BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF BEREZA v. POLAND
(Application
no. 38713/06)
JUDGMENT
STRASBOURG
1 April
2008
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 Bereza v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Stanislav Pavlovschi,
Ljiljana
Mijović,
David Thór Björgvinsson,
Ján
Šikuta,
Päivi Hirvelä, judges,
and
Lawrence
Early,
Section Registrar,
Having
deliberated in private on 11 March 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 38713/06) 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 Marcin
Bereza (“the applicant”), on 18 September 2006.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- The
applicant alleged, in particular, that his detention had exceeded a
“reasonable time” within the meaning of Article 5 §
3 of the Convention.
- On
7 February 2007 the
President of the Fourth Section of the Court 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 1972 and lives in Warsaw.
- On
18 December 2003 the applicant was arrested on suspicion of murder,
extortion, robbery and drug trafficking committed while acting as
part of an organised criminal group.
- On
23 December 2003 the Warsaw District Court remanded him in custody,
relying on the reasonable suspicion that he had committed the
offences in question. The court indicated that the evidence gathered
in the case, in particular the witnesses' testimonies, showed that
there was a strong probability that the applicant had committed the
crimes he was suspected of. It attached importance to the serious
nature of those offences and the likelihood of a severe sentence of
imprisonment being imposed on the applicant. It further considered
that keeping the applicant in detention was necessary to secure the
proper conduct of the proceedings, given the risk that he might
tamper with evidence, induce witnesses to give false testimony or go
into hiding. In this connection the court stressed that an order for
the applicant's arrest had been issued on 4 September 2000.
- The
applicant's appeal against the detention order, likewise his further
appeals against some of the decisions extending his detention and all
his subsequent applications for release and appeals against refusals
to release him, were unsuccessful. In his applications and appeals,
he argued that his lengthy detention violated the relevant provisions
of the Code of Criminal Procedure.
- In
the course of the investigation, the applicant's detention was
extended on several occasions, namely on 15 March 2004 (to 17 August
2004), 2 August 2004 (to 17 December 2004), 10 December 2004 (to 2
July 2005) and 7 June 2005 (to 31 October 2005). In all their
detention decisions the authorities relied on the original grounds
given for the applicant's detention. The courts stressed that due to
the complexity of the case and the large volume of evidence the
preparatory proceedings had still not been completed.
- On
17 October 2005 a bill of indictment was lodged with the Warsaw
Regional Court. There were 57 defendants in the case, all charged
with numerous counts of attempted murder, extortion, robbery, drug
trafficking, theft, illegal possession of firearms, battery and
forgery committed in an organised criminal group. In the bill of
indictment the prosecutor requested the court to hear evidence from
435 witnesses, including 5 key witnesses, and to take another 627
pieces of evidence listed therein.
- During
the court proceedings the authorities further extended the
applicant's detention pending trial on several occasions, namely on
6 October 2005 (to 18 December 2005), 6 December 2005 (to 28
April 2006), 25 April 2006 (to 31 October 2006), 27 October 2006 (to
28 February 2007), 23 February 2007 (to 23 July 2007), 17 July
2007 (to 12 December 2007) and on 19 November 2007 (to 19 March
2008). The courts repeated the grounds previously given for the
applicant's continued detention. They relied especially on the
complexity of the case and the large number of co-accused.
- On
3 April 2006 the trial court held the first hearing. It subsequently
held some 85 hearings in the case. The proceedings before the Warsaw
Regional Court are still pending.
- On
an unspecified date in September 2006 the applicant made a written
request to the Warsaw Regional Court for the appointment of a new
lawyer on the ground that he did not “trust” G.R, his
court-appointed defence counsel.
- On
21 September 2006 G.R. informed the Head of Warsaw Regional Court
that the applicant claimed to have lost trust in him as his defence
counsel and asked the court to decide whether he should still
represent the applicant. It transpires from the file that G.R.
remained the applicant's defence counsel.
- On
4 March 2008 the applicant was released from Detention Centre.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice concerning the imposition of
pre-trial detention (aresztowanie tymczasowe), the grounds for
its extension, release from detention and rules governing other
“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 May 2006.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the length of his detention had been
excessive. He relied on Article 5 § 3 of the
Convention, which, in its relevant part, 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 contested that argument.
