Last Updated on April 24, 2019 by LawEuro
FIRST SECTION
DECISION
Application no. 40448/15
Marcin LIPIEC
against Poland
The European Court of Human Rights (First Section), sitting on 5 March 2019 as a Committee composed of:
Ksenija Turković, President,
Krzysztof Wojtyczek,
Armen Harutyunyan, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 7 August 2015,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Marcin Lipiec, is a Polish national, who was born in 1980 and lives in Łęczna.
2. The Polish Government (“the Government”) were represented by their Agent, Ms Justyna Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant was arrested on 26 August 2011. He was charged with two counts of gang rape committed with aggravated cruelty (including assault and threats of killing the victims by setting them on fire) and three counts of kidnapping and assault committed in complicity with four other persons.
5. On 27 August 2011 the Lublin-Zachód District Court (Sąd Rejonowy) remanded him in custody. The domestic court relied on the reasonable suspicion that the applicant had committed the offences in question and on the severity of the anticipated penalty. It also stressed the complexity of the case, the links between the co-accused, and the fact that the authorities had encountered difficulties in apprehending them.
6. On 15 September 2011 the Lublin Regional Court (Sąd Okręgowy) dismissed an appeal by the applicant against this decision. It stressed that the material gathered in the case justified the suspicion that if released the applicant would try to obstruct the proceedings by influencing witnesses. It referred, in particular, to the testimony of one of the victims, who had stated that the applicant and his accomplices had threatened him not to contact the police. The court also referred to the severity of the penalty to which the applicant was liable and the fact that the investigation was still pending. There was also a probability that further charges would be brought against the applicant.
7. The Lublin Regional Court extended the applicant’s pre-trial detention on 22 November 2011 and 21 February and 22 May 2012. In these decisions, the court repeated the reasons originally relied on. It further cited witness statements that corroborated the strong likelihood that the applicant had committed the offences in question, noted that the case against the applicant was complex, and indicated a number of steps that still had to be taken in order to terminate the investigation (including obtaining a number of expert reports). The court also emphasised the violent character of the offences in question and observed that there was evidence which suggested that the applicant and his co-defendants had threatened witnesses.
8. The applicant appealed against one of those decisions (issued on 21 February 2012). His appeal was dismissed by the Lublin Court of Appeal (Sąd Apelacyjny) on 7 March 2012.
9. The bill of indictment against the applicant was lodged with the Lublin Regional Court on 23 July 2012. It concerned fifteen co-defendants charged with a total of fifty-two offences. The applicant was accused of two counts of gang rape committed with aggravated cruelty combined with kidnapping and assault, three counts of kidnapping and assault committed together with offences against property, and one count of deriving financial gain from prostitution. The prosecutor requested that the court hear twenty‑four witnesses as well as examine evidence from 158 documents including fourteen expert reports.
10. Subsequently, the applicant’s detention pending trial was extended by the Lublin Regional Court’s decisions of 31 July, 18 September and 22 November 2012 and 26 March and 23 May 2013, and by the Lublin Court of Appeal’s decisions of 24 July and 23 October 2013, 22 January, 19 March, 7 May, 9 July, 22 October and 12 November 2014, and 21 January and 4 March 2015. The domestic courts continued to rely on the same grounds for detention as in the previous decisions. They stressed the complexity of the case, the links between the co-accused, and the significant danger to society of the crimes the applicant was charged with. In its decision of 31 July 2012 the Lublin Regional Court referred to the statements of two witnesses who alleged that unspecified individuals had contacted them and urged them to withdraw their statements, threatening them with negative consequences. In its decisions of 24 July and 23 October 2013, the Lublin Court of Appeal stressed the necessity for the trial court to schedule hearings more frequently and to aim to conclude the proceedings promptly. However, it did not find any delays in proceedings caused by negligence on the part of the trial court. In later decisions, the courts also found that some delays in the proceedings had resulted from the need to hear a witness who lived abroad and new witnesses who had been requested by the applicant’s co‑defendants in the final stage of the proceedings. In its decision of 9 July 2014 the Lublin Court of Appeal indicated that the length of the applicant’s detention had been extensive, but held that it had been necessary for the proper conduct of the proceedings, which were conducted in an appropriate way.
11. The applicant unsuccessfully appealed against the decisions of 22 November 2012, 26 March, 23 May and 23 October 2013, 22 January, 19 March, 7 May, 9 July, 22 October and 12 November 2014, and 21 January and 4 March 2015.
