FOURTH SECTION

CASE OF BĄK v. POLAND

(Application no. 7870/04)

JUDGMENT

STRASBOURG

16 January 2007

FINAL

16/04/2007

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 Bąk v. Poland,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr J. Casadevall
 Mr M. Pellonpää
 Mr S. Pavlovschi
 Mr L. Garlicki
 Ms L. Mijović, 
 Mr J. Šikuta, judges
and Mr T.L. Early, Section Registrar,

Having deliberated in private on 12 December 2006,

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

PROCEDURE

1.  The case originated in an application (no. 7870/04) 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 Grzegorz Bąk, on 17 February 2004.

2.  The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.

3.  On 13 October 2005 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1979 and lives in Warsaw.

5.  On 28 September 1999 the applicant was arrested on suspicion of having committed two armed robberies together with other persons.

6.  On 4 October 1999 the Gdańsk District Court decided to detain the applicant on remand. The decision was based on the high probability that the applicant had committed the crimes with which he had been charged, which was confirmed by evidence, in particular the testimonies of one of the co-accused. In addition, the court stated that there was a serious risk that the applicant might attempt to influence the co-accused and the witnesses and thus obstruct the proper course of the proceedings, since as an imprisoned person he was entitled in particular to have breaks in serving the penalty and to correspond without any censorship. On 26 October 1999 the Gdańsk Regional Court upheld the decision.

7.  Subsequently, the applicant’s detention was prolonged on several occasions (on 4 October and 9 December 1999, 8 March and 12 September 2000, 27 March, 26 July and 5 September 2001, 30 January, 24 April, 18 September and 31 October 2002, 28 January, 24 April, 21 June, 9 July, 14 October and 16 December 2003, 23 March and 16 September 2004, 25 January, 25 May, 21 July, 22 September and 6 December 2005, and 2 March 2006). The courts based their decisions on the reasonable suspicion that the applicant had committed the offence concerned, the severity of the penalty he faced and the risk of his collusion and absconding. During the preparatory proceedings the extension of his detention was also justified by the need to obtain further evidence, in particular to obtain expert opinions, to make inquiries at his home, to take evidence from the suspects and to confront them.

8.  From 15 September 1999 to 10 April 2000 the applicant served a prison sentence imposed on him in separate proceedings.

9.  The applicant lodged a considerable number of applications for release from detention or for commutation of the preventive measure to a less severe one, on the ground of his poor state of health or other reasons (on 20 September 2000, 20 August and 7 November 2002, 17 February 2003, 27 April, 17 June and 17 October 2004 and 17 July 2005); however, they were dismissed in decisions of 3 October 2000, 27 June 2002, 3 July 2002, 27 February 2003, 25 May 2004, 22 June 2004, 12 October 2004, 10 October 2005, 13 December 2005, and 31 January and 16 March 2006.

10.  The applicant also challenged the decisions prolonging his detention, but those applications were likewise dismissed on 26 October 1999, 8 August and 3 October 2001, 22 May and 23 October 2002, 6 August 2003, 13 January and 11 July 2004, and 25 January, 14 June, 14 September, 19 October and 28 December 2005.

11.  During the preparatory proceedings twelve persons (including the applicant) were arrested. The public prosecutor took evidence from 25 witnesses and the suspects were interviewed 32 times. 46 expert opinions were obtained, 17 confrontations and 24 searches of individuals, premises and other places were carried out and identity parades were conducted on eight occasions. Numerous documents were obtained, in particular bills of phone calls made by the suspects, their criminal records and copies of judgments.

12.  From 10 April 2000 to 10 November 2001 the applicant served a sentence of one year and seven months’ imprisonment imposed on him in separate proceedings.

