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FOURTH
SECTION
CASE OF JASARI v. POLAND
(Application
no. 17888/07)
JUDGMENT
STRASBOURG
12 October
2010
This
judgment is final but it may be subject to editorial revision.
In the case of Jasari v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a
Committee composed of:
Ljiljana Mijović,
President,
Lech Garlicki,
Nebojša Vučinić,
judges,
and Fatoş Aracı,
Deputy Section Registrar,
Having
deliberated in private on 21 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 17888/07) 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 Emin Jasari
(“the applicant”), on 2 April 2007.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- The
applicant alleged that his detention on remand exceeded a “reasonable
time” within the meaning of Article 5 § 3 of the
Convention.
- On
1 September 2008 the
President of the Fourth Section of the Court decided to give notice
of the application to the Government. In accordance with Protocol No.
14, the application was assigned to a Committee of three Judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1952 and lives in Nadarzyn.
6. On
8 March 2006 the applicant was arrested on suspicion of numerous
counts of forgery of identity documents (including passports)
committed in an organised criminal group.
- On 10 March 2006 the applicant was remanded in custody
by a decision of the Warsaw District Court (Sąd
Rejonowy). 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. It also considered that keeping the
applicant in detention was necessary to secure the proper conduct of
the proceedings, given the risk that he could go into hiding,
particularly as he had had at his disposal a number of forged
identity documents.
- The
applicant's appeal against the detention order, likewise his further
appeals against decisions prolonging his detention and his subsequent
applications for release were unsuccessful.
- In
the course of the investigation, the applicant's detention was
prolonged by decisions of the Warsaw District Court delivered on 1
June, 30 August and 24 November 2006, 21 February and 10 July 2007.
In the decision of 1 June the court stressed that an expertise on
several documents, due at the end of May, had not yet been submitted.
In
all their detention decisions the authorities repeatedly relied on
a strong suspicion that the applicant had committed the offences
in question, which was supported by evidence from witnesses. They
attached importance to the fact that they had been committed in an
organised criminal group. They further stressed that the applicant,
if released, could cross the Polish border with ease, having
established contacts with criminal groups abroad. In that respect
they stressed that the applicant had access to forged identity
documents which could help him flee Poland and establish a new
identity abroad. Lastly, the courts found no special grounds, as
specified in Article 259 § 1 of the Code of Criminal Procedure,
that would justify lifting the detention and imposing a more lenient
measure.
- In
the meantime, on 3 July 2007, the bill of indictment against the
applicant and four other defendants was lodged with the Warsaw
District Court. It appears that three defendants, including the
applicant, were charged with offences committed in an organised
criminal group.
- On
9 January 2008 the Warsaw Court of Appeal (Sąd Apelacyjny)
further extended the applicant's detention.
- On
15 February 2008 the trial court held the first hearing. It
subsequently held, until 24 October 2008, some seventeen hearings in
the case.
- During
the court proceedings the applicant's detention was further prolonged
by the Warsaw Court of Appeal on 4 March 2008. The court repeated the
grounds previously given for the applicant's continued detention.
- On
3 July 2008 the Warsaw Court of Appeal lifted the applicant's
detention. The court decided that the applicant
could be released under police supervision and a prohibition on his
leaving the country.
- Following
the introduction of additional charges of organising illegal border
crossings, the applicant was again arrested in the same set of
criminal proceedings. It appears that he was arrested on 5 February
2009 and on 7 February 2009 the Warsaw Regional Court (Sąd
Okręgowy) remanded him in custody.
- The
applicant's detention was further extended by decisions of the Warsaw
Regional Court delivered on 27 April and 27 July 2009. The
applicant's lawyer appealed against the latter decision.
- On
24 July 2009 the Warsaw Regional Prosecutor (Prokurator
Prokuratury Okręgowej) refused the applicant's request to
have the detention lifted. The prosecutor stressed that the applicant
had previously been convicted of similar offences.
- On
7 September 2009 the Warsaw Court of Appeal decided to lift the
applicant's detention. The court held that his detention after 5
February 2009 lacked a legal basis and was therefore in breach of
criminal procedure, as ordered and subsequently extended by courts
that had not been competent to deal with the case. It stressed that
having regard to the fact that the applicant had already been
detained in the same set of proceedings for over two years, his
re-arrest should have been ordered and extended by the Appellate
Court.
- The
proceedings are still pending before the first-instance court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Preventive
measures, including pre-trial detention
- 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 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.
B. Relevant
statistical data
- Relevant statistical data, recent amendments to the
Code of Criminal Procedure designed to streamline criminal
proceedings and references to the relevant Council of Europe
materials including the 2007 Resolution of the Committee of Ministers
can be found in the Court's judgment in the case of Kauczor (see
Kauczor v. Poland, no. 45219/06, § 27-28 and 30-35,
3 February 2009).
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 contested that argument.
