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FOURTH
SECTION
CASE OF
BĄK v. POLAND
(Application
no. 7870/04)
JUDGMENT
STRASBOURG
16
January 2007
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 Bąk v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr M. Pellonpää,
Mr S.
Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović,
Mr J.
Šikuta, judges,
and Mr T.L. Early, Section
Registrar,
Having
deliberated in private on 12 December 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 7870/04) 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 Bąk, on
17 February 2004.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign
Affairs.
- On
13 October 2005 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1979 and lives in Warsaw.
- On
28 September 1999 the applicant was arrested on suspicion of having
committed two armed robberies together with other persons.
- On
4 October 1999 the Gdańsk District Court decided to detain the
applicant on remand. The decision was based on the high probability
that the applicant had committed the crimes with which he had been
charged, which was confirmed by evidence, in particular the
testimonies of one of the co-accused. In addition, the court stated
that there was a serious risk that the applicant might attempt to
influence the co-accused and the witnesses and thus obstruct the
proper course of the proceedings, since as an imprisoned person he
was entitled in particular to have breaks in serving the penalty and
to correspond without any censorship. On 26 October 1999 the Gdańsk
Regional Court upheld the decision.
- Subsequently,
the applicant’s detention was prolonged on several occasions
(on 4 October and 9 December 1999, 8 March and 12 September 2000, 27
March, 26 July and 5 September 2001, 30 January, 24 April,
18 September and 31 October 2002, 28 January, 24 April, 21 June,
9 July, 14 October and 16 December 2003, 23 March and 16 September
2004, 25 January, 25 May, 21 July, 22 September and 6 December
2005, and 2 March 2006). The courts based their decisions on the
reasonable suspicion that the applicant had committed the offence
concerned, the severity of the penalty he faced and the risk of his
collusion and absconding. During the preparatory proceedings the
extension of his detention was also justified by the need to obtain
further evidence, in particular to obtain expert opinions, to make
inquiries at his home, to take evidence from the suspects and to
confront them.
- From
15 September 1999 to 10 April 2000 the applicant served a prison
sentence imposed on him in separate proceedings.
- The
applicant lodged a considerable number of applications for release
from detention or for commutation of the preventive measure to a less
severe one, on the ground of his poor state of health or other
reasons (on 20 September 2000, 20 August and 7 November 2002, 17
February 2003, 27 April, 17 June and 17 October 2004 and 17 July
2005); however, they were dismissed in decisions of 3 October 2000,
27 June 2002, 3 July 2002, 27 February 2003, 25 May 2004, 22 June
2004, 12 October 2004, 10 October 2005, 13 December 2005, and 31
January and 16 March 2006.
- The
applicant also challenged the decisions prolonging his detention, but
those applications were likewise dismissed on 26 October 1999,
8 August and 3 October 2001, 22 May and 23 October 2002, 6
August 2003, 13 January and 11 July 2004, and 25 January, 14 June, 14
September, 19 October and 28 December 2005.
- During
the preparatory proceedings twelve persons (including the applicant)
were arrested. The public prosecutor took evidence from 25 witnesses
and the suspects were interviewed 32 times. 46 expert opinions were
obtained, 17 confrontations and 24 searches of individuals, premises
and other places were carried out and identity parades were conducted
on eight occasions. Numerous documents were obtained, in particular
bills of phone calls made by the suspects, their criminal records and
copies of judgments.
- From
10 April 2000 to 10 November 2001 the applicant served a sentence of
one year and seven months’ imprisonment imposed on him in
separate proceedings.
- The
applicant was indicted before the Gdańsk Regional Court on
1 September 2000. The bill of indictment concerned 61 charges
and 12 accused (eight of whom, including the applicant, were
detained). The applicant was charged with illegal possession of
firearms, two armed robberies, one robbery involving the use of
dangerous implements and resulting in serious injuries, and
participation in an organised armed criminal gang. Charges against
the other accused also concerned attempted murder, theft, burglary
and handling stolen goods. The public prosecutor requested the court
to examine nine experts and 78 witnesses and to read out the
testimonies of a further 49 witnesses. The case file at that date
comprised 22 volumes and the bill of indictment with the statement of
reasons ran to more than 70 pages.
- In
the period from 14 November 2000 to 3 October 2002 the first-instance
court held 30 hearings. In addition five separate sittings were held
at which the court decided to prolong the applicant’s
detention, and on two occasions witnesses were examined away from the
court’s premises. Two hearings had to be cancelled, on grounds
not attributable to the court.
- From
10 November 2001 to 16 April 2004 the applicant served a prison
sentence imposed on him in separate proceedings.
