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FOURTH
SECTION
CASE OF RUSIECKI v. POLAND
(Application
no. 36246/97)
JUDGMENT
STRASBOURG
21 April
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 Rusiecki 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 31 March 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 36246/97) against the
Republic of Poland lodged with the European
Commission of Human Rights (“the Commission”) under
former Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Polish national, Mr Edmund
Rusiecki (“the applicant”), on 1 September 1994.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz.
- The
applicant alleged, in particular, that his detention on remand had
exceeded a “reasonable time” within the meaning of
Article 5 § 3 of the Convention.
- On
15 March 2001 the Court
decided to give notice of the application to the Government. On 15
March 2001 and 25 November 2008 other complaints submitted by the
applicant were declared inadmissible. The Court (Fourth Section)
declared admissible the complaint about the excessive length of the
applicant's detention.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1946.
- On
6 December 1995 L.T. who had been wounded by a gunshot,
requested that a criminal investigation be instituted. Consequently,
an investigation in rem was instituted. On
17 January 1996 the applicant was arrested in connection with
the investigation. On 18 January 1996 the Łódź
Regional Prosecutor imposed pre-trial detention on him and three
other suspects on charges of acting in an organised criminal gang and
aggravated assault. The prosecutor considered that the evidence had
justified the charges against the applicant, who was also suspected
of being a leader of the criminal gang. It was further noted that
other members of the gang had not yet been arrested. There was
therefore a serious risk of collusion and suppression of evidence.
Furthermore, there were grounds for believing that the applicant had
ordered someone to murder L.T. The applicant appealed.
- On
22 January 1996 the prosecutor served the applicant with a
written statement of the charges against him. This document referred
to the investigation concerning the attempted murder of L.T. The
prosecutor observed that the evidence gathered in this investigation
had given rise to a suspicion that the attempt on L.T.'s life had
been made by an organised criminal gang engaged in assaults and
racketeering. Evidence given by certain witnesses, who were to remain
anonymous pursuant to Article 164 (a) of the Code of Criminal
Procedure of 1969, had unequivocally demonstrated that the applicant
was a member of that gang. Hence, charges in respect of criminal
offences punishable under Article 276 § 1 of the
Criminal Code had to be laid against him.
- On
2 February 1996 the Łódź Regional Court upheld
the applicant's detention order of 18 January 1996. It noted that the
evidence gathered sufficiently supported the charges against him. It
indicated that it was likely that the applicant was a member of an
organised criminal gang, committing aggravated assaults with the use
of firearms. Having regard to the evidence given by anonymous witness
no. 2, and in particular in the light of the statements given by
other witnesses, including anonymous witnesses, and having also
regard to various documents and the results of the inspection of a
car, the court concluded that the charges against the applicant were
justified. The character of those charges, involving violent crimes,
also justified the decisions to impose and maintain detention, the
more so as other members of the gang still remained at liberty. The
applicant's release would endanger the purpose of the ongoing
investigation.
- On
29 February 1996 the Łódź Regional Prosecutor
ordered that an expert opinion be prepared for the purposes of the
further investigation. Altogether, fifteen expert opinions were
prepared during the investigation.
- On
2 March 1996 the Łódź Regional Prosecutor
refused the applicant's new application for release, considering that
the evidence gathered in the case, in particular the statements made
by the anonymous witnesses, indicated that it was necessary to keep
him in custody.
- On
12 April 1996 the Łódź Regional Court extended
the applicant's detention until 28 June 1996, having regard, in
particular, to the evidence given by anonymous witnesses nos. 1
to 9. It observed that new developments were to be expected regarding
new offences which had come to light, including a crime of
manslaughter which appeared to have been committed with the
applicant's involvement. Moreover, new witnesses were to be
questioned and further expert evidence had to be gathered, having
regard to sixteen expert reports which had been prepared for the
purposes of the investigation.
The
court referred to the evidence gathered in the case and considered
that there was a reasonable suspicion that the applicant had
committed the offences concerned. The court also took into account
that the applicant had been charged with serious crimes committed by
an organised criminal gang. It further referred to the need to
continue the process of gathering evidence.
