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FOURTH
SECTION
CASE OF GULCZYŃSKI v. POLAND
(Application
no. 33176/06)
JUDGMENT
STRASBOURG
2 December
2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Gulczyński v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
David Thór Björgvinsson,
Ledi
Bianku,
Mihai Poalelungi, judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 13 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 33176/06) against the
Republic of Poland lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Polish national, Mr Sebastian
Gulczyński (“the applicant”),
on 8 August 2006.
- The
applicant was represented by Ms A. Pietras, a lawyer practising in
Gdynia. The Polish Government (“the Government”)
were represented by their Agent, Mr J. Wolasiewicz of the Ministry of
Foreign Affairs.
- The
applicant alleged, in particular, that his detention on remand had
exceeded a “reasonable time” within the meaning of
Article 5 § 3 of the Convention.
- On
27 September 2007 the
President of the Fourth Section of the Court decided to give notice
of the application to the Government. It was also decided to examine
the merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1976 and lives in Gdańsk.
6. On 2 March 2003 the applicant was
arrested on suspicion of armed robbery and theft committed as part of
an organised criminal gang.
- On 3 March 2003 the Gdańsk
Regional Court (Sąd
Okręgowy)
ordered his pre-trial detention. It referred to the likelihood that
the applicant had committed the offences with which he had been
charged. It further considered that there was a reasonable risk that
the applicant would obstruct the investigation by inducing witnesses
to give false testimony.
- In the course of the
investigation the applicant's detention was prolonged by the Regional
Court several times. The court referred to the likelihood of a severe
sentence of imprisonment being imposed on the applicant and the
complexity of the case. It relied on the fact that there were no
circumstances to justify the application of a different preventive
measure.
- On 20 November 2003 the Gdańsk
Regional Prosecutor (Prokurator
Okręgowy) indicted the
applicant together with 13 other persons on charges of armed robbery,
fraud, destruction of documents and theft committed as part of an
organised criminal gang. The prosecutor asked the court to hear
evidence from at least 120 witnesses.
- The trial began on 17 March
2004. The trial court held on average three hearings per month.
- In the course of the trial the
applicant's detention was prolonged by the Regional Court and the
Gdańsk Court of Appeal (Sąd
Apelacyjny)
several
times. The court relied on the previous grounds. It also referred to
the need to conclude the proceedings and in particular to ensure that
the numerous co-accused and witnesses were questioned.
- The applicant's appeals
against the decisions extending his detention
and against the detention order, and all his subsequent, numerous
applications for release and appeals against refusals to release him,
were unsuccessful.
- In particular, on 31 July 2006
the applicant made an application for his detention to be lifted or
replaced by another preventive measure. He referred to the fact that
his role in the organised criminal gang had been marginal and that
the process of obtaining evidence had been successfully completed. On
17 August 2006 the Regional Court dismissed the
application.
- On 15 November 2006 the Gdańsk
Regional Court convicted the applicant as charged and sentenced him
to eight years' imprisonment. The judgment became final, as on 28
November 2006 the applicant informed the Gdańsk Regional Court
that he would not appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice concerning the imposition of
detention on remand (aresztowanie tymczasowe), the grounds for
its prolongation, release from detention and rules governing other,
so-called “preventive measures” (środki
zapobiegawcze) are 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.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the length of his detention on remand had
been excessive. He relied on Article 5 § 3 of the
Convention, which, in so far as relevant, reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
- The
Government contested that argument.
A. Admissibility
- The Court notes that 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 2 March 2003, when he was arrested
on suspicion of armed robbery and theft
committed as part of an organised criminal gang. On 15
November 2006 the Gdańsk Regional Court convicted him as
charged.
- From
that date he was detained “after conviction by a competent
court”, within the meaning of Article 5 § 1 (a) and,
consequently, that period of his detention falls outside the scope of
Article 5 § 3 (see Kudła v. Poland [GC],
no. 30210/96, § 104, ECHR 2000 XI).
- Accordingly,
the period to be taken into consideration amounts to three years,
eight months and twelve days.
2. The parties' submissions
(a) The applicant
- The
applicant submitted that as a result of the delays in the proceedings
in his case, the length of his pre-trial detention had been
unreasonable.
(b) The Government
- The
Government submitted that the applicant's pre-trial detention had
satisfied the requirements of Article 5 § 3. It had been
justified by “relevant” and “sufficient”
grounds. These grounds were, in particular, the strong suspicion that
the applicant had committed the offences with which he had been
charged, the serious nature of the offences and the severity of the
anticipated penalty. Moreover, the Government submitted that the case
had been complex.
- The
Government further argued that the domestic authorities had shown due
diligence and that keeping the applicant in custody had been
necessary in order to prevent him from evading justice and tampering
with evidence.
- Finally,
in the Government's opinion the applicant's case had not disclosed
any of the grounds for release from detention listed in Article 259
of the Code of Criminal Procedure.
