CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 21 avril 2020

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s58699FB5 { margin-top:14pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .s6983F43D { margin-top:14pt; margin-left:27.6pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; padding-left:1.6pt; font-family:Arial; font-size:11pt; font-weight:bold } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s21B1FE17 { width:12.67pt; display:inline-block } .s2753FA3F { width:163.53pt; display:inline-block } .s64406319 { width:11.68pt; display:inline-block }     FIRST SECTION DECISION Applications nos. 28085/16 and 63687/16 Paweł ANDRUSZKIEWICZ against Poland and Sławomir FLUDERSKI against Poland The European Court of Human Rights (First Section), sitting on 21   April   2020 as a Committee composed of:   Tim Eicke, President,   Jovan Ilievski,   Raffaele Sabato, judges, and Renata Degener, Deputy Section Registrar, Having regard to the above applications lodged on 9 May 2016 and 25   October 2016, respectively, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows: THE FACTS 1.     The first applicant, Mr Paweł Andruszkiewicz, is a Polish national who was born in 1976 and lives in Piła. The second applicant, Mr   Sławomir   Fluderski, is a Polish national who was born in 1974 and is currently detained in Poznań Remand Centre. 2.     The Polish Government (“the Government”) were represented by their Agent, Ms A. Mężykowska, and subsequently by Mr J. Sobczak of the Ministry of Foreign Affairs. 3.     The facts of the cases, as submitted by the parties, may be summarised as follows. The circumstances of the cases 4.     On 8 June 2013 the applicants were arrested by the police on suspicion of taking part in the organised illegal drug trade between the Netherlands and Poland (cases nos. 1 Ds. 183/13 and V   Ds. 73/13). On 10   June 2013 the Piła District Court ( Sąd Rejonowy ) detained them on remand (cases nos II Kp 297/13 and II Kp 298/13, respectively). 5.     The applicants’ pre-trial detention was extended by the Poznań Regional Court ( Sąd Okręgowy ) on 3   September and 2 December 2013, and on 3 March 2014. 6.     On 19 May 2014 the Poznań Regional Prosecutor lodged a bill of indictment against the applicants and their five co-defendants with the Poznań Regional Court (case no. III   K 113/14). 7.     The first applicant was accused of five offences, namely membership of an organised criminal gang, trafficking in marijuana and amphetamines, illegal possession of equipment for the manufacturing of drugs, participation in the drug trade and purchase of drugs in Poland and in the Netherlands with the aim of reselling them. 8.     The second applicant was accused of four offences, namely membership of an organised criminal gang, trafficking in marijuana and amphetamines, possession of cocaine and importing drugs from the Netherlands as a repeat offender. 9.     At that stage, the case-file comprised sixteen volumes and twenty-three witnesses were called to testify. By the later stages of the proceedings, the case file contained thirty volumes. 10.     The applicants’ detention was subsequently extended by the Poznań Regional Court and the Poznań Court of Appeal ( Sąd Apelacyjny ) on several occasions (on 26 May, 25 August and 24 November 2014, and on 23   February, 2 June and 2 and 22 December 2015). 11.     The domestic courts relied on the following grounds to justify the applicants’ detention. 12.     There was a   reasonable suspicion that the applicants had committed the offences in question because a large quantity of drugs and various equipment used for drugs production had been found in the first applicant’s workshop, and because both applicants had been arrested while producing drugs in the workshop (for example, decisions of 9 January 2014 and 2   December 2015). Moreover, police surveillance prior to the arrest and telephone records had revealed that the applicants and their co-suspects had communicated extensively with each other, using various telephones, and that the second applicant had travelled to the Netherlands (decisions of 3   September 2013 in respect of each applicant). At the later stages, reasonable suspicion was, in the courts’ view, strengthened by the incriminating testimony of some of the co-accused and witnesses (for   example, decisions of 26 May, 25 August and 24 November 2014 and, in respect of the first applicant, also decisions of 30 December 2014 and 8   April 2015). 13.     There was a reasonable risk that the applicants would obstruct the proceedings by trying to tamper with evidence, induce witnesses to give false testimony or to communicate with co-suspects in order to set up a common line of defence. 14.     