13.  The applicant was indicted before the Gdańsk Regional Court on 1 September 2000. The bill of indictment concerned 61 charges and 12 accused (eight of whom, including the applicant, were detained). The applicant was charged with illegal possession of firearms, two armed robberies, one robbery involving the use of dangerous implements and resulting in serious injuries, and participation in an organised armed criminal gang. Charges against the other accused also concerned attempted murder, theft, burglary and handling stolen goods. The public prosecutor requested the court to examine nine experts and 78 witnesses and to read out the testimonies of a further 49 witnesses. The case file at that date comprised 22 volumes and the bill of indictment with the statement of reasons ran to more than 70 pages.

14.  In the period from 14 November 2000 to 3 October 2002 the first-instance court held 30 hearings. In addition five separate sittings were held at which the court decided to prolong the applicant’s detention, and on two occasions witnesses were examined away from the court’s premises. Two hearings had to be cancelled, on grounds not attributable to the court.

15.  From 10 November 2001 to 16 April 2004 the applicant served a prison sentence imposed on him in separate proceedings.

16.  On 14 and 15 November and 20 December 2000 the court held hearings. It decided to examine the case against one of the co-accused separately as his serious illness could have led to delays in the proceedings, and heard evidence from an expert and nine defendants, including the applicant.

17.  The hearing scheduled for 23 January 2001 was adjourned as one of the accused revoked his lawyer’s power of attorney. As a result the hearing scheduled for the next day had to be cancelled as well.

18.  The hearing scheduled for 14 March and 18 April 2001 was cancelled because the defendants had not appeared in court. The court contacted the relevant police headquarters and instructed them to supervise and secure the appearance of the detainees.

19.  Between 26 April and 7 November 2001 eight hearings were held and the court examined the defendants and a total of 47 witnesses. At a hearing of 30 August 2001 the court requested the Gdańsk Court of Appeal to extend the applicant’s detention until 28 February 2002. The trial court repeated the grounds given in earlier decisions on his detention. In addition it pointed to the increased risk of collusion since one of the other defendants had significantly changed his version of events at a previous hearing. The Court of Appeal granted the request on 5 September 2001, fully endorsing the reasons given by the first-instance court. It also noted that the proceedings were being conducted swiftly and that it had not been possible to terminate them for reasons not attributable to the trial court.

20.  Between 19 December 2001 and 13 June 2002 the court held 11 hearings during which the co-accused, eight experts and 39 witnesses were examined and seven other witnesses refused to make any statements.

21.  The hearing scheduled for 27 June 2002 had to be adjourned owing to the absence of one of the co-defendants and the lawyers of two others. The court decided to address the relevant bodies of the Bar Association and ordered the detention of the absent defendants.

22.  Between 10 July and 25 October 2002 seven hearings were held and the parties, an expert and ten witnesses gave evidence. The court read out testimonies of eight other witnesses, taken in the preparatory proceedings.

23.  On 31 October 2002 the Gdańsk Regional Court sentenced the applicant to seven years’ imprisonment and a fine of 3,000 Polish zlotys (PLN). The length of his detention on remand was not deducted from the sentence because during the whole proceedings at issue the applicant had been serving a prison sentence imposed on him in separate proceedings. The judgment, with its reasoning, ran to more than 80 pages.

24.  The applicant and other co-defendants appealed.

25.  The appellate hearing scheduled for 30 October 2003 was adjourned because the court decided (at the request of the lawyer of one of the co-accused) to obtain an expert opinion on the co-accused’s mental state and to hear evidence from an expert.

26.  On 1 December 2003 the Gdańsk Court of Appeal quashed the judgment in respect of eight of the accused, including the applicant, and remitted the case to the first-instance court, having found infringements of procedural law which might have influenced the outcome of the case.

27.  In the period from 22 June 2004 to 28 March 2006 the Gdańsk Regional Court held 23 hearings; another seven were cancelled for various reasons. In addition, nine separate sittings were held at which the court decided on the applicant’s detention.

