European Court of Human Rights

 

 

FIRST SECTION

CASE OF RUDNICKI v. POLAND

(Application no. 22647/19)

 

 

 

 

JUDGMENT
 

STRASBOURG

3 February 2022

 

This judgment is final but it may be subject to editorial revision.

In the case of Rudnicki v. Poland,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

  Erik Wennerström, President,
  Lorraine Schembri Orland,
  Ioannis Ktistakis, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no.   22647/19) 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   Jakub Ryszard Rudnicki ("the applicant"), on 18 April 2019;

the decision to give notice to the Polish Government ("the Government") of the complaint concerning Article 5 § 3 of the Convention and declare the remainder of the application inadmissible;

the parties' observations;

Having deliberated in private on 11 January 2022,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.     The case concerns the allegedly excessive length of the applicant's detention on remand.

THE FACTS

2.     The applicant was born in 1973 and lives in Warsaw. He was represented before the Court by Mr A. Pietryka, a lawyer practising in Warsaw.

3.     The Government were represented by their Agent, Mr J. Sobczak, of the Ministry of Foreign Affairs.

4.     The facts of the case, as submitted by the parties, may be summarised as follows.

5.     Until 31 December 2012 the applicant was employed as a deputy director of the City of Warsaw Property Management Office ( Biuro Gospodarowania Nieruchomościami Miasta Stołecznego Warszawy ). He was tasked with the supervision of so-called "reprivatisation proceedings" concerning the reacquisition of properties which had been nationalised by the communist government in 1945. On account of his function, he was empowered to issue administrative decisions on behalf of the mayor of Warsaw ( Prezydent Miasta Stołecznego Warszawy ).

6.     On 21 February 2014 the Warsaw Regional Prosecutor ( Prokurator Okręgowy ), in response to an article published in the Polish daily newspaper Gazeta Wyborcza , launched an investigation in respect of the applicant concerning allegations of abuse of power in connection with his acquisition of a property located in Warsaw.

7.     On 27 February 2015 the investigation was discontinued.

8.     On 26 June 2015 the same prosecutor refused to investigate an allegation that the applicant and a lawyer, R.N., had committed fraud during the purchase of a property located in K.

9.     In April 2016 Gazeta Wyborcza published a series of articles concerning the reprivatisation of another property located in Warsaw. On 30   May 2016 an investigation was launched into the matters described in the article.

10.     On 7 September 2016 the applicant was questioned as a witness by the Warsaw Regional Prosecutor. On 7 October 2016 the Wrocław Regional Prosecutor decided to reopen the investigation which had been terminated on 26   June 2015 concerning the alleged fraud during the purchase of the property located in K.

11.     On 30 January 2017 at 6.15 a.m. the applicant was arrested in his apartment by agents of the Central Anti-Corruption Bureau acting on an order issued by the Wrocław Regional Prosecutor. At the same time, the applicant's parents and R.N. were also arrested. Their arrest was immediately reported by the State-run media.

12.     On the same day the applicant was charged with accepting a bribe from R.N. in exchange for his help with the reprivatisation of a property and with fraud committed with regard to property of considerable value. The applicant pleaded not guilty and refused to testify ( odmowa składania wyjaśnień ). On 31 January 2017 the prosecutor submitted a request to the Wrocław-Śródmieście District Court ( Sąd Rejonowy ) for the applicant to be detained on remand.

13.     On 1 February 2017 the Wrocław-Śródmieście District Court granted the prosecutor's request and detained the applicant on remand until 30 April 2017. It found that there was a high probability that the applicant had committed fraud carrying a penalty of more than eight years' imprisonment, which in itself constituted sufficient grounds for detention. It also found that although the applicant had no prior criminal record, he might attempt to obstruct the proceedings in order to avoid a significant penalty or contact witnesses who had not yet been questioned.

14.     On 1 March 2017 the Wrocław Regional Court ( Sąd Okręgowy ) dismissed an appeal lodged by the applicant against his detention on remand. It noted that since he had been charged with offences committed together with other suspects, some of whom were his close family members, his release could allow them to reach an agreement on the version of events which would be most beneficial to them and thus obstruct the investigation.

15.     On 24 April 2017 the Warsaw Regional Court extended the applicant's detention on remand until 29 July 2017. It found that he faced a potentially long prison sentence and could attempt to obstruct the proceedings owing to the complexity of the investigation. On 8 June 2017 the Warsaw Court of Appeal ( Sąd Apelacyjny ) dismissed an appeal lodged by the applicant's lawyer against that decision.

16.     On 24 July 2017 his detention on remand was again extended, until 27   October 2017. The Warsaw Regional Court relied on the same grounds as in its previous decision. On 12 September 2017 the Warsaw Court of Appeal dismissed an appeal by the applicant against that decision.

17.     On 23 October 2017 the Warsaw Regional Court extended the applicant's detention on remand until 25 January 2018. It held that bail, regardless of its amount, could not secure the proper course of the proceedings. On 19 December 2017 the Warsaw Court of Appeal dismissed an appeal by the applicant against that decision.

