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FOURTH
SECTION
CASE OF ŻURAWSKI v. POLAND
(Application
no. 8456/08)
JUDGMENT
STRASBOURG
24
November 2009
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 Żurawski 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,
David Thór Björgvinsson,
Ledi
Bianku,
Mihai Poalelungi, judges,
and Fatoş
Aracı, Deputy Section
Registrar,
Having deliberated
in private on 3 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 8456/08) 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 Andrzej
Żurawski (“the applicant”), on 4 February 2008.
- The
applicant was represented by Mr M. Esnekier, a lawyer practising in
Katowice. The Polish Government (“the
Government”) were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
- The
applicant alleged that his detention had exceeded a “reasonable
time” within the meaning of Article 5 § 3 of the
Convention.
- On
6 October 2008 the
President of the Fourth Section decided
to give notice of the application to the Government. It also decided
to examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1957 and lives in Sosnowiec.
- On
20 May 2003 the Regional Prosecutor instituted an investigation into
illegal trading in liquid fuel.
- On 8 June 2005 the applicant was charged with, inter
alia, establishing and leading an organised criminal group
engaged in money laundering, illegal trading in liquid fuel and the
falsification of tax documents.
- On
9 June 2005 the Katowice District Court (Sąd Rejonowy)
remanded him in custody, on the basis of reasonable suspicion that he
had committed the offence in question. It also considered that
keeping the applicant in detention was necessary to secure the proper
conduct of the proceedings, given the risk that he might tamper with
evidence. The court also stressed the severity of the anticipated
sentence.
- The
applicant's appeals against decisions prolonging his detention were
unsuccessful. In his appeals, he argued that the charges against him
were based on unreliable and fabricated evidence. He also relied on
his personal circumstances, in particular the need to ensure that his
wife, who suffered from psychiatric problems, was cared for.
- In
the course of the investigation, the applicant's detention was
prolonged on 30 August and 30 November 2005 and 2 March 2006.
- Further
decisions extending the applicant's detention were taken by the
Katowice Court of Appeal (Sąd Apelacyjny) on 19 May, 9
August 2006 and 22 November 2006, 14 February, 16 May, 17
August, 19 September and 19 December 2007.
- In
all their detention decisions the authorities repeatedly relied on a
strong suspicion that the applicant had committed the offences in
question, which was supported by evidence from witnesses and experts.
They attached importance to the complexity of the case, the
significant number of persons involved and the voluminous
documentation. They further considered that the need to secure the
proper conduct of the proceedings, especially the need to verify
evidence from suspects and witnesses, justified holding the applicant
in custody. The courts stressed, on several occasions, the
applicant's role in the organised criminal group, holding that there
was a risk that if released, he would induce witnesses to give false
testimony, or otherwise obstruct the proper conduct of the
investigation. In one of the decisions dismissing an appeal by the
applicant against a decision prolonging his detention, the Court of
Appeal noted, that “certain witnesses in principle admitted
that they had been instructed [about what to say] in their testimony”
and that “the testimony of other witnesses was not consistent
with the explanations given by the applicant in the course of the
investigation.” It did not, however, specify who had exerted
pressure on the witnesses or how they had done so. The courts found
no special grounds that would justify lifting the applicant's
detention and imposing a less severe measure.
In its decisions of 17 August and 19 September 2007 the Katowice
Court of Appeal stressed that the investigation had already lasted a
long time and urged the prosecutor to draw up a bill of indictment.
It also noted, in its decisions of 19 September and 19 December 2007,
that the prosecutor's arguments for having the applicant's detention
extended had been of a very general nature and instructed the
prosecutor to provide a detailed list of tasks that still needed to
be completed during the investigation if he wished to have the
applicant's detention extended further.
- On
27 June 2008 the applicant's pre-trial detention was lifted and he
was released.
- It
appears that the proceedings are still pending.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Preventive measures, including pre-trial detention
- The
relevant domestic law and practice concerning the imposition of
pre-trial detention (aresztowanie tymczasowe), the grounds for
its prolongation, release from detention and rules governing other
“preventive measures” (środki zapobiegawcze)
are described 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).
- On
24 July 2006 the Polish Constitutional Court, having examined jointly
two constitutional complaints (skarga konstytucyjna) lodged by
former detainees, declared Article 263 § 4 of the Code of
Criminal Procedure unconstitutional in so far as it related to the
investigation stage of criminal proceedings (No. SK 58/03). A more
detailed description can be found in the Court's judgment in the case
of Kauczor (see Kauczor v. Poland,
no. 45219/06, §§ 26-27, 3 February 2009).
B. Measures taken by the State to reduce the length of
pre-trial detention and relevant Council of Europe documents
- The
relevant statistical data, recent amendments to the Code of Criminal
Procedure designed to streamline criminal proceedings and references
to the relevant Council of Europe documents, including the
2007 Resolution of the Committee of Ministers, can be found in
the Court's judgment in the case of Kauczor (see Kauczor v.