- On
14 and 15 November and 20 December 2000 the court held hearings. It
decided to examine the case against one of the co-accused separately
as his serious illness could have led to delays in the proceedings,
and heard evidence from an expert and nine defendants, including the
applicant.
- The
hearing scheduled for 23 January 2001 was adjourned as one of the
accused revoked his lawyer’s power of attorney. As a result the
hearing scheduled for the next day had to be cancelled as well.
- The
hearing scheduled for 14 March and 18 April 2001 was cancelled
because the defendants had not appeared in court. The court contacted
the relevant police headquarters and instructed them to supervise and
secure the appearance of the detainees.
- Between
26 April and 7 November 2001 eight hearings were held and the court
examined the defendants and a total of 47 witnesses. At a hearing of
30 August 2001 the court requested the Gdańsk Court of Appeal to
extend the applicant’s detention until 28 February 2002. The
trial court repeated the grounds given in earlier decisions on his
detention. In addition it pointed to the increased risk of collusion
since one of the other defendants had significantly changed his
version of events at a previous hearing. The Court of Appeal granted
the request on 5 September 2001, fully endorsing the reasons given by
the first-instance court. It also noted that the proceedings were
being conducted swiftly and that it had not been possible to
terminate them for reasons not attributable to the trial court.
- Between
19 December 2001 and 13 June 2002 the court held 11 hearings
during which the co-accused, eight experts and 39 witnesses were
examined and seven other witnesses refused to make any statements.
- The
hearing scheduled for 27 June 2002 had to be adjourned owing to the
absence of one of the co-defendants and the lawyers of two others.
The court decided to address the relevant bodies of the Bar
Association and ordered the detention of the absent defendants.
- Between
10 July and 25 October 2002 seven hearings were held and the parties,
an expert and ten witnesses gave evidence. The court read out
testimonies of eight other witnesses, taken in the preparatory
proceedings.
- On
31 October 2002 the Gdańsk Regional Court sentenced the
applicant to seven years’ imprisonment and a fine of 3,000
Polish zlotys (PLN). The length of his detention on remand was not
deducted from the sentence because during the whole proceedings at
issue the applicant had been serving a prison sentence imposed on him
in separate proceedings. The judgment, with its reasoning, ran to
more than 80 pages.
- The
applicant and other co-defendants appealed.
- The
appellate hearing scheduled for 30 October 2003 was adjourned because
the court decided (at the request of the lawyer of one of the
co-accused) to obtain an expert opinion on the co-accused’s
mental state and to hear evidence from an expert.
- On
1 December 2003 the Gdańsk Court of Appeal quashed the judgment
in respect of eight of the accused, including the applicant, and
remitted the case to the first-instance court, having found
infringements of procedural law which might have influenced the
outcome of the case.
- In
the period from 22 June 2004 to 28 March 2006 the Gdańsk
Regional Court held 23 hearings; another seven were cancelled for
various reasons. In addition, nine separate sittings were held at
which the court decided on the applicant’s detention.
- At
this stage of the proceedings all the defendants, including the
applicant, became very active. In particular, the applicant
challenged all subsequent decisions concerning his detention,
requested copies or records after almost all the hearings, on three
occasions requested the court to transfer the case file to the
detention centre in order to acquaint himself with its contents, made
numerous applications for evidence to be adduced, for example
requesting several expert opinions or the examination of witnesses,
and lodged a considerable number of other applications.
- The
hearings scheduled for 4 and 25 May, 2, 8 and 22 June 2004 were
cancelled or adjourned because of the illness of a judge or the
absence of defendants. The court appointed a new lawyer to replace
one who had fallen ill.
- Between
7 September and 10 December 2004 the Regional Court held five
hearings and examined 19 witnesses. Several other witnesses refused
to testify or were absent.
- From
9 December to 26 December 2004 the applicant served a prison sentence
imposed in separate proceedings against him.
- A
hearing scheduled for 4 January 2005 had to be adjourned owing to the
absence of a co-defendant’s lawyer. The court decided to
contact the relevant bodies of the Bar Association on this matter.
- Between
18 January and 30 June 2005 six hearings were held and an expert and
40 witnesses gave evidence; a further ten were absent. The court
imposed a fine on one witness who failed to appear at a hearing. Two
hearings were cancelled owing to the illness of a judge or the
absence of a witness.
