Last Updated on November 4, 2019 by LawEuro
FIRST SECTION
DECISION
Application no. 19445/10
Jan LEJK
against Poland
The European Court of Human Rights (First Section), sitting on 20 February 2018 as a Committee composed of:
Aleš Pejchal, President,
Krzysztof Wojtyczek,
Jovan Ilievski, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 31 March 2010,
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 Jan Lejk, is a Polish national, who was born in 1957 and lives in Poznan.
2. The Polish Government (“the Government”) were represented by their Agent, Ms Justyna Chrzanowska, 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.
1. The applicant’s detention on remand and the criminal proceedings against him
4. On 27 May 2009 the applicant was arrested on suspicion of participation in an organised criminal group, several counts of bank fraud and illegal possession of a firearm.
5. On 29 May 2009 the Gorzów Wielkopolski District Court (Sąd Rejonowy) remanded him in custody, relying on a reasonable suspicion that he had committed the offences in question. It held that the suspicion was supported by evidence from witnesses and bank documents. The court also considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the gravity of the offences in question. It emphasised the need to apprehend other members of the criminal group. In the court’s view, if released, the applicant could try to obstruct the proceedings by passing information about the investigation to other members of the criminal group and by interfering with witnesses. Furthermore, the court relied on the likelihood of a heavy prison sentence being imposed on the applicant.
6. On 7 August 2009 the prosecutor charged the applicant with new offences, in particular leading an organised and armed criminal group and several counts of robbery.
7. The applicant’s detention on remand was later prolonged by the Poznań Regional Court (Sąd Okręgowy) on 24 August and 23 November 2009, and on 22 February and 22 March 2010.
8. In addition to the reasonable suspicion against the applicant, the courts relied on the fact that he had been charged with leading an organised criminal group and participating in another one and that he faced a severe penalty. They also referred to the necessity of carrying out various investigative acts, the need to hear new witnesses and to examine the files of various discontinued investigations. In addition, the prosecution authorities needed to examine bank documents related to fraud allegedly committed by the applicant and the issue of the purported collusion of police officers. In the courts’ view, it was necessary to maintain the applicant’s detention on remand in order to prevent him from exerting pressure on other persons who might also have participated in the scheme.
9. On 19 May 2010 the Szczecin Court of Appeal extended the applicant’s detention on remand. In addition to the grounds previously relied on, the court noted that there had been attempts by the applicant and his accomplice I.B., or persons associated with them, to influence a witness. I.B. had been charged with obstructing criminal proceedings. Moreover, two suspects, T.M. and K.W., who had incriminated the applicant, submitted that they had been offered money to withdraw their evidence about him.
10. On 17 November 2010, the Szczecin Court of Appeal again extended the applicant’s detention on remand. In all their detention decisions, the authorities repeatedly relied on the previous grounds for the measure. They also emphasised the complexity of the ongoing investigation, which concerned offences committed by members of two organised criminal groups, one of which had been led by the applicant.
11. On 9 February 2011 the Regional Prosecutor severed some of the charges against the applicant and eight other co-defendants to separate proceedings.
12. On 12 April 2011 a bill of indictment was lodged with the court. The applicant was indicted on eleven charges, including leading an organised and armed criminal group, several counts of robbery and fraud committed in an organised criminal group and illegal possession of a firearm. The bill of indictment comprised some thirty charges of offences committed in an organised criminal group brought against nine defendants.
13. During the trial, the applicant’s detention on remand was prolonged by decisions of the Poznań Regional Court of 21 February and 18 April 2011 and of the Poznań Court of Appeal of 19 May 2011. The courts repeated the previous grounds for the applicant’s continued detention.
14. The applicant’s appeals against decisions extending his detention on remand were unsuccessful.
15. On 26 July 2011 the Poznań Regional Court ordered that the applicant’s detention on remand be lifted on condition that he pay bail of 150,000 Polish zlotys (PLN) (approximately 37,500 euros (EUR)) within fifteen days. The bail was paid on the same date and the applicant was released.