Poland, cited above, §§ 27-28
and 30-35).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the length of his detention on remand had
been excessive. He relied on Article 5 § 3 of the
Convention, which, in so far as relevant, reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
- The
Government contested that argument.
A. Admissibility
- The Government submitted that the applicant had not
exhausted all the remedies provided by Polish law in that he had
rarely appealed against decisions extending his pre-trial detention.
- The applicant's lawyer submitted that he had appealed
against every decision prolonging the applicant's detention. He
further noted that at the moment of lodging his complaint with the
Court, the applicant could not have claimed compensation and just
satisfaction for the undoubtedly unjustified pre-trial detention
(under Article 552 § 4 of the Code of Criminal Procedure), as
this remedy could only be used after detention was lifted.
- In
the present case the applicant lodged appeals against most of the
decisions prolonging his detention. The Court considers that the
purpose of the remedy used by the applicant was to obtain a review of
his detention pending trial. In the circumstances of the case this
remedy constituted an adequate and effective remedy within the
meaning of Article 35 of the Convention as its aim was to obtain his
release. It follows from the Court's case-law
that the applicant is not required to appeal against each and every
decision extending his detention (see, by contrast, Bronk
v. Poland (dec.), no. 30848/03, 11
September 2007).
- The
Court further notes that the arguments raised by the Government are
similar to those already examined and rejected in previous cases
against Poland (see Tomecki v. Poland, no. 47944/06, §§
19-21, 20 May 2008, and Buta v. Poland, no. 18368/02, §§
25-27, 28 November 2006) and that the Government have not submitted
any new circumstances which would lead the Court to depart from its
previous findings.
- The Government further submitted that the applicant
had not exhausted all the remedies available under Polish law in that
he had failed to lodge a complaint under Article 79 § 1 of the
Polish Constitution questioning the constitutionality of those
provisions of the Code of Criminal Procedure that had served as a
basis for extending his pre-trial detention, in particular Article
263 of that Code. In that respect they raised the same arguments as
those submitted in the case of Figas v. Poland (no.
7883/07, § 31, 23 June 2009, not final).
- The
applicant's lawyer did not submit any comments on the possibility of
lodging a complaint with the Constitutional Court.
- The
Court observes that the rule of exhaustion of domestic remedies
contained in Article 35 § 1 of the Convention requires that
normal recourse should be had by an applicant to remedies which are
available and sufficient to afford redress in respect of the breaches
alleged. The existence of the remedies in question must be
sufficiently certain not only in theory but in practice, failing
which they will lack the requisite accessibility and effectiveness
(see, among other authorities, Akdivar and Others v. Turkey,
16 September 1996, § 65, Reports of Judgments
and Decisions 1996-IV).
The
Court has already found that in Polish law, the objective of an
appeal against decisions extending detention is to secure a review of
the lawfulness of detention at any given time of the proceedings,
both at the pre-trial and trial stages, and to obtain release if the
circumstances of the case no longer justify continued detention (see
Wolf v. Poland, nos. 15667/03 and 2929/04, § 78, 16
January 2007). In that respect the Court observes that the applicant
challenged most of the decisions prolonging his pre-trial detention.
- The
Court notes that in its judgment of 24 July 2006 the Constitutional
Court found Article 263 § 4 of the Code of Criminal Procedure
unconstitutional in so far as it provided for the detention measure
to be extended beyond two years if the pre trial proceedings
could not be completed because of “important obstacles”
(see paragraph 16 above).
The
Court observes, however, that in the present case, in all their
detention decisions, the domestic authorities relied on the
reasonable suspicion that the applicant had committed the offence he
was charged with and the need to secure the proper conduct of the
proceedings, given the risk that he could tamper with evidence; that
is on the grounds specified in Articles 249 and 258 of the Code of
Criminal Procedure. They further relied on the necessity of gathering
evidence in a particularly complex case, that is on the part of
Article 263 § 4 of the Code that the Constitutional Court
considered compatible with the Constitution and thus, a prerequisite
of the pre-trial detention.
The
Court is therefore of the opinion that it is doubtful that the
applicant could have successfully lodged a constitutional complaint
in respect of provisions whose constitutionality had been examined by
the Constitutional Court and found to be compatible with the Polish
Constitution in its judgment of 24 July 2006.
- Furthermore,
the Court is not persuaded that at the relevant time a constitutional
complaint was capable of satisfying the second part of the test
established in the Szott Medyńska decision
(Szott-Medyńska v. Poland (dec.), no. 47414/99,
9 October 2003), that is to say that it would have provided the
applicant with a possibility to have the proceedings re-opened or the
final decision quashed following the Constitutional Court's judgment.