- On
an unspecified later date in June the applicant's detention was
further extended. Subsequently, on 24 September 1996, the Łódź
Court of Appeal held a session during which it extended the
applicant's pre trial detention until 29 December 1996.
- On
21 October 1996 the applicant was granted full access to the
file and arrangements were made for him to study it. He examined the
file daily from 21 to 31 October and subsequently from 4 until
25 November 1996. Later on, the applicant read the file on 28
and 29 November and from 2 to 8 December 1996.
- On
26 November 1996 the Łódź Court of Appeal
extended the applicant's detention until 17 January 1997. It
observed that the investigation was coming to an end and that the
prosecuting authorities had begun to acquaint the suspects with the
files. However, it seemed that the suspects, while availing
themselves of their procedural rights in this respect, were at the
same time trying to prolong the proceedings by various delaying
tactics. Thus, it was necessary to extend their detention.
- On
20 December 1996 a bill of indictment against the applicant and
his ten co defendants was lodged with the Łódź
Regional Court. The applicant was charged with eleven criminal
offences. The bill of indictment concerned fifty different crimes.
The case file numbered thirty one volumes.
- On
17 January 1997 the Supreme Court refused to entertain an appeal
by the applicant against the decision of 26 November 1996, finding
that, in any event, the time-limits for detention as specified in
Article 222 of the Code of Criminal Procedure had ceased to
apply after the bill of indictment had been lodged with the court.
- The
first hearing in the case was held on 24 February 1997. From
February 1997 until February 1999 the court held seventy-nine
hearings. On 25 January 1999 the first-instance court sentenced
the applicant to eight years' imprisonment on various charges.
- The
applicant appealed. On 4 April 2000 the Łódź
Court of Appeal quashed the judgment in part and remitted this part
of the case to the first instance court. It upheld it in so far
as it related to the charge of intimidating witnesses by recourse to
physical violence. It upheld the applicant's conviction in respect of
that charge and imposed on him a sentence of four years'
imprisonment. It ordered that the period of detention pending trial
be counted towards the sentence. Accordingly, the applicant's
sentence had expired on 18 January 2000.
- From
4 April 2000 the applicant was again detained pending trial. The
applicant lodged a cassation appeal with the Supreme Court against
the judgment of 4 April 2000 in so far as the latter court had
upheld the judgment of 25 January 1999. On 3 December 2002
the Supreme Court dismissed the appeal.
- On
21 November 2000 the Łódź Regional Court
started to hold hearings in the part of the case which had been
remitted for re examination. Between November 2000 and March
2001 it held fourteen hearings.
- On
12 April 2002 the Łódź Regional Court convicted
the applicant of various criminal charges and sentenced him to ten
years' imprisonment.
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 Kudła v. Poland [GC], no. 30210/96,
§§ 75-79, ECHR 2000-XI; Bagiński v. Poland,
no. 37444/97, §§ 42-46, 11 October 2005; and
Celejewski v. Poland, no. 17584/04, §§ 22-23,
4 August 2006.
III. THE RESOLUTION OF THE COUNCIL OF EUROPE COMMITTEE OF
MINISTERS
A. The Committee of Ministers
- On 6 June 2007 the Committee of Ministers adopted
an Interim Resolution concerning the judgments of the European Court
of Human Rights in 44 cases against Poland relating to the
excessive length of detention on remand (“the 2007
Resolution”). Noting that the number of cases in which the
European Court had found violations of Article 5 § 3 of the
Convention against Poland was constantly increasing, it concluded
that this revealed a structural problem. A more detailed rendition of
the 2007 Resolution can be found in the Court's judgment given in the
case of Kauczor v. Poland (see Kauczor v. Poland,
no. 45219/06, § 34, 3 February 2009; not
final).
B. The Council of Europe's Commissioner for Human
Rights
- On
20 June 2007 the Council of Europe's Commissioner for Human Rights
released a Memorandum to the Polish Government concerning, among
other issues, the use of the detention measure in Poland, stressing
that examples of cases brought to the Court where pre-trial detention
had lasted between 4 to 6 years were not uncommon. The Commissioner
urged the Polish authorities to review the application and
functioning of pre-trial detention in Polish law. A more detailed
rendition of the relevant parts of the Memorandum can be found in the
above mentioned Kauczor
judgment (see Kauczor
v. Poland,
cited above, § 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.
