FOURTH SECTION

CASE OF CZUWARA v. POLAND

(Application no. 36250/06)

JUDGMENT

STRASBOURG

29 July 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 Czuwara v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
	Giovanni Bonello, President,
	Lech Garlicki,
	Ljiljana Mijović,
	David Thór Björgvinsson,
	Ján Šikuta,
	Ledi Bianku,
	Mihai Poalelungi, judges,
and LawrenceEarlySection Registrar,
Having deliberated in private on 8 July 2008,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in  against  lodged with the  of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by .
2.  The Polish Government were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
3.  The applicant alleged that her pre-trial detention had exceeded a “reasonable time” within the meaning of Article 5 § 3 of the Convention.
4.  On  the President of the Fourth Section decided to give notice of the application to the Government. It was 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
5.  The applicant was born in 1959 and lives in Warsaw.
6.  The applicant was the director of a local branch in Warsaw of the bank PKO BP.
7.  On 26 January 2001 the applicant was arrested by officers of the Central Investigation Bureau (Centralne Biuro Śledcze, CBŚ) on suspicion of fraud and forgery of documents. On 27 January 2001 the Pruszków District Court (Sąd Rejonowy) dismissed the prosecutor's request to impose on the applicant pre-trial detention finding that the suspicion against her had not been sufficiently justified. The decision was upheld on appeal by the Warsaw Regional Court (Sąd Okręgowy) on 20 March 2001.
8.  It appears that the Pruszków District Prosecutor continued the investigation against the applicant.
9.  On 9 June 2003 the applicant was again arrested by the CBŚ. She was charged with fraud, in that with the aim of financial gain she had caused substantial financial damage to the bank in granting suspect loans to clients of the bank. Moreover, the applicant was charged with having acted together with a member of her staff, in an organised criminal group. On 11 June 2003 the Warsaw District Court remanded the applicant in custody. The court relied on the reasonable suspicion that the applicant had committed the offences with which she had been charged. The District Court also considered that only detention could secure the proper course of the proceedings and that there existed a risk that the applicant would influence the witnesses, many of whom were bank employees formerly under her authority.
10.  On 7 July 2003 the Warsaw Regional Court dismissed an appeal by the applicant.
11.  On 3 September 2003 the District Court extended the applicant's detention. The court relied on the reasonable suspicion against the applicant and on the risk that the applicant, who had pleaded not guilty, would attempt to influence witnesses or otherwise interfere with the proper course of the proceedings.
12.  The applicant's detention was further extended on 3 December 2003 and 5 March 2004. In addition to the grounds given previously, the court relied on the probability that a severe sentence would be imposed on the applicant.
13.  The applicant unsuccessfully appealed against all decisions prolonging her detention, submitting that the risk of her influencing the course of the proceedings had not been in any way substantiated. Prior to her arrest in 2003 she had not made any attempt to tamper with evidence or with the investigation that had been pending at the material time.
14.  The applicant's pre-trial detention was further extended on 8 June 2004. In a brief reasoning the court referred particularly to the nature of the investigation that required the taking of voluminous evidence.
15.  On 2 July 2004 the Warsaw Court of Appeal dismissed an appeal by the applicant against the latter decision; nevertheless, it considered that the District Court's reasoning for its decision had been “vague” (ogólnikowe). It also stated that the prosecution should intensify its actions and lodge a bill of indictment so as to allow the trial court to examine the case within a reasonable time.
16.  The subsequent decision to prolong the applicant's detention, given on 7 September 2004 by the Warsaw Court of Appeal, contains the following reasoning:
“The Appellate Prosecutor's application is justified. The continued pre-trial detention of [the applicant] is justified under [the provisions of the Code of Criminal Procedure] on the grounds given in the decision of 8 June 2004.
The evidence gathered in the case and presented in the prosecutor's application fulfil the requirements of the [provisions of the Code of Criminal Procedure].
The nature of the case, which requires the gathering of extensive evidential material, is sufficient to find that there are grounds to further prolong pre-trial detention.”
17.  An appeal by the applicant against this decision was dismissed on 28 September 2004 on the grounds of the complexity of the case and the probability that a severe sentence would be imposed on the applicant.
18.  On 8 December 2004 the Warsaw Court of Appeal extended the applicant's detention, pointing to the fact that the investigation had not yet been concluded by the prosecutor.
19.  The decision of 1 March 2005, which further extended the applicant's detention, referred back to prior decisions concerning the prolongation of her detention.
20.  The applicant appealed against this decision. The appeal was dismissed on 30 March 2005.
21.  On 13 May 2005 the applicant was indicted before the Warsaw District Court.
22.  On 20 May 2005 the trial court extended the applicant's detention relying, in addition to the reasonable suspicion against the applicant, on two grounds: a risk that she would interfere with the proper course of the proceedings and the likelihood that a severe sentence would be imposed.
23.  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 extended beyond that term. On 3 June and 25 November 2005 and on 7 March 2006 the court granted such requests, reiterating the grounds previously given for her detention and pointing to the complexity of the case.
24.  On 30 May 2006 the Warsaw Court of Appeal extended the applicant's detention until 9 December 2006, considering that the trial court should be able to finish the trial before that date.
25.  At a hearing on 21 December 2006 the Warsaw District Court decided to lift the applicant's detention finding that it had lasted for too long. The court considered that police supervision would secure the applicant's appearance at her trial. The applicant was released on the same date.
26.  The trial against the applicant started on 12 August 2005 and is pending before the first-instance court.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
27.  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
28.  The applicant complained that the length of her pre-trial detention had been excessive. She 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.”
29.  The Government contested that argument.
A.  Admissibility
30.  The Court notes that the application 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
31.  The applicant's detention started on 9 June 2003, when she was arrested on suspicion of having committed fraud. On 21 December 2006 she was released from pre-trial detention.