- On
10 August 2005 the Gdańsk Court of Appeal dismissed the
applicant’s complaint under the 2004 Act on the breach of the
right to a trial within a reasonable time, considering that on the
date of entry into force of the 2004 Act the proceedings had not
exceeded the reasonable-time requirement. The court thoroughly
analysed the proceedings before and after that date. It noted that
the actual length of the proceedings, even if the applicant had not
contributed to it, could not be taken as the only criterion for
holding that the time taken was excessive. In the court’s
opinion, the length of the proceedings could be found to be
unreasonable if undue delays caused by inactivity or improper actions
on the part of the court had occurred. The court did not establish
any such circumstances in the case at issue and pointed to its
extreme complexity, with the large number of plots and individuals
involved, as the main cause of the length of the proceedings. The
court noted that the trial court had conducted the proceedings in a
proper way and had taken appropriate measures to discipline witnesses
and other persons in the event of their absence.
- Between
4 October 2005 and 28 March 2006 the Regional Court held four
hearings and five others had to be adjourned owing to the illness of
a judge, the absence of a lawyer or a lack of police officers to
guard the defendants on their way from the detention centre to the
court. The testimonies of three witnesses were heard and those of
absent witnesses were read out.
- The
proceedings are currently pending before the Regional Court.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law 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) is 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).
- The
relevant domestic provisions and practice concerning the State’s
liability for a tort committed by its official, in connection with a
right to a trial within a reasonable time, have already been cited in
previous cases against Poland (see, for example, Rybczyńscy
v. Poland, no. 3501/02, 3 October 2006, and Białas
v. Poland, no. 69129/01, 10 October 2006).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the length of his pre-trial detention was
in breach of Article 5 § 3, which in so far as relevant
provides:
“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.”
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.
Merits
1. Submissions of the parties
- The
Government submitted that the applicant’s detention was based
cumulatively on all the prerequisites of detention listed in the Code
of Criminal Procedure as applicable at the material time.
Firstly,
the Government pointed out that the evidence obtained in the
proceedings indicated that there was a strong likelihood that the
applicant had committed the crimes in question. Secondly, the charges
brought against him concerned numerous offences committed as part of
an organised criminal gang, for which the applicant faced a severe
punishment. Thus, bearing in mind the severity of the charges and of
the likely penalty, the applicant’s detention was justified, in
the Government’s opinion, by a genuine public-interest
requirement which, notwithstanding the presumption of innocence,
outweighed the rule of respect for individual liberty. Thirdly, the
detention was aimed at ensuring the proper conduct of the proceedings
and was justified by the risk of the applicant’s obstructing
the proceedings and tampering with the evidence. This risk stemmed
from the fact that the proceedings concerned an organised criminal
gang and that the applicant was a persistent offender. On the date of
the preventive measure the investigation had still been in progress
and its personal scope could still have been extended, as indeed it
had been at a later stage. There existed a serious threat that the
accused might attempt to influence some of the other defendants and
the witnesses. Having said that, the Government concluded that only
the isolation of the members of the group, at least until all of them
had given evidence, could prevent their colluding and coordinating
their testimonies.
- The
applicant shared the opinion that the suspicion that he had committed
a serious offence might initially have warranted his detention. He
also accepted that the need to ensure the proper conduct of the
proceedings had justified keeping him in custody at least as long as
the evidence had not been secured. However, in his opinion, with the
passage of time this ground had inevitably become less and less
relevant.
- The
Government argued that the above-mentioned circumstances had remained
valid during the whole period of the applicant’s detention.
Moreover, in the course of the proceedings the prolongation of his
detention had been justified by the need, which had arisen during the
preparatory proceedings, to extend the personal and material scope of
the investigation. Further, the Government observed that the courts
had stressed on several occasions that it was necessary to separate
the co-accused and the witnesses, regard being had to the fact that
investigations concerning crimes committed in an organised criminal
gang were especially complex and required the isolation of the
alleged perpetrators. Consequently, the Government requested the
Court to assess the length of the applicant’s detention in the
light of the fact that he was charged with crimes committed as part
of an organised criminal gang.
The
Government also submitted that the courts did not apply detention on
remand automatically but based their decisions on a careful
consideration of each individual case. The courts had decided to
release four co-defendants as soon as they had found that the reasons
justifying their detention ceased to persist.
- The
applicant did not address this issue and stated that the length of
his detention was excessive.
- As
to the complexity of the case, the Government argued that it was very
complex. At the same time the Government submitted that in the period
from 2000 to 2003 the number of persons sentenced for involvement in
organised criminal activities had remained relatively unchanged in
Poland, representing on average only 0.016% of all those sentenced at
that time. Since 2004, there had been a significant increase in the
number of sentences relating to organised criminal activities. In the
period up to 2000 the total number of those sentenced for organised
criminal activities had been significantly smaller. For example, in
1998 and 1999 there had been only seven and eighteen persons
respectively sentenced for such crimes. According to the Government’s
submissions, there were several procedural problems that tended to
arise in cases relating to organised criminal activities. Such cases
were complex by their nature, as typically they involved the
investigation of an activity carried out by a group, and that in turn
involved the examination of offences committed by several persons.
