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FOURTH
SECTION
CASE OF RAŻNIAK v. POLAND
(Application
no. 6767/03)
JUDGMENT
STRASBOURG
7
October 2008
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 Rażniak v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
Päivi Hirvelä,
Ledi
Bianku,
Nebojša Vučinić, judges,
and
Lawrence
Early,
Section Registrar,
Having
deliberated in private on 16 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 6767/03) 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 Zygmunt
Rażniak (“the applicant”), on 30 July 2001.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr Jakub Wołąsiewicz of the Ministry of
Foreign Affairs.
- On
13 September 2007 the
President of the Fourth Section of the Court decided to give notice
of the application to the Government. Under the provisions of Article
29 § 3 of the Convention, it was 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 1952 and lives in Warsaw. He is currently
detained in Warsaw Remand Centre.
- The
applicant was arrested on 25 August 2000 and subsequently remanded in
custody by the Warsaw District Court on suspicion of founding and
leading a criminal armed gang within which he had ordered various
crimes to be carried out, such as murder, robbery and drug
trafficking. He was also accused of illegal possession of weapons and
their use in assault and battery. In view of the fact that the
applicant had been seriously injured by an explosion in his car on 30
May 2000, the court had regard to a medical opinion given by experts
from the Faculty and Institute of Forensic Medicine of the Warsaw
Medical Academy. The experts found that there had been no indication
that the applicant's detention would pose a danger to his health or
life. The experts concluded that the applicant should receive
appropriate medication and have unrestricted access to medical advice
or be hospitalised on the ward of the detention centre. Accordingly,
the court stressed in its decision that the applicant should receive
adequate medical assistance during his detention.
- The
applicant unsuccessfully appealed against that decision. On
13 November 2000 he requested that the detention order be
quashed, arguing, firstly, that there had been no reasonable
suspicion that he had committed the offences with which he had been
charged and, secondly, that he had been arrested at a hospital while
being treated for injuries sustained as a result of a bomb explosion
in his car. Accordingly, his detention created a serious risk for his
health and life. He submitted medical opinions on his state of
health, which confirmed that he had required surgery. According to
two opinions, the applicant's detention in a detention centre could
constitute a serious danger to his health and life. A third opinion
stated that there were no sufficient and objective grounds for
believing that detention could seriously endanger the applicant's
health or life.
- On
20 November 2000 the applicant's detention pending investigation was
extended by the Warsaw District Court. The court was of the view that
the suspicion against the applicant was reasonable and confirmed by
witness testimonies and by evidence obtained during searches. It had
also been established in the course of the investigation that the
members of the gang were close and, hence, in view of the fact that
most of them were sought by means of wanted notices, the applicant's
detention was the only measure capable of ensuring the proper conduct
of the investigation and preventing him from colluding with
co-accused. The court took into account the serious nature of the
offences with which the applicant had been charged and the severity
of the penalty to which he was liable. The court also referred to a
medical opinion of 25 August 2000 stating that there were no grounds
for finding that the detention created any serious risk for the
applicant's health or life. The decision was upheld on 28 December
2000 by the Warsaw Regional Court.
- The
applicant's pre-trial detention was subsequently extended by the same
court's decisions of 27 April, 24 August, 31 December 2001, 27 March
and 9 August 2002. They were based in particular on the need to
conduct further complex investigative measures, the need to obtain
extensive evidence and the fear of the applicant colluding with other
gang members or absconding. The risk was very serious in view of the
applicant's position in the criminal world and the fact that other
members of the gang were still sought by the police.
-
The bill of indictment against the applicant and thirteen co-accused
was transferred to the Warsaw Regional Court on 20 March 2002. The
prosecutor requested 113 witnesses and three experts to give evidence
and extensive documentary evidence was also submitted.
- Between
19 September 2002 and 29 May 2003 the trial court held 57 hearings.
The hearings were held on average 6 to 7 times per month, at times
even 13 times per month. Prior to the first hearing the court held
three preparatory meetings in order to examine the question of the
extension of the applicant's detention and his health. On 7 May 2002
the director of the detention centre submitted a medical opinion
prepared by a doctor from the remand centre and subsequently another
by an orthopaedist. The specialists recommended that the treatment be
continued and confirmed that the applicant was receiving adequate
medical assistance. The court ordered medical examinations by a
surgeon, including a vascular surgeon, and by a pulmonologist, with a
view to verifying whether the applicant could be treated in the
detention centre's ward.
- On
29 May 2003 the Warsaw Regional Court found the applicant guilty of
founding and leading an armed criminal gang for 10 years and
sentenced him to 7 years' imprisonment. Both the applicant and the
prosecutor appealed.