Accordingly, the period to be taken into consideration amounts to three years, six months and thirteen days.
2.  The parties' submissions
32.  The applicant submitted that she had been kept in detention pending trial for an unjustified period of time. The applicant maintained that the authorities had extended her detention on the basis of standard reasoning that had had no justification in the facts of the case. In particular, the courts had repeatedly invoked the risk of her interfering with the proper course of the proceedings without pointing to any specific incident that would justify their conviction. The applicant reiterated the fact that she had been at liberty for the first thirty months of the investigation against her in 2001 and 2002 and, later, during her trial since December 2006.
33.  The applicant complained that the charges against her had been groundless, particularly as regards her alleged participation in the organised criminal group. This charge had been frequently used by the prosecution service without justification. The proceedings against her, so far pending for over seven years, had not shown what her role in the alleged organised group might have been. The applicant had instituted civil proceedings for reinstatement against her former employer but they had been stayed pending the outcome of the criminal case.
34.  The Government refrained from expressing an opinion on the merits of the complaint under Article 5 § 3. However, they asked the Court to take into consideration the fact that the applicant had been accused of membership of an organised criminal gang. They further underlined the complexity of the case, which had involved sixteen co-accused, against whom almost fifty charges had been laid. The Government also argued that the domestic authorities had shown due diligence, as required in cases against detained persons, and that the length of the applicant's detention had been attributable to the exceptional complexity of the case.
3.  The Court's assessment
(a)  General principles
35.  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
36.  In their detention decisions, the authorities, in addition to the reasonable suspicion against the applicant, relied principally on two grounds: the severity of the penalty to which she was liable and the need to secure the proper conduct of the proceedings. As regards the latter ground, however, they did not specify any concrete reasons justifying their opinion that the applicant would pervert the course of justice if released. Finally, the courts pointed to the particular complexity of the case.
37.  The applicant was charged with numerous counts of fraud committed in an organised criminal group (see paragraph 9 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).
38.  The Court accepts that the reasonable suspicion that the applicant had committed offences warranted her detention initially. Also, the need to obtain a large volume of evidence and to determine the degree of the alleged responsibility of each of the defendants, who had acted in a criminal group and against whom numerous charges of serious offences had been laid, constituted valid grounds for the applicant's initial detention.
39.  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, high. However, such a risk should be justified by reference to concrete factors pertaining to the particular accused. In the case under consideration the authorities did not rely on any specific circumstance capable of showing that the applicant's release would interfere with the proper course of the proceedings, and if so why and how. The authorities did not point to any instance of the applicant's attempting to intimidate witnesses or to disrupt the trial during the whole period of her detention or when she had been at liberty. The Court reiterates that the applicant did not have a criminal record and had been at liberty for thirty months prior to her arrest. During that time, and after her release in December 2006, the applicant did not make any attempt to pervert the course of justice. However, these circumstances were not taken into consideration by the authorities although the applicant had relied on them in her appeals against the decisions extending her detention.
40.  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 that the defendant might abscond or re-offend, 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).
41.  Apart from the grounds examined above, the domestic courts failed to advance any other argument justifying the extension of the applicant's pre-trial detention. Indeed the reasons for their decisions were particularly repetitive and vague, as the domestic court itself observed on 2 July 2004 (see paragraph 15 above). The Court notes that in spite of this criticism of the Regional Court, the subsequent decision extending the applicant's detention did not refer to any particular ground justifying keeping the applicant in pre-trial detention (see paragraph 16 above).
42.  Finally, the Court would emphasise that under Article 5 § 3 the authorities, when deciding whether a person is to be released or detained, are obliged to consider alternative means of guaranteeing his appearance at the trial (see Jablonski v. Poland, no. 33492/96, § 83, 21 December 2000). The Court observes that the applicant was released following the District Court's decision of 21 December 2006 which had considered that police supervision would ensure her presence at trial (see paragraph 25 above). Indeed, it does not appear that before that date the domestic courts gave any careful consideration to measures other than detention to secure the applicant's appearance at her trial.
43.  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.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
44.  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
45.  The applicant claimed 9,200 euros (EUR) in respect of pecuniary damage and an equal amount in respect of non-pecuniary damage.
46.  The Government considered that these claims were excessive and as such should be rejected. They asked the Court to rule that the finding of a violation constituted in itself sufficient just satisfaction.
47.  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 considers that the applicant suffered non-pecuniary damage which is not sufficiently compensated by the finding of a violation of the Convention. Considering the particular circumstances of the case, especially the non-violent nature of the offence the applicant was charged with and the low risk that she might abscond or re-offend, and making its assessment on an equitable basis, the Court awards the applicant EUR 2,500 under this head.
B.  Costs and expenses
48.  The applicant submitted no claim for costs and expenses.
C.  Default interest
49.  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
1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 5 § 3 of the Convention;

3.  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 2,500 (two thousand five hundred 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;

4.  Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 29 July 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Lawrence Early	Giovanni Bonello
	Registrar	President