Usually all the trial and pre-trial material was voluminous and the
legal and factual assessment required considerable time and effort.
In many such cases evidence had to be taken from anonymous witnesses.
The trial court had to guarantee both the anonymity of such witnesses
and the rights of the accused. There were often problems with the
presence at the hearings of the accused or their legal
representatives, including defence counsel and witnesses, as they
were often interested in slowing down the process and as a
consequence the trial court could not carry out the appropriate
measures as planned. There were also many logistical problems as the
witnesses and accused, mostly belonging to the same or competing
groups of organised criminals in detention, required isolation both
within the relevant detention facility and while being transported.
Their relatively large number, coupled with the need to provide
appropriate security, dictated that they had to be placed in
different detention centres. Even persons detained in the same
facility had to be transported and brought to the courtroom
separately, requiring additional manpower and equipment. In addition,
not all courts had at their disposal appropriate facilities both to
ensure the isolation of those being brought to court and to allow the
police to guarantee the security of all the parties involved. This
was particularly true of many district courts.
- With
respect to the present case, the Government pointed out that both the
prosecutor and the trial court had conducted extensive evidentiary
proceedings, as was typical for proceedings in cases concerning
organised crime. In the course of the investigation about 300
applications to adduce evidence had been made and more than 130
witnesses had been interviewed. The applicant had given evidence four
times and on several times had been confronted with witnesses. The
Government stated that the hearings of the accused before the court
had been very time-consuming and had lasted for many hours.
- According
to the Government, during the whole proceedings hearings had been
held regularly and had been fixed at regular intervals. Only a few
scheduled hearings had had to be cancelled, on grounds for which the
courts could not be held responsible. In the Government’s
opinion the proceedings had been concluded with reasonable speed and
without any undue delays. The courts had also taken proper measures
to ensure the speedy progress of the proceedings, for example by
informing the police headquarters of the scheduled hearings and
asking them to thoroughly supervise and secure the appearance of the
detained; by deciding to examine the case of one of the co-accused
separately, as his illness might have contributed to delays; by
imposing fines on absent witnesses; or by contacting the relevant
bodies of the Bar Association if lawyers had failed to attend the
hearings.
- The
applicant disagreed with the Government’s opinion concerning
the complexity of the case and argued that the serious character of
the offences and the number of defendants and witnesses did not as
such entail an automatic conclusion that the relevant criminal
proceedings were complex. In the applicant’s view, the
Government had not submitted any arguments to show that any
difficulties in establishing the facts, or any problems in the legal
classification of the impugned acts, had arisen in the present case.
- Lastly,
the Government concluded that the applicant’s pre-trial
detention in the present proceedings had lasted from 4 October 1999
until 31 October 2002, when the Gdańsk Regional Court had given
its judgment, and from 1 December 2003 to date. Meanwhile, the
applicant had served several sentences of imprisonment imposed on him
in other proceedings. He had been imprisoned continuously from 3
September 1999 until 16 April 2004 (see paragraphs 8, 12 and 15
above) and from 9 December 2004 until 26 December 2004 (see
paragraph 31 above). Therefore, the Government were of the opinion
that the applicant had effectively been detained only from 17 April
2004 to 8 December 2004 and from 27 December 2004 to date –
that is, for about two years and three months.
- The
applicant did not address the issue of his prison sentences and
submitted that his detention had exceeded six years.
2. Principles established under the Court’s
case-law
- Under
the Court’s case-law, the issue of whether a period of
detention is reasonable cannot be assessed in abstracto.
Whether it is reasonable for an accused to remain in detention must
be assessed in each case according to its special features. Continued
detention can be justified in a given case only if there are specific
indications of a genuine requirement of public interest which,
notwithstanding the presumption of innocence, outweighs the rule of
respect for individual liberty (see, among other authorities, W.
v. Switzerland, judgment of 26 January 1993, Series A
no. 254-A, p. 15, § 30).