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
Court notes that the applicant's pre-trial detention can be divided
into two consecutive periods, the first lasting from 8 March 2006
until 3 July 2008 and the second from 5 February until 9 September
2009. Since the applicant's two periods of detention were imposed in
a single set of criminal proceedings (see paragraph 18 above) both
periods should be examined jointly (see, for example, Rozmarynowski
v. Poland, no. 37149/02, § 26, 15 January 2008,
Letellier v. France, 26 June 1991, § 34, Series A
no. 207).
The first term of the applicant's
detention started on 8 March 2006, when he was arrested on suspicion
of numerous counts of forgery of identity documents committed in an
organised criminal group. On 3 July 2008 the Warsaw Court of Appeal
lifted the detention.
The
second term of the detention began on 5 February 2009, when the
applicant was again detained in the same set of criminal proceedings.
His detention was quashed by decision of the Warsaw Court of Appeal
delivered on 9 September 2009.
- Accordingly,
the period to be taken into consideration amounts to approximately
two years and eleven months.
(a) The applicant
- The
applicant submitted in general terms that the length of his pre trial
detention had been excessive.
In
subsequent letters, following his re-arrest, the applicant underlined
that after his detention had been lifted on 3 July 2008, he had
always respected the conditions of his release and had reported
regularly to the police.
(b) The Government
- The
Government submitted that the applicant's detention had been based on
all the prerequisites of detention listed in the Code of Criminal
Procedure as applicable at the material time, in particular the
persistence of a reasonable suspicion that he had committed the
offence in question and the severity of the anticipated sentence.
They
underlined that the present case concerned offences committed in an
organised criminal group and that the applicant's detention had been
justified by the need to prevent collusion.
- The
Government stressed that the pre-trial proceedings had been regularly
and positively assessed by the domestic courts.
Further,
they submitted that the length of the applicant's detention had
resulted from the complex nature of the proceedings. In that respect
they recalled that the applicant had been charged with eighty-three
offences and that the case file submitted by the prosecution
comprised twenty volumes. They underlined that the court had had to
hear sixteen witnesses and acquaint itself with the testimonies of
six others and that, in view of the applicant's Albanian origin, an
Albanian interpreter had had to be present at every hearing. Lastly,
they noted that the proceedings had been conducted efficiently and
hearings had been regularly held.
- Accordingly,
the Government submitted that the length of detention had been
compatible with the standards of Article 5 § 3 of the
Convention.
- The
Government did not submit any information concerning the second term
of the applicant's pre-trial detention.
2. 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 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; 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 two
grounds, namely (1) the severity of the penalty to which he was
liable and (2) the need to secure the proper conduct of the
proceeding in particular in view of the risk that he might interfere
with witnesses and go into hiding. As regards the latter, they relied
on the fact that the applicant had access to forged identity
documents which could help him cross borders under a new identity
(see paragraph 9 above).
- The
applicant was charged with numerous counts of, inter alia,
forgery of identity documents, committed in an organised criminal
group (see paragraph 6 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, 16 January 2007).
- The
Court accepts that the reasonable suspicion against the applicant of
having committed serious offences could initially warrant his
detention. Also, the need to determine the degree of the alleged
responsibility of each of the defendants, who had acted in a criminal
group and against whom numerous charges of serious offences were laid
and the need to secure the proper conduct of the proceedings, in
particular the process of obtaining evidence from witnesses,
constituted valid 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 absconding or
re-offending, the gravity of the charges cannot by itself justify
long periods of detention on remand (see Michta v. Poland,
no. 13425/02, §§ 49, 4 May 2006).
- Indeed, 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, by the nature of things,
often high. In this respect, the Court notes, however, that in all
the decisions extending the applicant's detention, no specific
substantiation of the risk that the applicant would tamper with
evidence, intimidate witnesses or attempt to otherwise disrupt the
trial emerged. In the absence of any other factor capable of showing
that the risk relied on actually existed, this argument cannot be
accepted in the context of the whole period.
- As
regards the risk of the applicant's absconding, the Court's attention
has been drawn to the nature of the charges against the applicant.
However, the mere fact that the applicant was charged with forgery of
identity documents, which led the authorities to believe that if
released he could easily conceal his true identity, was not, in the
Court's view, sufficient to conclude that the risk of the applicant's
going into hiding existed throughout the entire period of his
detention. Moreover, the Court recalls that the risk of absconding
has to be assessed in light of the factors relating to the person's
character, his morals, home, occupation, assets, family ties and all
kinds of links with the country in which he is prosecuted (see
Becciev v. Moldova, no. 9190/03, § 58, 4 October 2005).
In
this respect the fears of the domestic authorities have not proved
well founded. It notes in this connection that following the
decision of 3 July 2008 by which the applicant's detention was
lifted, the applicant has respected the conditions of his release.
- 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.
