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FOURTH
SECTION
CASE OF LEMEJDA v. POLAND
(Application
no. 11825/07)
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 Lemejda 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 9 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 11825/07) 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 Maciej
Lemejda (“the applicant”), on 21 February 2007.
- 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 his detention exceeded a
“reasonable time” within the meaning of Article 5 §
3 of the Convention.
- On
1 June 2007 the President of the Fourth Section 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).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1977 and lives in Warsaw.
- On
6 July 2004 the applicant was arrested by the police on suspicion of
having committed, inter alia, several offences of drug
trafficking.
- On
7 July 2004 the Kielce District Court (Sąd Rejonowy) remanded
him in custody. It relied on a reasonable suspicion that the
applicant had committed the offences with which he had been charged
and on the risk that he might tamper with evidence. Further, the
court referred to the severity of the anticipated sentence.
- The
applicant appealed against the detention order. On 10 August 2004
the Kielce Regional Court (Sąd Okręgowy) upheld the
first instance decision. It explained that the reasons for his
detention were still valid and stressed that the suspicion against
him was supported by the fact that the applicant had partly
confessed.
- In
the course of the investigation, the applicant's detention was
extended several times. The courts relied on the suspicion that the
applicant had committed the offence with which he had been charged.
In their decisions, which also concerned several other suspects, the
courts stressed the fact that most of the accused – however not
the applicant - were acting in an organised group. Further, they
referred to the complexity of the case, the fact that many suspects
were involved in the case and that some of them had gone into hiding.
They stressed that the detention was justified by the need to obtain
further evidence, in particular, to obtain expert reports, to take
evidence from numerous witnesses and suspects and to confront a
witness with suspects. Lastly, the courts relied on the fact that
some of the suspects were related to each other. On almost every
occasion the courts relied on grounds that did not pertain to the
applicant individually.
- On
20 June 2005 the applicant and thirty three other suspects were
indicted before the Warsaw Regional Court. The bill of
indictment comprised 180 charges. The applicant was indicted on
several charges of drug trafficking.
- The
applicant's detention was subsequently extended by the Warsaw
Regional Court on 27 June and 24 October 2005, 27 January 2006 and
later by the Warsaw Court of Appeal (Sąd Apelacyjny) on
27 June and 15 December 2006, 13 March, 13 July and 12 October
2007. The courts repeated the grounds given in the previous
decisions. On an unspecified date in January 2008 the Warsaw Court of
Appeal further extended the applicant's detention, until 3 April
2008. The applicant failed to submit information as to whether there
any further decisions had been given extending his detention. On 23
May 2008 the applicant informed the Court that he had been released.
- It
appears that in the course of the proceedings, the applicant made
numerous unsuccessful applications for release and appealed, likewise
unsuccessfully, against refusals to release him and against decisions
extending his detention. The Warsaw Court of Appeal upheld the
first instance decisions on the following dates: 29 November
2005, 3 March and 8 August 2006, and 3 August and 9 November 2007.
- On
10 January 2006 the trial court held the first hearing. Between
10 January 2006 and 25 June 2007 it held approximately
sixty hearings in the case.
- It
appears that the proceedings are still pending before the
first instance court.
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 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 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 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 6 July 2004, when he was arrested on
suspicion of having committed, inter alia, several offences of
drug trafficking. As it appears from the case file, his detention was
extended at least until 3 April 2008. The parties have not supplied
information whether his detention was extended further. On 23 May
2008 the applicant was already released (see paragraph 11); the Court
will proceed on the basis that his detention was lifted on 4 April
2008.
- Accordingly,
the period to be taken into consideration amounts to three years and
nearly nine months.
2. The parties' submissions
(a) The applicant
- The applicant submitted that he had been kept in
detention for an unjustified period of time. He claimed that the
authorities had failed to justify their assessment that he would
obstruct the proper course of the proceedings. The applicant also
maintained that the domestic authorities had failed to consider
alternative means to secure his appearance at the trial. Furthermore,
he complained that his applications for release from pre-trial
detention had been refused.