- It
falls in the first place to the national judicial authorities to
ensure that, in a given case, the pre-trial detention of an accused
person does not exceed a reasonable time. To this end they must
examine all the facts arguing for or against the existence of a
genuine requirement of public interest justifying, with due regard to
the principle of the presumption of innocence, a departure from the
rule of respect for individual liberty and set them out in their
decisions dismissing the applications for release. It is essentially
on the basis of the reasons given in these decisions and of the
established facts mentioned by the applicant in his appeals that the
Court is called upon to decide whether or not there has been a
violation of Article 5 § 3 of the Convention (see
McKay v. the United Kingdom, [GC], no. 543/03, § 43, 6
October 2006).
- The
persistence of reasonable suspicion that the person arrested has
committed an offence is a condition sine qua non for the
lawfulness of the continued detention, but after a certain lapse of
time it no longer suffices. In such cases, the Court must establish
whether the other grounds given by the judicial authorities continued
to justify the deprivation of liberty. Where such grounds were
“relevant” and “sufficient”, the Court must
also ascertain whether the competent national authorities displayed
“special diligence” in the conduct of the proceedings
(see Labita v. Italy, no. 26772/95, § 153, ECHR 2000-IV).
3. Application of the principles to the circumstances
of the present case
(a) Period to be taken into consideration
- The
Court considers that the applicant’s detention can be divided
into the following periods:
(a) the
first period, lasting from 4 October 1999 until 31 October 2002 (the
date of the first-instance judgment), during which the applicant’s
detention coincided with the prison sentence imposed in separate
criminal proceedings against him;
(b) the
second period, lasting from 31 October 2002 to 1 December 2003 (the
date on which the case was remitted by the appellate court for
re-examination);
(c) the
third period, lasting from 1 December 2003 to 16 April 2004, during
which the applicant’s detention coincided with the prison
sentence imposed in separate criminal proceedings;
(d) the
fourth period, lasting from 17 April 2004 to 8 December 2004;
(e) the
fifth period, lasting from 9 December 2004 until 26 December 2004,
during which the applicant’s detention coincided with the
prison sentence imposed in separate criminal proceedings;
(f) the
sixth period, lasting from 27 December 2004 up to the present.
The
Court reiterates that, in view of the essential link between
Article 5 § 3 of the Convention and paragraph 1
(c) of that Article, a person convicted at first instance cannot be
regarded as being detained “for the purpose of bringing him
before the competent legal authority on reasonable suspicion of
having committed an offence”, as specified in the latter
provision, but is in the position provided for by Article 5 § 1
(a), which authorises deprivation of liberty “after conviction
by a competent court” (see, for example, B. v. Austria,
judgment of 28 March 1990, Series A no. 175, pp. 14-16, §§
36-39). Accordingly, the second period of the applicant’s
detention, which lasted from 31 October 2002, the date of his
original first-instance conviction, to 1 December 2003, the date
on which that conviction was quashed and his case remitted to the
first-instance court, cannot be taken into account for the purposes
of Article 5 § 3.
Likewise,
the Court cannot take into account the first, the third and the fifth
period for the purpose of assessing the reasonableness of the length
of the detention under Article 5 § 3 of the Convention, as
during those periods the applicant’s detention on remand
coincided with his detention after conviction in separate criminal
proceedings. Such detention cannot be considered on the same footing
as a detention under Article 5 § 1 (c), with which Article 5 §
3 is solely concerned, as it applies only to persons in custody
awaiting their trial (see Wemhoff v. Germany, judgment of 27
June 1968, Series A no. 7, pp. 23-24, § 9).
- The
Court consequently finds that the period to be taken into
consideration consists of two separate terms, the first lasting from
17 April 2004 until 8 December 2004 and the second from 27 December
2004 until the present, and amounts to about two years and four
months.
(b) Reasonableness of the length of
detention
- The
Court observes that the present case concerned a serious crime,
namely armed robberies committed together with other persons. Thus it
was a classic example of organised crime, by definition presenting
more difficulties for the investigation authorities and, later, for
the courts in determining the facts and the degree of responsibility
of each member of the group. It is obvious that in cases of this
kind, continuous control and limitation of the defendants’
contact among themselves and with other persons may be essential to
avoid their absconding, tampering with evidence and, most importantly
of all, influencing, or even threatening, witnesses. Accordingly,
longer periods of detention than in other cases may be reasonable.
- The
Court will take into account in assessing the conduct of the
authorities in the present case the special circumstances deriving
from the fact that it concerned a member of a criminal gang (see
Celejewski v. Poland, no. 17584/04, 4 May 2006).
- The
Court observes that in their decision to remand the applicant in
custody the judicial authorities relied on the following principal
grounds: the reasonable suspicion against the applicant, the serious
nature of the offences with which he had been charged, the severity
of the penalty to which he was liable, the risk of his influencing
the testimonies of witnesses and of the co-accused or obstructing the
proceedings by other means and the need to obtain extensive evidence
(see paragraphs 6, 7 and 19 above). Furthermore, the Government
stated that the particular complexity of the case, as it concerned
organised crime, additionally justified the applicant’s
detention.
