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FOURTH
SECTION
CASE OF SIMONOV v. POLAND
(Application
no. 45255/07)
JUDGMENT
STRASBOURG
17 April 2012
This
judgment is final but it may be subject to editorial revision.
In the case of Simonov v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a
Committee composed of:
George
Nicolaou, President,
Ledi
Bianku,
Vincent
A. De Gaetano, judges,
and Fatoş Aracı,
Deputy Section Registrar,
Having
deliberated in private on 27 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 45255/07) 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 an Armenian national, Mr Siergiej
Simonov (“the applicant”), on 12 October 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 the length of his pre-trial
detention had been excessive.
- On
13 January 2011 the
application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1958 and currently lives in Łódź.
- On
14 February 2007 the applicant was arrested on suspicion of several
counts of fraud and incitement to murder committed in an organised
criminal group.
- On
16 February 2007 the Katowice District Court remanded him in custody,
relying on the reasonable suspicion that he had committed the
offences in question. It attached importance to the serious nature of
those offences and the likelihood of a severe prison sentence being
imposed on the applicant. In this connection the court noted that the
applicant had admitted to having committed some of the offences of
which he had been suspected, including incitement to murder. 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 go into hiding. As regards the latter, the court relied on the
fact that he did not have a permanent place of residence in Poland
and that he had already been hiding from the police. Finally, the
court underlined that the applicant was a member of an organised
criminal group and that some other members of that group were still
at large which increased the risk that a detainee, if released, might
obstruct the proceedings.
- The
applicant’s appeal against the detention order, likewise his
further appeals against decisions extending his detention and all his
subsequent applications for release and appeals against refusals to
release him, were unsuccessful.
- In
April 2007 the applicant had a heart attack and had to be
hospitalised three times during that year.
- In
the course of the investigation, the applicant’s detention was
extended on several occasions, namely on 7 May 2007 (to 7 October
2007), 10 September 2007 (to 7 January 2008) and on an unspecified
subsequent date. In their detention decisions the courts repeatedly
relied on the original grounds given for the applicant’s
detention underlining the complexity of the case and the substantial
volume of evidence to be examined. They also found no grounds
warranting the applicant’s release from detention as provided
for by Article 259 of the Criminal Code. In particular, the courts
observed that it resulted from medical reports that the applicant
could be treated within a penitentiary facility.
- On
10 June 2008 the Katowice Regional Prosecutor lodged a bill of
indictment with the Katowice Regional Court. The applicant was
charged with an incitement to murder as well as several counts of
thefts and extortions committed while acting as a leader of an
organised criminal group. The bill of indictment comprised numerous
charges brought against several defendants.
- On
23 June 2008 the case was transferred to the Gliwice Regional Court.
- In
an opinion of 26 February 2009 experts from the cardiology institute
of the Medical University in Katowice declared the applicant fit to
participate in the proceedings, though limiting the duration of the
hearings.
- During
the court proceedings the courts further extended the applicant’s
detention, namely on 24 September 2008 (to 14 February 2009), on
unspecified subsequent dates and 23 June 2010 (to 30 September 2010).
The courts repeated the grounds previously given for the applicant’s
continued detention.
- On
30 June 2010 the Gliwice Regional Court gave judgment. The applicant
was convicted as charged and sentenced to six years’
imprisonment.
- The
applicant and the Prosecutor appealed.
- On
24 March 2011 the Katowice Court of Appeal decided that the applicant
be released from custody and placed under police supervision.
The court also barred the applicant from leaving the country.
- It
appears that the appellate proceedings against the applicant are
still pending.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice concerning the imposition of
pre-trial detention (tymczasowe aresztowanie), the grounds for
its extension, 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 May 2006.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the length of his pre-trial detention 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.”
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 14 February
2007, when he was arrested on suspicion of incitement to murder and
other offences. On 30 June 2010 the Gliwice Regional Court
convicted him as charged. 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 (cf. Kudła, cited
above, § 104). On 24 March 2011 the applicant was released
from custody.
- Accordingly,
the period to be taken into consideration amounts to three years,
four months and sixteen days.
2. The parties’ submissions
- The
parties did not comment on the case.
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
three grounds, namely (1) the serious nature of the offences with
which he had been charged, (2) the severity of the penalty to which
he was liable; and (3) the need to secure the proper conduct of
the proceedings given the risk that the applicant might tamper with
evidence or go into hiding. As regards the latter, they relied on the
fact that the applicant was a member of an organised criminal group
without a permanent place of residence in Poland.
