CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 20 juin 2006

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margin-bottom:0pt } .sEE18EE45 { width:48.95pt; display:inline-block } .sEA2FDF23 { width:197.32pt; display:inline-block } .sF2E32F9B { width:36.61pt; display:inline-block } .s5F32E900 { width:208.31pt; display:inline-block }     FOURTH SECTION     CASE OF PASIŃSKI v. POLAND     (Application no. 6356/04)     JUDGMENT       STRASBOURG   20 June 2006       FINAL     23/10/2006       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 Pasiński v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Sir   Nicolas Bratza, President,   Mr   J. Casadevall,   Mr   M. Pellonpää,   Mr   S. Pavlovschi,   Mr   L. Garlicki,   Ms   L. Mijović,   Mr   J. Šikuta, judges, and Mr T.L. Early , Section Registrar , Having deliberated in private on 30 May 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 6356/04) 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 Dariusz Pasiński (“the applicant”), on 2 February 2004. 2.     The Polish Government were represented by their Agent, Mr   J.   Wołąsiewicz of the Ministry of Foreign Affairs. 3.     On 19 April 2005 the President of the Fourth Section Court decided to communicate the application to the Government. Under the provisions of Article   29 §   3 of the Convention, it was decided to examine the merits of the application at the same time as its admissibility. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1968 and is presently detained in the Koszalin Detention Centre. 5.     On 19 June 2001 the applicant was arrested by the police on suspicion of having committed armed robbery acting in an organised criminal group. On 21 June 2001 the Opole District Court ( Sąd Rejonowy ) ordered that the applicant be remanded in custody in view of a reasonable suspicion that he had committed the offence in question, the severity of the penalty that could be expected and the need to secure the proper conduct of the investigation. 6.     Subsequently, the Opole Regional Court ( Sąd Okręgowy ) prolonged the applicant’s detention on several occasions reiterating the grounds previously given. 7.     On 22 February 2002 the Opole Regional Court decided to prolong the detention of the applicant relying, in addition to the earlier grounds, on the danger that given the complexity of the case and number of persons involved, there was a risk that the applicant might tamper with evidence or otherwise obstruct the proceedings. 8.     On 18 June 2002 the Wroclaw Court of Appeal partly allowed the prosecutor’s request and prolonged the applicant’s pre-trial detention until 30   October 2002. Subsequently, on 5 September 2002 the Court of Appeal further prolonged the detention pointing to the fact that the investigation was in its final stages. 9.     On 21 December 2002 the applicant was indicted before the Opole District Court. The bill of indictment was directed against twenty ‑ two   co ‑ accused. The charges against the applicant included leading an organised criminal group, leading participation in several robberies and illegal possessing of firearms. 10.     On 30 December 2002, the trial court prolonged the applicant’s detention relying on the strong probability that the applicant and 13   co ‑ accused had committed the offences with which he had been charged and on the severity of the sentence that could be imposed. The court further submitted that only detention would secure the applicant’s appearance at the trial. 11.     On 14 May 2003 the Regional Court made an application under Article   263 §   4 of the Code of Criminal Procedure ( Kodeks postępowania karnego ) to the Wroclaw Court of Appeal ( Sąd Apelacyjny ) asking that the applicant’s detention be prolonged beyond the statutory time-limit of two   years. 12.     On 21 May 2003 the Wrocław Court of Appeal granted that application and prolonged the detention of the applicant until 27   November 2003. The Court justified its decision with reference to the reasonable suspicion that he had committed the offences and the complexity of the case which concerned an organised criminal group and involved several co ‑ accused. 13.     At the hearing held by the Opole Regional Court on 22   October 2003 the applicant’s application for release was dismissed. 14.     On 26 November 2003 the Court of Appeal, upon another application under Article 263 § 4 of the Code of Criminal Procedure, prolonged the applicant’s detention until 22 January 2004. It reiterated the grounds previously given for keeping him in custody. The court also considered that, given the severity of the penalty that might be expected, the applicant might obstruct the proceedings. 15.     That decision was upheld on appeal on 13 January 2004. 16.     On 16 January 2004 the Wroclaw Court of Appeal prolonged the applicant’s detention upon the Regional Court’s application. The court stressed that, due to the complex nature of the case, the applicant should be kept in custody since the grounds previously given for his detention were still valid. 17.     On 8 April 2004 the Regional Court made yet another application asking the Court of Appeal to prolong the applicant’s detention. On 16   April 2004 the court granted the application while noting the prolonged application of preliminary detention with respect to the applicant. 18.     At the hearing held on 2 June 2004 the trial court further prolonged the detention of the applicant and other accused. The court acknowledged that the period of the applicant’s detention had been long. However, it was justified by the importance of the case and the severity of the possible penalty. Moreover, the court did not see any circumstances which argued in favour of applying a different preventive measure. 19.     The applicant’s numerous applications for release and his appeals against the decisions prolonging detention were to no avail. 20.     In total, the trial court held 43 hearings during which it heard 86   witnesses and the depositions of 130 other witnesses were read at the hearings. On 21 July 2004 the Opole Regional Court gave judgment. The applicant was convicted as charged and sentenced to twelve years’ imprisonment. 21.     On 19 April 2005 the Wroclaw Court of Appeal partly dismissed the applicant’s appeal and lowered the sentence against him to eleven years’ imprisonment. 22.     It appears that the Court of Appeal appointed for the applicant a legal-aid lawyer with the purpose of lodging on his behalf a cassation appeal. However, it is not clear whether a cassation appeal had actually been lodged. II.     RELEVANT DOMESTIC LAW 23.     