- The
suspicion that the applicant had committed serious offences was
confirmed in particular by the testimonies of one of the co-accused
and initially warranted his detention. Therefore, the only question
which remains is whether and when the continuation of his detention
ceased to be warranted by “relevant” and “sufficient”
reasons. Having said that, the Court would emphasise that there is a
general rule that the domestic courts, in particular the trial court,
are better placed to examine all the circumstances of the case and
take all the necessary decisions, including those in respect of
pre-trial detention. The Court may intervene only in situations where
the rights and liberties guaranteed under the Convention have been
infringed.
- The
Court considers that the authorities were faced with the difficult
task of determining the facts and the degree of alleged
responsibility of each of the defendants who had been charged with
acting as part of an organised criminal gang. In these circumstances,
the Court also accepts that the need to obtain voluminous evidence
from many sources, coupled with the existence of a general risk
flowing from the organised nature of the applicant’s alleged
criminal activities, constituted relevant and sufficient grounds for
prolonging his detention during the time necessary to complete the
investigation, to draw up the bill of indictment and to hear evidence
from the accused.
- The
Court notes that the judicial authorities also relied on the
likelihood that a severe sentence might be imposed on the applicant,
given the serious nature of the offences at issue. In this
connection, the Court reiterates that the severity of the sentence
faced is a relevant element in the assessment of the risk of
absconding or reoffending. It acknowledges that in view of the
seriousness of the accusations against the applicant, the authorities
could justifiably have considered that such an initial risk was
established. However, the Court has repeatedly held that the gravity
of the charges cannot by itself serve to justify long periods of
detention on remand (see Ilijkov v. Bulgaria, no. 33977/96,
§§ 80-81, 26 July 2001). In the circumstances of the
present case, the Court finds that the severity of the anticipated
penalty alone, or in conjunction with the other grounds relied on by
the authorities, cannot constitute a “relevant and sufficient
ground” for holding the applicant in detention for a
considerably long period.
- As
regards the risk of pressure being brought to bear on witnesses or of
the obstruction of the proceedings by other unlawful means, the Court
notes that at the initial stages of the proceedings the judicial
authorities appeared to presume that such risks existed on the ground
that the applicant had been a member of an organised criminal group.
The subsequent decisions to prolong the applicant’s detention
pending trial underlined the fact that these fears were well-founded,
since one of the accused significantly changed his statements during
the hearings (see paragraph 19 above). The Court accepts that,
in the special circumstances of the case, the risk flowing from the
nature of the applicant’s criminal activities actually existed
and justified holding him in custody for the relevant period.
- The
foregoing considerations are sufficient for the Court to conclude
that the grounds given for the applicant’s pre-trial detention
were “relevant” and “sufficient” to justify
holding him in custody for the entire relevant period.
- The
Court lastly observes that the proceedings were of considerable
complexity, regard being had to the number of defendants, the
extensive evidentiary proceedings and the implementation of special
measures required in cases concerning organised crime. Nevertheless,
the hearings in the applicant’s case were held regularly and at
short intervals. The courts also took proper measures to ensure the
speedy progress of the proceedings (see paragraphs 18, 21, 32 and 33
above). The Court therefore concludes that the national authorities
displayed special diligence in the conduct of the proceedings. The
length of the investigation and of the trial was justified by the
exceptional complexity of the case. It should not be overlooked that,
while an accused person in detention is entitled to have his case
given priority and conducted with particular expedition, this must
not stand in the way of the efforts of the judges to clarify fully
the facts in issue, to provide both the defence and the prosecution
with all necessary facilities for putting forward their evidence and
stating their case and to give judgment only after careful reflection
on whether the offences were in fact committed and on the sentence to
be imposed.
- Having
regard to the foregoing, the Court considers that there has been no
violation of Article 5 § 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
- The
applicant complained of a violation of his right to a trial within a
reasonable time. He relied on Article 6 § 1 of the Convention,
which in so far as relevant provides:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
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. Submissions of the parties
- The
Government submitted that in the particular circumstances of the
applicant’s case there had been no violation of Article 6 §
1 of the Convention.
