FOURTH SECTION

CASE OF RÓŻAŃSKI v. POLAND

(Application no. 16706/11)

JUDGMENT

STRASBOURG

22 January 2013

This judgment is final but it may be subject to editorial revision.

In the case of Różański v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
	Päivi Hirvelä, President,
	Ledi Bianku,
	Paul Mahoney, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 18 December 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 16706/11) 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 Mariusz Różański (“the applicant”), on 23 February 2011.
2.  The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs.
3.  On 11 January 2012 the application was communicated to the Government.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1979 and lives in Piekary.
5.  On 2 March 2008 the applicant was arrested by the police under the suspicion of having participated in an organised criminal gang trading in women and deriving profits from prostitution.
6.  On 13 March 2008 the Poznan District Court decided to detain the applicant on remand (file no. III K 278/08).
7.  The applicant’s pre-trial detention was subsequently extended by the Poznan Regional Court on 2 September, 25 August and 1 December 2008.
8.  In 2009 his pre-trial detention was further extended on 17 February and 27 May.
9.  On 12 August 2009 the applicant and ten other co-accused were indicted before the Poznan Regional Court (file no. Ap V Ds. 37/09).
10.  On 25 May 2010 the Poznan Court of Appeal decided to extend the applicant’s pre-trial detention. In addition to the reasonable suspicion against the applicant, the court relied on the risk of his going into hiding, especially since he had been avoiding arrest for one-and-a-half years. Moreover, the court relied on the severity of the penalty that might be imposed and a risk that the applicant would interfere with the proper course of the proceedings. The court finally considered that the criminal proceedings had been very complex as the case involved eleven co-accused charged with a dozen offences each.
11.  The applicant’s appeal against this decision was dismissed on 29 June 2010.
12.  Afterwards the applicant’s pre-trial detention was extended on 19 August, 26 October, and 21 December 2010. All decisions were unsuccessfully appealed against by the applicant. The court in particular relied on the severity of the possible penalty and on the fact that the applicant acted in an organised criminal gang. In the last of the above listed decisions the Court of Appeal considered that the risk of a severe sentence should no longer be a valid ground for the applicant’s very lengthy pre-trial detention. However, the other grounds, namely risk of his interfering with the proper course of the proceedings and going into hiding, were still valid grounds for his continued detention.
13.  On 24 March and 26 May 2011 the Poznan Court of Appeal further extended the applicant’s pre-trial detention.
14.  On 8 September 2011 the Poznan Court of Appeal decided that the applicant could be released on bail in the amount of 70,000 Polish zlotys (PLN).
15.  On 12 October 2011 the applicant paid the bail and was released from detention.
16.  On 6 June 2012 the Poznan Regional Court convicted the applicant and sentenced him to five years’ imprisonment (file no. XVI K 45/10). The judgment is not final as the applicant lodged an appeal against it.
II.  RELEVANT DOMESTIC LAW
17.  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 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.
THE LAW
I.  THE GOVERNMENT’S REQUEST FOR THE APPLICATION TO BE STRUCK OUT UNDER ARTICLE 37 OF THE CONVENTION
18.  On 18 September 2012 the Government submitted a unilateral declaration requesting the Court to strike out the application in so far as it relates to the applicant’s complaint under Article 5 § 3 of the Convention.
19.  The applicant objected to the proposal.
20.  Having studied the terms of the Government’s unilateral declaration, the Court considers, in the particular circumstances of the applicant’s case, that it does not provide a sufficient basis for concluding that respect for human rights as defined in the Convention and its Protocols does not require it to continue its examination of the case (see Choumakov v  Poland (no. 2), no. 55777/08, § 40, 1 February 2011, and Ruprecht v. Poland, no. 39912/06, § 27, 21 February 2012).
21.  This being so, the Court rejects the Government’s request to strike this part of the application out of its list of cases 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
22.  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.”
23.  The Government confined themselves to the statements set out in their above-mentioned declaration.
A.  Admissibility
24.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) 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
25.  The applicant’s detention lasted from 2 March 2008, when he was arrested by the police, until 12 October 2011 when he was released from detention. It thus lasted over three years and seven months.
2.  The Court’s assessment
(a)  General principles
26.  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
27.  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 and (3) the need to secure the proper conduct of the proceedings given the risk that the applicant might attempt to induce witnesses to give false testimony.
28.  The applicant was charged with participation in an organised criminal gang trading in women and profiting from prostitution (see paragraph 5 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).
29.  The Court accepts that the reasonable suspicion against the applicant of having committed the serious offences could initially warrant his detention particularly since he had gone into hiding before his arrest. In addition, it notes that the authorities were faced with the difficult task of determining the facts and the degree of alleged responsibility of each of the defendants. In these circumstances, the Court also accepts that the need to collect voluminous evidence constituted relevant and sufficient grounds for the applicant’s initial detention.
30.  Furthermore, the judicial authorities also relied on the likelihood that a severe sentence might be imposed on the applicant given the serious nature of the offences at issue (see paragraphs 10 and 12). However, the Court reiterates that, while the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or reoffending, the gravity of the charges cannot of itself justify long periods of detention (see for instance, Ilijkov v. Bulgaria, no. 33977/96, §§ 80‑81, 26 July 2001; and Michta v. Poland, no. 13425/02, § 49, 4 May 2006).
31.  It is to be noted that the judicial authorities had presumed the risk of pressure being exerted on witnesses or obstruction of the proceedings, basing themselves on the serious nature of the offences and the fact that the applicant had been charged with being a member of an organised criminal gang. The Court acknowledges that in view of the seriousness of the accusations against the applicant, the authorities could justifiably have considered that such an initial risk was established. Regard being had to the fact that the applicant had been charged with being a member of a gang that traded in women and profited from their prostitution, the particular vulnerability of the victims, some of whom were minors, must be seen as relevant. Moreover, the Court agrees with the domestic court’s assessment that there existed initially a risk of absconding given the fact that the applicant had been hiding from the police before his arrest.
32.  However, the Court notes that in all the decisions extending the applicant’s detention, no other specific substantiation of the risk that the applicant would tamper with evidence, intimidate witnesses or otherwise disrupt the proceedings emerged. Therefore with the passage of time the grounds relied on became less relevant and cannot justify the entire period of over three years and seven months during which the most serious preventive measure against the applicant had been imposed.
33.  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.
III.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
34.  The applicant complained under Article 6 § 1 of the Convention about the excessive length of criminal proceedings in his case.
35.  However, the Court notes that the applicant failed to lodge a complaint about the breach of the right to a trial within a reasonable time under the Law of 17 June 2004 on complaints about a breach of the right to an investigation conducted and supervised by a Prosecutor and to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki) (see Charzyński v. Poland (dec.) no. 15212/03, 1 March 2005).
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
36.  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
37.  The applicant claimed 20,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.
38.  The Government contested the claim as excessive.
39.  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 EUR 3,000 in respect of non‑pecuniary damage.
B.  Default interest
40.  The Court considers it appropriate that the default interest rate 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.  Rejects the Government’s request to strike the application out of the list in so far as it relates to the complaint under Article 5 § 3 of the Convention;

2.  Declares the complaint concerning the unreasonable length of the applicant’s pre-trial detention admissible and the remainder of the application inadmissible;

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

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage, 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;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 22 January 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Päivi Hirvelä
	Deputy Registrar	President