- The
applicant was charged with incitement to murder as well as several
counts of extortion and theft committed in an organised criminal
group (see paragraph 11 above). The Court acknowledges that the
seriousness and the nature of the accusations against the applicant
could initially warrant his detention. The Court also notes that the
latter was amplified by the fact that during the preliminary stage of
the domestic proceedings the applicant admitted to having committed
some of the offences of which he had been suspected (see paragraph 7
above). It was therefore reasonable to believe for the authorities
extending the applicant’s pre-trial detention that a severe
sentence could be imposed on him. Further, in the Court’s view,
the fact that the case concerned a member of 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).
- Furthermore, according to the authorities, the
likelihood of a severe sentence being imposed on the applicant
created a risk that he would obstruct the proceedings. The Court
reiterates 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 pre-trial detention (see Michta v. Poland, no.
13425/02, § 49, 4 May 2006).
- In
addition, however, the judicial authorities relied on the fact that
the applicant had been charged with being a member of an organised
criminal group. In this regard, the Court reiterates that the
existence of a general risk flowing from the organised nature of the
alleged criminal activities of the applicant may be accepted as the
basis for his detention at the initial stages of the proceedings (see
Górski v. Poland, no. 28904/02, § 58, 4
October 2005) and in some circumstances also for subsequent
extensions of the detention (see Celejewski, cited above, §
37). It is also accepted that in such cases, involving numerous
accused, the process of gathering and hearing evidence is often a
difficult task. Moreover, the Court considers that 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 in
the nature of things often particularly high.
- The
danger of the applicant’s absconding was one of the main
grounds referred to by the domestic courts (see paragraphs 7 and 10
above). The Court is of the opinion that there was objectively a
substantial risk of the applicant’s absconding which persisted
throughout his pre-trial detention. This risk was confirmed by a
number of relevant factors, such as the fact that the applicant was a
foreigner and did not have a permanent place of residence in Poland,
lacking social links to or property in the country. It was therefore
reasonable to assume that the applicant would be under considerable
pressure to evade trial, especially in light of the heavy prison
sentence to which he was liable. In view of the above, the Court is
persuaded that the danger of absconding constituted, in the
particular circumstances of the present case, a relevant and
sufficient ground for refusing the applicant’s applications for
release and to remand him in custody for the relevant period (see,
mutatis mutandis, Van der Tang v. Spain, 13 July
1995, §§ 64-67, Series A no. 321).
- Given
the above and in view of the fact that the relevant period of
the applicant’s detention lasted three years, four months and
sixteen days, the Court considers that the grounds given for the
applicant’s pre-trial detention were both “relevant”
and “sufficient” to justify holding him in custody for
the entire relevant period.
- It
therefore remains to be ascertained whether the national authorities
displayed “special diligence” in the conduct of the
proceedings.
- The
Court observes that there were no significant periods of inactivity
on the part of the prosecution authorities and the trial court
during the period to be taken into consideration. The investigation
was completed by the Regional Prosecutor within a relatively
short period of time and the proceedings before the first instance
court lasted two years.
- For
these reasons, the Court considers that the domestic authorities
displayed “special diligence” in the handling of the
applicant’s case.
- In view of the above considerations and in the light
of the criteria established in its case-law in similar cases, the
Court considers that the period of the applicant’s detention
does not disclose any appearance of a breach of the “reasonable
time” requirement of Article 5 § 3 of the Convention.
- There
has accordingly been no violation of Article 5 § 3 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Invoking Article 3 of the Convention, the applicant
also complained about the inadequate conditions of his detention. The
Court observes that the applicant failed to lodge with the Polish
civil courts an action under Article 24 taken in conjunction with
Article 448 of the Civil Code seeking compensation for the
infringement of his personal rights. It follows that this complaint
must be rejected under Article 35 §§ 1 and 4 of the
Convention for non-exhaustion of domestic remedies.
- Finally,
relying in substance on Article 6 of the Convention, the applicant
complained about the alleged unfairness of the criminal
proceedings. The Court notes that the relevant proceedings against
the applicant are still pending before the second-instance court.
Accordingly, this complaint must be rejected under Article 35 §§
1 and 4 of the Convention as being premature.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the length of
detention admissible and the remainder of the application
inadmissible;
- Holds that there has been no violation of
Article 5 § 3 of the Convention.
Done in English, and notified in writing on 17 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı George Nicolaou
Deputy Registrar President