They
repeated the submissions they had made with regard to the allegedly
unreasonable length of the applicant’s detention (see paragraph
45 above) and argued that the case was very complex. They submitted,
briefly, that the case concerned an organised armed group of a
criminal nature; twelve individuals had been involved in its
activities, committing miscellaneous offences (they had been charged
with 61 crimes). The court had obtained numerous expert opinions and
had additionally heard evidence from nine experts. It had also
examined 78 witnesses and acquainted itself with the testimonies of
49 others. The public prosecutor had filed 300 applications to
adduce evidence. The bill of indictment, with its reasoning, ran to
70 pages and the judgment of 31 October 2002 to more than 80 pages.
The case file, by March 2006, comprised 43 volumes.
- The
applicant disagreed with the Government’s opinion about the
complexity of the case.
- As
to the conduct of the domestic authorities, the Government further
argued that there had been no delays attributable to the State
regardless of the total length of the proceedings. They reiterated
their opinion that the proceedings had been concluded swiftly and
that the judicial authorities had shown due diligence in ensuring the
proper conduct of the proceedings.
The
Government also submitted that the Gdańsk Court of Appeal had
thoroughly analysed the proceedings after the applicant had lodged a
complaint under the 2004 Act on the breach of the right to a trial
within a reasonable time. In that court’s opinion, the
proceedings had not breached the reasonable-time requirement. It
noted that the trial court had conducted the proceedings in a proper
manner and had taken appropriate measures to discipline witnesses and
other persons in the event of their absence. The Gdańsk Regional
Court had shown due diligence throughout the judicial proceedings.
The
Government pointed out that some of the hearings had had to be
adjourned owing to the absence of defence counsel and that the court
had informed the relevant bodies of the Bar Association whenever
lawyers had been absent. On one occasion the court had decided to
appoint another lawyer in place of the one who had failed to attend
the hearings. The court had also taken disciplinary measures against
the witnesses. It had imposed fines on the witnesses who had failed
to comply with summonses. On some occasions the court had decided to
examine witnesses outside its premises in order to accelerate the
proceedings. The court had also encountered many problems in
establishing the witnesses’ whereabouts: in such cases it had
requested information from the relevant authorities.
- The
applicant contested these arguments and stressed that the undisputed
complexity of the case, resulting from the number of defendants and
witnesses, could not justify the slow progress of the proceedings
before the court, or the six-month gap between the judgment of the
Gdańsk Court of Appeal (1 December 2003) and the date of the
first hearing after the case had been remitted to the Gdańsk
Regional Court (22 June 2004). The applicant emphasised that hearings
had frequently been adjourned owing to the absence of witnesses and
the lack of police officers to guard the accused on their way from
the detention centre to the court.
- The
Government did not address the issue of the courts’ inactivity
between 1 December 2003 and 22 June 2004. As to the conduct of the
applicant, they were of the opinion that he had significantly
contributed to the length of the proceedings. In particular, the
applicant had lodged various applications and appeals, even if he had
been informed that some of his appeals were inadmissible. The
Government argued, relying on Malicka Wąsowska v. Poland
((dec.), no. 41413/98, 5 April 2001), that while exercising his
procedural rights, the applicant had to be aware that such
applications and appeals might contribute to delays in the
proceedings.
2. The Court’s assessment
(a) Period to be taken into consideration
- The
Court reiterates in the first place that in criminal matters, the
“reasonable time” referred to in Article 6 § 1
begins to run as soon as a person is “charged”; this may
occur on a date prior to the case coming before the trial court (see,
for example, Deweer v. Belgium, judgment of 27 February
1980, Series A no. 35, p. 22, § 42), such as the date of arrest,
the date when the person concerned was officially notified that he
would be prosecuted, or the date when preliminary investigations were
opened (see Wemhoff v. Germany, judgment of 27 June 1968,
Series A no. 7, pp. 26-27, § 19; Neumeister v. Austria,
judgment of 27 June 1968, Series A no. 8, p. 41, § 18;
and Ringeisen v. Austria, judgment of 16 July 1971, Series A
no. 13, p. 45, § 110). “Charge”, for the
purposes of Article 6 § 1, may be defined as “the official
notification given to an individual by the competent authority of an
allegation that he has committed a criminal offence”, a
definition that also corresponds to the test whether “the
situation of the [suspect] has been substantially affected”
(see Deweer, cited above, p. 24, § 46).
- In
the present case, the Court observes that the applicant was remanded
in custody on 28 September 1999 on suspicion of having committed
robberies and it can be assumed that on this date he was officially
notified that he would be prosecuted. Accordingly, the relevant
period for the assessment of the length of the proceedings began to
run on that date. The proceedings are still pending. The period under
examination therefore amounts to seven years at two levels of
jurisdiction.