The Code of Criminal Procedure of 1997, which entered into force on 1   September 1998, defines detention on remand as one of the so ‑ called “preventive measures” ( środki zapobiegawcze ). The other measures are bail ( poręczenie majątkowe ), police supervision ( dozór policji ), guarantee by a responsible person ( poręczenie osoby godnej zaufania ), guarantee by a social entity ( poręczenie społeczne ), temporary ban on engaging in a given activity ( zawieszenie oskarżonego w określonej działalności ) and prohibition to leave the country ( zakaz opuszczania kraju ). Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads: “Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused’s committing another, serious offence; they may be imposed only if evidence gathered shows a significant probability that an accused has committed an offence.” 24.     Article 258 lists grounds for detention on remand. It provides, in so far as relevant: “1.     Detention on remand may be imposed if: (1)     there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland]; (2)     there is a justified fear that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means; 2.     If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8   years’ imprisonment, or if a court of first instance has sentenced him to at least 3   years’ imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.” 25.     The Code sets out the margin of discretion as to the continuation of a specific preventive measure. Article 257 reads, in so far as relevant: “1.     Detention on remand shall not be imposed if another preventive measure is sufficient.” Article 259, in its relevant part, reads: “1.     If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would: (1)     seriously jeopardise his life or health; or (2)     entail excessively harsh consequences for the accused or his family.” 26.     The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue. Article 263 sets out time-limits for detention. In the version applicable up to 20   July 2000 it provided: “1.     Imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months. 2.     If, due to the particular circumstances of the case, an investigation camnot be terminated within the term referred to in paragraph 1, the court of first instance competent to deal with the case may – if need be and on the application made by the [relevant] prosecutor – prolong detention for a period [or periods] which as a whole may not exceed 12 months. 3.     The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed 2 years. 4.     Only the Supreme Court may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, a prolonged psychiatric observation of the accused, a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad, when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.” On 20 July 2000 paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs   2 and 3 has been vested with the court of appeal within whose jurisdiction the offence in question has been committed. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 27.     The applicant complained that he was arbitrarily deprived of his liberty contrary to Article 5 §§ 1 and 2 of the Convention. 28.     However, pursuant to Article 35 § 1 of the Convention: “1.     The Court may only deal with the matter ... within a period of six months from the date on which the final decision was taken...” 29.     The Court notes that the decision about which the applicant complains was given on 21 June 2001, thus more than six months before the date on which this complaint was submitted to the Court. 30.     It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article   35 §§   1 and   4 of the Convention. II.     ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 31.     The applicant complained that the length of his detention on remand had been unreasonable. He relied on Article 5 § 3 of the Convention, which 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.” 32.     The Government contested that argument. A.     Admissibility 33.     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.     Arguments before the Court 34.     The applicant generally submitted that he had been kept in the detention for an unjustified period of time. 35.     The Government considered that the applicant’s pre-trial detention satisfied the requirements of Article 5 § 3. It was justified by “relevant” and “sufficient” grounds. These grounds were, in particular, the gravity of charges against the applicant as well as the risk that he might obstruct the course of the proceedings. The latter was particularly justified as the applicant had been charged with leadership of a large and dangerous organised criminal group. 2.     The Court’s assessment (a)     Principles established under the Court’s case-law 36.     Under the Court’s case-law, the issue of whether a period of detention is reasonable cannot be assessed in abstracto . Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see, among other authorities, W. v. Switzerland , judgment of 26 January 1993, Series   A no.   254 ‑ A, p. 15, §   30, and Kudła v. Poland [GC], no. 30210/96, §   110, ECHR   2000 ‑ XI). 37.     It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions dismissing the applications for release. It is essentially on the basis of the reasons given in these decisions and of the true facts mentioned by the applicant in his appeals, that the Court is called upon to decide whether or not there has been a violation of Article   5 §   3 of the Convention. 38.     The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita v. Italy [GC], no.   26772/95, §   153, ECHR 2000 ‑ IV, and Jablonski v. Poland , no. 33492/96, §   80, 21   December 2000). (b)     Application of the principles to the circumstances of the present case 39.     The Court first notes that the applicant was arrested on 19 June 2001 and that the first-instance judgment against him was given on 21   July 2004. Consequently, the period to be taken into consideration lasted 3   years, 1   month and 3 days. 40.     The Court observes that the authorities initially relied on the existence of a reasonable suspicion that the applicant had committed the offences with which he had been charged and on the risk that he might interfere with the conduct of the proceedings since he had been accused of being a leader of an organised criminal group. In addition to that, the authorities heavily relied on the severity of the sentence that could be expected and on the complexity of the case. 41.     The Court accepts that the suspicion against the applicant of having committed the offences might initially have justified his detention, in particular, in the light of the fact that the applicant was subsequently sentenced to eleven years’ imprisonment. 42.     