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FOURTH
SECTION
CASE OF NIEĆKO v. POLAND
(Application
no. 3500/04)
JUDGMENT
STRASBOURG
16 October
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 Niećko 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 S. Pavlovschi,
Mr L.
Garlicki,
Ms L. Mijović,
Mr J. Šikuta,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 25 September 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 3500/04) 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 Janusz
Niećko (“the applicant”), on 6 January 2004.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
16 September 2005 the
President of the Fourth Section decided to give notice of 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
- The
applicant was born in 1957 and lives in Łęczna.
- On
18 October 2000 the applicant was arrested on suspicion of having
committed a number of offences in an organised criminal group.
- On
20 October 2000 the Lublin District Court remanded the applicant in
custody. The applicant's detention was subsequently prolonged by the
courts on 16 January 2001, 17 March 2001, 7 August 2001, 10 October
2001 and 9 January 2002.
- On
10 April 2002 the Lublin Court of Appeal ordered that the applicant
and his 3 co-accused be kept in custody until 18 June 2002. It relied
on the reasonable suspicion that the applicant had committed the
offences with which he had been charged. The Court of Appeal also
found that there was a reasonable risk that the applicant would
obstruct the proceedings, given the serious nature of the charges and
the fact that they concerned an organised criminal group. It further
relied on the severity of the anticipated penalty and the complexity
of the case.
- On
11 June 2002 the prosecution filed with the Lublin Regional Court a
bill of indictment against the applicant. The applicant was charged,
inter alia, with acting in and leading an organised armed
criminal group, ordering murder, extortion and supplying drugs.
- On
14 June 2002 the Lublin Regional Court extended the applicant's
detention until 30 September 2002, referring to the severity of the
anticipated penalty.
- On
25 September 2002 the Lublin Court of Appeal prolonged the
applicant's detention until 3 February 2003. In addition to the
grounds invoked in the detention order of 14 June 2002, the Court of
Appeal relied on the complexity of the case and the number of
charges.
- On
29 January 2003 the Court of Appeal ordered that the applicant and
3 of his co-accused be held in custody until 30 June 2003. It
invoked the same grounds as in its earlier decision.
- On
25 June 2003 the Court of Appeal prolonged the applicant's detention
until 30 October 2003. In addition to the grounds previously invoked,
it held that the volume of evidence and the need to proceed smoothly
with the trial justified the applicant's continued detention.
- On
22 October 2003 the Court of Appeal extended the applicant's
detention until 31 January 2004. It observed that holding the
applicant in custody was the only measure which could secure the
proper conduct of the proceedings, having particular regard to the
security of anonymous witnesses who had been heard in the
proceedings. It also considered that the case was particularly
complex within the meaning of Article 263 § 4 of the Code of
Criminal Procedure.
- The
applicant's detention was subsequently prolonged by the Court of
Appeal on 30 December 2003 (until 19 March 2004) and 17 March 2004
(until 5 June 2004). The court invoked the same grounds as in its
earlier decisions.
- On
2 June 2004 the Court of Appeal prolonged the applicant's detention
until 5 September 2004. Having regard to the organised character of
the alleged criminal activities, it held that the applicant's
detention was necessary in order to prevent him and the other
co-accused from interfering with the proceedings. On 11 August 2004
the Court of Appeal ordered that the applicant be held in custody
until 5 December 2004. It relied on the same grounds as previously.
- The
trial court held about 59 hearings. On 3 December 2004 the Lublin
Regional Court delivered a judgment. It convicted the applicant of
most of the charges and acquitted him of one charge (ordering
murder). It sentenced him to seven years' imprisonment and a fine.
- The
applicant appealed against the first-instance judgment. He remained
in detention pending appeal. On 4 October 2005 the Court of Appeal
upheld the Regional Court's judgment for the most part. It remitted
the case only in respect of one charge of which the applicant had
been acquitted.
- In
the course of the proceedings the applicant filed a number of
applications for release on health grounds. However, the courts,
having regard to the relevant expert reports, refused all those
applications. He also unsuccessfully appealed against decisions
prolonging his detention on remand.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice regarding the imposition of
detention on remand (tymczasowe aresztowanie), the grounds for
its prolongation, release from detention and rules governing other,
so-called “preventive measures” (środki
zapobiegawcze) at the material time 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. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- 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.”
- The
Government, having regard to the Court's case-law concerning the
length of pre-trial detention, refrained from taking a position on
the admissibility of the complaint.