28.  At this stage of the proceedings all the defendants, including the applicant, became very active. In particular, the applicant challenged all subsequent decisions concerning his detention, requested copies or records after almost all the hearings, on three occasions requested the court to transfer the case file to the detention centre in order to acquaint himself with its contents, made numerous applications for evidence to be adduced, for example requesting several expert opinions or the examination of witnesses, and lodged a considerable number of other applications.

29.  The hearings scheduled for 4 and 25 May, 2, 8 and 22 June 2004 were cancelled or adjourned because of the illness of a judge or the absence of defendants. The court appointed a new lawyer to replace one who had fallen ill.

30.  Between 7 September and 10 December 2004 the Regional Court held five hearings and examined 19 witnesses. Several other witnesses refused to testify or were absent.

31.  From 9 December to 26 December 2004 the applicant served a prison sentence imposed in separate proceedings against him.

32.  A hearing scheduled for 4 January 2005 had to be adjourned owing to the absence of a co-defendant’s lawyer. The court decided to contact the relevant bodies of the Bar Association on this matter.

33.  Between 18 January and 30 June 2005 six hearings were held and an expert and 40 witnesses gave evidence; a further ten were absent. The court imposed a fine on one witness who failed to appear at a hearing. Two hearings were cancelled owing to the illness of a judge or the absence of a witness.

34.  On 10 August 2005 the Gdańsk Court of Appeal dismissed the applicant’s complaint under the 2004 Act on the breach of the right to a trial within a reasonable time, considering that on the date of entry into force of the 2004 Act the proceedings had not exceeded the reasonable-time requirement. The court thoroughly analysed the proceedings before and after that date. It noted that the actual length of the proceedings, even if the applicant had not contributed to it, could not be taken as the only criterion for holding that the time taken was excessive. In the court’s opinion, the length of the proceedings could be found to be unreasonable if undue delays caused by inactivity or improper actions on the part of the court had occurred. The court did not establish any such circumstances in the case at issue and pointed to its extreme complexity, with the large number of plots and individuals involved, as the main cause of the length of the proceedings. The court noted that the trial court had conducted the proceedings in a proper way and had taken appropriate measures to discipline witnesses and other persons in the event of their absence.

35.  Between 4 October 2005 and 28 March 2006 the Regional Court held four hearings and five others had to be adjourned owing to the illness of a judge, the absence of a lawyer or a lack of police officers to guard the defendants on their way from the detention centre to the court. The testimonies of three witnesses were heard and those of absent witnesses were read out.

36.  The proceedings are currently pending before the Regional Court.

II.  RELEVANT DOMESTIC LAW

37.  The relevant domestic law 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) is 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).

38.  The relevant domestic provisions and practice concerning the State’s liability for a tort committed by its official, in connection with a right to a trial within a reasonable time, have already been cited in previous cases against Poland (see, for example, Rybczyńscy v. Poland, no. 3501/02, 3 October 2006, and Białas v. Poland, no. 69129/01, 10 October 2006).

THE LAW

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

39.  The applicant complained that the length of his pre-trial detention was in breach of Article 5 § 3, which in so far as relevant provides:

“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

40.  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.  Submissions of the parties

41.  The Government submitted that the applicant’s detention was based cumulatively on all the prerequisites of detention listed in the Code of Criminal Procedure as applicable at the material time.

Firstly, the Government pointed out that the evidence obtained in the proceedings indicated that there was a strong likelihood that the applicant had committed the crimes in question. Secondly, the charges brought against him concerned numerous offences committed as part of an organised criminal gang, for which the applicant faced a severe punishment. Thus, bearing in mind the severity of the charges and of the likely penalty, the applicant’s detention was justified, in the Government’s opinion, by a genuine public-interest requirement which, notwithstanding the presumption of innocence, outweighed the rule of respect for individual liberty. Thirdly, the detention was aimed at ensuring the proper conduct of the proceedings and was justified by the risk of the applicant’s obstructing the proceedings and tampering with the evidence. This risk stemmed from the fact that the proceedings concerned an organised criminal gang and that the applicant was a persistent offender. On the date of the preventive measure the investigation had still been in progress and its personal scope could still have been extended, as indeed it had been at a later stage. There existed a serious threat that the accused might attempt to influence some of the other defendants and the witnesses. Having said that, the Government concluded that only the isolation of the members of the group, at least until all of them had given evidence, could prevent their colluding and coordinating their testimonies.