16. The first hearing was scheduled for 14 June 2011. During that hearing the applicant’s counsel stated that he needed more time for consultation with his client and objected to the hearing of evidence from other defendants. The hearing was adjourned.
17. At the hearing scheduled for 20 June 2011, the applicant’s counsel again asked for an adjournment.
18. On 8 July 2011 the trial started. Further hearings were held on 11, 13, 22 and 25 July 2011.
19. The hearing scheduled for 30 August 2011 was adjourned because of the arrest of counsel for two co-defendants. The hearing scheduled for 31 August 2011 was cancelled for the same reason.
20. Between 4 September 2011 and 21 September 2012 the trial court held twenty-two hearings. Subsequent seven hearings had to be adjourned because one of the defendants was admitted to hospital and one had to have a medical examination.
21. Between 20 November 2012 and 29 July 2013 the trial court held fourteen hearings. The hearings scheduled for 6 and 14 August 2013 were adjourned at the request of the applicant’s counsel. The subsequent hearings took place on 29 and 30 October, 21 and 29 November 2013.
22. On 5 December 2013 the Poznań Regional Court gave judgment. It acquitted the applicant of ten charges, including leading an organised and armed criminal group, as well as several counts of robbery, theft and fraud committed in an organised criminal group. The applicant was convicted solely of possession of a firearm without a licence. He was given a suspended sentence of two years’ imprisonment and a fine.
23. On 2 October 2014 the Poznań Court of Appeal upheld the trial court’s judgment.
2. Proceedings under the 2004 Act (case no. II S 66/10)
24. On 4 October 2010 the applicant lodged a complaint with the Poznań Court of Appeal under the Law of 17 June 2004 (as amended) on complaints about a 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 (“the 2004 Act”).
25. On 25 January 2011 the Court of Appeal dismissed the applicant’s complaint. It found that considering the complexity of the case and the number of the defendants, the prosecution authorities had conducted the investigation in a correct and timely manner. It noted that the prosecutor had questioned a number of witnesses and co-defendants and that it had obtained expert reports relevant for the charges against the applicant. Voluminous material evidence had been gathered, which had had to be examined by the prosecutor. The Court of Appeal considered that there had been no periods of inactivity on the part of the prosecution authorities.
B. Relevant domestic law and practice
1. Preventive measures, including detention on remand
26. The relevant domestic law and practice concerning the imposition of detention on remand, 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 Kudła v. Poland [GC], no. 30210/96, §§ 75-79, ECHR 2000-XI; Bagiński v. Poland, no. 37444/97, §§ 42-46, 11 October 2005; and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006
2. Remedies against excessive length of proceedings
27. The relevant domestic law and practice regarding remedies for the excessive length of judicial proceedings are set out in the Court’s decisions in the cases of Charzyński v. Poland ((dec.), no. 15212/03, §§ 12-23, ECHR 2005-V) and Ratajczyk v. Poland ((dec.), no. 11215/02, ECHR 2005‑VIII) and in the judgment in the case of Krasuski v. Poland (no. 61444/00, §§ 34‑46, ECHR 2005-V).
COMPLAINTS
28. Invoking Article 5 § 3 of the Convention, the applicant complained that the length of his detention on remand had been excessive.
29. The applicant complained under Article 6 § 1 of the Convention of the unreasonable length of criminal proceedings.
THE LAW
A. Complaint under Article 5 § 3 of the Convention
30. 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, in so far as relevant:
“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. Period to be taken into consideration
31. The applicant’s detention started on 27 May 2009, when he was arrested on suspicion of having committed a number of offences (see paragraph 5 above). On 26 July 2011 the trial court decided to release the applicant on bail (see paragraph 20 above). Accordingly, the period to be taken into consideration amounts to two years, one month and twenty-nine days.
