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POLANSKI v. POLAND - 42146/07 [2010] ECHR 1501 (12 October 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1501.html
Cite as:
[2010] ECHR 1501
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FOURTH
SECTION
CASE OF POLAŃSKI v. POLAND
(Application
no. 42146/07)
JUDGMENT
STRASBOURG
12 October
2010
This
judgment is final but it may be subject to editorial revision.
In the case of Polański v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a
Committee composed of:
Ljiljana Mijović,
President,
Lech Garlicki,
Nebojša Vučinić,
judges,
and Fatoş Aracı,
Deputy Section Registrar,
Having
deliberated in private on 21 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 42146/07) 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 Grzegorz
Polański (“the applicant”), on 12 September 2007.
The
Polish Government (“the Government”) were represented by
their Agent, Mr J. 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
1 September 2008 the
President of the Fourth Section of the Court decided to give notice
of the application to the Government. In accordance with Protocol No.
14, the application was assigned to a Committee of three Judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1973 and lives in Bierutów.
6. On
8 March 2006 the applicant was arrested on suspicion of numerous
offences of assisting in the forgery of identity documents and aiding
illegal border crossing, committed in an organised criminal group.
7. On 10 March 2006 the
Warsaw District Court (Sąd
Rejonowy) remanded him
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
and go into hiding, particularly as he had had at his disposal a
number of forged identity documents.
The
applicant's appeal against the detention order, likewise his further
appeals against decisions prolonging his detention and all his
subsequent applications for release and appeals against refusals to
release him, were unsuccessful.
It
appears that between 8 August and 27 September 2006 the applicant
served a sentence of fifty days' imprisonment ordered in another set
of proceedings against him.
In
the course of the investigation, the applicant's detention was
prolonged by decisions of the Warsaw Court of Appeal (Sąd
Apelacyjny) delivered on 2
March and 1 June 2007. In the latter decision the court stressed that
an expertise on several documents, due at the end of May, had not yet
been submitted
On
3 July 2007 the bill of indictment against the applicant and four
other defendants was lodged with the Warsaw District Court. It
appears that three defendants, including the applicant, were charged
with offences committed in an organised criminal group.
Further
decisions extending the applicant's pre-trial detention were taken by
the Warsaw Regional Court (Sąd Okręgowy) on 8
October 2007 and by the Warsaw District Court on 9 January 2008.
In
all their detention 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. They
attached importance to the fact that the offences had been committed
in an organised criminal group. They further stressed that the
applicant, if released, could easily abscond, having access to forged
identity documents and being in contact with criminal groups abroad.
In this respect the courts stressed that in the initial stage of the
investigation the applicant had used a false identity and appeared
under the name of Petro Polyansky, a Ukrainian national. Lastly, the
courts found no special grounds, as specified in Article 259 § 1
of the Code of Criminal Procedure, that would justify lifting the
detention.
In a
decision of 9 January 2008 the Warsaw District Court stressed that
two wanted notices had been issued in the applicant's case.
On
15 February 2008 the trial court held the first hearing. It
subsequently held, until 24 October 2008, some seventeen hearings in
the case.
During
the court proceedings the applicant's detention was further prolonged
by the Warsaw Court of Appeal on 4 March 2008. The court repeated the
grounds previously given for the applicant's continued detention.
On
3 July 2008 the Warsaw Court of Appeal lifted the applicant's
detention. The court decided that the applicant
could be released under police supervision and a prohibition on his
leaving the country.
It
seems that on 2 February 2009 the applicant was again arrested in the
same set of criminal proceedings. On 4 February 2009 the Warsaw
Regional Court remanded him in custody. It would appear that
additional charges of organising illegal border crossing were laid
against the applicant.
The
applicant's detention was further extended by decisions of the Warsaw
Regional Court delivered on 27 April and 27 July 2009. The
applicant's interlocutory appeal against the former decision was
dismissed by the Warsaw Regional Court.
On
7 September 2009 the Warsaw Court of Appeal decided to lift the
applicant's detention. The court held that his detention after 2
February 2009 has lacked a legal basis and had therefore been in
breach of procedural criminal law, as ordered and subsequently
extended by courts that had not been competent to deal with the case.
