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FOURTH
SECTION
CASE OF ŁOŚ v. POLAND
(Application
no. 24023/06)
JUDGMENT
STRASBOURG
13 January
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 Łoś v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ján
Šikuta,
Päivi
Hirvelä,
Mihai
Poalelungi,
judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 9 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 24023/06) 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, Ms Halina Maria
Łoś (“the applicant”), on 7 June 2006.
- The
applicant was represented by Mr Henryk Szulejewski, a lawyer
practising in Warsaw. The Polish Government (“the
Government”) were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
- The
applicant alleged, in particular, that her detention on remand had
exceeded a “reasonable time” within the meaning of
Article 5 § 3 of the Convention.
- On
30 January 2007 the
Court decided to give notice of the application to the Government. It
was also decided to examine the merits of the application at the same
time as its admissibility (Article 29 § 3) and to
examine it simultaneously with the case of Fiłon
v. Poland (no. 39163/06), which
concerned the same criminal proceedings.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1952 and lives in Warsaw.
Criminal proceedings against the
applicant and her detention on remand
- On
10 June 2003 the applicant was arrested on suspicion of fraud,
committed in an organised criminal group.
- On
11 June 2003 the Warsaw District Court (Sąd Rejonowy)
remanded her in custody, relying on the reasonable suspicion that she
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 she might tamper with
evidence and induce witnesses to give false testimony. The court also
stressed the severity of the anticipated sentence.
- The
applicant's appeal against the detention order, likewise her further
appeals against decisions prolonging her detention and all her
subsequent, numerous applications for release, were unsuccessful. In
her applications and appeals, she argued that the charge against her
was based on unreliable and contradictory evidence. She also relied
on her personal circumstances, in particular her age.
- In
the course of the investigation, the applicant's detention was
prolonged on several occasions by the Warsaw District Court (on 11
June 2003, 3 September 2003, 3 December 2003 and by the Warsaw Court
of Appeal (on 8 June 2004, 7 September 2004, 3 December 2004, 1 March
2005). 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 grave nature of those
offences and the likelihood of a severe sentence of imprisonment
being imposed on the applicant. They further considered that the need
to secure the proper conduct of the investigation, especially the
need to verify evidence from suspects and witnesses and the need to
obtain fresh evidence from experts justified holding her in custody.
- On
12 May 2005 the Pruszków District Prosecutor (Prokurator
Rejonowy) lodged a bill of indictment with the Warsaw District
Court. The applicant was charged with fraud, committed in an
organised criminal group. There were 16 defendants in the case, all
charged with numerous counts of fraud committed in an organised
criminal group. On 20 May 2005 the Warsaw District Court again
prolonged the applicant's detention until 9 June 2005
reiterating the grounds previously given for her detention.
- Since
on 10 June 2005 the applicant's detention had reached the statutory
time-limit of two years laid down in Article 263 § 3 of the Code
of Criminal Procedure, a further prolongation of her detention and
also detention of her co-accused E.C., A.F. and P.S until 9 December
2005 was ordered by the Warsaw Court of Appeal on 3 June 2005. The
court found that the strong suspicion against her of having committed
the serious offences with which she had been charged and the severity
of the anticipated sentence justified holding her in custody. It
pointed out that the case was complex given the number of accused and
the number of charges brought against them. Moreover, it added that
450 witnesses were to be heard and numerous documents were to be
examined.
- On
12 August 2005 the trial court held the first hearing. Until
21 December 2006, the date on which the applicant was released
from detention, the Warsaw District Court held 44 hearings in the
case.
- During
the court proceedings the authorities further prolonged the
applicant's detention pending trial. On 25 November 2005 the Warsaw
Court of Appeal, on an application of the trial court, prolonged the
detention of the applicant until 9 March 2006, reiterating the
grounds previously given for her detention. The court found the
request for prolongation of the applicant's pre-trial detention
justified; however, it prolonged it only by three months and not
by six months. The court also pointed out that it was possible for
the trial court to examine all the evidence within the three month
time-limit and that maximum efforts should be made to expedite the
examination of the case.
On 7
March 2006 the Warsaw Court of Appeal prolonged the detention of the
applicant until 9 June 2006, reiterating the grounds previously given
for her detention. The court pointed out that the three-month
time-limit was sufficient for examining the evidence.
On 30
May 2006 the Warsaw Court of Appeal prolonged the detention of the
applicant until 9 December 2006. The court stressed the complexity of
the case in view of the number of witnesses to be heard. It also
pointed out that the trial court should re-consider if it was
necessary to hear all the witnesses listed in the bill of indictment.
The trial court was instructed to take all necessary measures in
order to expedite the proceedings.
On 8 December 2006 the Warsaw Court of Appeal prolonged the
applicant's detention until 31 December 2006. The court relied on the
grounds stated in the previous decisions.
- On
21 December 2006 the applicant was released.
- The
proceedings are still pending.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice concerning the imposition of
detention on remand (aresztowanie tymczasowe), the grounds for
its prolongation, release from detention and rules governing other,
so-called “preventive measures” (środki
zapobiegawcze) are 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 her detention on remand had
been excessive. She relied on Article 5 § 3 of the
Convention, which, in so far as relevant, reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
- The
Government contested that argument.
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Period to be taken into consideration
- The
applicant's detention started on 10 June 2003,
when she was arrested on suspicion of fraud, committed in an
organised criminal group. On 21 December 2006 she was released home
while the criminal proceedings against her were pending before the
first-instance court.