42.  The applicant shared the opinion that the suspicion that he had committed a serious offence might initially have warranted his detention. He also accepted that the need to ensure the proper conduct of the proceedings had justified keeping him in custody at least as long as the evidence had not been secured. However, in his opinion, with the passage of time this ground had inevitably become less and less relevant.

43.  The Government argued that the above-mentioned circumstances had remained valid during the whole period of the applicant’s detention. Moreover, in the course of the proceedings the prolongation of his detention had been justified by the need, which had arisen during the preparatory proceedings, to extend the personal and material scope of the investigation. Further, the Government observed that the courts had stressed on several occasions that it was necessary to separate the co-accused and the witnesses, regard being had to the fact that investigations concerning crimes committed in an organised criminal gang were especially complex and required the isolation of the alleged perpetrators. Consequently, the Government requested the Court to assess the length of the applicant’s detention in the light of the fact that he was charged with crimes committed as part of an organised criminal gang.

The Government also submitted that the courts did not apply detention on remand automatically but based their decisions on a careful consideration of each individual case. The courts had decided to release four co-defendants as soon as they had found that the reasons justifying their detention ceased to persist.

44.  The applicant did not address this issue and stated that the length of his detention was excessive.

45.  As to the complexity of the case, the Government argued that it was very complex. At the same time the Government submitted that in the period from 2000 to 2003 the number of persons sentenced for involvement in organised criminal activities had remained relatively unchanged in Poland, representing on average only 0.016% of all those sentenced at that time. Since 2004, there had been a significant increase in the number of sentences relating to organised criminal activities. In the period up to 2000 the total number of those sentenced for organised criminal activities had been significantly smaller. For example, in 1998 and 1999 there had been only seven and eighteen persons respectively sentenced for such crimes. According to the Government’s submissions, there were several procedural problems that tended to arise in cases relating to organised criminal activities. Such cases were complex by their nature, as typically they involved the investigation of an activity carried out by a group, and that in turn involved the examination of offences committed by several persons. Usually all the trial and pre-trial material was voluminous and the legal and factual assessment required considerable time and effort. In many such cases evidence had to be taken from anonymous witnesses. The trial court had to guarantee both the anonymity of such witnesses and the rights of the accused. There were often problems with the presence at the hearings of the accused or their legal representatives, including defence counsel and witnesses, as they were often interested in slowing down the process and as a consequence the trial court could not carry out the appropriate measures as planned. There were also many logistical problems as the witnesses and accused, mostly belonging to the same or competing groups of organised criminals in detention, required isolation both within the relevant detention facility and while being transported. Their relatively large number, coupled with the need to provide appropriate security, dictated that they had to be placed in different detention centres. Even persons detained in the same facility had to be transported and brought to the courtroom separately, requiring additional manpower and equipment. In addition, not all courts had at their disposal appropriate facilities both to ensure the isolation of those being brought to court and to allow the police to guarantee the security of all the parties involved. This was particularly true of many district courts.

46.  With respect to the present case, the Government pointed out that both the prosecutor and the trial court had conducted extensive evidentiary proceedings, as was typical for proceedings in cases concerning organised crime. In the course of the investigation about 300 applications to adduce evidence had been made and more than 130 witnesses had been interviewed. The applicant had given evidence four times and on several times had been confronted with witnesses. The Government stated that the hearings of the accused before the court had been very time-consuming and had lasted for many hours.

