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FOURTH SECTION

CASE OF ZDZIARSKI v. POLAND

(Application no. 14239/09)

JUDGMENT

STRASBOURG

25 January 2011

This judgment is final but it may be subject to editorial revision.

In the case of Zdziarski v. Poland,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

Ján Šikuta, President,
Lech Garlicki,
Mihai Poalelungi, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 4 January 2011,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 14239/09) 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 Mariusz Zdziarski (“the applicant”), on 6 March 2009.

The Polish Government (“the Government”) were represented by their Agent, Mr Jakub Wołąsiewicz of the Ministry of Foreign Affairs.

The applicant alleged, in particular, that his detention on remand exceeded a “reasonable time” within the meaning of Article 5 § 3 of the Convention.

On 7 December 2009 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 1975 and lives in Warsaw. He is currently detained in the Warsaw Remand Centre.

On 26 October 2005 the applicant was arrested on suspicion of drug trafficking committed in an organised and armed criminal group.

On 27 October 2005 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 induce witnesses to give false testimony. The court also stressed the severity of the anticipated sentence and the complex nature of the case.

Later, twenty-eight members of the same criminal group were detained and charged in connection with the investigation against the applicant.

The applicant's appeal against the detention order, likewise his further appeals against decisions prolonging his detention and all his subsequent, numerous applications for release were unsuccessful.

In the course of the investigation, the applicant's detention was prolonged by decisions of the Warsaw Regional Court (Sąd Okregowy) and the Warsaw Court of Appeal (Sąd Apelacyjny) delivered on 12 January, 20 April, 28 August and 24 October 2006, 24 April, 21 August, 8 and 23 October 2007 and 11 and 26 February 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, in particular – by the crown witness's testimony. They underlined the grave nature of those offences and the likelihood of a severe sentence of imprisonment being imposed on the applicant. The courts attached great importance to the complexity of the case, the significant number of persons involved (around 100 persons) and the voluminous documentation gathered in the proceedings. These considerations led the courts to assume that the applicant, if released, could tamper with evidence, induce the witnesses to change their testimonies and obstruct the proper course of the proceedings. The courts stressed, on several occasions, that a number of experts' opinions had to be requested and legal help had to be sought from Sweden and Bulgaria. They found no special grounds, as specified in Article 259 § 1 of the Code of Criminal Procedure, that would justify lifting the detention and imposing a less severe measure.

In its decision of 20 April 2006 the court noted 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.

On 26 September 2007 a bill of indictment was lodged with the Warsaw Regional Court. There were twenty-nine defendants in the case, charged with, inter alia, numerous counts of drug trafficking and illegal possession of arms, committed in an organised criminal group.

On 25 March 2008 the trial court held the first hearing.

During the court proceedings the authorities further prolonged the applicant's detention pending trial. The applicant's detention was extended by the Warsaw Court of Appeal on 26 June and 4 December 2008 and 18 June and 29 December 2009. The court repeated the grounds previously given for the applicant's detention but underlined, on several occasions, the need to systematically and thoroughly examine whether the applicant's continued detention was justified.

On 22 June 2010 the Warsaw Court of Appeal prolonged the applicant's detention until 31 October 2010.

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 presented 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

The 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 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. THE GOVERNMENT'S REQUEST TO STRIKE OUT THE APPLICATION UNDER ARTICLE 37 OF THE CONVENTION

On 23 July 2010 the Government submitted a unilateral declaration similar to that in the case of Tahsin Acar v. Turkey (Tahsin Acar v. Turkey (preliminary objection) [GC], no. 26307/95, ECHR 2003 VI) and informed the Court that they were ready to accept that there had been a violation of the applicant's rights under Article 5 § 3 of the Convention as a result of the excessive length of his pre-trial detention. In respect of non-pecuniary damage the Government proposed to award PLN 8,000 to the applicant (the equivalent of 2,000 euros (EUR)). The Government invited the Court to strike out the application in accordance with Article 37 of the Convention.

The applicant did not agree with the Government's proposal. He considered that the amount proposed did not constitute sufficient just satisfaction for the damage he had sustained and requested the Court to continue the examination of the application.

