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FOURTH
SECTION
CASE OF GAŁĄZKA v. POLAND
(Application
no. 18661/09)
JUDGMENT
STRASBOURG
14
February 2012
This
judgment is final but it may be subject to editorial revision.
In the case of Gałązka v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a
Committee composed of:
Päivi
Hirvelä, President,
Ledi
Bianku,
Zdravka
Kalaydjieva, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 24 January 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 18661/09) 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 Robert Jerzy
Gałązka (“the applicant”), on 28 March 2009.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr Jakub Wołąsiewicz of the Ministry of
Foreign Affairs.
- The
applicant alleged, in particular, that his
pre-trial detention exceeded a “reasonable time” within
the meaning of Article 5 § 3 of the Convention.
- On
19 May 2011 the application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1979 and lives in Warsaw. He is currently
detained in Warsaw Remand Centre.
A. First set of criminal proceedings
(case no V K 64/05)
- On
21 December 2004 the applicant was held in custody. It does not
result from the case-file whether the applicant remains detained in
this set of proceedings.
B. Second set of criminal proceedings (case no. III Kp
689/06)
- On
5 April 2006 the applicant was arrested on suspicion of murder,
attempted robbery and drug trafficking committed in an organised
criminal group.
- On
the same date the Białystok District Court (Sąd
Rejonowy) remanded him in custody, relying on a reasonable
suspicion that he had committed the offences in question. The court
indicated that the evidence which had been gathered in the case, in
particular the testimonies of witnesses and other suspects, showed
that there was a sufficient probability that the applicant had
committed the offences with which he had been charged. It attached
importance to the risk that he would attempt to induce witnesses to
give false testimony or, by other means, would obstruct the
proceedings. The latter risk was considered of the utmost
importance in the light of the fact that the case involved a large
number of alleged accomplices.
- An
appeal by the applicant against the detention order, likewise his
further appeals against decisions extending his detention and all of
his subsequent, numerous applications for release and appeals against
refusals to release him, were unsuccessful.
- In
the course of the investigation, the applicant’s pre-trial
detention was extended on several occasions, namely, on 27 June
2006 (to 5 October 2006), 29 September 2006 (to 5 December
2006), 28 November 2006 (to 5 March 2007), 2 March
2007 (to 5 May 2007), 27 April 2007 (to 5 August
2007), 30 July 2007 (to 5 November 2007) and 30 October
2007 (to 5 February 2008). In their decisions, the courts
stressed the fact that the applicant had been acting in an organised
criminal group. They underlined the unique nature of the proceedings
involving organised crime, in which the authorities had to determine
the degree of alleged responsibility of each of the suspects. The
courts attached importance to the seriousness of the charges and the
likelihood of a severe sentence being imposed on the applicant.
- On
30 January 2008 the Białystok District Court refused to
extend the applicant’s detention. It stated that the applicant
had been held in pre trial detention since April 2006 and that
this period should have been sufficient for the authorities to
collect evidence in the applicant’s case. In addition, it
considered that the decision about the extension of the applicant’s
pre-trial detention beyond the period of three months should be taken
by the Białystok Regional Court (Sąd
Okręgowy).
- The
Prosecutor lodged an interlocutory appeal against this decision.
- On
13 February 2008 the Białystok Regional Court amended the
contested decision and extended the applicant’s pre-trial
detention to 5 May 2008. The court argued that as the applicant
was remanded in custody in the first set of criminal proceedings, his
detention in the second set of proceedings was merely administrative.
It further stated that the applicant was charged with serious
offences committed in an organised criminal group and that there was
a high risk that, if released, he would attempt to induce witnesses
to give false testimony or, by other means, would obstruct the
proceedings. Finally, the court observed that the Prosecutor could
not have completed the investigation as evidence in proceedings
involving organised crime often emerged gradually.
- On
29 April 2008 the Białystok District Court extended the
applicant’s detention to 5 June 2008.