2. The parties’ submissions
32. The Government argued that the applicant had not exhausted the remedies provided for by Polish law. After the termination of the criminal proceedings he had failed to seek compensation for manifestly unjustified detention on remand, in accordance with Article 552 § 4 of the Code of Criminal Procedure. They refrained from taking a position on the merits of the complaint.
33. The applicant submitted that his detention pending trial had been unreasonably long. He emphasised that he had spent nearly twenty-six months in detention on remand, which had not been justified by the need to ensure the proper conduct of the proceedings, and that eventually he had been acquitted of nearly all the charges.
3. The Court’s assessment
34. The Court does not need to rule on the Government’s objection regarding non-exhaustion as this complaint is in any event inadmissible for the following reasons.
35. The Court notes 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 set out in a number of its previous judgments (see, among many other authorities, Kudła v. Poland, 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)).
36. The Court observes that the judicial authorities relied on the following grounds when deciding on the applicant’s detention on remand: (1) the reasonable suspicion against him; (2) the gravity of the charges and the related severity of the penalty to which he was liable; (3) the particular complexity of the case; and (4) the risk of his tampering with evidence and of obstructing the proceedings. With regard to the last-mentioned ground, the domestic courts referred, inter alia, to the fact that the applicant or persons associated with him had been involved in an attempt to exert pressure on a witness (see paragraph 9 above).
37. The applicant was charged with a number of serious offences, including leading an organised and armed criminal group, several counts of robbery and fraud as well as illegal possession of a firearm (see paragraphs 6 and 12 above). In the Court’s view, the fact that the case concerned the alleged leader of a criminal group and offences committed by that group should be taken into account in assessing compliance with Article 5 § 3 (see, among many other authorities, Bąk v. Poland, no. 7870/04, § 57, 16 January 2007).
38. The Court accepts that in the circumstances of the present case the investigative authorities and later the courts were undoubtedly faced with significant difficulties in obtaining the voluminous evidence involved and determining the facts and degree of responsibility of each member of the group. In cases of this kind, the continuous supervision and limitation of defendants’ contact with each other and with other persons 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).
39. 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 only 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 on remand (see, among many other authorities, Michta v. Poland, no. 13425/02, § 49, 4 May 2006, and 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 continuous detention on remand. Those reasons were the applicant’s and his co-defendant’s attempts to exert pressure on a witness (see paragraph 9 above).
40. The Court takes note of the fact that when the authorities could no longer justify the applicant’s detention, they replaced it with a less stringent preventive measure and released the applicant on bail (see paragraph 15 above). The Court considers that this approach is compatible with the principles established in its case-law referred to above.
41. Having regard to the foregoing, the Court considers that in the circumstances of the present case, involving an organised criminal group, the grounds given for the applicant’s detention on remand were “relevant” and “sufficient” to justify holding him in custody for the entire period in question.
42. It therefore remains to be seen whether the national authorities displayed “special diligence” in the conduct of the proceedings (see Nowak v. Poland, no. 18390/02, §§ 37 and 38, 18 September 2007, and Mierzejewski, cited above, §§ 44 and 45).
43. In that regard, the Court notes that the criminal case at issue was complex. It takes note of the seriousness of the charges against the applicant, the number of other people charged in the same proceedings and the need for the implementation of special measures in cases concerning organised crime (see Bąk, cited above, § 64). It observes that a substantial amount of evidence had to be examined in the course of the proceedings. The complexity of the case undoubtedly prolonged its examination and contributed to the length of the applicant’s detention on remand.
44. The Court notes further that there were no significant periods of inactivity on the part of the prosecution authorities and the courts. The prosecution authorities completed the investigation within a period of one year and some ten months (see paragraphs 4 and 12 above) and the trial proceeded smoothly. The Court therefore concludes that the authorities displayed “special diligence” in the conduct of the proceedings against the applicant.
45. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
B. Complaint under Article 6 § 1 of the Convention
46. The applicant complained of the unreasonable length of the criminal proceedings against him. He relied on Article 6 § 1 of the Convention which provides, in so far as relevant:
“In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing within a reasonable time by an independent and impartial tribunal …”
1. The parties’ submissions
47. The Government raised a preliminary objection, arguing that the applicant had not exhausted all the domestic remedies provided under the 2004 Act. The applicant had lodged a complaint alleging non-compliance with the reasonable-time requirement in the course of the investigation, but had failed to lodge a similar complaint with regard to the subsequent court proceedings.
48. With regard to the merits, the Government submitted that the impugned criminal proceedings had not been unreasonably lengthy. They first argued that the applicant’s case had been extremely complex. It had involved nine defendants charged with a total of thirty-one offences. The applicant had been charged with eleven offences. Furthermore, the case had necessitated the collection and examination of an extensive amount of evidence.
49. Secondly, the Government emphasised that the domestic authorities had shown due diligence in the conduct of the proceedings. The trial had been opened as quickly as possible and the hearings had been held regularly and frequently.
50. Thirdly, the Government submitted that the applicant and his counsel had contributed greatly to the length of the proceedings. They pointed out, for example, that hearings scheduled for 14 and 20 June 2011 had been adjourned at the request of the applicant’s counsel. At least seven hearings had had to be adjourned owing to the absence of witnesses called by the applicant. Furthermore, the Government argued that the applicant had employed delaying tactics in the proceedings.
51. The applicant submitted that the overall length of the proceedings had exceeded what was reasonable.
2. The Court’s assessment
52. The Court does not find it necessary to rule on the Government’s objection concerning non-exhaustion of domestic remedies, as the complaint is in any event inadmissible for the reasons set out below.
53. The period to be considered under Article 6 § 1 started on 27 May 2009, when the applicant was arrested on suspicion of participating in an organised criminal group, and ended on 2 October 2014, when the Court of Appeal upheld the first-instance judgment (see paragraphs 4 and 23 above). Accordingly, it lasted five years, four months and seven days at two levels of jurisdiction.
54. The Court reiterates that the length of proceedings must be assessed in the light of the particular circumstances of the case and having 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 authorities dealing with the case (see, among other authorities, Sałapa v. Poland, no. 35489/97, § 83, 19 December 2002). Moreover, considering that the applicant was detained for some twenty-six months at the initial stage of the proceedings (see paragraphs 5 and 20 above), he was entitled to “special diligence” on the part of the authorities during that stage (see, for instance, Kreps v. Poland, no. 34097/96, § 52, 26 July 2001, and Czajka v. Poland, no. 15067/02, § 60, 13 February 2007).
55. The Court finds that the case can be considered as being complex. There were nine defendants facing serious charges concerning, inter alia, membership of an organised criminal group and several counts of fraud and robbery committed by that group.
56. As to the conduct of the authorities, the Court observes that the investigation proceeded smoothly. With regard to the judicial stage of the proceedings, the Court notes that it was similarly conducted in a timely and efficient manner. The trial court held numerous hearings at regular intervals (see paragraphs 18, 20-21 above). A certain amount of delay in opening the trial was related to requests by the applicant’s counsel (see paragraphs 16‑17 and 21 above). Similarly, the cancellation of certain hearings was due to reasons which could not be attributed to the courts (see paragraphs 19-20 above).
57. With regard to the applicant’s conduct, the Court observes that his counsel requested the adjournment of certain hearings (see paragraphs 16‑17 and 21 above) and therefore contributed, to a certain extent, to prolonging the proceedings.
58. In conclusion, the Court finds that the proceedings were conducted with the necessary expedition and satisfied the reasonable-time requirement.
59. It follows that the remainder of 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 15 March 2018.
Renata Degener Aleš Pejchal
Deputy Registrar President
Leave a Reply