18.     On 24 January 2018 the Wrocław Court of Appeal extended the applicant's detention on remand until 25 April 2018. It noted that there was a high probability of his having committed the offences with which he had been charged. It further held that the risk of his obstructing the proceedings was substantiated by the fact that while he was employed at the Property Management Office , he had allegedly made a death threat to prevent a person from appealing against an administrative decision which he had drafted. The court also held that the extension of the applicant's detention was justified by extraordinary circumstances arising from the complexity of the proceedings.

19.     That decision was upheld by the same court on 9 March 2018.

20.     On 30 March 2018 the prosecutor withdrew the charge of bribery against the applicant.

21.     On 19 April 2018 the Wrocław Court of Appeal extended the applicant's detention on remand, subject to a proviso that if bail in the amount of 2,000,000 Polish zlotys (PLN) (500,000 euros (EUR)) were posted, he would be released.

22.     On 20 April 2018 the same court suspended the enforcement of the above-mentioned decision pending the examination of an appeal lodged by the prosecutor.

23.     On 9 May 2018 the same court quashed the decision of 19 April 2018 in so far as it provided for the applicant's release subject to bail being posted. It held that while he worked at the Property Management Office, the applicant had allegedly made a death threat against M.M. (see paragraph 18 above) and tried to convince M.G. to neglect her duties in favour of R.N., thus substantiating the risk of the applicant's obstructing the proceedings. One of the judges sitting on the panel appended a dissenting opinion indicating that detention on remand should be applied only if other preventive measures proved to be insufficient.

24.     On 16 July 2018 the Wrocław Court of Appeal again extended the applicant's detention on remand, until 21 October 2018. It referred to the extraordinary complexity of the case and held that there was a high risk that he would obstruct the proceedings.

25.     On 8 October 2018 a bill of indictment against the applicant was filed with the Warsaw Regional Court. He was accused of eight offences, including accepting bribes, influence peddling, money-laundering and abuse of power. The prosecutor requested to have 177 witnesses questioned and the testimonies of a further thirty-five witnesses read out. The case file comprised 434 volumes.

26.     On 18 October 2018 the same court extended the applicant's detention on remand until 19 January 2019, subject to a proviso that if bail in the amount of PLN 2,000,000 (EUR 500,000) were posted, he would be released. On 19 November 2018 the Warsaw Court of Appeal increased the amount of bail by a further PLN 500,000 (EUR 125,000).

27.     On 20 December 2018 the Warsaw Regional Court extended the applicant's detention on remand until 30 January 2019.

28.     On 11 January 2019 the same court agreed to a charge on the applicant's property in order to secure bail and he was released from detention that day.

29.     On 25 May 2021 the Warsaw Regional Court, in a non-final judgment, acquitted the applicant on the charges of forging a signature and fraud .

30.     The criminal proceedings against the applicant are still pending.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

31.     The relevant domestic law and practice concerning the imposition of detention on remand ( tymczasowe aresztowanie ), the grounds for its extension, release from detention and the rules governing other so-called "preventive measures" ( środki zapobiegawcze ) are set out in Gołek v. Poland (no.   31330/02, §§ 27-33, 25 April 2006); Celejewski v. Poland (no. 17584/04, §§   22-23, 4 May 2006); and Kauczor v. Poland (no. 45219/06, §§ 26-27, 3   February 2009).

THE LAW

1. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

32.     The applicant complained that the length of his detention on remand had been excessive. He relied on Article 5 § 3 of the Convention, which 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."

1. Admissibility

33.     The Government argued that the complaint should be declared inadmissible on account of its manifestly ill-founded character.

34.     The applicant disagreed.

35.     The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article   35 of the Convention. It must therefore be declared admissible.

2. Merits
   1. The parties' submissions

(a)    The applicant

36.     The applicant complained that the length of his detention on remand had been unreasonable.

37.     He submitted that the domestic courts had automatically extended his detention on remand, relying on essentially the same grounds each time. The applicant also stressed that his arrest had occurred several months after the so-called "reprivatisation scandal" had come into the public spotlight, and thus he had had more than enough time to attempt to obstruct the investigation or go into hiding. Instead, he had chosen to cooperate with agents of the Central Anti-Corruption Bureau.

38.     The applicant further submitted that his detention on remand had negatively affected his family, including his daughter, who had suffered from depression. He stated that she had never recovered from the trauma caused by his arrest and had committed suicide in early July 2020.

(b)    The Government

39.     The Government submitted that the length of the applicant's detention was compatible with the standards applicable under Article 5 § 3 of the Convention and thus revealed no violation of this provision. They argued that the grounds referred to in the decisions of the domestic courts were "relevant" and "sufficient" to justify the entire period of his detention. In particular, they referred to the complexity of the case, the number of suspects and the fact that the applicant had already made a death threat against one person and incited another person to neglect her duties. They also stressed that the reasonable suspicion of the applicant's guilt had persisted throughout the entire period of his detention. The Government argued that, having been faced with a potentially severe penalty, the applicant could have attempted to interfere with the course of the proceedings.