- On
27 August 2003 the applicant's counsel lodged an application for the
applicant to be released to allow him to receive specialist
treatment.
- On
1 September 2003 the Warsaw Regional Court ordered a medical opinion
from the Tuberculosis and Lung Diseases Institute. The opinion of 10
October 2003 stated that
“(...) the patient presents a high risk of
recurrent thromboembolic complications, which means that there is a
need for preventive measures in certain situations to be taken (...).
His current condition does not seem to warrant further diagnostic
studies or referrals, such as to a pulmonologist.”
- On
31 March 2004 the Warsaw Court of Appeal upheld the first-instance
judgment.
- By
a ruling of 10 May 2005 the Supreme Court dismissed the applicant's
cassation appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice concerning the imposition of
detention during judicial proceedings (aresztowanie tymczasowe),
the grounds for its extension, release from detention and rules
governing other “preventive measures” (środki
zapobiegawcze) are stated in the Court's judgments in the cases
of Gołek v. Poland, no. 31330/02, §§ 27-33, 25
April 2006, and Celejewski v. Poland, no. 17584/04, §§
22-23, 4 August 2006.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the length of his 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 with his arrest on 25 August 2000. On
29 May 2003 the Warsaw Regional Court issued a judgment convicting
him.
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 two years and
nine months.
2. The parties' submissions
(a) The applicant
- The
applicant argued that the length of his detention had been
unreasonable. In his opinion, the courts had not given sufficient and
relevant reasons for keeping him in detention for such a long period
and had failed to consider applying a less severe preventive measure.
(b) The Government
- The
Government submitted that the applicant's pre-trial detention had
been justified by the existence of substantial evidence of his guilt,
the nature of the offences with which he had been charged and the
severity of the anticipated penalty. They underlined that the length
of the applicant's detention should be assessed in the light of the
fact that he had acted in an organised criminal group. The risk that
the defendants might obstruct the proceedings or tamper with evidence
had been aggravated by the fact that they had been closely linked as
members of a criminal gang and that the applicant had been the leader
of the gang. Only the isolation of the members of the group could
prevent them from coordinating their testimonies or influencing
witnesses. Thus, the domestic courts had considered it necessary to
detain the applicant until all relevant witnesses had been questioned
and other members of the group remanded in custody.
- The
Government asserted that the necessity of the applicant's continued
detention had been thoroughly examined by the courts, which on each
occasion had given sufficient reasons for their decisions.
Furthermore, the applicant's case had been extremely complex. Lastly,
they submitted that the authorities had displayed special diligence
in the conduct of the proceedings.
3. The Court's assessment
(a) General principles
- The Court notes 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; McKay v. the
United Kingdom [GC], no. 543/03, §§ 41-44, ECHR
2006-...; and Bąk v. Poland, no. 7870/04, §§ 51-53,
ECHR 2007 ... (extracts), with further references).
(b) Application of the above principles in
the present case
- The
Court observes that the present case concerned a serious crime,
namely membership and leadership of a criminal gang, robberies and
theft committed with violence. 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 with each other 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.
- 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,
cited above, § 57).
- 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 7 and 8 above). Furthermore, the Government stated
that the particular complexity of the case, as it concerned organised
crime, additionally justified the applicant's detention.
- The
Court notes that the suspicion that the applicant had committed
serious offences was confirmed in particular by the testimonies of
the witnesses and 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 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 extending
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 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 (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.
- The
Court further notes that the applicant was the leader of an organised
criminal group and had close links to its other members, many of whom
were in hiding and placed on wanted lists or were co-accused in the
criminal proceedings against the applicant. Accordingly, 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 very
short intervals (see paragraph 10 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.
- Having
regard to the foregoing, the Court considers that there has been no
violation of Article 5 § 3 of the Convention.
II. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
1. Complaint under Article 3 of the Convention
- The
applicant alleged, relying on Article 3 of the Convention, that
imposing detention on him, given his condition, amounted to an
inhuman treatment and exposed him to a genuine risk of a permanent
and serious deterioration in his health. He also complained about the
fact that he was qualified as “a dangerous detainee”.
- Article
3 of the Convention reads:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Court reiterates that, according to the Convention organs' case-law,
ill-treatment must attain a minimum level of severity if it is to
fall within the scope of Article 3 of the Convention (see Ireland
v. the United Kingdom, judgment of 18 January 1978, Series A no.
