FIRST SECTION
\nDECISION
\nApplication no.25875\/11
\nOlgierd LIPNICKI
\nagainst Poland<\/p>\n
The European Court of Human Rights (First Section), sitting on 6\u00a0February 2018 as a Committee composed of:<\/p>\n
Ale\u0161 Pejchal, President,
\nKrzysztof Wojtyczek,
\nJovan Ilievski, judges,
\nand Renata Degener, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 6 April 2011,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The applicant, Mr Olgierd Lipnicki, is a Polish national, who was born in 1977 and lives in Gda\u0144sk. He was represented before the Court by Mr K. Stogowski, a lawyer practising in Gda\u0144sk.<\/p>\n 2.\u00a0\u00a0The Polish Government (\u201cthe Government\u201d) were represented by their Agent, Ms JustynaChrzanowska of the Ministry of Foreign Affairs.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 3.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 4.\u00a0\u00a0On 16 August 2007 the applicant was arrested and charged with intimidating a witness and destruction of a witness\u2019s property. The prosecutor alleged that on 17 and 19 June 2007 the applicant had threatened a witness, destroyed windows and doors in the witness\u2019s apartment and struck her car with a hammer. On 17 August 2007 the Gda\u0144sk-Po\u0142udnie District Court (S\u0105dRejonowy) 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.<\/p>\n 5.\u00a0\u00a0On 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\u00a0December 2008 the Gda\u0144sk-Po\u0142udnie 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.<\/p>\n 6.\u00a0\u00a0On 20 January 2009 the Gda\u0144sk Regional Court dismissed the applicant\u2019s 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.<\/p>\n 7.\u00a0\u00a0In the course of the investigation, the applicant\u2019s detention was extended on several occasions, namely on 26 February 2009 (upheld on 1\u00a0April 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.<\/p>\n 8.\u00a0\u00a0In its decision of 2 June 2009, the Gda\u0144sk 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.<\/p>\n 9.\u00a0\u00a0On 26 May 2009 the applicant was additionally charged with the possession of drugs and deriving further financial gain from prostitution. On 31\u00a0August 2009 the charges against the applicant were modified in order to take account of the fact that the applicant was a recidivist.<\/p>\n 10.\u00a0\u00a0On 25 November 2009 the prosecutor lodged a bill of indictment with the Gda\u0144sk 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\u2019s property. There were ten other co-accused in the case. The prosecutor applied to examine 127 witnesses during the trial.<\/p>\n 11.\u00a0\u00a0On 3 December 2009 the Gda\u0144sk Regional Court extended the applicant\u2019s detention on remand, relying on the complexity of the case and noting that the case file comprised over 60 volumes and that over 100\u00a0witnesses 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\u2019s property in order to force her to change her testimony. That decision was upheld on 26 January 2010 by the Gda\u0144sk Court of Appel.<\/p>\n 12.\u00a0\u00a0Subsequently, the applicant\u2019s detention was extended on 25\u00a0March (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.<\/p>\n 13.\u00a0\u00a0The first hearing in the case was scheduled for 21 January 2010. The trial court then scheduled eleven hearings between 16 February and 2\u00a0September 2010. The hearings were all adjourned or cancelled owing to the justified absence of various defendants or their being ill.<\/p>\n 14.\u00a0\u00a0The trial started on 21 September 2010. During the trial the Gda\u0144sk Regional Court held thirty-six hearings.<\/p>\n 15.\u00a0\u00a0During the trial the authorities extended the applicant\u2019s detention on 28\u00a0September and 1\u00a0December\u00a02010 (upheld on 22\u00a0December\u00a02010). In its decision of 28 September 2010, the trial court noted that the grounds justifying the applicant\u2019s detention on remand had not changed and remained valid.<\/p>\n 16.\u00a0\u00a0The applicant\u2019s detention was extended on 22 March 2010 (upheld on 19 April), 24 May 2010 (upheld on 14\u00a0June), 10August 2010 (upheld on 6\u00a0September), 9 November 2011 (upheld on 29 November 2011) and 11\u00a0January 2012 (upheld on 7 February 2012). The courts relied on the same grounds as previously.<\/p>\n 17.\u00a0\u00a0On 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.<\/p>\n 18.\u00a0\u00a0On 25 July 2012 the Gda\u0144sk Regional Court delivered a judgment. The applicant was convicted as charged and sentenced to six years\u2019 imprisonment and a fine of PLN 3,500 (approximately EUR 875).<\/p>\n 19.\u00a0\u00a0The applicant appealed.<\/p>\n 20.\u00a0\u00a0On 5 May 2014 the Gda\u0144sk Court of Appeal quashed the first-instance judgment and remitted the case.<\/p>\n 21.\u00a0\u00a0On 18 November 2016 the Gda\u0144sk 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\u2019s 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\u2019 imprisonment and a fine of PLN 3,000 (approximately EUR 750). The case is pending.<\/p>\n B.\u00a0\u00a0Relevant domestic law<\/strong><\/p>\n 22.