(b) Reasonableness of the length of
proceedings
- The
reasonableness of the length of proceedings must be assessed in the
light of the circumstances of the case and with regard to the
criteria laid down in the Court’s case-law, in particular the
complexity of the case and the conduct of the applicant and of the
relevant authorities which in this instance call for an overall
assessment (see, among many other authorities, Pélissier
and Sassi v. France [GC], no. 25444/94, § 67, ECHR
1999-II, and Szeloch v. Poland, no. 33079/96, § 101,
22 February 2001).
- The
Court considers that the subject matter of the case before the
domestic courts was undoubtedly complex, as shown, inter alia,
by the fact there were twelve accused and that by September 2000 the
case file already comprised twenty-two volumes. Establishing the
facts of the case necessitated submitting a substantial amount of
evidence to the court and examining a large number of witnesses. The
Court’s attention has also been drawn in this connection to the
fact that on 10 August 2005 the Gdańsk Court of Appeal stressed
that the case was particularly complex and voluminous (see paragraph
34 above).
- On
the other hand, the Court cannot accept that the Government’s
argument that the applicant was responsible for prolonging the
proceedings by lodging unspecified “various applications and
appeals”. In particular, even if the Court were to admit that
the defendants, including the applicant, had contributed to certain
delays during the trial by making use of their procedural rights, it
considers that those factors could not justify the entire period of
the applicant’s detention. In that connection, the Court
underlines that the Government did not refer to any particular act
whereby the applicant had obstructed the trial and did not specify
the applications and appeals to which they referred.
- In
respect of the conduct of the judicial authorities, the Court notes
that the proceedings in their investigative phase were conducted from
October 1999 to 1 September 2000. After the bill of indictment had
been filed with the court on the latter date, the first hearing was
fixed for 14 November 2000. It is true that the case was
conducted speedily at the beginning of the judicial proceedings,
since before the first-instance judgment of 31 October 2002 the court
held 30 hearings on average, more than one hearing a month. A
significant number of witnesses were heard during these hearings. The
appeal was examined in about one year and one month, and the
proceedings have to date been pending for about three years before
the Regional Court.
- The
Court also notes that a number of hearings in the case were adjourned
because either the accused or the witnesses failed to comply with
summonses (see paragraphs 18, 21, 29, 32 and 33 above). However, the
domestic court made efforts to expedite the proceedings, in
particular by ensuring the supervision of the appearance of the
detainees by the police, deciding to examine the case of one of the
co-accused separately or imposing fines on absent witnesses (see
paragraph 47 above).
- The
Court further observes that on 10 August 2005 the Gdańsk Court
of Appeal found, on a complaint by the applicant about the breach of
his right to a trial within a reasonable time, that the length of the
proceedings had not been excessive. The Court of Appeal had analysed
the entire period of the proceedings and observed no undue delays
caused by inactivity or improper actions on the part of the trial
court.
- Nevertheless,
the Court must point out that the duty to administer justice
expeditiously was incumbent in the first place on the domestic
authorities, especially as during a substantial part of his trial the
applicant remained in custody, even if he had been serving a prison
sentence at the same time. The Court has stressed on many occasions,
in relation to Article 5 § 3, that in cases where a person is
detained pending the determination of a criminal charge against him,
the fact of his detention is itself a factor to be considered in
assessing whether the requirement of a decision on the merits within
a reasonable time has been met (see Abdoella v. the Netherlands,
judgment of 25 November 1992, Series A no. 248 A, pp. 16-17, §
24).
- On
the basis of the above considerations, observing that the
proceedings, which have lasted for seven years, are still pending and
irrespective of the finding that there has been no violation of the
applicant’s right to release pending trial within the meaning
of Article 5 § 3 of the Convention, the Court considers that the
reasonable time within the meaning of Article 6 § 1 of the
Convention has been exceeded.
- Consequently,
having regard to all the circumstances of the case and the overall
length of the proceedings, the Court considers that there has been a
violation of Article 6 § 1 of the Convention.
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 30,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested the claim as being exorbitant.
- The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards him EUR 3,600 under
that head.
B. Costs and expenses
- The
applicant also claimed EUR 1,000 for the costs and expenses incurred
before the Court.
- The
Government did not express an opinion on the matter.
- 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, that the sum claimed should be awarded in full.
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 no violation of
Article 5 § 3 of the Convention;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(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 3,600
(three thousand six hundred euros) in respect of non-pecuniary damage
and EUR 1,000 (one thousand euros) in respect of costs and expenses,
to be converted into Polish zlotys at the rate applicable at the date
of settlement, plus any tax that may be chargeable;
(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 16 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas bratza
Registrar President
