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FOURTH
SECTION
CASE OF BOGDANOWICZ v. POLAND
(Application
no. 38872/03)
JUDGMENT
STRASBOURG
16
January 2007
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 Bogdanowicz v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr G. Bonello,
Mr K. Traja,
Mr S.
Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović, judges,
and
Mr T.L. Early, Section Registrar,
Having
deliberated in private on 12 December 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 38872/03) 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 Mr. J. Bogdanowicz (“the applicant”). The applicant
was represented by Mr. K. Woliński, a lawyer practising in
Gdańsk.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr. J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
26 September 2005 the
Court decided to give notice of the application to the Government.
Applying Article 29 § 3 of the Convention, it decided to rule on
the admissibility and merits of the application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1953 and lives in Gdynia.
The applicant’s detention for the purpose of the first set
of criminal proceedings
- On
5 September 2003 the applicant was arrested and placed in custody. He
was suspected of having committed offences of kidnapping and acting
in an organisation of a criminal character.
- On
an unknown date the Gdańsk District Court ordered that the
applicant be detained until 14 December 2003. The court based its
detention order on a reasonable suspicion that the applicant had
committed the offences and on the severity of the likely penalty,
which gave rise to a fear that the applicant would obstruct the
proceedings. The court also stressed his relapse into crime.
- Subsequent
decisions as to the extension of the applicant’s pre-trial
detention were taken on 25 November 2003, 18 December 2003,
17 February 2004, 3 June 2004, 28 September 2004, 22 December
2004 and 30 March 2005.
-
In all the above-mentioned decisions the courts mainly relied on the
same grounds for detention as those given for the making of the first
detention order. In addition, they indicated the need to conduct
further investigations and the probable collusion of the accused.
- On
many occasions the applicant unsuccessfully requested his release
from detention and, also unsuccessfully, appealed against decisions
extending his pre-trial detention.
- On
4 February 2004 a bill of indictment was filed against the applicant
and thirteen co-accused. The applicant was charged with kidnapping
and acting in an organisation of a criminal character.
- From
30 September 2004 to 4 May 2005 the applicant was serving a prison
sentence in respect of another conviction.
- On
30 June 2004 the first hearing was held before the Gdańsk
Regional Court. Hearings scheduled for 14 and 22 September 2004 were
postponed due to the necessity of replacing one of the judges.
- On
6 October 2004 a new judge was assigned to the case.
- Subsequent
hearings were held on 5 January 2005, 12 January 2005, 2 March 2005,
9 March 2005, 16 March 2005, 30 March 2005, 6 April 2005, 13 April
2005, 27 April 2005, 4 May 2005, 18 May 2005, 30 May 2005, 1 June
2005, 15 June 2005, 29 June 2005, 19 July 2005, 17 August 2005, 7
September 2005, 21 September 2005, 13 October 2005, 9 November
2005, 7 December 2005, 21 December 2005, 11 January 2006, 8 February
2006, 1 March 2006 and 29 March 2006.
- The
applicant’s pre-trial detention ended on 1 June 2005.
- The
proceedings are pending before the first-instance court.
The length of the second set of criminal proceedings and the
applicant’s pre-trial detention in their respect
- On
18 April 2002 the applicant was arrested and placed in custody.
- On
19 April 2002 the Gdańsk District Court ordered that the
applicant be detained for three months on suspicion of having
committed armed robbery and having acted in an organisation of a
criminal character. The court based its detention order on a
reasonable suspicion that the applicant had committed the offences
and on the severity of the likely penalty, which gave rise to a fear
that the applicant would obstruct the proceedings.
- From
18 April 2002 to 28 August 2003 the applicant was serving a prison
sentence in respect of another conviction.
- The
applicant’s detention was extended on the following dates:
9 July 2002, 12 September 2002, 23 May 2003, 25 July 2003, 28
November 2003, 23 March 2004, 7 April 2004 and 22 June 2004.
- In
all the above-mentioned decisions the courts mainly relied on the
same grounds for detention as those given for the making of the first
detention order. In some of the decisions, the courts also indicated
the need to conduct further investigations.