In the courts’ view, that risk firstly stemmed from the statutory presumption that anyone who, like the applicants, faced a severe penalty would be likely to undertake actions to obstruct the proceedings (for   example, decisions of 5 July 2013 and 3 September 2013; and in respect of the second applicant, also a decision of 9 January 2014). The imposition of such a penalty in the event of the applicants’ conviction was very likely because both applicants had already been criminally convicted - the first applicant three times, and the second applicant eleven times (for example, decisions of 25 August and 24 November 2014, and 2 and 22   December 2015; in respect of the first applicant, also decisions of 8 April and 9 July 2015; in respect of the second applicant, also a decision of 21   June 2013). 15.     Secondly, the courts stated that the risk in question was also derived from the organised nature of the offences in question (for example, the decision of 2 December 2015). To that end, reference was made to the hierarchical relations between gang members and their extensive organisational capacities, which made it easy to coerce witnesses (decisions of 24   June 2014; in respect of the first applicant, decisions of 8 April and 9   July 2015; in respect of the second applicant, a decision of 9 January 2014). 16.     At the early stage of the proceedings, the courts also took note of the fact that the applicants’ alleged suppliers and buyers had not been identified (decisions of 3 September 2013). 17.     At a later stage (decision of 26 May 2014), the courts observed that three co-defendants had remained at liberty and the applicants, who knew of their whereabouts, were likely to pressure them to give false testimony (decisions of 26 May and 25 August 2014). Moreover, until late 2014, only the first applicant had been heard by the trial court (decision of 24   November 2014). 18.     It was also noted that the risk of obstruction of the proceedings existed not only in respect of the evidence which had yet to be produced but also that which had already been obtained (decision 24 June 2014). 19.     Thirdly, the courts considered that the first applicant was likely to put pressure on the witnesses who were still to be heard, in the light of his statements and attitude during his questioning (for example, decision of 5   July 2013). In respect of both applicants, that risk was also based on the statements made by one of the witnesses that he and his life-partner had received threats from the applicants (decision of 2 December 2015). 20.     During the investigation phase, the courts also enumerated a number of activities which still had to be carried out to complete the materials in the case-file, and concluded that the preventive measure was necessary to secure the proper course of the proceedings (decisions of 3 September 2013 and of 3 March 2014). The courts also observed that the proceedings were complex and multi-layered (for example, decisions of 2 June 2015 and, in respect of the first applicant, a decision of 9 July 2015). At an early stage, they instructed the prosecutor to lodge an indictment without undue delay (decisions of 3 September 2013). 21.     Later in the trial, the courts observed that new developments in the proceedings had made it necessary to obtain additional evidence and that the collection of that evidence had to be secured. It was thus considered that the applicants needed to remain detained in order not to interfere with that process (decision of 2 June 2015). 22.     It was also stressed that the authorities had been acting with utmost diligence but they had had to deal with many co-defendants and to obtain voluminous evidence from many witnesses (for example, decisions of 2   and 22   December 2015). The Poznań Court of Appeal   gave the trial court directions as to how to discipline witnesses who had not complied with their summons, in particular by envisaging their forced appearance before the court in addition to the fines which had earlier been imposed on them to no avail (decision of 22 December 2015; see paragraph 10 above). 23.     The applicants’ respective appeals against the decisions extending their detention and numerous requests for release were dismissed. In particular, the courts considered that detention on remand was the only adequate preventive measure in the circumstances of the case and that the bail proposed by the second applicant’s lawyer would not guarantee the undisturbed course of the proceedings (decision of 24 June 2014). 24.     The applicants were released on 7   March 2016. In respect of the second applicant, the domestic court considered specifically that there was no reason to continue his detention on remand, as the criminal proceedings had come to an end and all witnesses had been heard. Therefore, there was no risk that the second applicant would obstruct the proceedings. 25.     