A. Admissibility
- The Court notes that the application 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. Period to be taken into consideration
- The
applicant's detention started on 18 October 2000, when he was
arrested on suspicion of having committed a number of offences in an
organised criminal group. On 3 December 2004 the Lublin Regional
Court convicted him of most of the charges. The trial court sentenced
him to seven years' imprisonment. Accordingly, the period to be taken
into consideration amounts to 4 years, 1 month and 16 days.
2. The parties' submissions
(a) The applicant
- The
applicant argued that the length of his pre-trial detention had been
unreasonable.
(b) The Government
- The
Government firstly presented some statistical data, indicating that
in the years 2000-2005 the number of indictments and convictions in
cases concerning organised crime had increased both in absolute terms
and in relation to other crimes. In 2004 there were 617 indictments
in such cases and 220 persons were convicted. They argued that in
organised crime cases the authorities were faced with particular
problems, relating to the taking and assessment of evidence and
various logistical issues.
- With
reference to the present case, the Government submitted that the
applicant's pre-trial detention had been justified by the strong
likelihood that he had committed the offences with which he had been
charged, the gravity of those offences and the severity of the
anticipated penalty. Furthermore, his detention had been warranted by
the risk that he would obstruct the proceedings, given the fact that
he had been charged with acting in and leading an organised criminal
group. In this respect, the Government referred to the fact that the
trial court had heard evidence from anonymous witnesses. They
underlined that the length of the applicant's detention should be
assessed with reference to the fact that he had been charged with
acting in and leading an organised criminal gang.
- The
Government emphasised that the case had been extremely complex on
account of the nature of the charges, the number of defendants
(eight) and the volume of evidence. In their opinion, the applicant
had significantly contributed to the prolongation of the proceedings
by his repeated applications for release on health grounds. Lastly,
they submitted that the authorities had displayed special diligence
in the conduct of the proceedings. Hearings had been held frequently
and at regular intervals. The trial court had taken measures to
discipline witnesses who had failed to comply with summonses.
3. The Court's assessment
(a) General principles
- 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 judgments (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
- In
their detention decisions, the authorities, in addition to the
reasonable suspicion against the applicant, relied principally on
three grounds, namely (1) the risk that the applicant might obstruct
the proceedings, given that he had been charged with acting in an
organised criminal group, (2) the severity of the penalty to which he
was liable, (3) the complexity of the case. The authorities also
referred to the need to ensure security of anonymous witnesses.
- The
applicant was charged, inter alia, with acting in an organised
and armed criminal group (see paragraph 8 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, ECHR 2007 ... (extracts)).
- The
Court accepts that the reasonable suspicion against the applicant of
having committed the serious offences could initially warrant his
detention. 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 obtain voluminous evidence from
many sources, coupled with the fact that in the course of the
investigation new suspects had been identified, constituted relevant
and sufficient grounds for the applicant's initial detention.
- However,
with the passage of time, those grounds became less and less
relevant. The Court must then establish whether the other grounds
adduced by the courts were “relevant” and “sufficient”
(see, Kudła cited above, § 111).
- 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, for instance, Ilijkov v. Bulgaria, no. 33977/96,
§§ 80-81, 26 July 2001).
- Furthermore,
the judicial authorities relied on the fact that the applicant had
been charged with acting in an organised and armed criminal gang. 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, cited above, § 37). It is
also accepted that in such cases, involving numerous accused, the
process of gathering and hearing evidence is often a difficult task.
Moreover, the Court considers that in cases such as the present
concerning organised criminal gangs, 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. In this respect, the Court
accepts that security of anonymous witnesses is a relevant factor to
be taken into account.
- 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. 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 (Wolf v. Poland,
nos. 15667/03 and 2929/04, § 90, 16 January 2007). In
this respect, the Court observes that the applicant was held in
custody for 4 years, 1 month and 16 days.
- 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 members of 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.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed 45,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage. He referred to the deterioration of his health
which had resulted from the excessive length of pre-trial detention.
- The Government submitted that the applicant's claims
were exorbitant. Having regard to the particular circumstances of the
present case, they argued that a finding of a violation constituted
in itself sufficient just satisfaction. Alternatively, the Government
invited the Court to assess the amount of just satisfaction on the
basis of its case-law in similar cases and having regard to national
economic circumstances.
- 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 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
- The
applicant submitted no claim for costs and expenses.
C. Default interest
- 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
- Declares the application admissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- 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 1,000 (one
thousand euros) in respect of non-pecuniary damage, to be converted
into the national currency of the respondent State at the rate
applicable at the date of settlement, plus any tax that may be
chargeable;
(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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 16 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