1. Period to be taken into consideration
- The
Court observes that on 17 January 1996 the applicant was remanded in
custody. On 25 January 1999 the Łódź Regional
Court convicted him of various charges and sentenced him to eight
years' imprisonment. 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,
ECHR 2000 XI).
- On
4 April 2000 the Łódź Court of Appeal partly
quashed the first instance judgment and remitted certain charges
to the first-instance court. However, it upheld the applicant's
conviction in its part concerning charges of intimidation of
witnesses with the use of violence. It imposed a sentence of four
years' imprisonment on him in respect of these charges and ordered
that the period of the applicant's detention should be counted
towards the sentence. As that period had come to end on 18 January
2000, four years after his arrest on 17 January 1996, after
4 April 2000 the applicant was again detained pending trial
until the judgment given by the Łódź Regional Court
on 12 April 2002.
- Hence,
the period to be examined lasted from 17 January 1996 until the
first-instance judgment given on 25 January 1999, that is, three
years and eight days, and from 4 April 2000 until 12 April
2002, that is two years and eight days. The overall period of the
applicant's detention during the judicial proceedings therefore
lasted five years and sixteen days.
2. The parties' submissions
- The
applicant submitted that his detention on remand had been
unreasonably long. The Government contested this argument.
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 judgments (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 the
serious nature of the offences with which he had been charged, the
need to secure the proper conduct of the proceedings and the risk
that the applicant or his co-accused might tamper with evidence. They
also relied on the fact that the applicant and his co-defendants had
recourse to delaying tactics in order to disrupt the process of
taking evidence.
- The
applicant was charged with numerous counts of aggravated assault with
use of firearms, committed in an organised criminal gang. In the
Court's view, the fact that the case concerned a member of a such
criminal gang 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 his
detention. Also, the need to obtain a large volume of evidence, to
determine the degree of the alleged responsibility of each of the
defendants who had acted in a criminal gang and against whom numerous
charges of serious offences were laid, and the need to secure the
proper conduct of the proceedings, in particular the process of
obtaining expert evidence, constituted valid grounds for the
applicant's initial detention.
- Indeed,
in cases such as the present one concerning an organised criminal
gang, 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. In this respect,
the Court notes that the charges laid against the applicant and his
co defendants included attempts to intimidate certain witnesses
in the investigation.
-
As regards the complexity of the case, the Court notes the nature of
the charges, the number of accused (ten) and the voluminous
documentation. It appears, however, that the authorities referred to
the complexity of the case in a very general manner. 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 an unlimited power
to prolong this measure. In this context, the Court would observe
that until the date of his first-instance conviction by the judgment
given on 4 April 2000 the applicant had already spent four
years, two months and twenty-one 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 gang, 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.”
- Recently
in the case of Kauczor v. Poland (see Kauczor,
cited above, paragraphs 58 et seq, with further references,
the Court referred to the above mentioned 2007 Resolution of the
Committee of Ministers taken together with the number of judgments
recently delivered and concluded:
“60. The Court thus
concludes, as the Committee of Ministers did, that for many years, at
least as recently as in 2007, numerous cases have demonstrated that
the excessive length of pre-trial detention in Poland reveals a
structural problem consisting of “a practice that is
incompatible with the Convention” (see mutatis mutandis
Broniowski v. Poland [GC], no. 31443/96, §§ 190-191,
ECHR 2004-V; Scordino v. Italy (no. 1) [GC], no. 36813)”.
- It
is true that the present case, unlike the Kauczor case,
concerns a person involved in an organised criminal gang. 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 gang is entitled to the protection
against unreasonably lengthy detention afforded by this provision
(see paragraphs 33, 35 and 38 above). As in other numerous similar
detention cases, the authorities did not justify the applicant's
continued detention by relevant and sufficient reasons (see paragraph
36 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). 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.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
B. Costs and expenses
- The
applicant submitted no claim for costs and expenses.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been a violation of Article 5
§ 3 of the Convention.
Done in English, and notified in writing on 21 April 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