2. The Court's assessment

(a)    General principles

40.     The Court reiterates that the general principles regarding the right to a 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; McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006-X, with further references; and Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 84-91, 5   July 2016).

(b)    Application of the above principles to the present case

41.     The Court notes from the outset that the applicant's detention on remand lasted from 30 January 2017, when he was arrested on charges of bribery and large-scale fraud, until 11 January 2019, when he was released on bail (see paragraphs 11-13 and 28 above). Accordingly, the period to be taken into consideration amounts to one year and eleven months.

42.     The Court further observes that in their decisions on the applicant's detention on remand, the domestic courts mainly relied on the reasonable suspicion against him, reinforced by the close ties between him and other suspects, the severity of the penalty to which he was liable and the risk of his obstructing the proceedings. On two occasions the domestic court also referred to the fact that the applicant had made a death threat to prevent a person from lodging an appeal against an administrative decision favourable to R.N. and had incited another person to neglect her duties for the benefit of R.N. (see paragraphs 18 and 23 above).

43.     With regard to the allegation that the applicant had made a death threat, the Court notes that in his submissions, the applicant indicated that M.M., whom the applicant had allegedly threatened, had withdrawn his statements. The Government did not address that argument in their submissions and it appears that the applicant has never been charged with threatening M.M. Moreover, the reasoning of the domestic court does not provide any further details, it merely noted that the applicant had allegedly threatened M.M. while employed at the Property Management Office. The Court is not persuaded that such unproven allegations substantiated a risk of the applicant's obstructing proceedings during an active investigation.

44.     Furthermore, the Court is not convinced that actions allegedly undertaken by the applicant prior to the initiation of the investigation can justify the entire period of his detention. The Government did not put forward any evidence that he had tried to influence witnesses, give false testimony or tamper with evidence. It is apparent that the applicant had already been aware of the authorities' interest in the case before his arrest (see paragraphs 6-8 above) and there is no proof that he had tried to obstruct the proceedings.

45.     The Court notes that the risk of proceedings being obstructed may be much higher if there is a serious suspicion that several suspects acted as an organised criminal group, as such a group may resort to various unlawful means to try to prevent the prosecuting authorities from establishing the facts. However, although the applicant was charged with offences committed together with eight other suspects, he was not charged with acting within an organised criminal group (contrast Bąk v. Poland , no. 7870/04, §   57, 16   January 2007).

46.     The Court further observes that, as a general rule, the competent authorities should resort to the least restrictive means in order to ensure the proper conduct of criminal proceedings. However, in the applicant's case, whenever the authorities envisaged the possibility of imposing less restrictive preventive measures on him, such as bail, the relevant decisions were quashed on appeal. In their reasoning, the second-instance courts relied on essentially the same criteria as the lower courts or referred to circumstances from before the investigation had been initiated. Also, their grounds for keeping the applicant in detention did not change over time. That being so, the explanation as to why less restrictive means were considered insufficient in the present case does not appear convincing (see Jablonski v.   Poland , no.   33492/96, § 83, 21 December 2000; Iłowiecki v. Poland , no.   27504/95, §§   63-64, 4 October 2001; and Celejewski , cited above, § 39).

47.     The Court also observes that voluminous evidence and the complexity of a case cannot, in themselves, justify the entire period of detention on remand. It remains incumbent on the authorities to prove the continued need of detention, in particular when extensive parts of the evidence have already been collected. In such situations, the authorities must give specific reasons why it is necessary to continue the detention instead of applying less restrictive preventive measures (see, mutatis mutandis , Buzadji , cited above, § § 89-91).

48.     Having regard to the foregoing, the Court finds that while the grounds given by the domestic authorities may have justified the initial detention on remand of the applicant, they were not "relevant" and "sufficient" to justify prolonging the applicant's custody for almost two years. In these circumstances it is not necessary to examine whether the proceedings were conducted with special diligence.

49.     There has accordingly been a violation of Article   5 § 3 of the Convention.

2. APPLICATION OF ARTICLE   41 OF THE CONVENTION

50.     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."

51.     The applicant claimed 25,000 euros (EUR) in respect of non-pecuniary damage.

52.     The Government contested that claim.

53.     Making its assessment on an equitable basis, the Court awards the applicant EUR 2,700 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

54.     The Court considers it appropriate that the default interest rate 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,

1. Declares the application admissible;
2. Holds that there has been a violation of Article 5 § 3 of the Convention;
3. Holds

(a)   that the respondent State is to pay the applicant, within three months, EUR 2,700 (two thousand seven hundred 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;

4. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 3 February 2022, pursuant to Rule  
77   §§   2 and 3 of the Rules of Court.

 

  Liv Tigerstedt   Erik Wennerström
  Deputy Registrar   President