47.  According to the Government, during the whole proceedings hearings had been held regularly and had been fixed at regular intervals. Only a few scheduled hearings had had to be cancelled, on grounds for which the courts could not be held responsible. In the Government’s opinion the proceedings had been concluded with reasonable speed and without any undue delays. The courts had also taken proper measures to ensure the speedy progress of the proceedings, for example by informing the police headquarters of the scheduled hearings and asking them to thoroughly supervise and secure the appearance of the detained; by deciding to examine the case of one of the co-accused separately, as his illness might have contributed to delays; by imposing fines on absent witnesses; or by contacting the relevant bodies of the Bar Association if lawyers had failed to attend the hearings.

48.  The applicant disagreed with the Government’s opinion concerning the complexity of the case and argued that the serious character of the offences and the number of defendants and witnesses did not as such entail an automatic conclusion that the relevant criminal proceedings were complex. In the applicant’s view, the Government had not submitted any arguments to show that any difficulties in establishing the facts, or any problems in the legal classification of the impugned acts, had arisen in the present case.

49.  Lastly, the Government concluded that the applicant’s pre-trial detention in the present proceedings had lasted from 4 October 1999 until 31 October 2002, when the Gdańsk Regional Court had given its judgment, and from 1 December 2003 to date. Meanwhile, the applicant had served several sentences of imprisonment imposed on him in other proceedings. He had been imprisoned continuously from 3 September 1999 until 16 April 2004 (see paragraphs 8, 12 and 15 above) and from 9 December 2004 until 26 December 2004 (see paragraph 31 above). Therefore, the Government were of the opinion that the applicant had effectively been detained only from 17 April 2004 to 8 December 2004 and from 27 December 2004 to date – that is, for about two years and three months.

50.  The applicant did not address the issue of his prison sentences and submitted that his detention had exceeded six years.

2.  Principles established under the Court’s case-law

51.  Under the Court’s case-law, the issue of whether a period of detention is reasonable cannot be assessed in abstracto. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see, among other authorities, W. v. Switzerland, judgment of 26 January 1993, Series A no. 254-A, p. 15, § 30).

52.  It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions dismissing the applications for release. It is essentially on the basis of the reasons given in these decisions and of the established facts mentioned by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention (see McKay v. the United Kingdom, [GC], no. 543/03, § 43, 6 October 2006).

53.  The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita v. Italy, no. 26772/95, § 153, ECHR 2000-IV).

3.  Application of the principles to the circumstances of the present case

(a)  Period to be taken into consideration

54.  The Court considers that the applicant’s detention can be divided into the following periods:

(a)  the first period, lasting from 4 October 1999 until 31 October 2002 (the date of the first-instance judgment), during which the applicant’s detention coincided with the prison sentence imposed in separate criminal proceedings against him;

(b)  the second period, lasting from 31 October 2002 to 1 December 2003 (the date on which the case was remitted by the appellate court for re-examination);

(c)  the third period, lasting from 1 December 2003 to 16 April 2004, during which the applicant’s detention coincided with the prison sentence imposed in separate criminal proceedings;

(d)  the fourth period, lasting from 17 April 2004 to 8 December 2004;

(e)  the fifth period, lasting from 9 December 2004 until 26 December 2004, during which the applicant’s detention coincided with the prison sentence imposed in separate criminal proceedings;

(f)  the sixth period, lasting from 27 December 2004 up to the present.

The Court reiterates that, in view of the essential link between Article 5 § 3 of the Convention and paragraph 1 (c) of that Article, a person convicted at first instance cannot be regarded as being detained “for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence”, as specified in the latter provision, but is in the position provided for by Article 5 § 1 (a), which authorises deprivation of liberty “after conviction by a competent court” (see, for example, B. v. Austria, judgment of 28 March 1990, Series A no. 175, pp. 14-16, §§ 36-39). Accordingly, the second period of the applicant’s detention, which lasted from 31 October 2002, the date of his original first-instance conviction, to 1 December 2003, the date on which that conviction was quashed and his case remitted to the first-instance court, cannot be taken into account for the purposes of Article 5 § 3.

