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FOURTH
SECTION
CASE OF TOMECKI v. POLAND
(Application
no. 47944/06)
JUDGMENT
STRASBOURG
20 May
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 Tomecki v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
David Thór Björgvinsson,
Ján
Šikuta,
Ledi Bianku, judges,
and Lawrence
Early,
Section Registrar,
Having
deliberated in private on 29 April 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 47944/06) 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 Mr M. Tomecki on 14 November 2006.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign
Affairs.
- On
5 July 2007 the
President of the Chamber to which the case has been allocated 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 1968 and lives in Raciborz. He is currently
detained in the Racibórz Remand Centre.
- On
15 December 2004 the applicant was arrested on suspicion of
committing 11 crimes, including forming and running a criminal gang,
and detained on remand pursuant to a decision given by the Gliwice
District Court on charges of repeated robbery and membership of an
organised gang. On 19 January 2005 the Katowice Regional Court
dismissed the applicant's appeal against the detention order, stating
that the application of the most severe preventive measure was
justified by the existence of strong evidence of his guilt, in
particular testimonies of co-suspects and witnesses. Furthermore,
having regard to the fact that the applicant was domiciled in the
Netherlands and had been arrested on the basis of a wanted notice,
the court concluded that there was a justified fear that the
applicant might go into hiding and obstruct the proper course of the
proceedings. The court also stressed the severity of the anticipated
sentence and the fact that the applicant had a previous criminal
record.
- On
15 February 2005 the Katowice Regional Prosecutor filed a bill of
indictment against the applicant with the Katowice Regional Court.
The applicant was charged with setting up a criminal gang and running
its activity, several accounts of aggravated theft with the use of
violence, attempted robbery with the use of violence and burglary
committed following his relapse into crime. The prosecutor requested
that 14 witnesses be heard and the testimonies of a further 8
witnesses be read out and 39 pieces of evidence be taken.
- On
15 March 2005 the applicant's detention was prolonged for three
months. The applicant's appeal was dismissed on 13 April 2005 by the
Katowice Court of Appeal. The decision was based on strong suspicion
that the applicant had committed the offences in question, which was
supported by the evidence from witnesses. The courts attached
importance to the grave nature of those offences and to the
likelihood of a severe sentence of imprisonment being imposed on the
applicant. They further considered that the need to secure the proper
conduct of the proceedings, especially the need to verify evidence
from suspects and witnesses and to obtain fresh evidence from
witnesses, justified holding the applicant in custody.
- On
19 July 2005 the Gliwice Regional Court dismissed the applicant's
request for release, considering that he had previously tried to
evade justice by absconding and that the evidence against him
sufficiently supported the charges laid against him.
- On
2 August 2005 the Wodzislaw Division of the Gliwice Regional Court
refused to release the applicant, relying on the high likelihood that
he had committed the offences with which he had been charged. The
court referred to the evidence gathered so far in the proceedings and
to the fact that one of the accused had acknowledged that he had
committed the offences in question. It also noted that before his
arrest the applicant, having absconded, had been sought pursuant to a
wanted notice. The court further noted that he lived abroad, which
made it likely that he would abscond again.
- On
31 August 2006 the court extended the applicant's detention until 14
December 2006 relying on the fact that the applicant had tried to
exert pressure upon two other accused and, if released, he could
hinder the proper conduct of the proceedings. The decision was upheld
on 27 September 2006.
- On
21 November 2006 the Wodzislaw Division of the Gliwice Regional Court
refused to release the applicant, essentially relying on the same
grounds as in its refusal of 2 August 2005.
- On
27 November 2006 one of the accused who had been released pending
trial did not appear at the scheduled court hearing. Hence, the
hearing could not be held. The court decided to request the Katowice
Court of Appeal to extend the applicant's detention until 14 June
2007. On 13 December 2006 the motion was partly allowed and the
applicant's detention prolonged until 31 March 2007. The court held
that the prerequisites justifying the application of this preventive
measure remained valid. It noted that the applicant faced serious
charges and referred to the fact that he had attempted to influence
the testimonies of the co-accused. Furthermore, the court stressed
the fact that the applicant had in the past tried to evade justice by
going into hiding. The court referred to the fact that the applicant
had previously absconded and observed that the judicial proceedings
were coming to an end and that only one witness had still to be
heard.