- On
an unspecified date the Prosecutor requested the Białystok
District Court to extend the applicant’s detention to
5 September 2008.
- On
4 June 2008 the Białystok District Court extended the
applicant’s detention to 31 July 2008. The court observed
that the applicant’s pre-trial detention had been extended for
over two years almost automatically and it did not seem that the
investigation was reaching its final stage. It concluded that the
extension of the applicant’s detention for a shorter period
than was requested by the Prosecutor should prompt the authorities to
accelerate the acts of investigation regarding the applicant.
- The
applicant lodged an interlocutory appeal against this decision
claiming that he had been detained for over 26 months and that this
period should have been sufficient for completing the investigation.
- On
9 July 2008 the Białystok Regional Court quashed the
contested decision. It stated that the decision about the extension
of the applicant’s pre-trial detention beyond the period of one
year should be taken by the Białystok Court of Appeal (Sąd
Apelacyjny).
- On
17 July 2008 the Białystok Court of Appeal extended the
applicant’s detention until 31 August 2008. The court
underlined the complexity of the case and the severity of the penalty
to which the applicant was liable. Having regard to the
organised character of the alleged criminal activities, it also held
that the applicant’s detention was necessary in order to
prevent the applicant from interfering with the proceedings.
- The
Prosecutor lodged an interlocutory appeal against this decision
claiming that the period of one month would not be sufficient for
collecting evidence in the applicant’s case.
- On
7 August 2008 the Białystok Court of Appeal modified the
contested decision and extended the applicant’s detention until
30 September 2008. The court observed that the applicant’s
pre-trial detention was indeed lengthy but necessary in the
particular circumstances of the case.
- On
17 September 2008 a bill of indictment was lodged with the
Białystok Regional Court. The applicant was charged with murder,
attempted robbery and drug trafficking committed in an organised
criminal group.
- On
23 September 2008 the Białystok Regional Court extended the
applicant’s pre-trial detention to 30 December 2008.
- In
October 2008 the case was referred to the Warszawa-Praga Regional
Court.
- On
several occasions the Warszawa-Praga Regional Court applied to the
Warsaw Court of Appeal, asking for the applicant’s detention to
be extended. The Warszawa Court of Appeal allowed all those requests
extending the applicant’s pre-trial detention on 22 December
2008 (to 30 June 2009), 25 June 2009 (to 31 December
2009), 10 December 2009 (to 31 May 2010), 27 May
2010 (to 15 October 2010), 7 October 2010 (to 31 January
2011), 18 January 2011 (to 31 May 2011) and 24 May
2011 (to 30 September 2011).
- The
criminal proceedings against the applicant are still pending.
The applicant remains detained.
C. Conditions of the applicant’s detention
- The
applicant submitted that during the entire period of his detention he
was held in overcrowded cells in conditions which did not comply with
the basic standards of hygiene.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice concerning the imposition of
pre-trial detention (tymczasowe aresztowanie), the grounds for
its extension, 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 May 2006.
THE LAW
I. THE GOVERNMENT’S REQUEST TO STRIKE OUT THE
APPLICATION UNDER ARTICLE 37 OF THE CONVENTION
- On
6 July 2011 the Government submitted a unilateral declaration
similar to that in the case of Tahsin Acar v. Turkey
(Tahsin Acar v. Turkey (preliminary
objection) [GC], no. 26307/95, ECHR 2003 VI)
and informed the Court that they were ready to accept that there had
been a violation of the applicant’s rights under Article 5
§ 3 of the Convention as a result of the excessive length
of his pre-trial detention. In respect of non-pecuniary damage the
Government proposed to award 8,000 Polish zlotys (PLN) to the
applicant (the equivalent of 2,000 euros (EUR)). The Government
invited the Court to strike out the application in accordance with
Article 37 of the Convention.
- The
applicant did not agree with the Government’s proposal.
He submitted that he had been held in pre-trial detention for
over five years. He considered that the amount proposed did not
constitute sufficient just satisfaction for the damage he had
sustained and requested the Court to continue the examination of the
application.
