[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF CYNARSKI v. POLAND
(Application
no. 30049/06)
JUDGMENT
STRASBOURG
4 November
2008
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 Cynarski 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,
David Thór Björgvinsson,
Ledi
Bianku,
Mihai Poalelungi, judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 14 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 30049/06) 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 Krzysztof Cynarski (“the
applicant”), on 12 July 2006.
- The
Polish Government were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
- The
applicant alleged, in particular, that his pre-trial detention had
exceeded a “reasonable time” within the meaning of
Article 5 § 3 of the Convention.
- On
10 October 2007 the
President of the Fourth Section decided to communicate the complaint
concerning the length of the applicant's pre trial detention to
the Government. It was also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1976 and lives in Warsaw.
- On
12 November 2003 the applicant was arrested by the police.
- On
14 November 2003 the Warsaw District Court (Sąd Rejonowy)
decided to place the applicant in pre-trial detention in view of the
reasonable suspicion that he had stolen four Jaguar cars as a member
of an organised criminal gang. The applicant appealed against this
decision.
- On
15 January 2004 the Warsaw Regional Court (Sąd Okręgowy)
dismissed his appeal.
- The
applicant's pre-trial detention was prolonged on 4 February, 16 April
and 28 September 2004. The court relied on the reasonable suspicion
against the applicant and on the severity of the penalty that might
be imposed, making it probable that the applicant would obstruct the
proceedings and attempt to put pressure on witnesses.
- The
applicant appealed against all those decisions and applied to be
released from detention, but to no avail.
- On
26 July and 27 October 2005 the Warsaw District Court further
prolonged the applicant's detention on remand, giving identical
reasons for its decisions as on previous occasions.
- As
the length of the applicant's detention had reached the statutory
time-limit of two years laid down in Article 263 § 3
of the Code of Criminal Procedure (Kodeks postępowania
karnego) the District Court made several applications to the
Warsaw Court of Appeal for the applicant's detention to be prolonged
beyond that term. On 8 November 2005 and 10 March 2006 the Court of
Appeal granted the application. The court justified its decisions
with reference to the reasonable suspicion that the applicant had
committed the offences and the complexity of the case, which
concerned an organised criminal gang. The court also held that the
measure was justified by the severity of the sentence to which the
applicant was liable. On both occasions, however, the court decided
to prolong the applicant's detention for a period shorter than had
been requested by the trial court and instructed it to intensify its
efforts to finish the trial, given that the most severe preventive
measure had been applied to the applicant for a lengthy period.
- On
9 June 2006 the Warsaw Court of Appeal prolonged the applicant's
detention until 11 November 2006, reiterating the grounds given
previously.
- On
26 October 2006 the Warsaw District Court decided to release the
applicant from detention and to place him under the supervision of
the police. The court considered that it could not be excluded that
the applicant would be sentenced to a prison term amounting to the
period he had already spent in detention on remand. The court also
found that police supervision would secure the proper course of the
proceedings. On the same day the applicant was released from
detention.
- In
2006 the trial court held 18 hearings. On 31 January 2007 it gave a
judgment. The applicant was convicted of membership of an organised
criminal gang involved in stealing cars and of having stolen three
Jaguars. He was sentenced to four years and six months' imprisonment.
- The
applicant lodged an appeal against the judgment. On 19 March 2008 the
Warsaw Regional Court quashed the impugned judgment and remitted the
case.
- The
proceedings are still pending before the trial court.
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 set out 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 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 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 12 November 2003, when he was
arrested on suspicion of theft, and ended on 26 October 2006 when he
was released from detention.
Accordingly,
the applicant's detention lasted two years, eleven months and
fourteen days.
2. The parties' submissions
- The
applicant submitted that he had been kept in detention pending trial
for an unjustified period of time. He submitted that two other
co accused, who had pleaded guilty, had been released from
detention in 2004. The applicant complained that his case had been
joined to another trial involving twenty-nine co-accused with whom he
had nothing in common.
- The
Government considered that the applicant's pre-trial detention
satisfied the requirements of Article 5 § 3. It was justified by
“relevant” and “sufficient” grounds. Those
grounds were, in particular, the gravity of the charges against the
applicant, who had been accused of membership of an organised
criminal gang. They further underlined the complexity of the case
concerning several criminal gangs which had been stealing cars and
smuggling them abroad. In the end, the domestic court had decided to
sever the charges against the applicant and eleven co-accused into
separate proceedings.
The
Government argued that the domestic authorities had shown due
diligence, as required in cases against detained persons.
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, have been set out
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
severity of the penalty to which he was liable and the need to secure
the proper conduct of the proceedings, given the risk that the
applicant might tamper with evidence or otherwise obstruct the
proceedings. As regards the latter, the authorities failed to specify
any concrete grounds justifying their opinion. The authorities also
relied on the complexity of the case.
- The
applicant was charged with several counts of theft committed as a
member of an organised criminal group (see paragraph 7 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 that the applicant had
committed the offences warranted his initial detention. In addition,
the need to obtain a large volume of evidence and to determine the
degree of alleged responsibility of each of the defendants against
whom numerous serious charges had been laid, 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, is often, by the nature of things, considerable. In
this connection, however, the Court notes that there is no appearance
that the applicant made any attempts to intimidate witnesses during
the proceedings or tried to delay or disrupt the trial. Moreover, the
Court notes that there is no evidence that, since his release in
October 2006, the applicant has undertaken any such activities aimed
at interfering with the proper conduct of the proceedings.
- 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 pre-trial detention (see Michta v. Poland,
no. 13425/02, § 49, 4 May 2006).
- The
Court further notes that there is no specific indication that the
authorities, at any point during the applicant's pre-trial detention,
considered 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 the criminal
proceedings. Only after almost three years of continuous detention of
the applicant did the domestic court consider that its length had
been excessive and that police supervision would be a sufficient
guarantee for his appearance at the trial.
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 means of ensuring his
appearance at the 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, 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 no<t 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 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 approximately 38,000 Polish zlotys (PLN) in respect
of pecuniary and non-pecuniary damage.
- The
Government failed to submit their comments within the prescribed
time-limit.
- 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 1,000 euros (EUR) in respect
of non pecuniary damage.
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 application admissible;
- 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 1,000 (one thousand euros) in respect of
non-pecuniary damage, plus any tax that may be chargeable, to be
converted into Polish zlotys 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 4 November 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza Registrar President