\u00a0\u00a0The 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 \u201cpreventive measures\u201d (\u015brodkizapobiegawcze) are stated in the Court\u2019s judgments in the cases ofGo\u0142ek v. Poland (no. 31330\/02, \u00a7\u00a7 27-33, 25 April 2006) andCelejewski v.\u00a0Poland (no. 17584\/04, \u00a7\u00a7 22-23, 4 August 2006).<\/p>\n COMPLAINT<\/strong><\/p>\n 23.\u00a0\u00a0The applicant complained under Article 5 \u00a7 3 that the length of his detention on remand had been excessive.<\/p>\n THE LAW<\/strong><\/p>\n 24.\u00a0\u00a0The applicant complained about the excessive length of his detention on remand. He relied on Article\u00a05 \u00a7\u00a03 of the Convention, which, in so far as relevant, reads:<\/p>\n \u201cEveryone arrested or detained in accordance with the provisions of paragraph\u00a01\u00a0(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.\u201d<\/p>\n A.\u00a0\u00a0Period to be taken into consideration<\/strong><\/p>\n 25.\u00a0\u00a0The applicant\u2019s 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\u00a0March 2012 the trial court decided to release the applicant on bail of PLN\u00a025,000 (see paragraph 16 above). Accordingly, the period to be taken into consideration amounts to three years, two months and twenty-seven days.<\/p>\n B.\u00a0\u00a0The parties\u2019 submissions<\/strong><\/p>\n 1.\u00a0\u00a0The Government<\/em><\/p>\n 26.\u00a0\u00a0The Government maintained that the length of the applicant\u2019s detention on remand had not breached Article 5 \u00a7 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.<\/p>\n 2.\u00a0\u00a0The applicant<\/em><\/p>\n 27.\u00a0\u00a0The applicant submitted that his detention pending trial had been unreasonably long. He emphasised that he had spent nearly three years and three\u00a0months 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.<\/p>\n C.\u00a0\u00a0The Court\u2019s assessment<\/strong><\/p>\n 1.\u00a0\u00a0General principles<\/em><\/p>\n 28.\u00a0\u00a0The Court notes that the general principles regarding the right \u201cto trial within a reasonable time or to release pending trial\u201d, as guaranteed by Article 5 \u00a7 3 of the Convention, have been set out in a number of its previous judgments (see, among many other authorities, Kud\u0142a v.\u00a0Poland [GC], no. 30210\/96, \u00a7 110 et seq, ECHR 2000\u2011XI, McKay v. the United Kingdom [GC], no. 543\/03, \u00a7\u00a7 41-44, ECHR 2006-X, with further references; and Buzadji v. the Republic of Moldova [GC], no.\u00a023755\/07, \u00a7\u00a7\u00a084-91, ECHR 2016 (extracts)).<\/p>\n 2.\u00a0\u00a0Application of the above principles in the present case<\/em><\/p>\n 29.\u00a0\u00a0The Court observes that the judicial authorities relied on the following grounds when deciding on the applicant\u2019s 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\u00a05-7 and 10-11 above).<\/p>\n 30.\u00a0\u00a0The 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\u2019s view, the fact that the case concerned the leader of a criminal group should be taken into account in assessing compliance with Article 5 \u00a7\u00a03 (see, among many other authorities, B\u0105k v. Poland, no. 7870\/04, \u00a7\u00a057, 16\u00a0January 2007).<\/p>\n 31.\u00a0\u00a0The 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\u2019 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, \u00a7\u00a042, 24 February 2015).<\/p>\n 32.\u00a0\u00a0The 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\u2019s detention on remand (see, among many other authorities, Topekhin v. Russia, no. 78774\/13, \u00a7 104, 10 May 2016). In the present case, the Court finds that the domestic courts referred to other grounds justifying the applicant\u2019s continuous detention on remand. Those reasons were the applicant\u2019s attempts to tamper with evidence by intimidating a witness or colluding with the other co-accused (see paragraphs 5-7 and 10-11 above).<\/p>\n 33.\u00a0\u00a0Having 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\u2019s pre-trial detention were \u201crelevant\u201d and \u201csufficient\u201d to justify holding him in custody for the entire period in question.<\/p>\n 34.\u00a0\u00a0It therefore remains to be ascertained whether the national authorities displayed \u201cspecial diligence\u201d in the conduct of the proceedings (see Nowak v. Poland, no. 18390\/02, \u00a7\u00a7 37-38, 18 September 2007, and Mierzejewski, cited above, \u00a7\u00a7 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, \u00a7 74).<\/p>\n 35.\u00a0\u00a0In 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 B\u0105k, cited above, \u00a764). 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\u2019s detention on remand.<\/p>\n 36.\u00a0\u00a0The 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 \u201cspecial diligence\u201d in the handling of the applicant\u2019s case.<\/p>\n 37.\u00a0\u00a0It follows that the application is manifestly ill-founded and must be rejected in accordance with Article\u00a035 \u00a7\u00a7\u00a03\u00a0(a) and\u00a04 of the Convention.<\/p>\n For these reasons, the Court, unanimously,<\/p>\n Declares the application inadmissible.<\/p>\n Done in English and notified in writing on 1 March 2018.<\/p>\n Renata Degener\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Ale\u0161Pejchal
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n