It stressed that having regard to the fact that the applicant had
already been detained in the same set of proceedings for over two
years, his re-arrest should have been ordered and extended by the
Appellate Court.
The proceedings are still pending before the first-instance
court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Preventive
measures, including pre-trial detention
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 set out 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.
B. Relevant
statistical data
Relevant statistical data, recent amendments to the
Code of Criminal procedure designed to streamline criminal
proceedings and references to the relevant Council of Europe
materials including the 2007 Resolution of the Committee of Ministers
can be found in the Court's judgment in the case of Kauczor (see
Kauczor v. Poland, no. 45219/06, § 27-28 and 30-35,
3 February 2009).
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 application 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
26. The
Court notes that the applicant's pre-trial detention can be divided
into two consecutive periods, the first lasting from 8 March 2006
until 3 July 2008 and the second from 2 February until 9 September
2009. Since the applicant's two periods of detention were imposed in
a single set of criminal proceedings (see paragraph 19 above) both
periods should be examined jointly (see, for example, Rozmarynowski
v. Poland, no. 37149/02,
§ 26, 15 January 2008, Letellier
v. France, 26 June 1991,
§ 34, Series A no. 207).
The first period of the applicant's
detention started on 8 March 2006, when he was arrested on suspicion
of numerous offences of assisting in the forgery of identity
documents and aiding illegal border crossing, committed in an
organised criminal group. On 3 July 2008 the Warsaw Court of Appeal
lifted the detention.
The
second term of the detention began on 2 February 2009, when the
applicant was again detained in the same set of criminal proceedings.
His detention was quashed by a decision of the Warsaw Court of Appeal
delivered on 9 September 2009.
However,
between 8 August and 27 September 2006 the applicant served a prison
sentence which had been imposed on him in another set of proceedings.
This term, being covered by Article 5 § 1 (a), must therefore be
subtracted from the overall 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 two years, nine
months and thirteen days.
2. The parties' submissions
(a) The applicant
The
applicant submitted in general terms that the length of his pre trial
detention had been excessive.
(b) The Government
The
Government submitted that the applicant's detention had been based on
all the prerequisites of detention listed in the Code of Criminal
Procedure as applicable at the material time, in particular the
persistence of a reasonable suspicion that he had committed the
offence in question and the severity of the anticipated sentence.
They
underlined that the present case concerned offences committed in an
organised criminal group and that the applicant's detention had been
justified by the need to prevent collusion.
The
Government stressed that the pre-trial proceedings had been regularly
and positively assessed by the domestic courts.
Further, they submitted that the length of the applicant's detention
had resulted from the complex nature of the proceedings. In that
respect they recalled that the applicant had been charged with
eighty-three offences and that the case file submitted by the
prosecution comprised twenty volumes. They underlined that the court
had to hear sixteen witnesses and acquaint itself with the
testimonies of six others. Lastly, they noted that the proceedings
had been conducted efficiently and hearings had been regularly held.
Accordingly,
the Government submitted that the length of detention had been
compatible with the standards of Article 5 § 3 of the
Convention.
The
Government did not submit any information concerning the second term
of the applicant's pre-trial detention.
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 release pending
trial, as guaranteed by Article 5 § 3 of the Convention were
stated 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 McKay v. the
United Kingdom [GC], no. 543/03, §§ 41-44, ECHR
2006-..., with further references).
(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 two
grounds, namely (1) the severity of the penalty to which he was
liable and (2) the need to secure the proper conduct of the
proceeding, in particular in view of the risk that he might interfere
with witnesses and go into hiding. As regards the latter, they relied
on the fact that in the initial stage of the investigation the
applicant had used a false identity and had been sought pursuant to
two wanted notices (see paragraph 13 above).
36. The applicant was
charged with numerous counts of, inter
alia, assisting in the
forgery of identity documents and aiding illegal border crossing,
committed in an organised criminal group (see paragraph 6 above).
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).