- Hearings
in the case were held on 23 May, 24 June, 5 July, 6 July 2005, 22
August, 21 September, 28 November and 19 December 2005; 23 January,
27 March, 27 April, 5 June, 26 June, 6 August, 19 October and
27 November 2006, 12 January, 26 February, 5 March, 11 April and
16 May 2007. The Katowice Regional Court held in all 59 hearings in
the case.
- On
6 June 2007 the Regional Court gave judgment. The applicant was
convicted as charged and sentenced to seven years' imprisonment. The
period of his detention was counted towards the sentence.
- The
parties appealed. The applicant is being kept in detention pending
appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- 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.
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.”
A. Admissibility
- The
Government submitted in the first place that the applicant had not
exhausted the remedies provided for by Polish law as regards his
complaint under Article 5 § 3 of the Convention, in that he had
failed to appeal against some of the decisions prolonging his
detention or dismissing his motions for release.
-
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).
- In
the present case the applicant lodged appeals against most of the
decisions prolonging his detention, including the decisions taken in
the final stage of the proceedings, when the length of the detention
had reached its most critical point. 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.
- The
Court further notes that the arguments raised by the Government are
similar to those already examined and rejected in a previous case
against Poland (see Buta v. Poland, no. 18368/02, 28
November 2006) and that the Government have not submitted any new
circumstances which would lead the Court to depart from its previous
findings.
- It follows that this complaint cannot be
rejected for non-exhaustion of domestic remedies. The Court 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 15 December 2004, when he was
arrested on suspicion of having committed eleven crimes. On
6 June 2007 the Katowice Regional Court convicted him as
charged.
As
from that date he was detained “after conviction by a competent
court”, within the meaning of Article 5 § 1 (a) and,
consequently, that period of his detention falls outside the scope of
Article 5 § 3 (cf. Kudła, cited above, § 104).
Accordingly,
the period to be taken into consideration amounts to 2 years, 5
months and 21 days.
2. The parties' submissions
(a) The applicant
- The
applicant argued that the length of his detention had been
unreasonable, in particular in view of the fact that it had been
prolonged beyond the statutory 2-year period. In his opinion, the
courts had not given sufficient and relevant reasons for the
exceptional extension of his detention beyond this time-limit. There
had been no reasons to believe that he would obstruct the proceedings
or avoid justice.
(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 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 with
various logistical issues.
- The
Government submitted that the applicant's pre-trial detention had
been justified by the existence of substantial evidence of his guilt,
the nature of the offences with which he had been charged and the
severity of the anticipated penalty. They underlined that the length
of the applicant's detention should be assessed in the light of the
fact that he had acted in an organised criminal group. The risk that
the defendants might obstruct the proceedings or tamper with evidence
had been aggravated by the fact that they had been closely linked as
members of a criminal gang and that the applicant had previously gone
into hiding. Only the isolation of the members of the group could
prevent them from coordinating their testimonies or influencing
witnesses. Thus, the domestic courts had considered it necessary to
detain the applicant until all relevant witnesses had been
questioned.
- The
Government asserted that 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.
Furthermore, the applicant's case had been extremely complex. Lastly,
they submitted that the authorities had displayed special diligence
in the conduct of the proceedings.
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
- The
Court observes that the present case concerned a serious crime,
namely membership and leadership of a criminal gang, robberies and
theft committed with use of violence. Thus it was a classic example
of organised crime, by definition presenting more difficulties for
the investigation authorities and, later, for the courts in
determining the facts and the degree of responsibility of each member
of the group. It is obvious that in cases of this kind, continuous
control and limitation of the defendants' contact among themselves
and with other persons may be essential to avoid their absconding,
tampering with evidence and, most importantly of all, influencing, or
even threatening, witnesses. Accordingly, longer periods of detention
than in other cases may be reasonable.
- 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).
- The
Court observes that in their decision to remand the applicant in
custody the judicial authorities relied on the following principal
grounds: the reasonable suspicion against the applicant, the serious
nature of the offences with which he had been charged, the severity
of the penalty to which he was liable, the risk of his influencing
the testimonies of witnesses and of the co-accused or obstructing the
proceedings by other means and the need to obtain extensive evidence
(see paragraphs 5, 8, 10 and 14 above). Furthermore, the Government
stated that the particular complexity of the case, as it concerned
organised crime, additionally justified the applicant's detention.
- The
suspicion that the applicant had committed serious offences was
confirmed in particular by the testimonies of the witnesses and the
co-accused and initially warranted his detention. Therefore, the only
question which remains is whether and when the continuation of his
detention ceased to be warranted by “relevant” and
“sufficient” reasons.
