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FOURTH
SECTION
CASE OF GROCHULSKI v. POLAND
(Application
no. 33004/07)
JUDGMENT
STRASBOURG
18 January
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Grochulski v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a
Committee composed of:
Ján Šikuta,
President,
Lech Garlicki,
Vincent A. de Gaetano,
judges,
and Fatoş Aracı,
Deputy Section Registrar,
Having
deliberated in private on 14 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 33004/07) 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 Arkadiusz
Grochulski (“the applicant”), on 26 July 2007.
- The
applicant was represented by Mr J. Lachowicz, a lawyer
practising in Szczecin. The Polish Government (“the
Government”) were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry for 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
10 November 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 1962 and lives in Szczecin.
- On 20 March 2003 the Krakow
District Court ordered the applicant's detention on remand. The court
referred to the fact that the evidence collected in the case
indicated a high probability that the applicant had committed fraud
and money laundering while acting in an organised criminal gang. It
further stressed that it was impossible to establish the applicant's
domicile and it appeared that he resided outside the country.
- On
22 July 2003 the Kraków Appeal Prosecutor issued an
international wanted notice for the applicant.
- On
16 September 2004 the Kraków Regional Court issued an European
Arrest Warrant for the applicant.
- On 8 March 2005 the applicant was
arrested on suspicion of fraud and money laundering committed while
acting in an organised criminal gang.
- On 10 March 2005 the Krakow
District Court remanded the applicant in custody. The court stressed
that the evidence collected in the case indicated a high probability
that the applicant had committed the offences in question. In
addition, it referred to the need to secure the proper course of the
proceedings as there was a fear that the applicant would attempt to
avoid the trial and also influence witnesses.
- During the proceedings the applicant's detention was
extended on 7 June, 2 September, 5 December 2005 and 7 March
2006. The court referred to the reasons previously given.
- On 23 June 2006 a bill of
indictment against the applicant and twenty three co-accused was
lodged with the Kraków District Court. It appears that only
two other co-accused were remanded in custody. The applicant was
charged with various counts of fraud, money laundering, and
organising and leading a criminal group. The bill of
indictment comprised 1,092 pages and the prosecutor requested to hear
evidence from 200 witnesses.
- On 28 June 2006 the Kraków
District Court extended the applicant's detention. The court relied
on the reasonable suspicion that he had committed the offences in
question. It attached importance to the likelihood of a severe
sentence of imprisonment being imposed on the applicant and the risk
that he would attempt to obstruct the proceedings.
- On 12 July 2006 the applicant
lodged an appeal against this decision. He claimed that the
investigation of the present case had already been terminated. In
addition, he stressed that he had reported himself voluntarily to the
District Prosecutor on 8 March 2005. It appears that his appeal was
dismissed at a later, unknown date.
- During the trial, the courts
further extended the applicant's detention on several occasions,
namely on 27 September 2006 (to 30 December 2006), 21 December 2006
(to 8 March 2007), 2 March 2007 (to 8 September 2007) and 6
September 2007 (to 8 March 2008). The courts repeated the grounds
previously given for the applicant's continued detention. They
attached importance to the likelihood of a severe sentence of
imprisonment being imposed on the applicant and the risk that he
would obstruct the proceedings.
- The applicant's further appeals
against some of the decisions extending his detention and all his
subsequent applications for release and appeals against refusals to
release him were unsuccessful.
- On 10 November 2006 the Kraków
District Court considered itself not competent to examine the case
and decided to refer it to the Zielona Góra District Court.
The applicant appealed against this decision. It was upheld by the
Kraków Regional Court on 29 December 2006.
- On
29 March 2007 the Zielona Góra District Court referred the
case back to the Kraków District Court. It argued that the
Kraków District Court had already acquainted itself with the
case file and, in addition, two of the co accused were allegedly
involved in bribery of judges in the Zielona Góra region. On
12 June 2007 the Supreme Court refused to refer the case to the
Kraków District Court and ordered the Zielona Góra
District Court to proceed with the examination of the case.
- On
21 June 2007 the Zielona Góra District Court applied to the
Poznan Court of Appeal for permission to refer the case to the
Zielona Góra Regional Court because of its complicated nature.