Likewise, the Court cannot take into account the first, the third and the fifth period for the purpose of assessing the reasonableness of the length of the detention under Article 5 § 3 of the Convention, as during those periods the applicant’s detention on remand coincided with his detention after conviction in separate criminal proceedings. Such detention cannot be considered on the same footing as a detention under Article 5 § 1 (c), with which Article 5 § 3 is solely concerned, as it applies only to persons in custody awaiting their trial (see Wemhoff v. Germany, judgment of 27 June 1968, Series A no. 7, pp. 23-24, § 9).

55.  The Court consequently finds that the period to be taken into consideration consists of two separate terms, the first lasting from 17 April 2004 until 8 December 2004 and the second from 27 December 2004 until the present, and amounts to about two years and four months.

(b)  Reasonableness of the length of detention

56.  The Court observes that the present case concerned a serious crime, namely armed robberies committed together with other persons. 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.

57.  The Court will take into account in assessing the conduct of the authorities in the present case the special circumstances deriving from the fact that it concerned a member of a criminal gang (see Celejewski v. Poland, no. 17584/04, 4 May 2006).

58.  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 6, 7 and 19 above). Furthermore, the Government stated that the particular complexity of the case, as it concerned organised crime, additionally justified the applicant’s detention.

59.  The suspicion that the applicant had committed serious offences was confirmed in particular by the testimonies of one of 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. Having said that, the Court would emphasise that there is a general rule that the domestic courts, in particular the trial court, are better placed to examine all the circumstances of the case and take all the necessary decisions, including those in respect of pre-trial detention. The Court may intervene only in situations where the rights and liberties guaranteed under the Convention have been infringed.

60.  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.

61.  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.

62.  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 one of the accused significantly changed his statements during the hearings (see paragraph 19 above). 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.

63.  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.

64.  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. The courts also took proper measures to ensure the speedy progress of the proceedings (see paragraphs 18, 21, 32 and 33 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. It should not be overlooked that, while an accused person in detention is entitled to have his case given priority and conducted with particular expedition, this must not stand in the way of the efforts of the judges to clarify fully the facts in issue, to provide both the defence and the prosecution with all necessary facilities for putting forward their evidence and stating their case and to give judgment only after careful reflection on whether the offences were in fact committed and on the sentence to be imposed.

65.  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 6 § 1 OF THE CONVENTION

66.  The applicant complained of a violation of his right to a trial within a reasonable time. He relied on Article 6 § 1 of the Convention, which in so far as relevant provides:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

A.  Admissibility

67.  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.  Submissions of the parties

68.  The Government submitted that in the particular circumstances of the applicant’s case there had been no violation of Article 6 § 1 of the Convention.

They repeated the submissions they had made with regard to the allegedly unreasonable length of the applicant’s detention (see paragraph 45 above) and argued that the case was very complex. They submitted, briefly, that the case concerned an organised armed group of a criminal nature; twelve individuals had been involved in its activities, committing miscellaneous offences (they had been charged with 61 crimes). The court had obtained numerous expert opinions and had additionally heard evidence from nine experts. It had also examined 78 witnesses and acquainted itself with the testimonies of 49 others. The public prosecutor had filed 300 applications to adduce evidence. The bill of indictment, with its reasoning, ran to 70 pages and the judgment of 31 October 2002 to more than 80 pages. The case file, by March 2006, comprised 43 volumes.

69.  The applicant disagreed with the Government’s opinion about the complexity of the case.

70.  As to the conduct of the domestic authorities, the Government further argued that there had been no delays attributable to the State regardless of the total length of the proceedings. They reiterated their opinion that the proceedings had been concluded swiftly and that the judicial authorities had shown due diligence in ensuring the proper conduct of the proceedings.

