FOURTH SECTION
CASE OF
RÓŻAŃSKI v. POLAND
(Application no.
16706/11)
JUDGMENT
STRASBOURG
22 January 2013
This judgment is final but it may
be subject to editorial revision.
In the case of Różański v. Poland,
The European Court of Human Rights (Fourth Section), sitting as
a Committee composed of:
Päivi Hirvelä, President,
Ledi Bianku,
Paul Mahoney, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 18 December 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
16706/11) 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 Mariusz Różański (“the
applicant”), on 23 February 2011.
The Polish
Government (“the Government”) were represented by their Agent, Mr J.
Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the
Ministry of Foreign Affairs.
On 11 January 2012 the application was
communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1979 and lives in Piekary.
On 2 March 2008 the applicant was arrested by the
police under the suspicion of having participated in an organised criminal
gang trading in women and deriving profits from prostitution.
On 13 March 2008 the Poznan District Court
decided to detain the applicant on remand (file no. III K 278/08).
The applicant’s pre-trial detention was
subsequently extended by the Poznan Regional Court on 2 September, 25 August
and 1 December 2008.
In 2009 his pre-trial detention was further
extended on 17 February and 27 May.
On 12 August 2009 the applicant and ten other
co-accused were indicted before the Poznan Regional Court (file no. Ap V Ds.
37/09).
On 25 May 2010 the Poznan Court of Appeal
decided to extend the applicant’s pre-trial detention. In addition to the
reasonable suspicion against the applicant, the court relied on the risk of his
going into hiding, especially since he had been avoiding arrest for
one-and-a-half years. Moreover, the court relied on the severity of the penalty
that might be imposed and a risk that the applicant would interfere with
the proper course of the proceedings. The court finally considered that the
criminal proceedings had been very complex as the case involved eleven
co-accused charged with a dozen offences each.
The applicant’s appeal against this decision was
dismissed on 29 June 2010.
Afterwards the applicant’s pre-trial detention
was extended on 19 August, 26 October, and 21 December 2010. All
decisions were unsuccessfully appealed against by the applicant. The court in
particular relied on the severity of the possible penalty and on the fact that
the applicant acted in an organised criminal gang. In the last of the above
listed decisions the Court of Appeal considered that the risk of a severe
sentence should no longer be a valid ground for the applicant’s very lengthy
pre-trial detention. However, the other grounds, namely risk of his interfering
with the proper course of the proceedings and going into hiding, were still valid
grounds for his continued detention.
On 24 March and 26 May 2011 the Poznan Court of
Appeal further extended the applicant’s pre-trial detention.
On 8 September 2011 the Poznan Court of Appeal
decided that the applicant could be released on bail in the amount of 70,000
Polish zlotys (PLN).
On 12 October 2011 the applicant paid the bail
and was released from detention.
On 6 June 2012 the Poznan Regional Court
convicted the applicant and sentenced him to five years’ imprisonment (file no.
XVI K 45/10). The judgment is not final as the applicant lodged an appeal
against it.
II. RELEVANT DOMESTIC LAW
The relevant domestic law and practice
concerning the imposition of pre-trial detention (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. THE GOVERNMENT’S REQUEST FOR THE APPLICATION
TO BE STRUCK OUT UNDER ARTICLE 37 OF THE CONVENTION
On 18 September 2012 the Government
submitted a unilateral declaration requesting the Court to strike out the
application in so far as it relates to the applicant’s complaint under
Article 5 § 3 of the Convention.
The applicant objected to the proposal.
Having studied the terms of the Government’s
unilateral declaration, the Court considers, in the particular circumstances of
the applicant’s case, that it does not provide a sufficient basis for
concluding that respect for human rights as defined in the Convention and its
Protocols does not require it to continue its examination of the case (see Choumakov v Poland (no. 2),
no. 55777/08, § 40, 1 February
2011, and Ruprecht v. Poland, no. 39912/06, § 27, 21 February 2012).
This being so, the Court rejects the Government’s
request to strike this part of the application out of its list of cases under
Article 37 of the Convention and will accordingly pursue its examination
of the admissibility and merits of the case.