The case was referred to the Zielona Góra Regional Court on 17
July 2007.
- The first hearing in the case was held on 19 November
2007.
- At a hearing held on 20 December 2007, the applicant
asked to be released on bail. The Zielona Góra Regional Court
considered that the applicant could be released providing that he
paid 2,000,000 Polish zlotys (PLN) bail by 28 December 2007. The
applicant paid the required sum and was released from detention on 24
December 2007. On 29 January 2008, on a prosecutor's appeal, the
Poznan Court of Appeal decided to place the applicant back in
detention. The court held in particular that the applicant was
charged with organising and leading a criminal group and there was a
risk that he would obstruct the proceedings. It
further referred to the likelihood of a severe sentence of
imprisonment being imposed on the applicant. On 7 February 2008 the
applicant was placed in a detention centre.
- On
7 March 2008 the Zielona Góra Regional Court released the
applicant on bail of PLN 2,000,000. It further prohibited the
applicant from leaving Poland.
- The
criminal proceedings against the applicant are pending.
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. 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 8 March 2005, when he was arrested
on suspicion of having committed fraud and money laundering in an
organised criminal group. On 24 December 2007 he was released. On
7 February 2008 he was detained again and released on 7 March
2008.
- Accordingly,
the period to be taken into consideration amounts to two years, ten
months and nineteen days.
2. The parties' submissions
(a) The applicant
- The
applicant submitted that the length of his pre-trial detention had
been excessive and that the measure had not been sufficiently
justified by the authorities.
b) The Government
- The
Government considered that the measure in question had satisfied the
requirements of Article 5 § 3. Throughout its entire period it
had been justified by “relevant” and “sufficient”
grounds, in particular the existence of a reasonable suspicion that
he had committed the offences he had been charged with. The case
concerned offences committed in an organised criminal group.
Moreover, the Government considered that the applicant's protracted
detention pending trial was justified by the gravity of the charges
which the applicant was facing and the severity of the anticipated
penalty, as well as the fact that the case involved numerous
co accused and witnesses. As a consequence, there was a risk
that the applicant, if released, would attempt to induce them to give
false testimony.
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 two
grounds, namely the need to secure the proper conduct of the
proceedings, the risk that the applicant might go into hiding and the
fear that the applicant would attempt to influence the witnesses.
- The
applicant was charged with numerous counts of fraud, money
laundering, counterfeiting and forgery of documents committed in an
organised criminal group (see paragraphs 9 and 12 above). In the
Court's view, the fact that the case allegedly 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 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
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.
- 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 the first hearing in the proceedings was held one year
and five months after the bill of indictment had been filed with the
trial court. In addition, the proceedings are still pending before
the court of first-instance (see paragraph 23 above).
- Having
regard to the foregoing, even taking into account the fact that the
courts were faced with a particularly difficult task of trying a case
allegedly 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. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant further complained that the criminal proceedings against
him had lasted an unreasonably long time. He relied on Article 6 §
1 of the Convention, which, in so far as relevant reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Court reiterates that pursuant to Article 35 § 1 of the
Convention it may only deal with the matter after all domestic
remedies have been exhausted. In this connection, the Court observes
that the applicant failed to make proper use of the remedy under the
2004 Act.
- It
follows that this complaint must be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
III. 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.”
A. The parties' submissions
1. The applicant
- The
applicant did not submit any observations concerning this provision.
2. The Government
- The Government referred to the
arguments submitted previously in the case of Figas
v. Poland (no. 7883/07,
§§ 41-44, 23 June 2009).
- The
Government concluded that, bearing in mind the efforts of the Polish
authorities and the legislative reforms which were and had been
undertaken by them to solve the problem of the length of detention on
remand, Poland could not be said to have failed to comply with its
obligations under Article 46 of the Convention to obey the Court's
judgments.
B. The Court's assessment
- 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 allegedly 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. As in
other numerous similar detention cases, the authorities did not
justify the applicant's continued detention by relevant and
sufficient reasons. 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).
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 36,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government contested this claim.
- The
Court 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 1,000 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
- Declares the complaint concerning the length of
the pre-trial 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 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 18 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Ján Šikuta Deputy
Registrar President