25, p. 65, § 162). It also notes that lack of medical
treatment may raise an issue under Article 3. In such cases, the
factors to be considered are the seriousness of the applicant's
condition, the quality of medical care he receives and whether his
state of health is compatible with detention. Also, States remain
obliged to maintain a continuous review of the detention arrangements
employed with a view to ensuring the health and well-being of all
prisoners, having due regard to the ordinary and reasonable
requirements of imprisonment (see Bonnechaux v. Switzerland,
Commission's report of 5 December 1979, DR 18, §§ 100
and 148; Lukanov v. Bulgaria, Commission decision of 12
January 1995, DR 80-A, §§ 128-130; Sadowski v.
Poland (dec.), no. 32726/96, 12 October 2000; and Kawka
v. Poland (dec.), no. 28997/95, 13 July1999).
- Turning
to the facts of the present case, the Court observes that before
ruling on the applicant's detention, the Warsaw District Court
ordered that the applicant should be examined by specialists from the
Faculty and Institute of Forensic Medicine of the Warsaw Medical
Academy. The relevant decision was based on the experts' conclusion
that detention would be compatible with the applicant's health.
Moreover, one of the opinions submitted by the applicant himself also
pointed to the absence of obstacles to his detention.
- The
Court further observes that there is no indication that the
applicant's health deteriorated during his detention. The Court also
notes that medical treatment in the detention centre was provided in
line with the external medical experts' recommendations. The
applicant's state of heath was examined by independent experts
several times during his detention (see paragraphs 5, 10 and 13).
- In
sum, the Court is satisfied that applicant's condition was,
throughout his detention, monitored by the prison health service and
that he received appropriate medical treatment. There is no
indication of any negligence on the part of the medical services, nor
has the applicant adduced any evidence to show that the authorities
were negligent in administering medical treatment to him.
- The
Court concludes that there is no indication that the applicant's
condition was incompatible with his detention. Consequently, the
Court considers that the treatment complained of does not disclose
any indication of a violation of Article 3 of the Convention.
- The
applicant also complained under the same Article about the fact that
he was qualified as “a dangerous detainee”.
- The
Court notes that not only did the applicant formulate his arguments
in vague terms but also that he has not produced any material to show
that the decision qualifying him as a dangerous detainee exposed him
to any treatment that might fall within the ambit of Article 3 of the
Convention.
- It
follows that the complaint is inadmissible as being manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention and must be rejected pursuant to paragraph 4 of that
Article.
2. Complaint under Article 5 § 1 of the Convention
- The
applicant complained that he had been arrested and detained despite
his innocence and contrary to the principle of presumption of
innocence.
- The
complaint is to be examined under Article 5 § 1 of the
Convention, which reads as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so.”
- The Court reiterates that the reasonableness of the
suspicion on which an arrest must be based forms an essential part of
the safeguard against arbitrary arrest and detention which is laid
down in Article 5 § 1 (c). Having a “reasonable
suspicion” presupposes the existence of facts or information
which would satisfy an objective observer that the person concerned
might have committed the offence (see Fox, Campbell and Hartley
v. the United Kingdom, judgment of 30 August 1990, Series A
no. 182, p. 16, § 32). However, facts which raise a
suspicion need not be of the same level as those necessary to justify
a conviction or even the bringing of a charge, which comes at a later
stage of the process of criminal investigation (see Murray v. the
United Kingdom, judgment of 28 October 1994, Series A
no. 300-A, p. 27 § 55).
- In
the light of the documents in the file, there is no indication that
there was no reasonable suspicion against the applicant which
provided grounds for his detention or that the authorities did not
have at their disposal evidence in support of the imposition of
detention.
- 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.
3. Complaint under Article 5 § 4 of the
Convention
- The
applicant also alleged that Article 5 § 4 had been breached in
his case in that he had been deprived of the opportunity to attend
the proceedings in which the extension of his detention had been
decided.
- Article 5 § 4 reads:
“4. Everyone who is deprived of his
liberty by arrest or detention shall be entitled to take proceedings
by which the lawfulness of his detention shall be decided speedily by
a court and his release ordered if the detention is not lawful.”
- In
the light of the established case-law it is not always
necessary that the procedure under Article 5 § 4 be
attended by the same guarantees as those required under Article 6 of
the Convention for criminal or civil litigation. However, it must
have a judicial character and provide guarantees appropriate to the
kind of deprivation of liberty in question (see, for instance,
Reinprecht v. Austria, no. 67175/01, 15 November
2005, § 31-42; Trzaska v. Poland, no. 25792/94,
11 July 2000; and Assenov and Others v. Bulgaria,
judgment of 28 October 1998, Reports of Judgments and Decisions
1998 VIII, p. 3302, § 162 and Włoch v.
Poland, no. 27785/95, § 125, ECHR 2000-XI,
both with reference to Megyeri v. Germany, judgment of 12
May 1992, Series A no. 237 A, p. 11, § 22).