The Court observes that, as it has already held on many occasions, it may be appropriate under certain circumstances to strike out an application or part of an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by the respondent Government even if the applicant wishes the examination of the case to be continued. It will depend on the particular circumstances whether the unilateral declaration offers a sufficient basis for finding that respect for human rights as defined in the Convention and its Protocols does not require the Court to continue its examination of the case (see Tahsin Acar, cited above, § 75, and Melnic v. Moldova, no. 6923/03, § 22, 14 November 2006).

According to the Court's case-law, the amount proposed in a unilateral declaration may be considered a sufficient basis for striking out an application or part thereof. The Court will have regard in this connection to the compatibility of the amount with its own awards in similar cases, bearing in mind the principles which it has developed for determining victim status and for assessing the amount of non-pecuniary compensation to be awarded where it has found a breach of the reasonable time requirement (see Cocchiarella v. Italy [GC], no. 64886/01, §§ 85 107, ECHR 2006 ...,; Scordino v. Italy (no.1) [GC], no. 36813/97, §§ 193-215, ECHR-2006-...; and Dubjakova v. Slovakia (dec.), no. 67299/01, 10 October 2004).

As to whether it would be appropriate to strike out the present application on the basis of the unilateral declaration made by the Government, the Court notes that despite the Government's acknowledgement of a violation of the applicant's rights guaranteed under Article 5 § 3 of the Convention, the applicant continues to be remanded in custody.

In view of the length of the applicant's detention and the fact that he continues to be deprived of his liberty in the alleged breach of Article 5 § 3 of the Convention, the Court finds that the Government failed to submit a statement offering a sufficient basis for finding that respect for human rights as defined in the Convention and its Protocols does not require the Court to continue its examination of the case (see Bieniek v. Poland, no. 46117/07, § 22, 1 June 2010).

This being so, the Court rejects the Government's request to strike this part of the application out under Article 37 of the Convention and will accordingly pursue its examination of the admissibility and merits of the case.

II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

The applicant complained that the length of his pre-trial detention 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 this complaint 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

The applicant's detention started on 26 October 2005, when he was arrested on suspicion of drug trafficking and extortion, committed in an organised and armed criminal group. He continues to be deprived of his liberty. No judgment has yet been delivered in the proceedings.

Accordingly, the period to be taken into consideration amounts, so far, to five years.

2. 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 judgements (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 three grounds, namely (1) the serious nature of the offences with which he had been charged, (2) the severity of the penalty to which he was liable (3) the need to secure the proper conduct of the proceedings, given the risk that the applicant might tamper with evidence or induce the witnesses to give false testimonies. As regards the latter, they did not, however, specify any concrete grounds justifying their opinion.

The applicant was charged with drug trafficking and extortion committed in an organised and armed criminal group (see paragraphs 6 and 11 above).

In the Court's view, the fact that the case concerned a member of a such 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 obtain voluminous evidence, in particular a number of experts' opinions, as well as seeking legal help from other countries and the need to determine the degree of the alleged responsibility of each of the defendants, who had acted in a criminal group, constituted valid grounds for the applicant's initial detention.

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 often is, by the nature of things, 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, intimidate witnesses or attempt to otherwise disrupt the trial 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.

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).

While all those 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. In this context, the Court would observe that until the date, no judgment has yet been delivered in the proceedings.

Having regard to the foregoing, even taking into account the fact that the courts were faced with particularly difficult task of trying the 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.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

Invoking Article 6 § 2 of the Convention, the applicant complained that his lengthy detention has been in breach of a principle of presumption of innocence.

Having examined all the material in its possession, regardless of other possible grounds of inadmissibility, the Court finds nothing in the case file which might disclose any appearance of a violation of the right guaranteed by the provision relied on.

It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

IV. 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.”

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 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 32-33 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 34-36 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).

V. 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 11,000 euros (EUR) in respect of pecuniary damage. This sum covered lawyer's fees incurred in the proceedings before the domestic courts and the food packages that he received from his family during his stay in detention. He further claimed EUR 150,000 in respect of non-pecuniary damage.

The Government did not submit any comments in this respect.

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 2,000 under this head.

B. Costs and expenses

The applicant submitted no claim for costs and expenses.

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

Rejects the Government's request to strike the application out of the list;

2. Declares the complaint concerning the length of the applicant's detention admissible and the remainder of the application inadmissible;

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 2,000 (two thousand euros) in respect of non-pecuniary damages, 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;

Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 25 January 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Ján Šikuta
Deputy Registrar President