12. He also lodged a complaint under the Law of 17 June 2004 on complaints about breach of the right to have a case examined in an investigation conducted or supervised by a prosecutor and in judicial proceedings without undue delay (skarga na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki). On 27 May 2015 the Lublin Court of Appeal dismissed the complaint (case no. II S 26/15). It pointed out that the trial court had held many hearings and ruled on numerous applications for evidence to be adduced submitted by the defendants’ lawyers. The evidentiary proceedings had included, inter alia, reports from experts in chemistry and psychology as well as the examination of a witness by video‑conference. The domestic court observed that the length of the periods between the hearings had not been excessive, as they had resulted from the need to serve subpoenas, secure technical support for the hearings (for instance, video-conferencing equipment) and to allow time for the trial court to become familiar with the extensive case material (thirty-seven volumes).
13. On 1 April 2015 the Lublin Regional Court convicted the applicant on all charges and sentenced him to thirteen years’ imprisonment (case no. IV K 262/12).
14. On 31 May 2016 the Lublin Regional Court ordered the applicant’s release pending appeal.
15. On 24 May 2017 the Lublin Court of Appeal upheld the trial court’s judgment with respect to the applicant’s conviction for deriving financial gain from prostitution, and quashed it with respect to the conviction for gang rape and kidnapping. In this part, the second-instance court remitted the case, having found that the applicant’s role in those offences was lesser than that of other co-defendants and should be re-assessed by the court of the first instance. It also altered the applicant’s sentence to one year and six months’ imprisonment. The court deducted the periods of detention already undergone from the applicant’s sentence and held that the sentence had been fully served.
16. The criminal proceedings concerning the charges of gang rape and kidnapping against the applicant are currently pending before Lublin Regional Court (case no. IV K 323/17).
B. Relevant domestic law and practice
17. The relevant domestic law and practice concerning detention during criminal proceedings (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “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); Celejewski v. Poland (no. 17584/04, §§ 22-23, 4 May 2006); and Kauczor v. Poland (no. 45219/06, § 25-33, 3 February 2009).
COMPLAINT
18. The applicant complained under Article 5 § 3 of the Convention that the length of his detention had been excessive.
THE LAW
19. The applicant complained that the length of his detention had been excessive. He relied on Article 5 § 3 of the Convention, the relevant part of 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.”
A. The exhaustion of domestic remedies
20. The Government submitted that the applicant had not exhausted the remedies provided for in Polish law as regards his complaint under Article 5 § 3 of the Convention, in that he had failed to appeal against the decisions extending his detention of 22 November 2011, 22 May, 31 July and 18 September 2012, and 24 July 2013.
21. With regard to complaints under Article 5 § 3, the Court has already considered that an appeal against a detention order, a request for release, whether submitted to the prosecutor or to the court, depending on the stage of the proceedings, and also an appeal against a decision extending detention, all serve the same purpose under Polish law. Their objective is to secure a review of the lawfulness of detention at any point during the proceedings, at both the pre-trial and trial stages, and to obtain release if the circumstances of the case no longer justify continued detention (see, among other authorities, Wolf v. Poland, nos. 15667/03 and 2929/04, § 78, 16 January 2007, and Gracki v. Poland, no. 14224/05, § 33, 29 January 2008). In cases in which numerous decisions extending an applicant’s detention were issued, it is sufficient that the applicant appealed against some of them, including the decision taken at the time when the length of detention had reached its critical points (Ruciński v. Poland, no. 33198/04, § 28, 20 February 2007).
22. In the present case, the applicant was detained during preliminary and first-instance proceedings; the detention was extended seventeen times. The applicant appealed against thirteen of those decisions, including all the decisions issued in the final period of his detention.
23. It follows that the application cannot be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
B. The complaint under Article 5 § 3
1. Period to be taken into consideration
24. The applicant was detained from 26 August 2011, when he was arrested, until 31 May 2016, when Lublin Regional Court ordered his release. However, the first-instance judgment convicting the applicant was delivered on 1 April 2015. From that date onwards he was detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a); consequently that period of his detention falls outside the scope of Article 5 § 3 (see Kudła v. Poland [GC], no. 30210/96, § 104). Moreover, from 27 December 2011 until 8 February 2012 the applicant was serving prison sentences which had been imposed on him in a separate set of criminal proceedings. The period between those dates, being covered by Article 5 § 1 (a), must therefore be subtracted from the period of the applicant’s pre‑trial detention for the purposes of Article 5 § 3.
25. Accordingly, the periods to be taken into consideration under Article 5 § 3 lasted from 26 August 2011 until 27 December 2011 and from 8 February 2012 until 1 April 2015, and amounted to three years, five months and twenty-three days.