The Government submitted that, in parallel to the detention on remand described above, namely from 3 to 5 November 2014 and from 20   July until 18 October 2015, the second applicant had been serving two prison sentences imposed in separate criminal proceedings (nos. II K 67/13 and II W 430/13). The second applicant did not make any comments in this respect. Relevant domestic law and practice 26.     The relevant domestic law and practice concerning the imposition of detention on remand ( aresztowanie tymczasowe ), the grounds for its extension, release from detention and rules governing other, so‑called “preventive measures” ( środki zapobiegawcze ) are set out 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. COMPLAINT 27.     The applicants complained under Article 5 § 3 of the Convention of the excessive length of their detention on remand. THE LAW 28.     Given that the applicants were detained on remand for the purpose of the same criminal proceedings, and having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision. 29.     The applicants complained that the length of their detention on remand had been excessive. They relied on Article 5 § 3 of the Convention, which reads, in so far as relevant: “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.” Period to be taken into consideration 30.     The first applicant’s detention lasted from 8 June 2013 until 7 March 2016 (see paragraphs 4 and 24 above). Accordingly, the period to be taken into consideration amounts to 2 years, 8 months and 29 days. 31.     The second applicant, like the first applicant, was arrested on 8   June 2013 and released on 7 March 2016 (see paragraphs 4 and 24 above) but during that time he was also serving two prison sentences (see paragraph 25   above). It follows that the second applicant’s detention within the meaning of Article   5 § 1 (c) lasted from 8 June 2013 until 2   November   2014, then from 6   November 2014 until 19 July 2015, and then again from 19 October 2015 until 7 March 2016. Accordingly, the period to be taken into consideration amounts to 2 years, 5 months and 26 days. The parties’ submissions 32.     The Government argued, among other things, that both applications were inadmissible as manifestly ill-founded because the applicants’ detention on remand was justified by a series of relevant and sufficient grounds and because the authorities had conducted the impugned criminal proceedings with diligence. 33.     The applicants did not comment on the Government’s observations. The Court’s assessment 34.     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, have been set out 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; McKay v. the United Kingdom [GC], no.   543/03, §§ 41-44, ECHR 2006-X, with further references; and Buzadji v.   the Republic of Moldova [GC], no. 23755/07, §§ 84-91, ECHR 2016 (extracts)). 35.     The Court observes that the judicial authorities relied on the following main grounds when deciding on the applicants’ detention on remand: the reasonable suspicion against them (see paragraph 12 above); the risk of their obstructing the proceedings (see paragraph 13 above); and the particular complexity of the case (see paragraph 20 above). 36.     The applicants were charged with a number of serious drug-related offences, including international drugs trading (see paragraphs 7 and   8 above). They were then indicted for those offences, together with a number of co ‑ accused (see paragraph 6 above). The case-file was voluminous and extensive evidence was obtained from numerous witnesses and other sources throughout the proceedings (see paragraphs 9, 20 and 21 above). 37.     The Court accepts that the reasonable suspicion that the applicants had committed serious offences could initially warrant their detention. Also, the need to obtain voluminous evidence and to determine the degree of the alleged responsibility of each of the defendants, who had allegedly acted as a criminal group and against whom numerous charges of serious offences were laid, constituted valid grounds for the applicants’ initial detention (see, mutatis mutandis , Mierzejewski v. Poland , no.   15612/13, § 38, 24 February 2015, Rambiert v. Poland , no. 34322/10, §   31, 10 March 2015; and Wrona v.   Poland , no. 29345/09, § 35, 10 March 2015). 38.     As regards the risk of obstruction of the proceedings, the judicial authorities relied on: the severity of the penalty to which the applicants were liable (see paragraph 14 above) and the fact that the applicants had been charged with being members of an organised criminal group (see   paragraph   15 above). Those two elements created, in the domestic courts’ view, presumptions that the applicants were likely to try to tamper with evidence, induce witnesses to give false testimony or to communicate with their co ‑ suspects in order to set up a common line of defence (see paragraphs 13 ‑ 15 above). 39.     