- The
Court observes that, as it has already held on many occasions, it may
be appropriate under certain circumstances to strike out an
application or part of an application under Article 37 § 1
(c) of the Convention on the basis of a unilateral declaration by the
respondent Government even if the applicant wishes the examination of
the case to be continued. It will depend on the particular
circumstances whether the unilateral declaration offers a sufficient
basis for finding that respect for human rights as defined in the
Convention and its Protocols does not require the Court to continue
its examination of the case (see Tahsin Acar,
cited above, § 75, and Melnic v. Moldova,
no. 6923/03, § 22, 14 November 2006).
- According to the Court’s case-law, the
amount proposed in a unilateral declaration may be considered a
sufficient basis for striking out an application or part thereof. The
Court will have regard in this connection to the compatibility of the
amount with its own awards in similar cases, bearing in mind the
principles which it has developed for determining victim
status and for assessing the amount of non-pecuniary compensation to
be awarded where it has found a breach of the reasonable time
requirement (see Cocchiarella v. Italy [GC],
no. 64886/01, §§ 85 107, ECHR 2006 ...,;
Scordino v. Italy (no.1) [GC], no. 36813/97,
§§ 193 215, ECHR-2006-...; and Dubjakova
v. Slovakia (dec.), no. 67299/01, 10 October
2004).
- As
to whether it would be appropriate to strike out the present
application on the basis of the unilateral declaration made by the
Government, the Court notes that despite the Government’s
acknowledgement of a violation of the applicant’s rights
guaranteed under Article 5 § 3 of the Convention, the
applicant continues to be remanded in custody.
- In
view of the length of the applicant’s detention and the fact
that he continues to be deprived of his liberty in the alleged breach
of Article 5 § 3 of the Convention, the Court finds
that the Government failed to submit a statement offering a
sufficient basis for finding that respect for human rights as defined
in the Convention and its Protocols does not require the Court to
continue its examination of the case (see Bieniek v. Poland,
no. 46117/07, § 22, 1 June 2010).
- This
being so, the Court rejects the Government’s request to strike
this part of the application out under Article 37 of the
Convention and will accordingly pursue its examination of the
admissibility and merits of the case.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF
THE CONVENTION
- The
applicant complained that the length of his pre-trial detention 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 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 5 April
2006, when he was arrested on suspicion of murder, attempted robbery
and drug trafficking committed in an organised criminal group.
- Accordingly,
the period to be taken into consideration amounts so far to five
years and seven months.
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
stated in a number of its previous judgements (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 serious nature of the offences with
which he had been charged, (2) the severity of the penalty to which
he was liable and (3) the need to secure the proper conduct of
the proceedings given the risk that the applicant might attempt to
induce witnesses to give false testimony. As regards the latter,
they did not, however, specify any concrete grounds justifying their
opinion other than the fact that the applicant was a member of an
organised criminal group (see paragraphs 8, 13 and 19 above).
- The
applicant was charged with murder, attempted robbery and drug
trafficking committed in an organised criminal group (see
paragraph 22 above). 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 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 voluminous evidence constituted
relevant and sufficient grounds for the applicant’s initial
detention.
- Furthermore,
the judicial authorities also relied on the likelihood that a severe
sentence might have been imposed on the applicant given the serious
nature of the offences at issue (see paragraphs 10 and 19). However,
the Court reiterates that, while the severity of the sentence faced
is a relevant element in the assessment of the risk of absconding or
reoffending, the gravity of the charges cannot of itself justify long
periods of detention (see for instance, Ilijkov v. Bulgaria,
no. 33977/96, §§ 80 81, 26 July 2001
and Michta v. Poland, no. 13425/02, § 49,
4 May 2006).
- As
regards the risk that the applicant would obstruct the proceedings,
the Court is not persuaded that it constituted a valid ground for the
entire length of his pre-trial detention. Firstly, it notes that the
Białystok District Court, when
originally remanding the applicant in custody, made only a general
reference to the risk that the applicant would attempt to
induce witnesses to give false testimony or, by other means, would
obstruct the proceedings. Secondly, the Court
notes that the relevant decisions did not contain any argument
capable of showing that these fears were well founded. Such a
generally formulated risk, flowing from the nature of the offences
with which the applicant had been charged, might possibly be accepted
as the basis for his detention at the initial stages of the
proceedings. Nevertheless, in the absence of any other factor capable
of showing that the risk of his influencing witnesses actually
existed, the Court cannot accept that ground as a justification for
holding the applicant in custody for the entire period in question.