The
Court accepts that the reasonable suspicion against the applicant of
having committed serious offences could initially warrant his
detention. Also, the need to determine the degree of the alleged
responsibility of each of the defendants, who had acted in a criminal
group and against whom numerous serious charges were laid, and the
need to secure the proper conduct of the proceedings, in particular
the process of obtaining evidence from witnesses, constituted valid
grounds for the applicant's initial detention.
Furthermore,
according to the authorities, the likelihood of a severe sentence
being imposed on the applicant created a presumption that the
applicant 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).
Indeed,
in cases such as the present one concerning organised criminal
groups, the risk that a detainee, if released, might bring pressure
to bear on witnesses or other co-accused or might otherwise obstruct
the proceedings is, by the nature of things, often high. In this
respect, the Court notes, however, that in all the decisions
extending the applicant's detention, no specific substantiation of
the risk that the applicant would tamper with evidence or intimidate
witnesses emerged. In the absence of any other factor capable of
showing that the risk relied on actually existed, this argument
cannot be accepted in the context of the whole period.
As
regards the risk of the applicant's absconding, the Court's attention
has been drawn to the nature of the charges against the applicant and
to the fact that wanted notices had been issued against him. However,
the mere fact that the applicant had been charged with forgery of
identity documents, which led the authorities to believe that if
released he could easily conceal his true identity, was not, in the
Court's view, sufficient to conclude that the risk of the applicant's
going into hiding existed throughout the entire period of his
detention (see, for example, Kacprzyk v. Poland, 50020/06, §
40, 21 July 2009).
Furthermore,
the Court cannot agree with the domestic authorities' assessment that
the fact that the applicant had gone into hiding in the past was
alone sufficient to establish, without further inquiry, a risk that
he would abscond or otherwise obstruct the proceedings.
Moreover,
the Court recalls that the risk of absconding has to be assessed in
the light of factors relating to the person's character, his morals,
home, occupation, assets, family ties and all kinds of links with the
country in which he is prosecuted (see Becciev v. Moldova,
9190/03, § 58, 4 October 2005).
The
Court notes in this respect that the fears of the domestic
authorities have not proved well-founded. In particular, following
the decision of 3 July 2008 by which the applicant's detention was
lifted, the applicant has respected the conditions of his release.
While
all the above factors could justify even a relatively long period of
detention, they did not give the domestic courts an unlimited power
to prolong this measure.
Further,
it is true, as the Government submitted, that the case was of a
certain complexity, given the volume of evidence. However, it seems
that the bill of indictment was lodged against five defendants, of
whom three had been charged with offences committed in an organised
criminal group (see paragraph 11 above). However, it does not appear
that the domestic courts relied on this as a factor militating
against the applicant's release (see paragraphs 7, 10, 13, 15, and 18
above).
In
the case of Janulis (see Janulis v. Poland, no.
20251/04, § 37, 4 November 2008), the Court held that a
relatively long period of detention must be thoroughly and duly
justified by the domestic authorities both from a substantive point
of view (the existence of reasons justifying keeping the applicant in
detention) and from a formal point of view (a proper formulation and
justification of the courts' decisions). A failure to fulfil the
formal requirements for decisions extending detention on remand is
per se sufficient for finding a violation of Article 5 §
3 (see Janulis v. Poland, cited above, § 38). The Court
further explained that such a failure may, in particular, consist in
(1) simply repeating reasons for detention contained in the Code
of Criminal Procedure, without explaining how they apply in a given
case, or (2) simply repeating reasons given in the initial phase
of detention, without explaining in further decisions why continuing
detention is indispensable (see Janulis v. Poland, cited
above, § 39).
The
Court notes that in the present case the reasons relied upon by the
domestic courts in their decisions prolonging the applicant's
detention were limited to simply repeating the reasons given in the
initial phase of the investigation and proceedings, without
explaining their relevance to the continued prolongation of the
applicant's detention.
Having
regard to the foregoing, even taking into account fact that the
courts were faced with the particularly difficult task of trying a
case involving an organised criminal group, the Court concludes that
the grounds given by the domestic authorities could not justify the
overall period of the applicant's detention. In these circumstances
it is not necessary to examine whether the proceedings were conducted
with special diligence.