The Government also submitted that the Gdańsk Court of Appeal had thoroughly analysed the proceedings after the applicant had lodged a complaint under the 2004 Act on the breach of the right to a trial within a reasonable time. In that court’s opinion, the proceedings had not breached the reasonable-time requirement. It noted that the trial court had conducted the proceedings in a proper manner and had taken appropriate measures to discipline witnesses and other persons in the event of their absence. The Gdańsk Regional Court had shown due diligence throughout the judicial proceedings.

The Government pointed out that some of the hearings had had to be adjourned owing to the absence of defence counsel and that the court had informed the relevant bodies of the Bar Association whenever lawyers had been absent. On one occasion the court had decided to appoint another lawyer in place of the one who had failed to attend the hearings. The court had also taken disciplinary measures against the witnesses. It had imposed fines on the witnesses who had failed to comply with summonses. On some occasions the court had decided to examine witnesses outside its premises in order to accelerate the proceedings. The court had also encountered many problems in establishing the witnesses’ whereabouts: in such cases it had requested information from the relevant authorities.

71.  The applicant contested these arguments and stressed that the undisputed complexity of the case, resulting from the number of defendants and witnesses, could not justify the slow progress of the proceedings before the court, or the six-month gap between the judgment of the Gdańsk Court of Appeal (1 December 2003) and the date of the first hearing after the case had been remitted to the Gdańsk Regional Court (22 June 2004). The applicant emphasised that hearings had frequently been adjourned owing to the absence of witnesses and the lack of police officers to guard the accused on their way from the detention centre to the court.

72.  The Government did not address the issue of the courts’ inactivity between 1 December 2003 and 22 June 2004. As to the conduct of the applicant, they were of the opinion that he had significantly contributed to the length of the proceedings. In particular, the applicant had lodged various applications and appeals, even if he had been informed that some of his appeals were inadmissible. The Government argued, relying on Malicka Wąsowska v. Poland ((dec.), no. 41413/98, 5 April 2001), that while exercising his procedural rights, the applicant had to be aware that such applications and appeals might contribute to delays in the proceedings.

2.  The Court’s assessment

(a)  Period to be taken into consideration

73.  The Court reiterates in the first place that in criminal matters, the “reasonable time” referred to in Article 6 § 1 begins to run as soon as a person is “charged”; this may occur on a date prior to the case coming before the trial court (see, for example, Deweer v. Belgium, judgment of 27 February 1980, Series A no. 35, p. 22, § 42), such as the date of arrest, the date when the person concerned was officially notified that he would be prosecuted, or the date when preliminary investigations were opened (see Wemhoff v. Germany, judgment of 27 June 1968, Series A no. 7, pp. 26-27, § 19; Neumeister v. Austria, judgment of 27 June 1968, Series A no. 8, p. 41, § 18; and Ringeisen v. Austria, judgment of 16 July 1971, Series A no. 13, p. 45, § 110). “Charge”, for the purposes of Article 6 § 1, may be defined as “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence”, a definition that also corresponds to the test whether “the situation of the [suspect] has been substantially affected” (see Deweer, cited above, p. 24, § 46).

74.  In the present case, the Court observes that the applicant was remanded in custody on 28 September 1999 on suspicion of having committed robberies and it can be assumed that on this date he was officially notified that he would be prosecuted. Accordingly, the relevant period for the assessment of the length of the proceedings began to run on that date. The proceedings are still pending. The period under examination therefore amounts to seven years at two levels of jurisdiction.

(b)  Reasonableness of the length of proceedings

75.  The reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities which in this instance call for an overall assessment (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II, and Szeloch v. Poland, no. 33079/96, § 101, 22 February 2001).

76.  The Court considers that the subject matter of the case before the domestic courts was undoubtedly complex, as shown, inter alia, by the fact there were twelve accused and that by September 2000 the case file already comprised twenty-two volumes. Establishing the facts of the case necessitated submitting a substantial amount of evidence to the court and examining a large number of witnesses. The Court’s attention has also been drawn in this connection to the fact that on 10 August 2005 the Gdańsk Court of Appeal stressed that the case was particularly complex and voluminous (see paragraph 34 above).