2. The parties’ submissions
(a) The Government
26. The Government argued that the application was manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention.
27. They maintained that the applicant’s detention had been justified during the whole period under consideration not only by the strong likelihood that he had committed the offences in question, the serious character of those crimes, and the complexity of the case, but also by the evidence indicating that the applicant and his co-defendants had threatened witnesses. In addition to that, they submitted that the decisions to extend the applicant’s detention had been well reasoned and had not relied on the same reasons throughout the whole period under consideration, but had taken into account new elements that had arisen during the proceedings.
28. Finally, the Government argued that the domestic authorities had displayed adequate diligence when dealing with the applicant’s case. They indicated that the courts had had to examine extensive evidence, and stressed that the hearings had taken place at regular intervals and were postponed only for legitimate reasons (such as failure to appear by some of the defendants or witnesses).
(b) The applicant
29. The applicant submitted that his detention pending trial had been for an unreasonably long period. He argued that most of the evidence had already been collected in the preliminary proceedings, and therefore the risk that he would obstruct proceedings during the trial had been an illusory one. He noted that he had been released in 2016 and since then he had not absconded or gone into hiding. He also submitted that the domestic courts had not properly reasoned their decisions concerning the extension of his detention.
3. The Court’s assessment
(a) General principles
30. The Court reiterates 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], cited above, §§ 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, ECHR 2016 (extracts)).
(b) Application of the above principles in the present case
31. The Court observes that the judicial authorities relied on the following grounds when deciding on the applicant’s detention: (1) the reasonable suspicion that the applicant had committed the offences in question; (2) the particular complexity of the case; (3) the severity of the penalty to which he was liable; and (4) the risk of his tampering with evidence and obstructing the proceedings. As regards the last-mentioned issue, the domestic courts referred, inter alia, to the statements of some of the victims and witnesses that they had been threatened by the applicant and his co-defendants (see paragraphs 6 and 10 above).
32. The case concerned serious charges. The applicant had been charged with gang rape, kidnapping and deriving financial gain from prostitution (see paragraphs 4 and 9 above). In the Court’s view, the fact that the case concerned serious offences should be taken into account in assessing compliance with Article 5 § 3 (see, among many other authorities, Nowak v. Poland, no. 18390/02, § 36, 18 September 2007).
33. The Court accepts that in the circumstances of the present case the investigating authorities and the courts were undoubtedly faced with significant difficulties in obtaining the voluminous evidence involved, including statements from victims and witnesses, and determining the facts and degree of responsibility of each of the co-defendants. In cases of this kind, the continuous supervision and limitation of defendants’ contact with each other and with others may be essential to prevent their absconding, tampering with evidence and, most importantly, influencing witnesses. Accordingly, longer periods of detention than in other cases may be reasonable (see Mierzejewski v. Poland, no. 15612/13, § 42, 24 February 2015).
34. The Court has repeatedly held that although the severity of the sentence faced is a relevant element in assessing the risk of an accused absconding or reoffending, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view, taking into consideration solely the gravity of the offence. The Court will therefore examine whether the other grounds referred to by the domestic courts were sufficient to justify the applicant’s detention (see, among many other authorities, Topekhin v. Russia, no. 78774/13, § 104, 10 May 2016). In the present case, the Court finds that the domestic courts referred to other grounds justifying the applicant’s continuing detention. Those reasons were the attempts to tamper with evidence by intimidating victims and witnesses (see paragraphs 6-7 and 10 above).
35. Having regard to the above, the Court considers that in the circumstances of the present case, involving violent and serious crimes, the grounds given for the applicant’s pre-trial detention were “relevant” and “sufficient” to justify holding him in custody for the entire period in question.
36. It therefore remains to be ascertained whether the national authorities displayed “special diligence” in the conduct of the proceedings (see Nowak v. Poland, cited above, §§ 37-38, and Mierzejewski, cited above, §§ 44-45). The complexity and special characteristics of the investigation are factors to be considered in this respect (see Scott v. Spain, 18 December 1996, Reports of Judgments and Decisions 1996-VI, pp. 2399-2400, § 74).
37. In that regard, the Court notes that the criminal case at issue was a complex one, considering the number of other persons charged in the same proceedings. It observes that a substantial amount of evidence, including expert reports and testimony of a witness who resided abroad, had to be examined in the course of the proceedings.
38. The Court further notes that there were no significant periods of inaction on the part of the prosecution authorities and domestic courts. Both the investigation and the judicial proceedings were conducted smoothly. For these reasons, the Court considers that overall the domestic authorities displayed “special diligence” in the handling of the applicant’s case (see paragraphs 10 and 12 above).
39. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 28 March 2019.
RenataDegener Ksenija Turković
Deputy Registrar President
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