3. The Court's assessment
(a) General principles
- The
Court observes 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,
have been stated in a number of its previous judgments (see, among
many other authorities, Kudła, cited above, §§ 110
et seq., ECHR 2000 XI, and McKay v. the United Kingdom
[GC], no. 543/03, §§ 41-44, ECHR 2006-X, with further
references).
(b) Application of the above principles in
the present case
- In
their decisions on the applicant's detention, the authorities, in
addition to the reasonable suspicion against him, relied principally
on three grounds, namely the serious nature of the offences with
which he had been charged, the severity of the penalty to which he
was liable, and the need to ensure the proper conduct of the
proceedings.
- The
applicant was charged with armed robbery and
theft committed as part of an organised criminal gang (see
paragraphs 6-7 above). In the Court's view, the fact that the case
concerned a member of such a criminal gang should be taken into
account in assessing compliance with Article 5 § 3 (see Bąk
v. Poland, no. 7870/04, § 57, ECHR 2007-...).
- The
Court accepts that the reasonable suspicion against the applicant of
having committed serious offences could initially have warranted his
detention. In addition, the need to obtain voluminous evidence to
determine the degree of the alleged responsibility of each of the
defendants, who had been part of a criminal gang and against whom
numerous charges of serious offences were laid,
constituted valid grounds for the applicant's initial
detention.
- Indeed,
in cases such as the present one concerning organised criminal
groups, the risk that a detainee, if released, might bring pressure
to bear on witnesses or other co-accused or might otherwise obstruct
the proceedings is often, by the nature of things, high.
- Furthermore,
according to the authorities, the likelihood of a severe sentence
being imposed on the applicant created a presumption that the
applicant would obstruct the proceedings. However, the Court would
reiterate that, while the severity of the sentence faced is a
relevant element in the assessment of the risk of absconding or
reoffending, the gravity of the charges cannot by itself justify long
periods of detention on remand (see Michta v. Poland, no.
13425/02, §§ 49, 4 May 2006).
- While
all those above factors could justify even a relatively long period
of detention, they did not give the domestic courts an unlimited
power to prolong this measure. In this context, the Court would
observe that by the date of his first-instance conviction the
applicant had already spent more than three years and eight months in
pre-trial detention (see paragraph 14 above).
- Having
regard to the foregoing, even taking into account the fact that the
courts were faced with the particularly difficult task of trying a
case involving an organised criminal gang, the Court concludes that
the grounds given by the domestic authorities could not justify the
overall period of the applicant's detention. In these circumstances
it is not necessary to examine whether the proceedings were conducted
with special diligence.
- There
has accordingly been a violation of Article 5 § 3 of the
Convention.
II. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also alleged a breach of Article 6 § 1 on the ground
of the excessive length of the proceedings. He further complained,
under Article 6 §§ 1 and 3, that the proceedings had been
unfair.
- As
regards the complaint about the excessive length of the proceedings,
the Court observes that the present application was lodged with the
Court while the relevant proceedings were pending before the domestic
court. It was thus open to the applicant to lodge a complaint about
the unreasonable length of the proceedings with the relevant domestic
court in accordance with the general provisions of the Law of 17 June
2004 on complaints about a breach of the right to a trial within a
reasonable time (Ustawa o skardze na naruszenie prawa strony do
rozpoznania sprawy w postępowaniu sądowym bez
nieuzasadnionej zwłoki).
- The Court has already examined that remedy for the
purposes of Article 35 § 1 of the Convention and found it
to be effective in respect of complaints about the excessive length
of judicial proceedings in Poland. In particular, it considered that
it was capable both of preventing the alleged violation of the right
to a hearing within a reasonable time or its continuation, and of
providing adequate redress for any violation that had already
occurred (see Charzyński v. Poland (dec.), no.
15212/03, §§ 36-42, ECHR 2005-V). In the present case, the
applicant failed to avail himself of this remedy.
- It
follows that this part of the application must be rejected under
Article 35 §§ 1 and 4 of the Convention for
non-exhaustion of domestic remedies.
- The
Court has examined the applicant's complaints about the alleged
unfairness of the proceedings. In this respect the Court observes
that the applicant failed to lodge an appeal against the judgment of
the Gdansk Regional Court of 15 November 2006 (see paragraph 14).
Accordingly, this complaint must be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 300,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government contested this claim.
- The
Court considers that the applicant suffered non-pecuniary damage
which is not sufficiently compensated by the finding of a violation
of the Convention. Considering the circumstances of the case and
making its assessment on an equitable basis, the Court awards the
applicant EUR 1,500 under this head.
B. Costs and expenses
- The
applicant submitted no claim for costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
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
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,500 (one
thousand five hundred euros) in respect of non-pecuniary damage, plus
any tax that may be chargeable, to be converted into Polish zlotys at
the rate applicable at the date of the settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 2 december 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence
Early Nicolas Bratza
Registrar President