77.  On the other hand, the Court cannot accept that the Government’s argument that the applicant was responsible for prolonging the proceedings by lodging unspecified “various applications and appeals”. In particular, even if the Court were to admit that the defendants, including the applicant, had contributed to certain delays during the trial by making use of their procedural rights, it considers that those factors could not justify the entire period of the applicant’s detention. In that connection, the Court underlines that the Government did not refer to any particular act whereby the applicant had obstructed the trial and did not specify the applications and appeals to which they referred.

78.  In respect of the conduct of the judicial authorities, the Court notes that the proceedings in their investigative phase were conducted from October 1999 to 1 September 2000. After the bill of indictment had been filed with the court on the latter date, the first hearing was fixed for 14 November 2000. It is true that the case was conducted speedily at the beginning of the judicial proceedings, since before the first-instance judgment of 31 October 2002 the court held 30 hearings on average, more than one hearing a month. A significant number of witnesses were heard during these hearings. The appeal was examined in about one year and one month, and the proceedings have to date been pending for about three years before the Regional Court.

79.  The Court also notes that a number of hearings in the case were adjourned because either the accused or the witnesses failed to comply with summonses (see paragraphs 18, 21, 29, 32 and 33 above). However, the domestic court made efforts to expedite the proceedings, in particular by ensuring the supervision of the appearance of the detainees by the police, deciding to examine the case of one of the co-accused separately or imposing fines on absent witnesses (see paragraph 47 above).

80.  The Court further observes that on 10 August 2005 the Gdańsk Court of Appeal found, on a complaint by the applicant about the breach of his right to a trial within a reasonable time, that the length of the proceedings had not been excessive. The Court of Appeal had analysed the entire period of the proceedings and observed no undue delays caused by inactivity or improper actions on the part of the trial court.

81.  Nevertheless, the Court must point out that the duty to administer justice expeditiously was incumbent in the first place on the domestic authorities, especially as during a substantial part of his trial the applicant remained in custody, even if he had been serving a prison sentence at the same time. The Court has stressed on many occasions, in relation to Article 5 § 3, that in cases where a person is detained pending the determination of a criminal charge against him, the fact of his detention is itself a factor to be considered in assessing whether the requirement of a decision on the merits within a reasonable time has been met (see Abdoella v. the Netherlands, judgment of 25 November 1992, Series A no. 248-A, pp. 16-17, § 24).

82.  On the basis of the above considerations, observing that the proceedings, which have lasted for seven years, are still pending and irrespective of the finding that there has been no violation of the applicant’s right to release pending trial within the meaning of Article 5 § 3 of the Convention, the Court considers that the reasonable time within the meaning of Article 6 § 1 of the Convention has been exceeded.

83.  Consequently, having regard to all the circumstances of the case and the overall length of the proceedings, the Court considers that there has been a violation of Article 6 § 1 of the Convention.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

84.  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

85.  The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage.

86.  The Government contested the claim as being exorbitant.

87.  The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 3,600 under that head.

B.  Costs and expenses

88.  The applicant also claimed EUR 1,000 for the costs and expenses incurred before the Court.

89.  The Government did not express an opinion on the matter.

90.  According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers, that the sum claimed should be awarded in full.

C.  Default interest

91.  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

1.  Declares the application admissible;

2.  Holds that there has been no violation of Article 5 § 3 of the Convention;

3.  Holds that there has been a violation of Article 6 § 1 of the Convention;

4.  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 3,600 (three thousand six hundred euros) in respect of non-pecuniary damage and EUR 1,000 (one thousand euros) in respect of costs and expenses, to be converted into Polish zlotys 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 16 January 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

T.L. Early Nicolas bratza 
 Registrar President


BĄK v. POLAND JUDGMENT


BĄK v. POLAND JUDGMENT