CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 9 novembre 2010

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display:inline-block } .s3EED6C7D { width:199.31pt; display:inline-block } .s576DFC5F { width:15.93pt; display:inline-block } .sAA5C5B93 { width:187.63pt; display:inline-block }       FOURTH SECTION             CASE OF GRZEGORZ BARANOWSKI v. POLAND   (Application no. 40153/09)                       JUDGMENT       STRASBOURG   9 November 2010       This judgment is final but it may be subject to editorial revision. In the case of Grzegorz Baranowski v. Poland, The European Court of Human Rights (Fourth Section), sitting as a   Committee composed of:   Ján Šikuta, President,   Lech Garlicki,   Vincent Anthony de Gaetano, judges, and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 18 October 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 40153/09) 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 Grzegorz Baranowski (“the   applicant”), on 9 June 2009. 2.     The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 3.     The applicant alleged, in particular, that his detention on remand exceeded a “reasonable time” within the meaning of Article 5 § 3 of the Convention . 4.     On 23 November 2009 President of the Fourth Section of the Court 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 5.     The applicant was born in 1960 and is currently detained in the Łódź Detention Centre. 6.     On 6 October 2005 the applicant was arrested by the police. 7.     On 7 October 2005 the Łódź District Court decided to detain the applicant on remand in view of the reasonable suspicion that he had committed various offences related to extortions, attempted murders, kidnappings and robberies while acting in an organised criminal gang. 8.     The applicant's pre-trial detention was extended on 20   December   2005 and on 21 March, 20   June, 1   August, 20   September and 20 December 2006. The courts relied on the severity of the possible sentence, which created a risk of the applicant's going into hiding or interfering with the proper course of the proceedings, and the necessity of gathering evidence in this particularly complex case. The court relied heavily on the complexity of the proceedings which involved many co ‑ accused who had allegedly participated in an organised, armed gang. 9.     On 25 April and 27 June 2007 the Łódź Court of Appeal further extended the pre-trial detention of the applicant and other co-accused. In the meantime additional charges were brought against the applicant. 10.     On 6 September 2007 the applicant and 20 other co ‑ accused were indicted before the Łódź Regional Court. 11.     Subsequently, the Łódź Regional Court began the trial. The first hearing was held on 8 April 2008. The applicant's detention was subsequently extended on 11   and 19   September 2007, 11 June and on 17   December 2008 and 23 May 2008. 12.     The applicant's pre-trial detention was extended by the Łódź Court of Appeal on 17 December 2008. The court referred to the complexity of the case and stressed that only the application of isolative measure could prevent the applicant from interfering with the course of the proceedings. 13.     On 22 April, 23 September and 22 December 2009 the applicant's detention was again extended. The court referred to the reasons given previously. 14.     The applicant unsuccessfully complained against some of the decisions extending his pre-trial detention. 15.     Between 4 January 2008 and 23 September 2009 the applicant was serving a prison sentence imposed in another set of criminal proceedings against him. 16.     The applicant did not complain about the unreasonable length of the proceedings under the Law of 17   June 2004 on complaints about a breach of the right to a trial within a reasonable time ( Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez   nieuzasadnionej zwłoki – “the 2004 Act”). 17.     The applicant remains in detention and the proceedings are pending before the first-instance court. II.     RELEVANT DOMESTIC LAW AND PRACTICE A .     Preventive measures, including pre-trial detention 18.     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 19.     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 20.     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.” 21.     The Government contested that argument. A.     Admissibility 22.     The Government argued as a preliminary objection that the applicant had failed to exhaust the remedies provided for by Polish law as regards his complaint under Article 5 § 3 of the Convention in that he did not appeal against the decisions extending his detention. 23.     The applicant disagreed with the Government's submissions. 24.     The Court reiterates that it is well established in its case-law that an applicant must make normal use of those domestic remedies which are likely to be effective and sufficient. When a remedy has been attempted, use of another remedy which has essentially the same objective is not required (see Yaşa v. Turkey judgment of 2 September 1998, Reports of Judgments and Decisions 1998-VI, § 71). 25.     In the present case the applicant lodged requests for the detention order to be lifted or for a more lenient preventive measure to be imposed. He further lodged appeals against some of the decisions extending his detention. The Court considers that the purpose of the remedies used by the applicant was to obtain a review of his detention pending trial. In the circumstances of the case, these remedies constituted adequate and effective remedies within the meaning of Article 35 of the Convention as their aim was to obtain his release (see Duda v. Poland , no.   67016/01, § 29, 19   December 2006). 26.     The Court further notes that the arguments raised by the Government are similar to those already examined and rejected in previous cases against Poland (see Feliński v. Poland , no. 31116/03, § 40, 7 July 2009) and that the Government have not referred to any new circumstances which would lead the Court to depart from that finding. 27.     Moreover, according to the established case-law, having exhausted the available remedy, the applicant was not required to embark on another attempt to obtain redress by bringing a constitutional complaint (see, for example, Cichla v.   Poland no.   18036/03, §   26, 10   October 2006). 28.     It follows that this complaint cannot be rejected for non-exhaustion of domestic remedies. The Court further notes that it is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     Period to be taken into consideration 29.     The applicant's detention started on 6 October 2005, when he was arrested on suspicion of having committed various offences and is still pending. 30.     However, between 4 January 2008 and 23 September 2009 the applicant served a prison sentence which had been imposed on him in other set of criminal proceedings. This term, as being covered by Article 5 § 1 (a), must therefore be subtracted from the period of the applicant's pre-trial detention for the purposes of Article   5   §   3. Accordingly, the period to be taken into consideration amounts to already more than three years and three months. 2.     The parties' submissions (a)     The applicant 31.     The applicant disagreed with the Government's submissions and argued that the length of the detention applied in his case had been excessive. (b)     The Government 32.     The Government submitted that the complexity of the case had been an exceptional circumstance that contributed to the length of the applicant's detention. The applicant's detention was justified during the whole period. In view of the severity of charges and the risk of the applicant's obstructing the proceedings only pre-trial detention constituted an effective preventive measure which could have secured the proper conduct of the proceedings. 33.     In addition, the applicant's detention was subject to regular supervision of the courts and on each occasion the decisions concerning the applicant's detention were sufficiently reasoned. 3.     The Court's assessment (a)     General principles 34.     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 35.     In their detention decisions, the authorities, in addition to the reasonable suspicion against the applicant, relied principally on two grounds, namely (1) the serious nature of the offences with which he had been charged, (2) the need to secure the proper conduct of the proceedings and the risk that the applicant might tamper with evidence. As regards the latter, they did not, however, specify any concrete grounds justifying their opinion. 36.     The applicant was charged with numerous counts of kidnapping armed robbery and extortion committed in an organised criminal group (see   paragraph 7 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).] 37.     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. 38.     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. 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). 39.     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 applicant has already spent in pre-trial detention three years and three months. 40.     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. 41.     There has accordingly been a violation of Article 5 § 3 of the Convention. II.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 42.     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...” 43.     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 41 OF THE CONVENTION 44.     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 45.     The applicant claimed 25,000 euros (EUR) in respect of non ‑ pecuniary damage. 46.     The Government contested this claim. 47.     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 48.     The applicant submitted no claim for costs and expenses. C.     Default interest 49.     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 under Article 5 § 3 of the Convention 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 (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 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;   4     Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 9 November 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Fatoş Aracı   Ján Šikuta   Deputy Registrar   President