European Court of Human Rights

 

 

 

FOURTH SECTION

 

 

 

 

 

 

CASE OF MIERZEJEWSKI v. POLAND

 

(Application no. 9916/13)

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

4 November 2014

 

 

 

 

 

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

 




In the case of Mierzejewski v. Poland,

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

          Päivi Hirvelä, President,
          George Nicolaou,
          Faris Vehabović, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 14 October 2014,

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

PROCEDURE

1.  The case originated in an application (no. 9916/13) 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 Krzysztof Mierzejewski (“the applicant”), on 23 January 2013.

2.  The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs.

3.  On 9 December 2013 the complaint concerning the excessive length of detention on remand was communicated to the Government and the remainder of the application was declared inadmissible.

4.  The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1986 and is currently detained in Zamość Remand Centre.

6.  On 15 October 2010 he was arrested on suspicion of having committed a number of offences connected with handling drugs and psychoactive substances in an organised criminal group.

7.  On 17 October 2010 the Rzeszów District Court (Sąd Rejonowy) remanded the applicant in custody for three months. The court relied on a reasonable suspicion that the applicant had committed the offences in question and on the reasonable risk that he would obstruct the proceedings, because the offences had been committed in an organised group. The court did not share the prosecutor’s view according to which there had been a reasonable fear that the applicant might abscond or go into hiding. The court found no reasons to hold so.

8.  The applicant’s detention on remand was extended by the Rzeszów Regional Court (Sąd Okręgowy) on 13 January, on 11 April and on 11 July 2011. In these decisions, in order to justify the extension of the detention, the court repeated the previous reasons relied on. In the decision of 11 April 2011 the court further noted that, taking into consideration the number of offences that the applicant had been suspected of, further detention was additionally justified by a heavy penalty that might be imposed on the applicant if convicted.

9.  Subsequently, on 6 October 2011, the detention was extended by the Rzeszów Court of Appeal until 30 November 2011. The court relied on the same grounds as previously and additionally noted that the applicant’s case was particularly complicated which justified extension of the detention beyond the statutory time-limit of 12 months.

10.  On 7 November 2011 a bill of indictment against the applicant and several other co-accused was lodged with the Zamość Regional Court.

11.  On 23 November 2011 the Zamość Regional Court extended the applicant’s detention for further three months, until 29 February 2012. No new grounds were relied on.

12.  Further extension of the applicant’s pre-trial detention was ordered by the Lublin Court of Appeal on 30 May 2012. The Regional Court had requested a three-month extension. The court granted the prosecutor’s request only in part for two further months that is until 4 August 2012 and found that since the trial court had scheduled hearings only until the end of June 2012, the detention could not be extended until September. The court further considered that the time-limit until 4 August 2012 should be sufficient to complete the proceedings before the first-instance court.

13.  On 1 August 2012 the Lublin Court of Appeal again granted the Regional Court’s request only in part and extended the applicant’s detention for two further months and not for three months as requested by the Regional Court. The court relied again on the same grounds, analysed the course of the proceedings and considered that the time-limit until 4 October 2012 should be sufficient to complete the proceedings. The court also justified the extraordinary extension of the detention by the complexity of the case resulting, among other things, from the nature of evidence; there were anonymous witnesses to be heard and part of the evidence constituted material classified as confidential.

14.  On 27 September 2012 the Lublin Court of Appeal, relying on the same grounds as previously, extended the applicant’s detention until 4 January 2013. The court additionally noted that large part of evidence in the trial constituted the accused’s’ conversations recorded confidentially as a result of their confidential control. The accused as well as their counsels had demanded that the recordings be heard in extenso at the hearing which influenced the duration of the proceedings.

15.  On 28 December 2012 the Lublin Court of Appeal extended the applicant’s detention until 2 April 2013. The court relied on the same grounds as previously, analysed the course of the proceedings and found no undue delays but noted that the detention had already lasted considerable time and that the trial court should intensify its activities to complete the trial until the expiry of the time-limit of the extended detention.