II. 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.”
The Government confined themselves to the
statements set out in their above-mentioned declaration.
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) 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 lasted from 2 March
2008, when he was arrested by the police, until 12 October 2011 when he was
released from detention. It thus lasted over three years and seven months.
2. 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 attempt to induce witnesses to give
false testimony.
The applicant was charged with participation in
an organised criminal gang trading in women and profiting from prostitution
(see paragraph 5 above). In the Court’s view, the fact that the case
concerned a member of such 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).
The Court accepts that the reasonable suspicion
against the applicant of having committed the serious offences could initially
warrant his detention particularly since he had gone
into hiding before his arrest. In addition, it notes that the
authorities were faced with the difficult task of determining the facts and the
degree of alleged responsibility of each of the defendants. In these
circumstances, the Court also accepts that the need to collect voluminous
evidence constituted relevant and sufficient grounds for the applicant’s
initial detention.
Furthermore, the
judicial authorities also relied on the likelihood that a severe sentence might
be imposed on the applicant given the serious nature of the offences at issue
(see paragraphs 10 and 12). However, 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 of itself
justify long periods of detention (see for instance, Ilijkov
v. Bulgaria, no. 33977/96, §§ 80-81, 26 July 2001;
and Michta v. Poland, no. 13425/02, § 49, 4 May 2006).
. It
is to be noted that the judicial authorities had presumed the risk of pressure
being exerted on witnesses or obstruction of the proceedings, basing themselves
on the serious nature of the offences and the fact that the applicant had been charged
with being a member of an organised criminal gang. The Court acknowledges that
in view of the seriousness of the accusations against the applicant, the
authorities could justifiably have considered that such an initial risk was
established. Regard being had to the fact that the applicant had been charged
with being a member of a gang that traded in women and profited from their
prostitution, the particular vulnerability of the victims, some of whom were
minors, must be seen as relevant. Moreover, the Court agrees with the
domestic court’s assessment that there existed initially a risk of absconding
given the fact that the applicant had been hiding from the police before his
arrest.
. However,
the Court notes that in all the decisions extending the applicant’s detention,
no other specific substantiation of the risk that the applicant would tamper
with evidence, intimidate witnesses or otherwise disrupt the proceedings
emerged. Therefore with the passage of time the grounds relied on became less
relevant and cannot justify the entire period of over three years and seven
months during which the most serious preventive measure against the applicant
had been imposed.
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.
III. ALLEGED
VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
The applicant
complained under Article 6 § 1 of the Convention about the excessive
length of criminal proceedings in his case.
However, the Court notes that the applicant failed to lodge a
complaint about the breach of the right to a trial within a reasonable time
under the Law of 17 June 2004 on complaints about a breach of the right to
an investigation conducted and supervised by a Prosecutor and to a trial within
a reasonable time (Ustawa o skardze na naruszenie prawa strony do
rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub
nadzorowanym przez prokuratora i postępowaniu sądowym bez
nieuzasadnionej zwłoki) (see Charzyński v. Poland (dec.)
no. 15212/03, 1 March 2005).
It follows that this complaint 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 20,000 euros (EUR) in
respect of pecuniary and non-pecuniary damage.
The Government contested the claim as excessive.
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 awards the applicant EUR 3,000 in
respect of non-pecuniary damage.
B. Default interest
The Court considers it appropriate that the
default interest rate 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
1. Rejects the Government’s request to strike the application out of
the list in so far as it relates to the complaint under
Article 5 § 3 of the Convention;
2. Declares the complaint concerning the
unreasonable length of the applicant’s pre-trial detention admissible and the
remainder of the application inadmissible;
3. Holds that there has been a violation of
Article 5 § 3 of the Convention;
4. Holds
(a) that the respondent State is to pay the applicant,
within three months, EUR 3,000 (three thousand euros), plus any tax that
may be chargeable, in respect of non-pecuniary damage, 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;
5. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 22 January 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Päivi
Hirvelä
Deputy Registrar President