A. Admissibility
- 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. Period to be taken into consideration
- The
applicant's detention started on 18 December 2003, when he was
arrested on suspicion of murder, extortion, robbery and drug
trafficking committed while acting as part of an organised criminal
group, and terminated on 4 March 2008.
- Accordingly,
the period to be taken into consideration amounts to four years and
three months.
2. The parties' submissions
(a) The applicant
- The
applicant argued that the length of his detention had been
unreasonable.
(b) The Government
- The
Government submitted that the applicant's detention had been
justified by the existence of substantial evidence of his guilt, the
nature of the offences at issue and the severity of the likely
penalty. They underlined that the length of the applicant's detention
should be assessed with reference to the fact that he and his
co-defendants had acted as an organised criminal group. The risk that
the defendants might obstruct the proceedings or tamper with evidence
had been aggravated by the fact that not all the members of the group
had yet been arrested. Thus, the domestic courts had considered it
necessary to detain the applicant and his co defendants until
all the relevant witnesses had been questioned.
- The
Government emphasised that the serious nature of the charges as well
as the fact that there had been fifty-four defendants charged with
numerous offences had required the authorities to take all necessary
measures to secure the proper conduct of the trial. The necessity of
the applicant's continued detention had been thoroughly examined by
the courts, which on each occasion had given sufficient reasons for
their decisions. The applicant's case had been extremely complex on
account of the number of charges and defendants, and by reason of the
volume of evidence.
- The
Government further submitted that numerous requests by the applicant
(for example, for the dactylographic examination of his
correspondence, permission to wear his own clothes during the
hearings, permission to have a lamp in the detention centre, to have
the minutes photocopied, to have certain recordings from
Warsaw-Mokotów Detention Centre secured, for part of a book to
be read out during a hearing, and to change his court-appointed
defence lawyer) contributed to the length of the proceedings and –
at the same time – the period of the applicant's detention.
- Lastly,
the Government maintained that the authorities had displayed the
requisite diligence in dealing with the applicant's case.
3. The Court's assessment
(a) General principles
- The
Court notes 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, have been 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
four grounds, namely (1) the likelihood that the crimes in question
had been committed by the applicant, (2) the serious nature of the
offences with which he had been charged, (3) the severity of the
penalty to which he was liable, (4) 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 relied on the fact
that the applicant might attempt to influence witnesses and other
co-accused given the fact that he was a member of an organised
criminal group.
- The
applicant was charged with numerous counts of attempted murder, armed
robbery, extortion, illegal possession of weapons, inflicting
grievous bodily harm, drug smuggling, handling stolen goods and car
theft committed as part of an organised criminal group.
- 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, 16 January 2007).
- The
Court accepts that the reasonable suspicion that the applicant had
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.
- 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 an accused
absconding or reoffending, the seriousness of the charges cannot in
itself justify long periods of detention (see, for instance, Ilijkov
v. Bulgaria, no 33977/96, §§ 80-81, 26
July 2001).
- In
addition, the judicial authorities relied on the fact that the
applicant had been charged with being a member 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
extensions 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 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,
is in the nature of things often particularly high. Indeed, in this
context the Court notes that some members of the organised criminal
group have not yet been arrested.
- While all the above factors could justify even a
relatively long period of detention, they do not give the domestic
courts unlimited powers to extend this measure. Even if the
particular circumstances of the case required detention to be
extended beyond the period generally accepted under the Court's
case-law, particularly strong reasons would be needed to justify this
(see Wolf v. Poland, no 15667/03 and 2929/04, § 90,
16 January 2007). In this connection, the Court observes that the
applicant has been held in custody for four years and two months.
- 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 an organised criminal group, the Court concludes that
the grounds given by the domestic authorities do 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. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
- The
applicant further complained under Article 6 about the fact that he
was not present before the court when it decided on appeals against
decisions on the extension of his detention. In the Court's view this
complaint falls to be examined under Article 5 § 4 of the
Convention, which reads as follows:
“4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.”
- The
Court reiterates that by virtue of Article 5 § 4, an arrested or
detained person is entitled to bring proceedings for the review by a
court of the procedural and substantive conditions, which are
essential for the “lawfulness”, in the sense of Article 5
§ 1, of his or her deprivation of liberty (see Brogan and
Others v. the United Kingdom, judgment of 29 November 1988,
Series A no. 154-B, p. 34, § 65). Although it is not always
necessary that the procedure under Article 5 § 4 be attended by
the same guarantees as those required under Article 6 § 1 of the
Convention for criminal or civil litigation (see Megyeri v.