- The
Court considers that the authorities were faced with the difficult
task of determining the facts and the degree of alleged
responsibility of each of the defendants who had been charged with
acting as part of an organised criminal gang. In these circumstances,
the Court also accepts that the need to obtain voluminous evidence
from many sources, coupled with the existence of a general risk
flowing from the organised nature of the applicant's alleged criminal
activities, constituted relevant and sufficient grounds for
prolonging his detention during the time necessary to complete the
investigation, to draw up the bill of indictment and to hear evidence
from the accused.
- The
Court notes that the judicial authorities also relied on the
likelihood that a severe sentence might be imposed on the applicant,
given the serious nature of the offences at issue. In this
connection, the Court reiterates that the severity of the sentence
faced is a relevant element in the assessment of the risk of
absconding or reoffending. It acknowledges that in view of the
seriousness of the accusations against the applicant, the authorities
could justifiably have considered that such an initial risk was
established. However, the Court has repeatedly held that the gravity
of the charges cannot by itself serve to justify long periods of
detention on remand (see Ilijkov v. Bulgaria, no. 33977/96,
§§ 80-81, 26 July 2001). In the circumstances of the
present case, the Court finds that the severity of the anticipated
penalty alone, or in conjunction with the other grounds relied on by
the authorities, cannot constitute a “relevant and sufficient
ground” for holding the applicant in detention for a
considerably long period.
- As
regards the risk of pressure being brought to bear on witnesses or of
the obstruction of the proceedings by other unlawful means, the Court
notes that at the initial stages of the proceedings the judicial
authorities appeared to presume that such risks existed on the ground
that the applicant had been a member of an organised criminal group.
The subsequent decisions to prolong the applicant's detention pending
trial underlined the fact that these fears were well-founded, since
the applicant had attempted to exert pressure upon the accused (see
paragraphs 11 and 13 above). The Court also observes that the
risk of absconding in the applicant's case was particularly high,
since he had no permanent address in Poland and his residence was in
the Netherlands. Accordingly, the Court accepts that, in the special
circumstances of the case, the risk flowing from the nature of the
applicant's criminal activities actually existed and justified
holding him in custody for the relevant period.
- The
foregoing considerations are sufficient for the Court to conclude
that the grounds given for the applicant's pre-trial detention were
“relevant” and “sufficient” to justify
holding him in custody for the entire relevant period.
- The
Court lastly observes that the proceedings were of considerable
complexity, regard being had to the number of defendants, the
extensive evidentiary proceedings and the implementation of special
measures required in cases concerning organised crime. Nevertheless,
the hearings in the applicant's case were held regularly and at short
intervals (see paragraph 15 above). The Court therefore concludes
that the national authorities displayed special diligence in the
conduct of the proceedings. The length of the investigation and of
the trial was justified by the exceptional complexity of the case.
- Having
regard to the foregoing, the Court considers that there has been no
violation of Article 5 § 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant further complained that he was arrested and detained on
remand despite his innocence and that the evidence against him relied
on by the prosecuting authorities was insufficient. He argued that
the evidence against him was fabricated by the prosecuting
authorities and that, as a result, his detention was unlawful and
arbitrary. He relied on Article 5 § 1 of the Convention.
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so.”
- The Court reiterates that the
reasonableness of the suspicion on which an arrest must be based
forms an essential part of the safeguard against arbitrary arrest and
detention which is laid down in Article 5 § 1 (c).
Having a “reasonable suspicion” presupposes the existence
of facts or information which would satisfy an objective observer
that the person concerned might have committed the offence (see Fox,
Campbell and Hartley v. the United Kingdom,
judgment of 30 August 1990, Series A no. 182, p. 16, § 32).
However, facts which raise a suspicion need not be of the same level
as those necessary to justify a conviction or even the bringing of a
charge, which comes at a later stage of the process of criminal
investigation (see Murray v. the
United Kingdom, judgment of 28
October 1994, Series A no. 300-A, p. 27 § 55).
- In the light of the documents in the file, there is no
indication that there had beenwas no reasonable suspicion against the
applicant which provided grounds for his detention or that the
authorities did not have at their disposal evidence in support of the
imposition of detention.
- It follows that this part of the application is
manifestly ill-founded and must be rejected pursuant to Article 35 §§
3 and 4 of the Convention.
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 no violation of
Article 5 § 3 of the Convention.
Done in English, and notified in writing on 20 May 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