(b) The Government
- The
Government considered that the applicant's detention satisfied the
requirements of Article 5 § 3. They submitted that the detention
had been justified during the entire period. The authorities had
given relevant and sufficient reasons for extending it. Those grounds
were, in particular, the gravity of the charges against the applicant
and the fact that he had participated in an organised criminal group.
They further underlined the exceptional complexity of the case, which
had involved thirty-four accused, against whom 180 charges had been
laid. The Government stressed also the fact that some of the accused
had been charged with membership of an organised criminal group.
They
further submitted that the domestic courts had acted diligently and
speedily, in particular taking into account the complexity of the
case, in which evidence from 193 witnesses and three experts had
to be heard and over 790 pieces of evidence had to be assessed.
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 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, in
addition to the reasonable suspicion against the applicant, relied
principally on four grounds, namely (1) the complexity of the case,
(2) the need to secure the proper conduct of
the proceedings, (3) the severity of the penalty to which he
was liable and (4) the fact that the proceedings concerned an
organised criminal group. The reasons for extending the detention on
remand given by the courts were very general and did
not concern the applicant in particular (see paragraph 9
above).
- The
applicant was charged with several offences of drug
trafficking. The Court accepts that the reasonable suspicion against
the applicant of having committed offences could initially warrant
his detention. Also, the need to obtain voluminous evidence and the
need to secure the proper conduct of the proceedings, in particular
the process of obtaining evidence from witnesses, constituted valid
grounds for the applicant's initial detention.
- 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).
- The
Government also relied on the fact that the case concerned an
organised criminal group. However, the
applicant himself was not charged with being a member of such a group
(see paragraph 10 above). Consequently, this circumstance was
not relevant for assessment of his situation.
- Apart
from the grounds examined above, the domestic courts failed to
advance any other argument justifying the extension of the
applicant's detention. Indeed, the reasons for their decisions were
particularly repetitive and vague, and the decisions extending the
applicant's detention did not refer to any particular ground
justifying keeping the applicant in detention (see paragraph 9
above).
- Finally,
the Court notes that there is no specific indication that during the
period of the applicant's detention the authorities envisaged the
possibility of imposing on him other preventive measures – such
as bail or police supervision – expressly foreseen by Polish
law to secure the proper conduct of criminal proceedings.
In
this context the Court would emphasise that under Article 5 § 3
the authorities, when deciding whether a person should be released or
detained, are obliged to consider alternative measures of ensuring
his appearance at trial. Indeed, that Article lays down not only the
right to “trial within a reasonable time or release pending
trial” but also provides that “release may be conditioned
by guarantees to appear for trial” (see Jablonski
v. Poland, no. 33492/96, § 83,
21 December 2000).
- Having
regard to the foregoing, 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. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
- In
his submissions made on 3 December 2007, the applicant complained
about the unjustified use of force by the police during their search
of his flat.
- However, pursuant to Article 35
§ 1 of the Convention:
“1. The Court may only
deal with the matter ... within a period of six months from the date
on which the final decision was taken...”
33. The Court notes that the alleged
actions against the applicant were carried out in July 2004, thus
more than six months before the date on which this complaint was
submitted to the Court.
It follows that this part of the application has been introduced out
of time and must be rejected in accordance with Article 35 §§ 1
and 4 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, who was not represented by a lawyer, requested the Court
to make an award of just satisfaction on the basis of its case law
in similar cases in order to redress the violation of the Convention.
However, he did not specify the amount sought.
-
The Government asked the Court to rule that the finding of a
violation constituted in itself sufficient just satisfaction.
- The Court considers that the applicant has suffered
non-pecuniary damage which is not sufficiently compensated by the
finding of a violation of the Convention. Considering the
circumstances of the case and making its assessment on an equitable
basis, the Court awards the applicant 1,500 euros (EUR) under
this head.
B. Costs and expenses
- The
applicant did not claim reimbursement of any costs and expenses
incurred before the Court.
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
unreasonable length of 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.
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