In
the circumstances of the case, any attempt by the applicant to seek
redress by lodging a constitutional complaint lacked
the requisite effectiveness.
In
addition, the Court is of the opinion that, having challenged most of
the decisions prolonging his pre-trial detention, the applicant was
not required to embark on another attempt to obtain redress by
challenging the constitutionality of Article 263 of the Code of
Criminal Procedure.
- It follows that the Government's plea of
inadmissibility on the ground of non-exhaustion of domestic remedies
must be dismissed.
The Court further notes that the complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention and is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Period to be taken into consideration
- The
applicant's detention started on 9 June 2005, when he was arrested on
suspicion of establishing and leading an organised criminal group
engaged in money laundering, illegal trading in liquid fuel and the
falsification of tax documents. On 27 June 2008 his pre-trial
detention was lifted.
Accordingly,
the period to be taken into consideration amounts to three years and
seventeen days.
2. The parties' submissions
(a) The applicant
- The
applicant's lawyer submitted that the length of the applicant's
pre-trial detention had been excessive. He argued that the
prosecution authorities had failed to show special diligence in the
conduct of the proceedings and that the applicant's detention had not
been properly supervised by the judicial authorities. According to
the lawyer, the authorities' claim that the applicant had instructed
or threatened witnesses had been wholly unsubstantiated. He argued
that anonymous information about the alleged attempts of the
applicant to influence witnesses and a prosecutor's note concerning
the above, which had been included by the authorities in the
applicant's case file, could not constitute reliable and valid
evidence.
(b) The Government
- The
Government submitted that the applicant's detention, throughout its
entire length, was based cumulatively on all the prerequisites of
detention listed in the Code of Criminal Procedure as applicable at
the material time, in particular on the persistence of reasonable
suspicion that he had committed the offence in question. They
underlined that the present case concerned offences committed in an
organised criminal group and that the applicant had been charged with
establishing and leading that group.
- They further noted that the criminal proceedings had
been conducted with due diligence in the light of the complexity of
the case (the charges against the applicant ran to some twenty-five
pages) and that the pre-trial proceedings had been regularly and
positively assessed by the domestic courts. The Government underlined
that the need to secure the proper conduct of the proceedings had
been justified, since the statements taken in the course of the
police investigation proved unequivocally that certain witnesses had
been influenced in their testimony.
- Furthermore,
the Government stressed that it had been necessary to hear evidence
from a large number of witnesses and experts in the course of the
investigation. The length of the applicant's
detention had been a consequence of the highly complex nature of the
proceedings, in particular in view of the activities of the
criminal group which had been carried on in much of Poland. They also
drew the Court's attention to the fact that it had been necessary to
establish the role and degree of responsibility of each of the
defendants. They noted that as soon as the necessary evidence had
been gathered and secured, the applicant had been released.
- Accordingly,
the Government submitted that the length of the applicant's pre-trial
detention had been compatible with the standards resulting from
Article 5 § 3 of the Convention.
3. The Court's assessment
(a) General principles
- The
Court reiterates 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, are set out in a
number of its previous judgments (see, among many other authorities,
Kudła, 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
- In
addition to reasonable suspicion against the applicant, the
authorities principally based their detention decisions on four
grounds, namely (1) the serious nature of the offence with which he
had been charged, (2) the severity of the penalty to which he was
liable, (3) the need to secure the proper conduct of the proceedings,
in particular in view of the risk that he might interfere with
witnesses, and (4) the complexity of the case.
- The
applicant was charged with establishing and leading a criminal group
engaged in money laundering, illegal trading in liquid fuel and the
falsification of tax documents (see paragraph 7 above).
In
the Court's view, the fact that the case concerned a member of such a
criminal group should be taken into account in assessing compliance
with Article 5 § 3 (see Bąk v. Poland, no. 7870/04,
§ 57, 16 January 2007).
- The
Court accepts that the reasonable suspicion that the applicant had
committed serious offences could initially have warranted his
detention. Also, the need to obtain voluminous evidence and to
determine the degree of the alleged responsibility of each of the
defendants acting in a criminal group and against whom numerous
charges of serious offences were laid constituted valid grounds for
the applicant's initial detention.
- Indeed,
in cases such as the present one concerning organised criminal
groups, the risk that a detainee, if released, might bring pressure
to bear on witnesses or other co-accused or might otherwise obstruct
the proceedings is, by the nature of things, often high. In this
respect, although the fears of the domestic authorities concerning
possible collusion had proved to be well-founded (see paragraph 12
above), the Court notes that the issue of instructing witnesses was
addressed by the domestic courts in a very general manner. They did
not provide any details concerning the fact that pressure had
allegedly been exerted on witnesses. Nor did they identify the role
of the applicant (who at that time was in detention) in influencing
the witnesses.