In addition, the judicial authorities appeared to presume the risk of pressure being applied to witnesses or obstruction of the proceedings based on the severity of the penalty that could be expected, given the serious nature of the offences at issue (see paragraphs 7 and   14 above). In this respect, the Court reiterates that the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or re-offending ( Górski v.   Poland , no.   28904/02, § 57, 4 October 2005). The Court also acknowledges that in view of the seriousness of the accusations against the applicant the authorities could justifiably consider in an initial stage that such a risk was established. However, the Court has repeatedly held that the gravity of the charges cannot by itself serve to justify long periods of detention on remand (see Ilijkov v. Bulgaria , no.   33977/96, §§ 80-81, 26   July 2001). 43.     Furthermore, the judicial authorities relied on the fact that the applicant had been charged with being the leader of an organised criminal group. In this regard, the Court reiterates that the existence of a general risk flowing from the organised nature of the alleged criminal activities of the applicant may be accepted as the basis for his detention at the initial stages of the proceedings (see, Górski v. Poland , no. 28904/02, §   58, 4   October 2005) and in some circumstances also for subsequent prolongations of the detention (see, Celejewski v Poland , no. 17584/04, § 37, 4 May 2006; Dudek v Poland , no. 633/03, § 36, 4 May 2006). It is also accepted that in such cases, involving numerous accused, the process of gathering and hearing evidence is often a difficult task. In these circumstances, the Court considers that the need to obtain voluminous evidence from many sources and to determine the facts and degree of alleged responsibility of each of the co-defendants, constituted relevant and sufficient grounds for the applicant’s detention during the period necessary to terminate the investigation, to draw up the bill of indictment and to hear evidence from the accused. Moreover, the Court considers that in cases such as the present 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 by the nature of things often particularly high. 44.     While all the factors considered above could justify a relatively longer period of detention on remand, they do not, however, give the authorities unlimited power to prolong this preventive measure. Firstly, with the passage of time, the initial grounds for pre-trial detention became less and less relevant and the domestic courts should rely on other “relevant” and “sufficient” grounds to justify the deprivation of liberty (see, among many other authorities, I.A. v. France , judgment of 23   September 1998, Reports of Judgments and Decisions 1998-VII, p.   2979, §   102; Labita v. Italy [GC], cited above, §   153). Secondly, even if the particular circumstances of the case required detention on remand to be extended beyond the period generally accepted under the Court’s case-law, particularly strong reasons would be needed to justify this. 45.     In these circumstances, even taking into account the particular difficulty in dealing with a case concerning organised criminal group, the Court concludes that the grounds given by the domestic authorities were not “relevant” and “sufficient” to justify holding the applicant in detention for 3   years, 1 month and 3 days. There has therefore been a violation of Article 5 § 3 of the Convention. III.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 46.     The applicant complained that he did not have a “fair trial” and that he was innocent. He relied on Article 6 of the Convention, which is so far as relevant provides as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” 47.     The Court firstly notes that it is not clear whether the applicant lodged a cassation appeal against the judgment of 19 April 2005. However, even assuming that the applicant exhausted domestic remedies, it reiterates that it is not called upon to deal with errors of fact and law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, §   28   , ECHR 1999 ‑ I). 48.     The Court finds no elements which would indicate that the national courts went beyond their discretion as to the assessment of evidence presented in the course of the proceedings complained of. Nor does it consider that the unfavourable outcome of the proceedings had in itself any bearing on the applicant’s right to a fair trial. Assessing the proceedings complained of as a whole, the Court finds no indication that they were unfairly conducted. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. IV.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 49.     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 50.     The applicant claimed 350,000 Polish zlotys (PLN) in respect of pecuniary and PLN 5,000,000 in respect of non-pecuniary damage. Moreover, he claimed PLN 500,000 for non-pecuniary damage suffered by his daughter, two sisters and parents. In addition he asked to be granted monthly pension in the amount of PLN 7,000. 51.     The Government submitted that these claims were exorbitant and irrelevant for the applicant’s complaints under the Convention. 52.     The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. The Court also considers that in the particular circumstances of the case, the finding of a violation constitutes in itself a sufficient just satisfaction for any non-pecuniary damage, which could have been sustained by the applicant. B.     Costs and expenses 53.     The applicant also claimed PLN 15,268 for the costs and expenses incurred before both the domestic courts and before the Court. 54.     The Government submitted that the claims were excessive. 55.     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. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award to the applicant, who was unrepresented, the sum of EUR   100 covering costs and expenses for the proceedings before the Court. C.     Default interest 56.     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 complaint concerning the unreasonable length of the pre-trial detention admissible and the remainder of the application inadmissible;   2.     Holds that there has been a violation of Article 5 § 3 of the Convention;   3.     Holds that the finding of a violation constitutes in itself sufficient just satisfaction for non-pecuniary damage;   4.     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 100 (one hundred euros) in respect of costs and expenses, 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;   5.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 20 June 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   T.L. Early   Nicolas Bratza   Registrar   President