- Further,
it is true, as the Government submitted, that the case was of a
certain complexity, given the volume of evidence. However, it seems
that the bill of indictment was lodged against five defendants, three
of whom had been indicted with offences committed in an organised
criminal group (see paragraph 10 above). However, it does not appear
that the domestic courts relied on this as a factor militating
against the applicant's release (see paragraphs 7, 9, 13 and 17
above).
- In
the case of Janulis (see Janulis v. Poland, no.
20251/04, § 37, 4 November 2008), the Court held that a
relatively long period of detention must be thoroughly and duly
justified by the domestic authorities both from a substantive point
of view (the existence of reasons justifying keeping the applicant in
detention) and from a formal point of view (a proper formulation and
justification of the courts' decisions). A failure to fulfil the
formal requirements for decisions extending detention on remand is
per se sufficient for finding a violation of Article 5 §
3 (see Janulis v. Poland, cited above, § 38). The Court
further explained that such a failure may, in particular, consist in
(1) simply repeating reasons for detention contained in the Code
of Criminal Procedure, without explaining how they apply in a given
case or (2) simply repeating reasons given in the initial phase
of detention, without explaining in further decisions why continuing
detention is indispensable (see Janulis v. Poland, cited
above, § 39).
- The
Court notes that in the present case the reasons relied upon by the
domestic courts in their decisions prolonging the applicant's
detention were limited to simply repeating the reasons given in the
initial phase of the investigation and proceedings, without
explaining their relevance to the applicant's prolonged detention.
- 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 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 46 OF THE CONVENTION
- Article
46 of the Convention provides:
“1. The High Contracting Parties undertake to
abide by the final judgment of the Court in any case to which they
are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
A. The parties' submissions
1. The applicant
- The
applicant did not submit any observations concerning this provision.
2. The Government
- The Government referred to the
arguments submitted previously in the case of Figas
v. Poland (no. 7883/07,
§§ 41-44, 23 June 2009).
- The Government concluded that,
bearing in mind the efforts of the Polish authorities and the
legislative reforms which were and had been undertaken by them to
solve the problem of the length of detention on remand, Poland could
not be said to have failed to comply with its obligations under
Article 46 of the Convention to obey the Court's judgments.
B. The Court's assessment
- Recently,
in the case of Kauczor v. Poland (see Kauczor, cited
above, § 58 et seq. with further references) the Court held that
the 2007 Resolution of the Committee of Ministers taken together with
the number of judgments already delivered and of the pending cases
raising an issue of excessive detention incompatible with Article 5 §
3 demonstrated that the violation of the applicant's right under
Article 5 § 3 of the Convention had originated in a widespread
problem arising out of the malfunctioning of the Polish criminal
justice system which had affected, and may still affect in the
future, an as yet unidentified, but potentially considerable number
of persons charged in criminal proceedings.
- It
is true that the present case concerns a person involved in an
organised criminal group. However, as stated above, while this
element is to be taken into account in assessing compliance with
Article 5 § 3 and may justify a longer period of detention than
in a case concerning an individual offender, a member of an organised
criminal group is entitled to the protection against unreasonably
lengthy detention afforded by this provision (see paragraphs 32, with
further references, 34-35, 37, and 44 above). As in other numerous
similar detention cases, the authorities did not justify the
applicant's continued detention by relevant and sufficient reasons
(see paragraphs 33-44 above). Moreover, as demonstrated by the ever
increasing number of judgments in which the Court has found Poland to
be in breach of Article 5 § 3 in respect of applicants involved
in organised crime, the present case is by no means an isolated
example of the imposition of unjustifiably lengthy detention but a
confirmation of a practice found to be contrary to the Convention
(see, among many other examples, Celejewski v. Poland,
no. 17584/04, 4 May 2006; Kąkol v. Poland, no.
3994/03, 6 September 2007; Malikowski v. Poland,
no. 15154/03, 16 October 2007 and also Hilgartner v. Poland,
no. 37976/06, §§ 46-48, 3 March 2009).
Consequently, the Court sees no reason to diverge from its findings
made in Kauczor as to the existence of a structural problem
and the need for the Polish State to adopt measures to remedy the
situation (see Kauczor, cited above, §§ 60-62).
III. 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 200,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage. He submitted that being in detention he had no
access to any marerials to support his claim.
On 6
October 2009 the applicant submitted rental invoices and several
bills from, inter alia, a telecommunications company, a garage
and a car insurance company. The applicant did not explain the
relevance of the above-mentioned invoices to the present case.
- The
Government claimed that the applicant had sent his invoices out of
time. They further submitted that he had failed to substantiate his
claim for non-pecuniary damage.
- Leaving
aside the question whether the applicant's invoices had been
submitted within the prescribed time-limit, 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,
EUR 1,000 (one thousand euros) in respect of non-pecuniary damage,
plus any tax that may be chargeable, to be converted into the
currency of the respondent State at the rate applicable at the date
of settlement;
(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 12 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Ljiljana Mijović
Deputy
Registrar President