2. The parties' submissions
(a) The applicant
- The
applicant's lawyer submitted in general terms that the applicant's
application lodged with the Court was justified.
(b) The Government
- The
Government first presented some statistical data, indicating that in
the years 2000-2005 the number of indictments and convictions in
cases concerning organised crime had increased both in absolute terms
and in relation to other crimes. In 2004 there were 617 indictments
in such cases and 220 persons were convicted. They argued that in
organised crime cases the authorities were faced with particular
problems relating to the taking and assessment of evidence and
various logistical issues.
- With
reference to the present case, the
Government submitted that the applicant's detention satisfied
the requirements of Article 5 § 3. It was justified by
“relevant” and “sufficient” grounds, in
particular, the existence of a reasonable suspicion throughout the
entire period of the applicant's pre trial detention.
Furthermore, the Government referred to the gravity of the charges
against the applicant and the severity of the anticipated penalty.
- They
further argued that the applicant's detention had been necessary to
secure the proper conduct of the proceedings, as there had been a
risk that she would tamper with evidence. This risk was increased by
the fact that the charges against the applicant concerned numerous
offences committed by an organised criminal
group. They maintained that the authorities had
displayed due diligence when dealing with her case.
- Lastly,
the Government justified the length of the applicant's detention
by the complexity of the case, which stemmed from the number of
defendants, the charges brought against them and the fact that the
applicant had committed the offence in connection with the activities
of an organised criminal group.
3. The Court's assessment
(a) General principles
- The
Court recalls that the general principles regarding the right “to
trial within a reasonable time or to release pending trial, as
guaranteed by Article 5 § 3 of the Convention were stated in a
number of its previous judgements (see, among many other authorities,
Kudła v. Poland [GC], no. 30210/96, § 110
et seq, ECHR 2000 XI; and McKay v. the United
Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006-..., with
further references).
(b) Application of the above principles in
the present case
- In
their detention decisions, the authorities relied principally on four
grounds, in addition to the reasonable suspicion against the
applicant, namely: (1) the serious nature of the offences
with which she had been charged; (2) the heavy penalty to
which she was liable; (3) the need to secure the proper
conduct of the proceedings, (4) the complexity of the
case.
- The
applicant was charged with fraud, committed in an organised criminal
group (see paragraphs 11 above).
In
the Court's view, the fact that the case concerned a member of a such
criminal group should be taken into account in assessing compliance
with Article 5 § 3 (see Bąk v. Poland, no. 7870/04,
§ 57, 16 January 2007).
- The
Court accepts that the reasonable suspicion against the applicant of
having committed serious offences could initially warrant her
detention. Also, the need to obtain voluminous evidence and to
determine the degree of the alleged responsibility of each of the
defendant, who had acted 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 often is, by the nature of things, high.
- Furthermore,
according to the authorities, the likelihood of a severe sentence
being imposed on the applicant created a presumption that the
applicant would obstruct the proceedings. However, the Court would
reiterate that, while the severity of the sentence faced is a
relevant element in the assessment of the risk of absconding or
reoffending, the gravity of the charges cannot by itself justify long
periods of detention (see, Michta v. Poland, no.
13425/02, §§ 49, 4 May 2006).
- While
all those above factors could justify even a relatively long period
of detention, they did not give the domestic courts an unlimited
power to prolong this measure. In this context, the Court would
observe that the applicant spent in detention three years and six
months pending trial before the first-instance court.
- 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. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- In
his observations of 2 October 2007 the applicant's lawyer raised an
additional complaint submitting that the applicant had been kept in
detention without a valid detention order. He submitted that the
decision prolonging her detention given by the Warsaw District Court
on 16 November 2005 should have been given by a panel of three
judges, however it was given by one judge.
- However,
the Court notes that the complaint was submitted only on 2 October
2007, which is more than six months after the date on which the
decision had been taken.
Accordingly,
the complaint must be rejected under Article 35 §§ 1 and 4
of the Convention for non-compliance with the six-month time
requirement.
III. ALLEGED
VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE
UNFAIRNESS OF THE PROCEEDINGS
- The
applicant further complained that the proceedings in her case had
been unfair; in particular, she complained about
the manner in which the authorities had applied domestic law and
assessed the facts of the case. The applicant relied on
Article 6 § 1 of the Convention.
- However,
the Court notes that the impugned proceedings are still pending and
therefore it is premature to examine the applicant's complaint.
It
follows that it must be rejected under Article 35 §§ 1
and 4 of the Convention for non-exhaustion of domestic remedies.
IV. 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 9,200 euros (EUR) in respect of pecuniary damage
and 12,900 euros (EUR) in respect of non-pecuniary damage.
- The
Government considered the applicant's claims exorbitant. They asked
the Court to rule that a finding of a violation would constitute in
itself sufficient just satisfaction.
- 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, in particular the fact that the applicant
was charged with a non-violent crime, and making its assessment on an
equitable basis, the Court awards the applicant EUR 1,500 under
this head.
B. Costs and expenses
- The applicant claimed costs and expenses in an
unspecified amount for the proceedings before the Court. However, the
Court observes that neither she nor her lawyer had produced any
documents in support of the claim. In those circumstances, the Court
rejects the claim for costs and expenses (see, Adamiak
v. Poland,
no. 20758/03, § 49, 19 December 2006).
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 complaint concerning the length of
the applicant's detention admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,500 (one
thousand five hundred euros) in respect of non-pecuniary damage; 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 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 13 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence
Early Nicolas Bratza
Registrar President
