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FOURTH
SECTION
CASE OF JĘCZMIENIOWSKI v. POLAND
(Application
no. 747/09)
JUDGMENT
STRASBOURG
25 January
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Jęczmieniowski v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a
Committee composed of:
Ján Šikuta,
President,
Lech Garlicki,
Mihai Poalelungi,
judges,
and Fatoş Aracı,
Deputy Section Registrar,
Having
deliberated in private on 4 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 747/09) 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
Jęczmieniowski (“the applicant”), on 22 December
2008.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr Jakub Wołąsiewicz, of the Ministry of
Foreign Affairs.
- The
applicant alleged, in particular, that his detention on remand
exceeded a “reasonable time” within the meaning of
Article 5 § 3 of the Convention.
- On
7 December 2009
President of the Fourth Section of the Court decided to give notice
of the application to the Government. In accordance with Protocol No.
14, the application was assigned to a Committee of three Judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1972 and lives in Warsaw. He is currently
detained in the Warsaw Remand Centre.
- On
26 October 2005 the applicant was arrested on suspicion of drug
trafficking, while acting in an organised and armed criminal group.
- On
27 October 2005 the Warsaw District Court (Sąd Rejonowy)
remanded him in custody, relying on the reasonable suspicion that he
had committed the offence in question that was supported by the crown
witness's testimony. 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 induce witnesses to give
false testimony. The court also stressed the severity of the
anticipated sentence and the complex nature of the case.
- Later,
twenty-eight members of the same criminal group were detained and
charged in connection with the investigation against the applicant.
- The
applicant's appeal against the detention order, likewise his further
appeals against decisions prolonging his detention and all his
subsequent, numerous applications for release were unsuccessful.
- In
the course of the investigation, the applicant's detention was
prolonged by decisions of the Warsaw Regional Court (Sąd
Okregowy) delivered on 12 January, 20 April and 28 August 2006,
and by decisions of the Warsaw Court of Appeal (Sąd
Apelacyjny) delivered on 24 October 2006, 24 April, 21
August and 23 October 2007 and 26 February 2008.
- In
all their detention decisions the authorities repeatedly relied on
a strong suspicion that the applicant had committed the offences
in question, which was supported by evidence from witnesses, in
particular by a crown witness's testimony. They
underlined the grave nature of those offences and the likelihood of a
severe sentence of imprisonment being imposed on the applicant. The
courts attached great importance to the complexity of the case, the
significant number of persons involved (around 100 persons) and the
voluminous documentation gathered in the proceedings. These
considerations led the courts to assume that the applicant, if
released, could tamper with evidence, induce the witnesses to change
their testimonies and obstruct the proper course of the proceedings.
The courts stressed, on several occasions, that a number of experts'
opinions had to be requested and legal help had to be sought from
Sweden and Bulgaria. They found no special grounds, as specified in
Article 259 § 1 of the Code of Criminal Procedure, that
would justify lifting the detention and imposing a less severe
measure.
On
one occasion the court noted that a special room had to be reserved
for hearings in the present case, as it concerned a dangerous
criminal group.
Furthermore,
in its decision of 23 October 2007 the court stressed the importance
of holding hearings regularly, in order to have the proceedings
conducted within a reasonable time.
- On
26 September 2007 a bill of indictment was lodged with the Warsaw
Regional Court. There were twenty-nine defendants in the case, all
charged with, inter alia, numerous counts of drug trafficking
and illegal possession of arms, committed in an organised criminal
group.
- On
25 March 2008 the trial court held the first hearing.
- During
the court proceedings the authorities further prolonged the
applicant's detention pending trial. The applicant's detention was
extended by the Warsaw Court of Appeal's decisions of 26 June and
4 December 2008 and 18 June 2009. The courts repeated the
grounds previously given for the applicant's continued detention but
stressed, in the first two decisions that certain tasks needed to be
undertaken by the court of first instance, in order to have the
proceedings completed within a reasonable time.
- The
applicant was heard before the trial court on 4 February 2009.
- On
22 June 2010 the Warsaw Court of Appeal prolonged the applicant's
detention until 31 October 2010.
- The
proceedings are still pending before the first-instance court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Preventive
measures, including pre-trial detention
- The
relevant domestic law and practice concerning the imposition of
detention on remand (aresztowanie tymczasowe), the grounds for
its prolongation, 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 August 2006.
B. Relevant
statistical data
- The
relevant statistical data, recent amendments to the Code of Criminal
procedure designed to streamline criminal proceedings and references
to the relevant Council of Europe materials can be found in the
Court's judgment in the case of Kauczor (see Kauczor v.
Poland, no. 45219/06, § 27-28 and 30-35, 3
February 2009).
THE LAW
I. THE GOVERNMENT'S REQUEST TO
STRIKE OUT THE APPLICATION UNDER ARTICLE 37 OF THE CONVENTION
- On 23 July 2010 the Government
submitted a unilateral declaration similar to that in the case of
Tahsin Acar v. Turkey
(Tahsin Acar v.
Turkey (preliminary
objection) [GC], no.
26307/95, ECHR 2003 VI) and informed the Court that they were
ready to accept that there had been a violation of the applicant's
rights under Article 5 § 3 of the Convention as a result of the
excessive length of his pre-trial detention. In respect of
non-pecuniary damage the Government proposed to award PLN 8,000 to
the applicant (the equivalent of 2,000 euros (EUR)). The
Government invited the Court to strike out the application in
accordance with Article 37 of the Convention.