- In
addition, the judicial authorities relied on the fact that the
applicant had been charged with being a member of an organised
criminal group (see paragraphs 10, 13 and 19 above). 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).
- While all the above factors could justify even a
relatively long period of detention, they did 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
further extensions of the applicant’s pre trial detention
(see Wolf v. Poland, no. 15667/03 and 2929/04, § 90,
16 January 2007). In this respect, the Court observes that the
applicant has been held in custody for five years and seven months.
- Having
regard to the foregoing, even taking into account the fact that the
courts were faced with particularly difficult task of trying the 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.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Invoking in substance Article 3
of the Convention, the applicant complained of overcrowding
and inadequate living conditions of his detention. The applicant
further complained under Article 6 § 1 of the
Convention that the criminal proceedings against him had been lengthy
and unfair. Finally, relying on Article 8 of the Convention he
also complained about the restrictions put on his family life
during his detention.
- As
regards the applicant’s complaint under Article 3
of the Convention, the Court observes that the applicant
failed to bring a civil action for compensation against the State
Treasury statio fisci Warsaw Remand Centre to seek
compensation for the infringement of his personal rights on account
of inadequate conditions of his detention. It follows that this
complaint must be rejected under Article 35 §§ 1
and 4 of the Convention for non-exhaustion of domestic remedies.
- As
to the complaint under Article 6 § 1 of the Convention
concerning the excessive length of criminal proceedings, the
Court notes that the applicant failed to lodge a complaint about the
breach of the right to a trial within a reasonable time under the Law
of 17 June 2004 on complaints about a breach of the right to an
investigation conducted and supervised by a Prosecutor and to a trial
within a reasonable time (Ustawa o
skardze na naruszenie prawa strony do rozpoznania sprawy w
postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez
prokuratora i postępowaniu sądowym bez nieuzasadnionej
zwłoki) (see Charzyński
v. Poland (dec.) no. 15212/03,
1 March 2005). It follows that this complaint must be rejected
under Article 35 §§ 1 and 4 of the
Convention for non-exhaustion of domestic remedies.
- As
regards the complaint concerning the restrictions put on his
family life during his detention, the Court has examined it as
submitted by the applicant. However, having regard to all the
material in its possession, and in so far as the matters complained
of are within its competence, the Court finds that the applicant has
failed to substantiate his complaint. It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
- Finally, in its letter of
26 July 2011 the applicant complained in substance under
Article 5 § 1 of the Convention that between 9 and
17 July 2008 he had been unlawfully held in pre-trial
detention. It follows that this complaint has been introduced
out of time and must be rejected in accordance with Article 35 §§ 1
and 4 of the Convention.
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 EUR 250,000 in respect of non-pecuniary damage
and PLN 69,000 in respect of pecuniary damage.
- The
Government contested the claim for non-pecuniary damage finding it
exorbitant. They further considered the applicant’s claims for
pecuniary damage groundless.
- 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 6,000
under this head.
B. Costs and expenses
- The
applicant also claimed EUR 300 for the costs and expenses
incurred before the domestic courts and for those incurred before the
Court, in particular the costs of photocopies, stamps and envelopes.
- The
Government submitted that the applicant had not presented any
invoices or other documents supporting his claims and therefore they
should be rejected as unjustified.
- Regard
being had to the documents in its possession and to its case law,
the Court rejects the claim for costs and expenses in the domestic
proceedings and considers it reasonable to award the sum of EUR 100
for the proceedings before the Court.
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
- Rejects the Government’s request to strike
the application out of its list of cases;
- 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 a violation of
Article 5 § 3 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months,
EUR 6,000 (six thousand euros) in respect of non-pecuniary
damage and EUR 100 (one hundred euros) for costs and expenses,
plus any tax that may be chargeable, to be converted into Polish
zlotys 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
amounts 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 14 February 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş
Aracı Päivi Hirvelä
Deputy
Registrar President
