Last Updated on November 4, 2019 by LawEuro
FIRST SECTION
DECISION
Application no.25875/11
Olgierd LIPNICKI
against Poland
The European Court of Human Rights (First Section), sitting on 6 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 6 April 2011,
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 Olgierd Lipnicki, is a Polish national, who was born in 1977 and lives in Gdańsk. He was represented before the Court by Mr K. Stogowski, a lawyer practising in Gdańsk.
2. The Polish Government (“the Government”) were represented by their Agent, Ms JustynaChrzanowska 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. On 16 August 2007 the applicant was arrested and charged with intimidating a witness and destruction of a witness’s property. The prosecutor alleged that on 17 and 19 June 2007 the applicant had threatened a witness, destroyed windows and doors in the witness’s apartment and struck her car with a hammer. On 17 August 2007 the Gdańsk-Południe District Court (SądRejonowy) remanded the applicant in custody. It further ordered that the applicant could be released on bail of 15,000 Polish zlotys (PLN). The pledge of money was posted on the same day and the applicant was released.
5. On 5 December 2008 the applicant was additionally charged with leading an organised criminal group, fraud and deriving financial gain from prostitution. On 9 December 2008 the applicant was arrested again. On 11 December 2008 the Gdańsk-Południe District Court remanded him in custody, relying on a reasonable suspicion that he had committed the offences in question. It also considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the risk that he might go into hiding and induce other defendants to give false testimony. Those arguments were supported by the fact that before his arrest the applicant had contacted the other suspects in order to adopt a common line of defence. Moreover, on the day of his arrest he had attempted to flee from the flat he was in when the police had arrived.
6. On 20 January 2009 the Gdańsk Regional Court dismissed the applicant’s appeal against the detention order. It relied on the reasonable suspicion that the applicant had committed the offences in question and the risk that he would obstruct the proper conduct of the proceedings.
7. In the course of the investigation, the applicant’s detention was extended on several occasions, namely on 26 February 2009 (upheld on 1 April 2009), 2June 2009 (upheld on 24 June 2009) and 1 September 2009. The domestic courts again relied on the reasonable suspicion that the applicant had committed the offences in question, the fact that he had been charged with leading an organised criminal group and that he faced a severe penalty. Additionally, the courts held that there was a real risk that the applicant might tamper with evidence because of his behaviour before and after the arrest. In that respect, they referred to the fact that he had sought to contact the other members of the criminal group and had made attempts to coordinate their statements. In addition, the courts relied on the need to carry out various acts in the course of the investigation, namely an analysis of the relevant documents, the preparation of expert reports and an analysis of mobile telephone traffic.
8. In its decision of 2 June 2009, the Gdańsk Regional Court noted that after his arrest the applicant had attempted to pass secret messages to another defendant and had tried to influence a witness.
9. On 26 May 2009 the applicant was additionally charged with the possession of drugs and deriving further financial gain from prostitution. On 31 August 2009 the charges against the applicant were modified in order to take account of the fact that the applicant was a recidivist.
10. On 25 November 2009 the prosecutor lodged a bill of indictment with the Gdańsk Regional Court. The applicant was charged with leading an organised criminal group, fraud, deriving financial gain from prostitution and possession of drugs. He was also charged with intimidating a witness and destruction of a witness’s property. There were ten other co-accused in the case. The prosecutor applied to examine 127 witnesses during the trial.
11. On 3 December 2009 the Gdańsk Regional Court extended the applicant’s detention on remand, relying on the complexity of the case and noting that the case file comprised over 60 volumes and that over 100 witnesses had to be heard. It underlined the fact that the applicant had been charged with leading an organised criminal group and that that fact of itself justified the finding of a risk that the applicant might tamper with the evidence. Additionally, the court invoked the likelihood of a severe sentence of imprisonment being imposed on the applicant. It also pointed out that he had been charged with intimidating a witness and destruction of the witness’s property in order to force her to change her testimony. That decision was upheld on 26 January 2010 by the Gdańsk Court of Appel.
12. Subsequently, the applicant’s detention was extended on 25 March (upheld on 5 May) and on 22 June (upheld on 13 July 2010). In those decisions, the courts repeatedly relied on the strong suspicion that the applicant had committed the offences in question. The suspicion was supported by evidence from witnesses and statements by the other accused. The courts attached importance to the serious nature of the offences with which the applicant had been charged and the likelihood of a severe penalty being imposed on him. They relied repeatedly on the risk that the applicant would attempt to tamper with evidence and referred to his violent behavior towards one of the witnesses.
13. The first hearing in the case was scheduled for 21 January 2010. The trial court then scheduled eleven hearings between 16 February and 2 September 2010. The hearings were all adjourned or cancelled owing to the justified absence of various defendants or their being ill.
14. The trial started on 21 September 2010. During the trial the Gdańsk Regional Court held thirty-six hearings.
15. During the trial the authorities extended the applicant’s detention on 28 September and 1 December 2010 (upheld on 22 December 2010). In its decision of 28 September 2010, the trial court noted that the grounds justifying the applicant’s detention on remand had not changed and remained valid.
16. The applicant’s detention was extended on 22 March 2010 (upheld on 19 April), 24 May 2010 (upheld on 14 June), 10August 2010 (upheld on 6 September), 9 November 2011 (upheld on 29 November 2011) and 11 January 2012 (upheld on 7 February 2012). The courts relied on the same grounds as previously.