Germany, judgment of 12 May 1992, Series A no. 237-A, p. 11, §
22), it must have a judicial character and provide guarantees
appropriate to the kind of deprivation of liberty in question. In the
case of a person whose detention falls within the ambit of Article 5
§ 1 (c), a hearing is required (see Schiesser v. Switzerland,
judgment of 4 December 1979, Series A no. 34, p. 13, §§
30–31, and Kampanis v. Greece, judgment of 13 July 1995,
Series A no. 318-B, p. 45, § 47). In particular, in the
proceedings in which an appeal against detention order is being
examined, “equality of arms” between the parties, the
prosecutor and the detained person must be ensured (Włoch v.
Poland, no. 27785/95, §§ 129-135, ECHR 2000-XI).
- Turning
to the circumstances of the instant case, the Court firstly notes
that it cannot examine events complained of by the applicant which
took place before 18 February 2006, that is, more than six months
before the date on which this complaint was submitted to the Court
(see Depa v. Poland, no. 32324/00, § 46, 12 December
2006).
- The
procedure for the extension of the applicant's pre trial
detention during the period under consideration was based on
Article 249 § 5 of the Code of Criminal Procedure,
which requires the domestic courts to inform the lawyer of a detained
person of the date and time of court sessions at which a decision is
to be taken concerning extension of pre-trial detention, or an appeal
against a decision to impose or to extend pre-trial detention is to
be considered.
- The
Court notes that it appears from the applicant's submissions that on
at least one occasion the decision to extend the applicant's
detention was given at a public hearing at which the applicant was
present and was legally represented. He was therefore able to
personally support his application for release.
- As
regards the remaining sessions at which his detention was prolonged
the Court notes that the applicant's legal-aid lawyer was duly
informed about the hearings before the Regional Court and he actively
participated in them. In this connection the Court reiterates that in
cases where characteristics pertaining to the applicant's personality
and level of maturity and reliability are of importance in deciding
on his dangerousness, Article 5 § 4 requires an oral hearing in
the context of an adversarial procedure involving legal
representation (see Waite v. the United Kingdom, no. 53236/99,
§ 59, 10 December 2002). The Court considers, however, that
in the present case the questions of assessment of the applicant's
character or mental state did not arise. His personal attendance at
all of the sessions at which his detention on remand had been
prolonged was therefore not required, and the presence of his lawyers
ensured respect for equality of arms in those proceedings (see Depa,
cited above, § 48).
- In
view of the above, the Court is of the opinion that the proceedings
in which the extension of his detention was examined satisfied the
requirements of Article 5 § 4 (see Telecki v. Poland,
(dec.), no. 56552/00, 3 July 2003, and Celejewski,
cited above, § 47).
- It
follows that this complaint must be rejected as being manifestly
ill founded pursuant to Article 35 §§ 3 and 4 of the
Convention.
III. ALLEGED
VIOLATION OF ARTICLE 6 § 3 OF THE CONVENTION
- The
applicant also complained that the legal assistance he received
during the proceedings had been inadequate. The Court considers that
this complaint falls to be examined under Article 6 § 1 read in
conjunction with Article 6 § 3 (c) of the Convention.
- However,
pursuant to Article 35 § 1 of the Convention:
“The Court may only deal with the matter after all
domestic remedies have been exhausted, according to the generally
recognised rules of international law ... “
The
Court notes that the criminal proceedings against the applicant are
still pending (see paragraph 12 above). The Court is consequently not
in a position to examine the overall fairness of the proceedings. It
cannot speculate either on what the Regional Court will decide or on
what the outcome of any appeal might be since that remedy would be
available to the applicant if he were to consider that his trial had
ultimately infringed the rights on which he relied before the Court.
- It follows that this complaint is premature and must
be rejected under Article 35 §§ 1 and 4 of
the Convention for non-exhaustion of domestic remedies.
IV. 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 100,500 Polish zlotys (PLN) in respect of pecuniary
damage and 50,000 euros (EUR) in respect of non-pecuniary damage.
- The
Government found those figures exorbitant.
- 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 by reason of the length of his detention, 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 complaint concerning the length of
the applicant's detention admissible and the remainder of the
application inadmissible;
- 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 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 1 April 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