16.  On 27 March 2013 the Lublin Court of Appeal again extended the applicant’s detention until 4 July 2013 finding that although the trial court had regularly scheduled hearings, some objective obstacles did not allow it to complete the proceedings.

17.  On 26 June 2013 the Lublin Court of Appeal again extended the applicant’s detention until 4 October 2013; the extraordinary extension was again justified by the complexity of the case.

18.  On 2 October 2013 the Lublin Court of Appeal, relying on the same grounds as previously, again extended the applicant’s detention until 7 December 2013.

19.  The applicant appealed against this decision.

20.  On 5 November 2013 the Lublin Court of Appeal amended the challenged decision and held that the applicant could be released upon payment of bail in the amount of 50,000 Polish zlotys (PLN), (approximately 12,000 euros (EUR)). The court found that this preventive measure would be capable of securing the proper conduct of the proceedings, it failed however to explain in details the reasons behind this decision. It only noted that the bail should not only be dependent on the financial possibilities of the person interested but also secure the proper conduct of the proceedings. Since this decision was given in a result of an appeal, no further appeal was available to the applicant.

21.  On 4 December 2013 the Lublin Court of Appeal extended the applicant’s detention until 7 February 2014.

22.  On 14 January 2014 the Zamość Regional Court gave judgment and convicted all six members of the group. The applicant was found guilty of leading an organised criminal group smuggling marihuana from the Netherlands to Poland and organising sale of marihuana and ecstasy pills on the territory of Poland. He was sentenced to eight years’ imprisonment and a fine.

23.  Following the applicant’s appeal, the criminal proceedings against him are currently pending before the second-instance court. The applicant remains in detention.

24.  The applicant appealed against the decision of 17 October 2010 imposing the pre-trial detention on him as well as against all decisions extending his detention.

25.  In their decisions upholding the extensions the courts relied on the original grounds for the applicant’s detention. The courts emphasised the need to apprehend other members of the criminal group and to obtain additional evidence supporting the case against the applicant. In the courts’ view, the applicant, if released, would try to obstruct the proceedings by passing vital information about the preliminary proceedings onto the other members of the criminal group and by influencing witnesses. The courts concluded that in the context of the applicant’s case, which concerned organised crime, detention on remand remained the only security measure capable of guaranteeing the proper conduct of the proceedings.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

26.  The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its extension, 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 May 2006).

THE LAW

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

27.  Invoking Article 5 § 3 of the Convention, the applicant complained that his pre-trial detention had been excessively lengthy and that the courts had not given relevant and sufficient reasons for keeping him in custody.

Article 5 § 3 of the Convention, in so far as relevant, reads:

“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.”

28.  The Government contested that argument.

A.  Admissibility

29.  The Government did not contest the admissibility of this complaint.

30.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) 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

31.  The applicant was arrested on 15 October and detained on remand on 17 October 2010.

32.  He was continuously detained until his conviction by the first-instance court on 14 January 2014. As from that date he was detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a) and, consequently, that period of his detention falls outside the scope of Article 5 § 3 (see Kudła v. Poland [GC], no. 30210/96, § 104).

Accordingly, the period to be taken into consideration amounts to three years, three months and one day.

2.  The parties’ submissions

(a)  The applicant

33.  The applicant maintained that the length of his pre-trial detention was excessive and unreasonable.

(b)  The Government

34.  The Government maintained that in the present case all the criteria for the application and extension of pre-trial detention had been met. The applicant’s detention was justified by the reasonable suspicion that the applicant had committed the offences with which he had been charged, the serious nature of the offences and the severity of the anticipated penalty. In their opinion the case had been very complex due to the fact that it concerned an organised criminal group which operated not only in Poland but also abroad which had also contributed to the length of the proceedings and in consequence had an impact on the length of the applicant’s detention. The Government relied, in particular, on the case of Rażniak v. Poland, no. 6767/03, 7 October 2008, where the applicant’s detention, which lasted two years and nine months, was found not to be in violation of Article 5 § 3 of the Convention.