- According
to Article 249 §§ 3 and 5 of the Polish Code of Criminal
procedure, a lawyer is entitled to participate in the sessions at
which the court examines the question of extension of detention
during judicial proceedings.
- In
the present case, the applicant stated that his lawyer had not
participated in some of these sessions. However, the Court notes that
it does not transpire from the case-file that either the applicant or
his legal-aid lawyer requested to be brought before the court to
attend these sessions and availed themselves of the opportunity to be
present during the examination of the question of extension of
detention, which amounts to a waiver of rights (see Kawka v.
Poland, no. 25874/94, §§ 60 and 61, 9 January 2001
and, by contrast, Nešták v. Slovakia, no.
65559/01, § 82, 27 February 2007).
- Having
regard to the above considerations, there is no indication that the
proceedings in question in the applicant's case were not in
conformity with Article 5 § 4.
- 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.
4. Complaint under Article 6 § 1 of the Convention
- The
applicant also complained that the length of proceedings in his case
had been unreasonable. He relied on Article 6 § 1 of the
Convention, which provides, in so far as relevant:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair hearing within a
reasonable time by [a] ... tribunal...”
- On
1 March 2005 the Court gave decisions in two leading cases:
Charzynski v. Poland no. 15212/03 (criminal proceedings) and
Michalak v. Poland no. 24549/03 (civil proceedings),
holding that persons complaining about the length of proceedings
before the Polish courts were required by Article 35 § 1 of the
Convention to lodge a complaint of breach of the right to a trial
within a reasonable time under the 2004 Act. Under section 2 of this
Act, a party to the judicial proceedings is entitled to lodge a
complaint of a breach of the right to a trial within a reasonable
time. Under section 5 of the 2004 Act, such a complaint must be
lodged while the proceedings are still pending before the domestic
courts. A party may seek, under section 12, a finding that there was
an unreasonable delay and ask for just satisfaction and acceleration
of the proceedings in question.
- The
Court reiterates that under Article 35 § 1 of the Convention,
the Court may only deal with the matter after all domestic remedies
have been exhausted.
- 7In
the light of the foregoing, the Court considers that the applicant
was required by Article 35 § 1 of the Convention to lodge a
complaint of a breach of the right to a trial within a reasonable
time with the domestic court under the 2004 Act. However, he did not
avail himself of this remedy.
- It
follows that this complaint must be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
5. Complaint under Article 13 of the Convention
- Finally,
the applicant alleged, relying on Article 13 of the Convention, that
the refusal to quash the detention order could not be appealed
against.
- Article
13 reads:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- Leaving
aside the question of whether the relevant provisions of the Polish
Code of Criminal Procedure governing the quashing of detention raise
any issue under this Article, the Court
observes that all remedies concerned remedies available in
Poland as regards detention on remand, i.e. an appeal against the
detention order, a request for release, whether submitted to the
prosecutor or to the court, depending on the stage of the
proceedings, and also an appeal against a decision to prolong
detention on remand, serve the same purpose under Polish law. Their
objective is to secure a review of the lawfulness of detention at any
given time of the proceedings, both in their pre-trial and trial
stage, and to obtain release if the circumstances of the case no
longer justify continued detention (see Iwańczuk
v. Poland, no. 25196/94,
(dec.)). The request of release can
be submitted at any time both during the investigation and the
judicial stage of the proceedings. The law does not limit in
any way either the frequency or the number of such requests
which can be submitted by the detainee. Such a request should
be examined by the competent authority within three days. This
remedy is best suited to ensure an adequate and swift reaction
of the authorities to such grounds for termination of detention on
remand as, for instance, bad health or difficult personal situation.
- Consequently, having
regard to the wide range of remedies available in respect of the
imposition and maintenance of detention on remand and, in particular
to the characteristics of the request for release, the Court is of
the view that the lack of appeal against such a request, seen in
the context of the Polish legal system governing the detention
on remand, does not raise any issue under Article 13 of the
Convention.
- Thus,
the lack of appeal procedure against a refusal to quash the detention
cannot be regarded as rendering this remedy ineffective or
insufficient. Accordingly, this complaint is manifestly ill-founded
and must be rejected pursuant to Article 35 §§ 3 and 4 of
the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 5 § 3
admissible and the remainder of the application inadmissible;
- Holds that there has been no violation of
Article 5 § 3 of the Convention.
Done in English, and notified in writing on 7 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