- On
12 December 2002 a bill of indictment was filed against the applicant
and eighteen co-accused. The applicant was charged with armed robbery
and acting in an organisation of a criminal character.
- The
first hearing, scheduled for 25 April 2005, was cancelled due to a
judge’s illness.
- Subsequent
hearings were held on 16 May 2003, 23 May 2003, 13 June 2003, 24
June 2003, 27 June 2003, 1 December 2003, 19 December 2003, 29
December 2003. In January and February 2004 altogether five hearings
were held. Hearings scheduled for 18 March 2004 and 1 April 2004 were
cancelled due to a judge’s illness. Subsequently, hearings were
held on 21 May 2004, 28 May 2004, 18 June 2004, 23 July 2004,
17 September 2004, 22 October 2004, 19 November 2004, 28 January
2005, 25 February 2005, 25 March 2005, 15 April 2005 and 22 April
2005.
- On
30 September 2004 the applicant was released from detention.
- On
14 December 2004 the applicant’s complaint lodged under the Law
of 17 June 2004 on complaints about a breach of the right to a trial
within a reasonable time was rejected on formal grounds.
- On
29 April 2005 the Gdańsk Regional Court convicted the applicant
of the offences and sentenced him to three years’ imprisonment.
On 13 February 2006 the applicant appealed.
- The
proceedings are pending before the Gdańsk Court of Appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Length of pre-trial detention
- For
a description of the relevant domestic law, see Kozik v. Poland,
no. 25501/02, judgment of 18 July 2006.
B. Length of proceedings
- On
17 September 2004 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)
entered into force (“the 2004 Act”). It lays down various
legal means designed to counteract and/or redress the undue length of
judicial proceedings. A party to pending proceedings may ask for the
acceleration of those proceedings and/or just satisfaction for their
unreasonable length under section 2 read in conjunction with section
5(1) of the 2004 Act.
- On
18 January 2005 the Supreme Court (Sąd Najwyższy)
adopted a resolution (no. III SPP 113/04) in which it ruled that
while the 2004 Act produced legal effects as from the date of its
entry into force (17 September 2004), its provisions applied
retroactively to all proceedings in which delays had occurred before
that date, but only when they had not yet been remedied.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the length of his pre-trial detention was
in breach of Article 5 § 3, which provides:
“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.”
A. Admissibility
33. The Government acknowledged that the applicant had exhausted
domestic remedies in respect of both sets of proceedings.
- 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
- The
Government conceded that the applicant’s pre-trial detention
lasted from 5 September 2003 to 1 June 2005, which amounts to one
year, eight months and twenty-six days (in respect of the first set
of proceedings), and from 18 April 2002 to 30 September 2004, which
amounts to over two years, five months and fourteen days (in respect
of the second set of proceedings). However, the period of his
pre-trial detention in respect of those two sets of proceedings
overlapped between 5 September 2003 and 30 September 2004.
- The
Government stressed that from 30 September 2004 to 4 May 2005 (in
respect of the first set of proceedings) and from 18 April 2002 to 28
August 2003 (in respect of the second set of proceedings) the
applicant was serving prison sentences as a result of other
convictions. Accordingly, after the deduction of these periods, the
applicant was detained for the purpose of the first set of
proceedings for one year and twenty-six days and for the purpose of
the second set of proceedings for one year, one month and four days.
As the periods of the applicant’s pre-trial detention
overlapped, the Government concluded that the applicant had been
deprived of his liberty in respect of both sets of proceedings from
28 August 2003 to 30 September 2004, which amounted to one year, one
month and two days.
- The
Government were of the opinion that the whole period of the
applicant’s detention had been justified. The evidence obtained
in the proceedings indicated that there was a reasonable suspicion
that the applicant had committed the offences.
- The
Government drew the Court’s attention to the serious nature of
the charges against the applicant, in particular that he had been
charged with acting in an organisation of a criminal character. They
also underlined that the applicant had relapsed into crime.
- The
Government also argued that the applicant’s detention had been
aimed at securing the proper conduct of the investigation, as there
had been a risk that he would obstruct the proceedings and influence
witnesses and other co-accused.