35.  Lastly, in the Government’s opinion, the domestic authorities showed special diligence in the case; the hearings were scheduled at regular intervals. In the Government’s opinion, the applicant contributed to the excessive length of the proceedings, in particular by demanding that the excessive recordings of some witnesses’’ statements be heard in extenso at the hearing.

3.  The Court’s assessment

(a)  General principles

36.  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, cited above, § 110 et seq.; 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

37.  In their detention decisions given in all the proceedings against the applicant, the authorities relied initially on two grounds only, namely high probability that the applicant had committed offences in question and the need to secure the proper conduct of the proceedings in view of the risk that the applicant might attempt to obstruct them by bringing pressure to bear on witnesses. Only on 11 April 2011 that is about four months after the arrest were the grounds extended by the severity of the penalty to which the applicant was liable (see paragraph 8 above).

38.  The Court further notes that the courts extending the applicant’s detention expressly denied that there had been any grounds which would justify the fear that the applicant might abscond or go into hiding (see paragraph 7 above). After twelve months of detention the domestic courts were under an obligation to justify further detention by one of other reasons listed in the relevant provisions of the Code of Criminal Proceedings. From 6 October 2011 onwards they relied additionally on the high complexity of the case. Indeed, the case was of certain complexity; in particular the Court is aware that it concerned a criminal group consisted of six members, that the group operated on the territory of Poland and abroad, there was a number of witnesses to be heard including two anonymous witnesses whose hearings were not depended exclusively on the trial court’s schedule. The court also notes that the trial court held a large number of hearings which were scheduled at regular intervals.

39.  The Court accepts that the reasonable suspicion against the applicant of having committed the above-mentioned serious offences could initially warrant his detention. Also, the need to secure the proper conduct of the proceedings, in particular the process of obtaining evidence from witnesses, constituted a valid ground for the applicant’s initial detention.

40.  The likelihood of a severe sentence being imposed on the applicant was also a ground for his continued detention. 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).

41.  While all the above factors could warrant even a relatively long period of detention, they did not give the domestic courts an unlimited power to prolong this measure. It is to be noted that already in 2012 the court extending the applicant’s detention refused to extend it for the whole period requested and considered that the trial should be completed by 4 August and 4 October 2012 (see paragraphs 12 and 13 above). The Court further notes that only in November 2013, more than three years after the applicant’s arrest, the Court of Appeal considered the possibility of the applicant’s release on bail. The reasonableness of the amount of bail is however impossible to assess taking into consideration the brevity of the court’s reasoning in this regard (see paragraph 20 above).

42.  Finally, the Court admits that the applicant was charged with several offences involving leadership of an organised criminal group which dealt principally with smuggling marihuana from the Netherlands to Poland. However, by contrast to the case of Rażniak, relied on by the Government, the organised group in the present case was not a criminal gang charged with robberies and theft committed with violence. What is more, in the present case the applicant’s detention was four months longer than that of the applicant in the case relied on by the Government.

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

44.  There has accordingly been a violation of Article 5 § 3 of the Convention.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

45.  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

46.  The applicant claimed EUR 20,000 in respect of non-pecuniary damage.

47.  The Government considered the claim exorbitant and groundless.

48.  The Court 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 2,500 under this head.

B.  Costs and expenses

49.  The applicant did not make any claim for costs and expenses.

C.  Default interest

50.  The Court considers it appropriate that the default interest rate 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,

1.  Declares the complaint concerning the excessive length of detention on remand under Article 5 § 3 of the Convention admissible;

 

2.  Holds that there has been a violation of Article 5 § 3 of the Convention;

 

3.  Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 2,500 (two thousand five hundred 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;

 

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 4 November 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

     Fatoş Aracı                                                                         Päivi Hirvelä
Deputy Registrar                                                                       President