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FOURTH
SECTION
CASE OF GODYSZ v. POLAND
(Application
no. 46949/07)
JUDGMENT
STRASBOURG
28
April 2009
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 Godysz v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ján
Šikuta,
Päivi
Hirvelä,
Mihai
Poalelungi, judges
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 7 April 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 46949/07) 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 a Polish national, Mr Władysław
Godysz (“the applicant”), on 3 September 2007.
- The
applicant was represented by Mr A. Dolniak, a lawyer practising in
Katowice. The Polish Government (“the
Government”) were represented by their Agent, Mr Jakub
Wołąsiewicz of the Ministry of Foreign Affairs.
- The
applicant alleged that his detention on remand exceeded a “reasonable
time” within the meaning of Article 5 § 3 of the
Convention.
- On
1 July 2008 the
President of the Fourth Section decided to give notice of the
application to the Government. It was also decided to examine the
merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1951 and lives in Siemanowice.
- On
28 April 2005 the applicant was arrested on suspicion of bribery,
several counts of evasion of tax and customs duties and several
counts of forgery, committed in an organised criminal gang.
- On
29 April 2005 the Katowice District Court remanded him in custody,
relying on the reasonable suspicion that he had committed the offence
in question. The court referred to the complexity of the case and the
considerable number of accused. 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 tamper with evidence
and induce witnesses to give false testimony. The court also stressed
the severity of the anticipated sentence.
- Later,
twenty-one other persons were detained and charged in connection with
the investigation against the applicant.
- The
applicant’s appeal against the detention order, like his
further appeals against decisions prolonging his detention and all
his subsequent numerous applications for release and appeals against
refusals to release him, were unsuccessful. In his applications and
appeal, he argued that the charge against him was based on unreliable
and contradictory evidence.
- In
the course of the investigation, the applicant’s detention was
prolonged on 22 July 2005, 20 October 2005, 20 January 2006, 29 March
2006, 28 June 2006, 27 September 2006, 4 January 2007 and
4 April 2007.
- On
17 April 2007 the Katowice Regional Prosecutor lodged a bill of
indictment with the Katowice Regional Court. The applicant was
charged with bribery, several counts of evasion of tax and customs
duties, several counts of forgery and membership of an organised
criminal gang. The bill of indictment also concerned twenty-one other
persons.
- Further
decisions extending the applicant’s detention were taken on 25
July 2007, 24 October 2007 and 27 February 2008.
In a
decision given on 24 October 2007, the Katowice Court of Appeal Court
criticised the manner in which the investigation had been conducted.
It also referred to delays in the proceedings which amounted to six
months. It acknowledged that almost all the evidence had been
gathered and that the risk that the applicant would tamper with
evidence had been marginal.
In a
decision given on 27 February 2008, the Katowice Court of Appeal
ruled that the applicant could be released on bail on payment of
security of 800,000 Polish zlotys. The applicant requested the court
to reduce the amount of bail. On 28 March 2008 the court reduced it
to 300,000 Polish zlotys. The applicant paid the security and he was
released on 30 April 2008.
- The
criminal proceedings are currently pending before the first instance
court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice concerning the imposition of
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.
III. RELEVANT COUNCIL OF EUROPE DOCUMENTS
A. The Committee of Ministers
- On 6 June 2007 the Committee of Ministers adopted
on the Interim Resolution concerning the judgments of the European
Court of Human Rights in 44 cases against Poland relating to the
excessive length of detention on remand (“the 2007
Resolution”). Noting that the number of cases in which the
European Court had found similar violations was constantly
increasing. It concluded that the number of the Court’s
judgments finding Poland in violation of Article 5 § 3 of the
Convention revealed a structural problem. A more detailed rendition
of the 2007 Resolution can be found in the Court’s judgment
given in the case of Kauczor v. Poland (see Kauczor
v. Poland,
no. 45219/06, § 34, 3 February 2009; not
final).
B. The Council of Europe’s Commissioner for Human
Rights
- On
20 June 2007 the Council of Europe’s Commissioner for Human
Rights released the Memorandum to the Polish Government concerning,
among other issues, the use of the detention measure in Poland,
stressing that examples of cases brought to the Court where pre-trial
detention had lasted between 4 to 6 years were not uncommon. The
Commissioner urged the Polish authorities to review the application
and functioning of pre trial detention in Polish law. A more
detailed rendition of the relevant parts of the memorandum can be
found in the above mentioned Kauczor judgment (see Kauczor
v. Poland,
cited above, § 35).
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 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
- The
applicant’s detention started on 28 April 2005, when he was
arrested on suspicion of bribery, several counts of evasion of tax
and customs duties and several counts of forgery, committed in an
organised criminal gang. He was released on 30 April 2008.
Accordingly, the period to be taken into consideration amounts to
three years and two days.
2. The parties’ submissions
(a) The applicant
- The
applicant submitted in general terms that his application lodged with
the Court was justified.