- Furthermore,
according to the authorities, the likelihood of a severe sentence
being imposed on the applicant created a presumption that he would
obstruct the proceedings. However, the Court would reiterate that,
while the severity of the sentence faced is a relevant element in the
assessment of the risk of absconding or re-offending, the gravity of
the charges cannot by itself justify long periods of detention on
remand (see Michta v. Poland, no. 13425/02, §§
49, 4 May 2006).
- As
regards the complexity of the case, the Court's attention has been
drawn to the nature and number of the charges (nineteen charges
against the applicant) and the voluminous documentation. It appears,
however, that the authorities referred to the complexity of the case
in a very general manner. There is no indication that the nature of
the case required the applicant's continuous detention. Moreover, it
seems that the authorities failed to envisage the possibility of
imposing other preventive measures on the applicant.
- While
all the above factors could justify even a relatively long period of
detention, they did not give the domestic courts unlimited power to
prolong the measure. In this context, the Court would observe that
the applicant spent three years and seventeen days in pre-trial
detention.
- Having
regard to the foregoing, even taking into account the fact that the
courts were faced with the particularly difficult task of trying a
case involving an organised criminal group, the Court concludes that
the grounds given by the domestic authorities could not justify the
overall period of the applicant's detention. In these circumstances
it is not necessary to examine whether the proceedings were conducted
with special diligence.
There
has accordingly been a violation of Article 5 § 3 of the
Convention.
II. APPLICATION OF ARTICLE 46 OF THE CONVENTION
- Article
46 of the Convention provides:
“1. The High Contracting Parties undertake to
abide by the final judgment of the Court in any case to which they
are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
A. The parties' submissions
1. The applicant
- The
applicant did not submit any observations concerning this provision.
2. The Government
- The Government referred
to the arguments submitted previously in the case of Figas v.
Poland (no. 7883/07, cited above, §§
41-44).
- The
Government concluded that, bearing in mind the efforts of the Polish
authorities and the legislative reforms which were and had been
undertaken by them to solve the problem of the length of detention on
remand, Poland could not be said to have failed to comply with its
obligations under Article 46 of the Convention to obey the Court's
judgments.
B. The Court's assessment
- Recently,
in the case of Kauczor v. Poland (see Kauczor, cited
above, § 58 et seq. with further references) the Court held that
the 2007 Resolution of the Committee of Ministers taken together with
the number of judgments already delivered and of the pending cases
raising an issue of excessive detention incompatible with Article 5 §
3 demonstrated that the violation of the applicant's right under
Article 5 § 3 of the Convention had originated in a widespread
problem arising out of the malfunctioning of the Polish criminal
justice system which had affected, and may still affect in the
future, an as yet unidentified, but potentially considerable number
of persons charged in criminal proceedings.
- It
is true that the present case concerns a person involved in an
organised criminal group. However, as stated above, while this
element is to be taken into account in assessing compliance with
Article 5 § 3 and may justify a longer period of detention than
in a case concerning an individual offender, a member of an organised
criminal group is entitled to the protection against unreasonably
lengthy detention afforded by this provision (see paragraphs see
paragraphs 38 and 43 above). As in other numerous similar detention
cases, the authorities did not justify the applicant's continued
detention by relevant and sufficient reasons (see paragraphs 39 45
above). Moreover, as demonstrated by the ever increasing number of
judgments in which the Court has found Poland to be in breach of
Article 5 § 3 in respect of applicants involved in
organised crime, the present case is by no means an isolated example
of the imposition of unjustifiably lengthy detention but a
confirmation of a practice found to be contrary to the Convention
(see, among many other examples, Celejewski v. Poland,
no. 17584/04, 4 May 2006; Kąkol v. Poland, no.
3994/03, 6 September 2007; Malikowski v. Poland,
no. 15154/03, 16 October 2007 and also Hilgartner v. Poland,
no. 37976/06, §§ 46-48, 3 March 2009).
Consequently, the Court sees no reason to diverge from its findings
made in Kauczor as to the existence of a structural problem
and the need for the Polish State to adopt measures to remedy the
situation (see Kauczor, cited above, §§ 60-62 ).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The applicant's lawyer claimed 20,000 euros (EUR) in
respect of pecuniary and non-pecuniary damage.
- The Government considered this sum unreasonable in the
light of the Court's case-law concerning similar cases brought
against Poland and invited the Court to reject
the applicant's claim as excessive.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it considers that the applicant has suffered
non-pecuniary damage which is not sufficiently compensated by the
finding of a violation of the Convention. Considering the
circumstances of the case and making its assessment on an equitable
basis, the Court awards the applicant EUR 1,000 under this head.
B. Costs and expenses
- The
applicant's lawyer submitted no claim for costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,000 (one
thousand 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 24 November 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas
Bratza
Deputy Registrar President