- With
regard to the review of the applicant’s detention, the
Government pointed out that the applicant’s detention had been
reviewed at regular intervals. On each occasion the decisions had
been reasoned in a relevant and sufficient manner.
- With
regard to the proceedings on the merits, the Government maintained
that these had been very complex (there had been thirteen co accused
in the first set of proceedings and eighteen in the second). The case
files had amounted to thirty and ninety volumes, respectively.
- The
Government further stressed that the investigative phase of the
proceedings had been conducted speedily. They further noted that
hearings had been held at regular and brief intervals.
- The
applicant stated that he did not wish to present observations in
reply.
1. Principles established under the Court’s
case-law
- 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, the W.
v. Switzerland judgment of 26 January 1993, Series A
no. 254-A, p. 15, § 30).
- 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
established facts stated 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 (see
the Contrada v. Italy judgment of 24 August 1998, Reports
1998-V, p. 2185, § 54; Mc Kay v. the United Kingdom [GC],
no. 543/03, § 43, ECHR 2006 ...).
- The
persistence of a 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, ECHR 2000 IV,
§ 153).
2. Application of those principles to the circumstances
of the present case
- At
the outset, the Court notes that the applicant’s pre-trial
detention was not of a very significant length. It agrees with the
Government’s view (see paragraphs 35 to 36 above) that the
period to be taken into consideration lasted one year and one month.
- The
Court notes that pre-trial detention was imposed on the applicant in
view of a reasonable suspicion that he had committed the offences,
the severity of the likely penalty and the risk of the applicant’s
hampering the proper conduct of the proceedings.
- The
applicant’s detention was subsequently reviewed by the courts
at regular intervals. In their decisions extending the detention the
domestic authorities relied on the need to conduct further
investigations, the reasonable suspicion that the applicant had
committed the offences and the risk that he would obstruct the proper
course of justice by influencing witnesses and other accused.
- The
Court therefore considers that, in the particular circumstances of
the instant case, the grounds given by the judicial authorities for
the applicant’s detention satisfied the requirement of being
“relevant” and “sufficient”.
- The
Court accepts the Government’s opinion that the case was very
complex, regard being had to the nature of the charges against the
accused and the scope of the evidence to be taken.
- The
Court also notes that hearings were held regularly and at short
intervals, notwithstanding the fact that some of them had to be
postponed, and the investigative phase of the proceedings was
conducted speedily.
- For
these reasons, it considers that the domestic authorities cannot be
criticised for a failure to observe “special diligence”
in the handling of the applicant’s case.
- Furthermore,
the Court notes that during a significant period of the applicant’s
pre-trial detention, he was serving prison sentences in respect of
other convictions and that periods of his pre-trial detention imposed
in two sets of proceedings overlapped.
- Finally,
the Court observes that the overall period of detention was not
unreasonable in the circumstances of the case.
- In
view of the above considerations, the Court considers that the
applicant’s prolonged detention was not in breach of the
“reasonable time” requirement of Article 5 § 3 of
the Convention.
- There
has, accordingly, been no violation of Article 5 § 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant’s complaint relates to the length of the proceedings,
which began on 18 April 2002 and are still pending. Therefore, they
have lasted four years and seven months so far before two instances.
- According
to the applicant, the length of the proceedings was in breach of the
“reasonable time” requirement laid down in Article 6 §
1 of the Convention.
- The
Government noted that the applicant had not exhausted domestic
remedies, as his complaint under the 2004 Act had been rejected on
formal grounds.
- The
applicant stated that he did not wish to present observations in
reply.
- The
Court’s accepts the Government’s view and considers that
the applicant did not exhaust domestic remedies within the meaning of
Article 35 § 1 of the Convention, having regard to the
effectiveness of the remedy under the 2004 Act in the circumstances
of cases such as the applicant’s (see, Charzyński v.
Poland (dec.), no. 15212/03, ECHR 2005).
This
complaint must therefore be declared inadmissible according to
Article 35 § 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the length of
the applicant’s pre-trial detention admissible and the
remainder of the application inadmissible;
- Holds that there has been no violation of
Article 5 § 3 of the Convention.
Done in English, and notified in writing on 16 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