- The applicant did not agree with
the Government's proposal. He considered that the amount proposed did
not constitute sufficient just satisfaction for the damage he had
sustained. In that respect he emphasised that his detention has
further been extended. Lastly, he requested the Court to continue the
examination of the application.
-
The Court observes that, as it has
already held on many occasions, it may be appropriate under certain
circumstances to strike out an application or part of an application
under Article 37 § 1 (c) of the Convention on the basis of a
unilateral declaration by the respondent Government even if the
applicant wishes the examination of the case to be continued. It will
depend on the particular circumstances whether the unilateral
declaration offers a sufficient basis for finding that respect for
human rights as defined in the Convention and its Protocols does not
require the Court to continue its examination of the case (see
Tahsin Acar,
cited above, §
75, and Melnic v. Moldova,
no. 6923/03, § 22, 14 November 2006).
- According to the Court's
case-law, the amount proposed in a unilateral declaration may be
considered a sufficient basis for striking out an application or part
thereof. The Court will have regard in this connection to the
compatibility of the amount with its own awards in similar cases,
bearing in mind the principles which it has developed for
determining victim status and for assessing the amount of
non-pecuniary compensation to be awarded where it has found a
breach of the reasonable time requirement (see
Cocchiarella v. Italy [GC],
no. 64886/01, §§ 85 107, ECHR 2006 ...;
Scordino v. Italy (no.1) [GC],
no. 36813/97, §§ 193-215, ECHR-2006-...; and Dubjakova
v. Slovakia
(dec.), no. 67299/01, 10 October 2004).
- As to whether it would be
appropriate to strike out the present application on the basis of the
unilateral declaration made by the Government, the Court notes that
despite the Government's acknowledgement of a violation of the
applicant's rights guaranteed under Article 5 § 3 of the
Convention, the applicant continues to be remanded in custody.
- In
view of the length of the applicant's detention and the fact that he
continues to be deprived of his liberty in the alleged breach of
Article 5 § 3 of the Convention, the Court finds that the
Government failed to submit a statement offering a sufficient basis
for finding that respect for human rights as defined in the
Convention and its Protocols does not require the Court to continue
its examination of the case (see Bieniek v. Poland, no.
46117/07, § 22, 1 June 2010).
- This being so, the Court rejects
the Government's request to strike this part of the application out
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 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 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 26 October 2005, when he was
arrested on suspicion of drug trafficking, committed in an organised
and armed criminal group (see paragraph 6 above). No judgment has yet
been delivered in the proceedings.
- Accordingly,
the period to be taken into consideration amounts, so far, to five
years.
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; (3) the need to secure the proper conduct of the
proceedings, given the risk that the applicant might tamper with
evidence or induce the witnesses to give false testimonies. As
regards the latter, they did not, however, specify any concrete
grounds justifying their opinion.
- The
applicant was charged with numerous counts of drug trafficking,
committed in an organised and armed criminal group (see paragraphs 6
and 12 above).
In
the Court's view, the fact that the case concerned a member of a such
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 serious offences could initially warrant his
detention. Also, the need to obtain voluminous 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 were laid, constituted valid
grounds for the applicant's initial detention.
Furthermore,
the Court acknowledges that the initial period of the applicant's
detention could be justified by the need to secure the proper conduct
of the proceedings, in particular by obtaining a
number of experts' opinions, as well as seeking legal help from other
countries.
- 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 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).
- 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. In this context, the Court would
observe that until the date, no judgment has yet been delivered in
the proceedings.
- Having
regard to the foregoing, even taking into account the fact that the
courts were faced with particularly difficult task of trying the 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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- 4Invoking
Articles 3 and 6 § 2 of the Convention, the applicant complained
that he had been arrested in front of his six-year-old daughter, who
had been traumatised by this event, and that his contacts with his
child have been very limited. He also claimed that he had been
blackmailed by the police.
- Further, the applicant alleged,
relying on Article 13 of the Convention, that he has not had an
effective remedy against the decision of 4 December 2008 extending
his pre-trial detention.
- As to the complaint under
Articles 3 and 6 § 2 of the Convention, the Court notes that the
applicant has failed to substantiate his allegations.
- As to the complaint about the
lack of an effective remedy, regardless of other possible grounds of
inadmissibility, the Court finds nothing in the case file which might
disclose any appearance of a violation of the rights
and freedoms set out in the Convention
or its Protocols. guaranteed by the
provision relied on.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected pursuant to Article 35 §§ 3 and 4 of
the Convention.
IV. 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 held that
the 2007 Resolution taken together with the number of judgments
already delivered and of the pending cases raising an issue of
excessive detention incompatible with Article 5 § 3 demonstrated
that the violation of the applicant's right under Article 5 § 3
of the Convention had originated in a widespread problem arising out
of the malfunctioning of the Polish criminal justice system which had
affected, and may still affect in the future, an as yet unidentified,
but potentially considerable number of persons charged in criminal
proceedings.
- 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 34-35
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 36-38 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 and also Hilgartner v. Poland, no. 37976/06,
§§ 46-48, 3 March 2009). 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).
V. 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 100,000 euros (EUR) in respect
of pecuniary and non-pecuniary damage.
- The Government did not submit any comments.
- 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 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
- Rejects
the Government's request to
strike the application out of the list;
2. Declares the complaint concerning the length of the
applicant's detention admissible and the remainder of the application
inadmissible;
- 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,
EUR 2,000 (two thousand euros) in respect of non-pecuniary damage,
plus any tax that may be chargeable, 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 25 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Ján Šikuta
Deputy
Registrar President
