice Regional Court convicted him as charged.
However, it appears from documents submitted at a later stage that on 23 December 2003 the applicant began serving a prison sentence which had been imposed on him in another set of criminal proceedings. This period, covered by Article 5 § 1 (a) of the Convention, must therefore be subtracted from the period of the applicant’s pre-trial detention for the purposes of Article 5 § 3 of the Convention.
Accordingly, the period to be taken into consideration amounts to seven months.
The Government failed to submit observations as to the merits of the case within the prescribed time-limit.
The applicant maintained that his detention had been excessively long.
The Court reiterates 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, have been set out 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 Bąk v. Poland, no. 7870/04, §§ 56-65, 16 January 2007).
Turning to the circumstances of the instant case the Court notes that the grounds given by the judicial authorities to justify the applicant’s continuous detention satisfied the requirement of being “relevant” and “sufficient”. It further notes that his detention was reviewed by the courts at regular intervals and that the case was very complex. In this connection the Court observes that the courts stressed the need to verify evidence from thirty-three suspects and fifty witnesses and to have them all confronted, further that there was an extensive body of evidence to be considered, including opinions from several experts in toxicology and chemistry. The Court also accepts that the reasonable suspicion that the applicant had committed serious offences, together with the likelihood of a severe sentence being imposed on him, warranted his initial detention.
Lastly, the Court observes that the applicant was charged with, inter alia, drug trafficking while leading an organised criminal group. As to the latter the Court reiterates that this constitutes a factor to be considered when assessing compliance with Article 5 § 3 (see Bąk, cited above, §§ 57 and 60).
For these reasons, the Court also finds that the domestic authorities cannot be criticised for failure to observe “special diligence” in the handling of the applicant’s case.
In view of the above considerations and in the light of the criteria established in its case-law in similar cases the Court considers that the applicant’s detention of seven months does not disclose any appearance of a breach of the “reasonable time” requirement of Article 5 § 3 of the Convention. This complaint is therefore manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
Under Article 35 § 1 of the Convention the Court may only deal with the matter after all domestic remedies have been exhausted.
The Court notes that since the criminal proceedings against the applicant are still pending, his complaint is premature.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Nicolas Bratza