(b) The Government
- The
Government considered that the applicant’s detention satisfied
the requirements of Article 5 § 3 of the Convention. The
Government emphasised that the serious nature of the charges as well
as the fact that there had been twenty-one defendants charged with
numerous offences required the authorities to take all necessary
measures to secure the proper conduct of the trial. The necessity of
the applicant’s continued detention had been thoroughly
examined by the courts which on each occasion had given sufficient
reasons for their decisions. The applicant’s case had been
extremely complex on account of the number of charges (121) and
defendants (21), and by reason of the volume of evidence. The
Government further submitted that the domestic courts had acted
diligently and speedily, in particular taking into account the
complexity of the case, the number of witnesses to be heard and the
number of co-accused, most of whom had been suspected of acting in an
organised criminal group.
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 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
four 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 (3) the need to secure the proper conduct of the
proceedings, particularly the risk that he might tamper with evidence
and (4) the complexity of the case.
- The
applicant was charged with bribery, several counts of evasion of tax
and customs duties, several counts of forgery and membership of an
organised criminal gang.
In
the Court’s view, the fact that the case concerned a member of
a such criminal gang 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 obtain a large volume of evidence and 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 gangs,
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. In this respect,
the Court notes, however, that in all the decisions extending the
applicant’s detention, no specific substantiation of the risk
that the applicant would tamper with evidence, intimidate witnesses
or attempt to otherwise disrupt the trial emerged. In the absence of
any other factor capable of showing that the risk relied on actually
existed, this argument cannot be accepted in the context of the whole
period.
- 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).
- As
regards the complexity of the case, the Court’s attention has
been drawn to the nature of the charges, the number of the accused
(twenty one) and the voluminous documentation. It appears, however,
that the authorities referred to the complexity of the case in a very
general manner. There is no indication that the nature of the case
required the applicant’s continuous detention. Moreover, it
seems that the authorities had gathered all necessary evidence by
October 2007 and that they subsequently failed to envisage the
possibility of imposing other, less strict, preventive measures on
the applicant (see paragraph 12 above).
- 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.
- 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 gang, 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 46 OF THE CONVENTION
- Article
46 of the Convention provides:
“1. The High Contracting Parties
undertake to abide by the final judgment of the Court in any case to
which they are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
- Recently,
in the case of Kauczor v. Poland (see Kauczor,
cited above, § 58 et seq. with further references) the Court
referred to the above mentioned 2007 Resolution of the Committee of
Ministers taken together with the number of judgments already
delivered and concluded:
“60.
The Court thus concludes, as the Committee of Ministers did, that for
many years, at least as recently as in 2007, numerous cases have
demonstrated that the excessive length of pre-trial detention in
Poland revealed a structural problem consisting of “a practice
that is incompatible with the Convention” (see mutatis
mutandis Broniowski v. Poland [GC], no. 31443/96,
§§ 190 191, ECHR 2004 V; Scordino
v. Italy (no. 1) [GC], no. 36813/97,
§§ 229-231, ECHR 2006 ...; Bottazzi v. Italy
[GC], no. 34884/97, § 22, ECHR 1999 V
with respect to the Italian length of proceedings cases)”.
- It
is true that the present case concerns a person involved in an
organised criminal group. However, as stated above, while this
element is to be taken into account in assessing compliance with
Article 5 § 3 and may justify a longer period of
detention than in a case concerning an individual offender, a member
of an organised criminal group is entitled to the protection against
unreasonably lengthy detention afforded by this provision (see
paragraphs 27, 30 and 31 above). As in other numerous similar
detention cases, the authorities did not justify the applicant’s
continued detention by relevant and sufficient reasons (see
paragraphs 25 31 above). Moreover, as demonstrated by the ever
increasing number of judgments in which the Court has found Poland to
be in breach of Article 5 § 3 in respect of applicants involved
in organised crime, the present case is by no means an isolated
example of the imposition of unjustifiably lengthy detention but a
confirmation of a practice found to be contrary to the Convention
(see, among many other examples, Celejewski v. Poland,
no. 17584/04, 4 May 2006; Kąkol v. Poland,
no. 3994/03, 6 September 2007; Malikowski v. Poland,
no. 15154/03, 16 October 2007). Consequently, the Court sees no
reason to diverge from its findings made in Kauczor as to the
existence of a structural problem and the need for the Polish State
to adopt measures to remedy the situation (see Kauczor, cited
above, §§ 60 62 ).
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 EUR 2,000,000 in respect of pecuniary and
non-pecuniary damage.
- The
Government did not express an opinion on the matter.
- 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 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 2,000 under this head.
B. Costs and expenses
- The
applicant also claimed EUR 18,000 for legal costs. He did not
submit any documents in support of his claim.
- The
Government did not express an opinion on the matter.
- According
to the Court’s case-law, an applicant is entitled to
reimbursement of his costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. The Court observes that the applicant
failed to produce any documents in support of his claim. In those
circumstances, the Court makes no award under this head (see Adamiak
v. Poland, no. 20758/03, § 49, 19 December
2006).
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 2,000 (two
thousand euros) in respect of non-pecuniary damage, to be converted
into the national currency of the respondent State at the rate
applicable at the date of settlement, plus any tax that may be
chargeable;
(b) that
from the expiry of the above mentioned three months until
settlement simple interest shall be payable on the above amounts 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 28 April 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence
Early Nicolas Bratza
Registrar President