17. On 6 March 2012 the trial court decided to release the applicant on bail of PLN 25,000 (approximately EUR 6,250). The applicant posted the pledge of money and was released on the same day.
18. On 25 July 2012 the Gdańsk Regional Court delivered a judgment. The applicant was convicted as charged and sentenced to six years’ imprisonment and a fine of PLN 3,500 (approximately EUR 875).
19. The applicant appealed.
20. On 5 May 2014 the Gdańsk Court of Appeal quashed the first-instance judgment and remitted the case.
21. On 18 November 2016 the Gdańsk Regional Court convicted the applicant of leading an organised criminal group, fraud, deriving financial gain from prostitution, possession of drugs and intimidating a witness. The applicant was acquitted of the charge of destruction of a witness’s property (see paragraph 9 above). The Regional Court did not retain the classification of the applicant as having acted as a recidivist. It sentenced him to five years’ imprisonment and a fine of PLN 3,000 (approximately EUR 750). The case is pending.
B. Relevant domestic law
22. The relevant domestic law and practice concerning the imposition of detention on remand (tymczasowearesztowanie), the grounds for extension, release from detention and rules governing other so-called “preventive measures” (środkizapobiegawcze) are stated in the Court’s judgments in the cases ofGołek v. Poland (no. 31330/02, §§ 27-33, 25 April 2006) andCelejewski v. Poland (no. 17584/04, §§ 22-23, 4 August 2006).
COMPLAINT
23. The applicant complained under Article 5 § 3 that the length of his detention on remand had been excessive.
THE LAW
24. The applicant complained about the excessive length of his detention on remand. He relied on Article 5 § 3 of the Convention, which, in so far as relevant, reads:
“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. Period to be taken into consideration
25. The applicant’s detention started on 9 December 2008, when he was arrested on suspicion of leading an organised criminal group, fraud and deriving financial gain from prostitution (see paragraph 5 above). On 6 March 2012 the trial court decided to release the applicant on bail of PLN 25,000 (see paragraph 16 above). Accordingly, the period to be taken into consideration amounts to three years, two months and twenty-seven days.
B. The parties’ submissions
1. The Government
26. The Government maintained that the length of the applicant’s detention on remand had not breached Article 5 § 3 and had been duly justified during the entire period. In particular, the Government underlined the fact that the applicant had not only been charged with the serious crimes of leading an organised criminal group and deriving financial gain from prostitution, but also with intimidating a witness in order to force her to change her testimony. Therefore, his detention on remand had been necessary throughout the whole period under consideration. The Government further referred to the complexity of the case, which had concerned ten defendants charged with twenty-four different offences. The prosecutor had requested that the trial court allow 127 witnesses to be heard. The proceedings had been conducted very efficiently and the hearings had been held at short intervals. Finally, the Government stressed that the applicant had been arrested twice (on 16 August 2007 and 9 December 2008). The applicant had been released on bail after the first arrest because initially the domestic court had given priority to non-custodial preventive measures. However, the applicant, while on bail, had interfered with the proper conduct of the criminal proceedings.
2. The applicant
27. The applicant submitted that his detention pending trial had been unreasonably long. He emphasised that he had spent nearly three years and three months in detention, which had not been justified by the need to ensure the proper conduct of the proceedings. He argued that he had never contributed to the delays in the proceedings and that they had been caused by the absence of one of the co-accused.
C. The Court’s assessment
1. General principles
28. 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 [GC], no. 30210/96, § 110 et seq, ECHR 2000‑XI, McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006-X, with further references; and Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 84-91, ECHR 2016 (extracts)).
2. Application of the above principles in the present case
29. 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 the applicant; (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 of obstructing the proceedings. As regards the last-mentioned issue, the domestic courts referred, inter alia, to the fact that the applicant had intimidated a witness and to his attempts to collude with the other co-accused (see paragraphs 5-7 and 10-11 above).
30. The case concerned serious charges. The applicant had been charged with leading an organised criminal group, fraud, deriving financial gain from prostitution and intimidating a witness (see paragraph 9 above). In the Court’s view, the fact that the case concerned the leader of a criminal 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).
31. 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).
32. 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, 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 attempts to tamper with evidence by intimidating a witness or colluding with the other co-accused (see paragraphs 5-7 and 10-11 above).
33. Having regard to the above, the Court considers that in the circumstances of the present case, involving an organised criminal group, 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.
34. It therefore remains to be ascertained whether the national authorities displayed “special diligence” in the conduct of the proceedings (see Nowak v. Poland, no. 18390/02, §§ 37-38, 18 September 2007, 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).
35. In that regard, the Court notes that the criminal case at issue was a complex one. It takes note of the seriousness of the charges against the applicant and the number of other people charged in the same proceedings, as well as 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.
36. The Court notes further that there were no significant periods of inactivity on the part of the prosecution authorities. It finds that there was some delay between the filing of the bill of indictment and the effective start of the trial. However, the Court is satisfied that this delay cannot be attributed to the authorities (see paragraph 12 above). In addition, following the start of the trial on 21 September 2010, the judicial proceedings were conducted smoothly. For those reasons, the Court considers that overall the domestic authorities displayed “special diligence” in the handling of the applicant’s case.
37. 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 1 March 2018.
Renata Degener AlešPejchal
Deputy Registrar President
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