There
has accordingly been a violation of Article 5 § 3 of the
Convention.
II. APPLICATION OF ARTICLE 46 OF THE CONVENTION
Article
46 of the Convention provides:
“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
The
applicant did not submit any observations concerning this provision.
2. The Government
The Government referred to the
arguments submitted previously in the case of Figas
v. Poland (no. 7883/07,
§§ 41-44, 23 June 2009).
The
Government concluded that, bearing in mind the efforts of the Polish
authorities and the legislative reforms which were and had been
undertaken by them to solve the problem of the length of detention on
remand, Poland could not be said to have failed to comply with its
obligations under Article 46 of the Convention to obey the Court's
judgments.
B. The Court's assessment
Recently,
in the case of Kauczor v. Poland (see Kauczor, cited
above, § 58 et seq. with further references) the Court held that
the 2007 Resolution of the Committee of Ministers taken together with
the number of judgments already delivered and of the pending cases
raising an issue of excessive detention incompatible with Article 5 §
3 demonstrated that the violation of the applicant's right under
Article 5 § 3 of the Convention had originated in a widespread
problem arising out of the malfunctioning of the Polish criminal
justice system which had affected, and may still affect in the
future, an as yet unidentified, but potentially considerable number
of persons charged in criminal proceedings.
It is true that the present case concerns a person
involved in an organised criminal group. However, as stated above,
while this element is to be taken into account in assessing
compliance with Article 5 § 3 and may justify a longer period of
detention than in a case concerning an individual offender, a member
of an organised criminal group is entitled to the protection against
unreasonably lengthy detention afforded by this provision (see
paragraphs 34, with further references, and 36-37 above). As in other
numerous similar detention cases, the authorities did not justify the
applicant's continued detention by relevant and sufficient reasons
(see paragraphs 35-46 above). Moreover, as demonstrated by the ever
increasing number of judgments in which the Court has found Poland to
be in breach of Article 5 § 3 in respect of applicants involved
in organised crime, the present case is by no means an isolated
example of the imposition of unjustifiably lengthy detention but a
confirmation of a practice found to be contrary to the Convention
(see, among many other examples, Celejewski v. Poland,
no. 17584/04, 4 May 2006; Kąkol v. Poland, no.
3994/03, 6 September 2007; Malikowski v. Poland,
no. 15154/03, 16 October 2007 and also Hilgartner v. Poland,
no. 37976/06, §§ 46-48, 3 March 2009).
Consequently, the Court sees no reason to diverge from its
findings made in Kauczor as to the existence of a structural
problem and the need for the Polish State to adopt measures to remedy
the situation (see Kauczor, cited above, §§ 60-62).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“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.”
A. Damage
The
applicant claimed 40,000 euros (EUR) in respect of pecuniary damage
and EUR 50,000 in respect of non-pecuniary damage. He claimed that
because of the lengthy detention his marriage had broken down and the
contacts with his daughter had deteriorated.
The
Government held that the applicant had failed to submit any evidence
of his allegedly lost income. They noted that there had been no link
between the pecuniary damage claimed and the alleged breach of
Article 5 § 3 of the Convention. As to non-pecuniary damage, the
Government stressed that they could not be held responsible for the
break down of the applicant's family life.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it considers that the applicant has suffered
non-pecuniary damage which is not sufficiently compensated by the
finding of a violation of the Convention. Considering the
circumstances of the case and making its assessment on an equitable
basis, the Court awards the applicant EUR 1,000 under this head.
B. Costs and expenses
The
applicant also claimed EUR 200 for the costs and expenses incurred
before the Court.
The
Government submitted that the applicant failed to provide any
invoices in support of his claim.
According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 100 for the proceedings before the
Court.
C. Default interest
The Court considers it appropriate that the default
interest should be based on the marginal lending rate of the European
Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that there has been a violation of Article
5 § 3 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months,
EUR 1,000 (one thousand euros) in respect of non-pecuniary damage and
EUR 100 (one hundred euros) in respect of costs and expenses, 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
amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 12 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Ljiljana Mijović
Deputy
Registrar President
