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FOURTH
SECTION
CASE OF GRZEGORZ BARANOWSKI v. POLAND
(Application
no. 40153/09)
JUDGMENT
STRASBOURG
9 November
2010
This
judgment is final but it may be subject to editorial revision.
In the case of Grzegorz Baranowski v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as
a Committee composed of:
Ján Šikuta,
President,
Lech Garlicki,
Vincent Anthony de
Gaetano, judges,
and Fatoş Aracı,
Deputy Section Registrar,
Having
deliberated in private on 18 October 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 40153/09) 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 Grzegorz
Baranowski (“the applicant”), on 9 June 2009.
- 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 on remand
exceeded a “reasonable time” within the meaning of
Article 5 § 3 of the Convention.
- On
23 November 2009
President of the Fourth Section of the Court the Court decided to
give notice of the application to the Government. In accordance with
Protocol No. 14, the application was assigned to a Committee of three
Judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1960 and is currently detained in the Łódź
Detention Centre.
- On
6 October 2005 the applicant was arrested by the police.
- On
7 October 2005 the Łódź District Court decided to
detain the applicant on remand in view of the reasonable suspicion
that he had committed various offences related to extortions,
attempted murders, kidnappings and robberies while acting in an
organised criminal gang.
- The
applicant's pre-trial detention was extended on 20 December 2005
and on 21 March, 20 June, 1 August, 20 September and
20 December 2006. The courts relied on the severity of the possible
sentence, which created a risk of the applicant's going into hiding
or interfering with the proper course of the proceedings, and the
necessity of gathering evidence in this particularly complex case.
The court relied heavily on the complexity of the proceedings which
involved many co accused who had allegedly participated in an
organised, armed gang.
- On
25 April and 27 June 2007 the Łódź Court of Appeal
further extended the pre-trial detention of the applicant and other
co-accused. In the meantime additional charges were brought against
the applicant.
- On
6 September 2007 the applicant and 20 other co accused were
indicted before the Łódź Regional Court.
- Subsequently,
the Łódź Regional Court began the trial. The first
hearing was held on 8 April 2008. The applicant's detention was
subsequently extended on 11 and 19 September 2007, 11 June
and on 17 December 2008 and 23 May 2008.
- The
applicant's pre-trial detention was extended by the Łódź
Court of Appeal on 17 December 2008. The court referred to the
complexity of the case and stressed that only the application of
isolative measure could prevent the applicant from interfering with
the course of the proceedings.
- On
22 April, 23 September and 22 December 2009 the applicant's detention
was again extended. The court referred to the reasons given
previously.
- The
applicant unsuccessfully complained against some of the decisions
extending his pre-trial detention.
- Between
4 January 2008 and 23 September 2009 the applicant was serving a
prison sentence imposed in another set of criminal proceedings
against him.
- The
applicant did not complain about the unreasonable length of the
proceedings under the Law of 17 June 2004 on complaints about a
breach of the right to a trial within a reasonable time (Ustawa o
skardze na naruszenie prawa strony do rozpoznania sprawy w
postępowaniu sądowym bez nieuzasadnionej zwłoki
– “the 2004 Act”).
- The
applicant remains in detention and the proceedings are pending before
the first-instance court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Preventive
measures, including pre-trial detention
- 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.
B. Relevant
statistical data
- 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 materials can be found in the
Court's judgment in the case of Kauczor (see Kauczor v.
Poland, no. 45219/06, § 27-28 and 30-35, 3 February
2009).
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 argued as a preliminary objection that the applicant had
failed to exhaust the remedies provided for by Polish law as regards
his complaint under Article 5 § 3 of the Convention in that he
did not appeal against the decisions extending his detention.
- The
applicant disagreed with the Government's submissions.
- The
Court reiterates that it is well established in its case-law that an
applicant must make normal use of those domestic remedies which are
likely to be effective and sufficient. When a remedy has been
attempted, use of another remedy which has essentially the same
objective is not required (see Yaşa v. Turkey judgment
of 2 September 1998, Reports of Judgments and Decisions
1998-VI, § 71).
- In
the present case the applicant lodged requests for the detention
order to be lifted or for a more lenient preventive measure to be
imposed. He further lodged appeals against some of the decisions
extending his detention. The Court considers that the purpose of the
remedies used by the applicant was to obtain a review of his
detention pending trial. In the circumstances of the case, these
remedies constituted adequate and effective remedies within the
meaning of Article 35 of the Convention as their aim was to obtain
his release (see Duda v. Poland, no. 67016/01, § 29,
19 December 2006).
- 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 Feliński v. Poland, no. 31116/03, §
40, 7 July 2009) and that the Government have not referred to any new
circumstances which would lead the Court to depart from that finding.
- Moreover, according to the established case-law,
having exhausted the available remedy, the applicant was not required
to embark on another attempt to obtain redress by bringing a
constitutional complaint (see, for example, Cichla v. Poland
no. 18036/03, § 26, 10 October 2006).
- It
follows that this complaint cannot be rejected for non-exhaustion of
domestic remedies. The Court further notes that it 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 6 October 2005, when he was arrested
on suspicion of having committed various offences and is still
pending.
- However,
between 4 January 2008 and 23 September 2009 the applicant served a
prison sentence which had been imposed on him in other set of
criminal proceedings. This term, as being covered by Article 5 §
1 (a), must therefore be subtracted from the period of the
applicant's pre-trial detention for the purposes of Article 5 § 3.
Accordingly, the period to be taken into consideration amounts to
already more than three years and three months.
2. The parties' submissions
(a) The applicant
- The
applicant disagreed with the Government's submissions and argued that
the length of the detention applied in his case had been excessive.
(b) The Government
- The
Government submitted that the complexity of the case had been an
exceptional circumstance that contributed to the length of the
applicant's detention. The applicant's detention was justified during
the whole period. In view of the severity of charges and the risk of
the applicant's obstructing the proceedings only pre-trial detention
constituted an effective preventive measure which could have secured
the proper conduct of the proceedings.
- In
addition, the applicant's detention was subject to regular
supervision of the courts and on each occasion the decisions
concerning the applicant's detention were sufficiently reasoned.
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, in addition to the
reasonable suspicion against the applicant, relied principally on two
grounds, namely (1) the serious nature of the offences with which he
had been charged, (2) the need to secure the proper conduct of the
proceedings and the risk that the applicant might tamper with
evidence. As regards the latter, they did not, however, specify any
concrete grounds justifying their opinion.
- The
applicant was charged with numerous counts of kidnapping armed
robbery and extortion committed in an organised criminal group
(see paragraph 7 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 his
detention. Also, 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.
- 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
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).
- 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 has already spent in pre-trial detention
three years and three months.
- Having
regard to the foregoing, even taking into account the fact that the
courts were faced with particularly difficult task of trying the 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 6 § 1 OF THE
CONVENTION
- The
applicant further complained that the criminal proceedings against
him had lasted an unreasonably long time. He relied on Article 6 §
1 of the Convention, which, in so far as relevant reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Court reiterates that pursuant to Article 35 § 1 of the
Convention it may only deal with the matter after all domestic
remedies have been exhausted. In this connection, the Court observes
that the applicant failed to make proper use of the remedy under the
2004 Act. It follows that this complaint must be rejected under
Article 35 §§ 1 and 4 of the Convention for
non-exhaustion of domestic remedies.
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 claimed 25,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government contested this claim.
- 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 EUR 1,000 under this head.
B. Costs and expenses
- The
applicant 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 complaint under Article 5 § 3
of the Convention 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,
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;
4 Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 9 November 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Ján Šikuta
Deputy
Registrar President