The Court has repeatedly held that neither the gravity of the charges nor the severity of the anticipated sentence can by itself serve to justify long periods of detention on remand (see Michta v. Poland , no.   13425/02, § 49, 4   May 2006). 40.     However, in cases such as the present one concerning organised criminal gangs, the risk that a detainee, if released, might bring pressure to bear on witnesses or other co‑accused, or otherwise obstruct the proceedings, is by nature particularly high (see Gładczak v.   Poland , no.   14255/02, § 55, 31 May 2007). The Court has accepted that in such cases, involving numerous accused, the process of gathering and hearing evidence is often a difficult task. 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 extensions of detention (see   Celejewski v.   Poland , no. 17584/04, § 37, 4 May 2006). Accordingly, longer periods of detention than in other cases may be reasonable (see Mierzejewski , cited above, § 42; and Lejk v. Poland (dec.), no. 19445/10, §   38, 20 February 2018). 41.     In the circumstances of the present applications, the Court accepts that, in view of the seriousness of the accusations against the applicants, the authorities could justifiably have considered that such an initial risk was established. During the period necessary to terminate the investigation, draw up the bill of indictment and hear evidence from the accused and key witnesses, they could have relied on the need to secure the proper conduct of the proceedings on this ground. 42.     The Court also accepts that the investigative authorities and, later, the courts were undoubtedly faced with significant difficulties in obtaining the voluminous evidence involved and determining the facts and degree of responsibility of each member of the group and their activities in the country and abroad. In particular, it is not uncommon, as in the present case, for some time to elapse before the applicants’ alleged suppliers and buyers could be identified (see paragraph 16 above). It was also legitimate to carry out various investigative activities and to complete the collection of evidence while the applicants were in detention, even at the later stages of the proceedings (see paragraphs 20 and 21 above). In this context, the Court notes the fact that some of the applicants’ co-defendants had been at liberty (see paragraph 17 above) and that some witnesses had delayed giving their testimony (see paragraph 22 in fine above). 43.     Another important element of the present case is the courts’ reliance on the information that the applicants, or persons associated with them, had been involved in an attempt to exert pressure on a witness. Moreover, the first applicant had allegedly made statements which suggested that he would coerce witnesses who were still to be heard to give false testimony (see   paragraph 19 above). 44.     In the light of the above considerations, the Court finds that the continuous supervision and limitation of the applicants’ contact with each other and with other persons was legitimately considered essential by the authorities to prevent the applicants’ tampering with evidence and influencing witnesses. The risk of the obstruction of the proceedings, stemming from the nature of the applicants’ alleged criminal activities and from the particular elements of the case as mentioned above, were “relevant” and “sufficient” to justify holding each applicant in custody for the entire period in question (see, mutatis mutandis , Rambiert , cited above, §   36; Wrona , cited above, § 41; and Lipnicki v. Poland (dec.), no.   25875/11, §   33, 6   February 2018). 45.     It remains for the Court to ascertain whether the authorities, in dealing with the applicants’ case, displayed the diligence required under Article   5 § 3 (see McKay , cited above, § 44). The Court observes that the proceedings were of considerable complexity, regard being had to the number of defendants and the extensive evidentiary proceedings. Nevertheless, the investigation was completed in less than one year. The Court does not have any information pertaining to the subsequent phase, in particular to the frequency with which the trial court held its hearings. It is clear, however, that the trial court was faced with a complex case which had an international dimension and with unexpected developments in respect of new evidence which had to be completed at the later stages (see   paragraph   21 above) and the refusal of certain witnesses to cooperate (see paragraph   22 above). In the light of the above circumstances, the Court finds that the national authorities displayed the requisite diligence in handling the applicants’ case. 46.     It follows that these applications are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court, unanimously, Decides to join the applications; Declares inadmissible the applications. Done in English and notified in writing on 28 May 2020.   Renata Degener   Tim Eicke   Deputy Registrar   President