CASE OF BURŻA v. POLAND

FIRST SECTION

CASE OF BURŻA v. POLAND

(Application no. 15333/16)

JUDGMENT

STRASBOURG

18 October 2018

This judgment is final but it may be subject to editorial revision.

In the case of Burża v. Poland,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

Aleš Pejchal, President,
Armen Harutyunyan,
Jovan Ilievski, judges,
and Renata Degener, Deputy Section Registrar,

Having deliberated in private on 25 September 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 15333/16) 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 Mirosław Burża (“the applicant”), on 10 March 2016.

2. The applicant was represented by Mr K. Nowiński, a lawyer practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, who was later replaced by Ms A. Męż ykowska, the Co-Agent, of the Ministry of Foreign Affairs.

3. The applicant alleged that his detention on remand was unreasonably lengthy, contrary to Article 5 § 3 of the Convention.

4. On 24 April 2017 the application was communicated to the Government.

5. The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1988 and is currently detained in Warsaw Służewiec Remand Centre.

7. On 26 November 2010 the applicant was arrested by the police.

8. On 27 November 2010 the Warsaw Wola District Prosecutor (Prokurator Rejonowy) charged the applicant with possession of a significant amount of drugs and requested that the Warsaw Wola District Court (Sąd Rejonowy) detain him on remand.

9. On 28 November 2010 the court decided to detain the applicant on remand for a period of three months, in view of the reasonable suspicion that he had been in possession of a significant amount of drugs (III Kp 2159/10). The court applied this measure due to the high probability that the applicant had committed the offence with which he was charged, the severity of the maximum sentence provided by law for such offence (up to at least eight years’ imprisonment) and the fact that the likelihood of such a penalty might induce the applicant to obstruct the proceedings, as well as the fear that the applicant might influence other persons to present a version of events favourable to him.

10. On 21 February 2011 the Warsaw Regional Court (Sąd Okręgowy) extended the applicant’s pre-trial detention. The court noted that the applicant had also been charged with being a member of an organised, armed criminal gang and pointed out the actions that needed to be taken to conclude the investigation.

11. Between 18 March and 12 April 2011 the applicant partially served a prison sentence ordered in another set of criminal proceedings against him (III K 203/09).

12. On 23 May the Warsaw Regional Court extended the applicant’s detention on remand. The court again relied on the severity of the anticipated sentence and possibly adverse consequences that the applicant’s release could have for the ongoing investigation.

13. On 22 August 2011 the Warsaw Regional Court again extended the applicant’s detention on remand. It listed the charges against the applicant, which included, apart from those mentioned above, battery, making a profit from prostitution of others and destroying property. The court expressly stated that it was not obliged to specify actions aiming to obstruct the investigation, because the sole gravity of charges allowed for the presumption that such actions might be undertaken. It also pointed out that, while at large, the applicant might hinder the investigation concerning other members of the same gang.

14. On 16 September 2011 a bill of indictment against the applicant and fourteen other persons was lodged with the Warsaw Regional Court (XVIII K 297/11).

15. The applicant’s detention on remand was extended by the Warsaw Regional Court on 26 September 2011 until 30 March 2012.

16. Between 24 October 2011 and 24 October 2012 the applicant served the remaining part of the prison sentence ordered in case III K 203/09, and from 24 October 2012 to 23 October 2013 he served a prison sentence ordered in another set of criminal proceedings against him (III K 1027/07).

17. In the meantime, the Warsaw Regional Court extended the applicant’s detention on remand on 13 March, 4 July and 20 September 2012. The two latter decisions were upheld by the Warsaw Court of Appeal (Sąd Apelacyjny) on 31 July and 4 October 2012 respectively.

18. The Warsaw Court of Appeal extended the applicant’s detention on 4 October 2012, 15 January, 13 June and 28 October 2013, 13 March, 29 July and 30 December 2014, 25 June and 22 October 2015 and on 26 January 2016. The court relied on a high probability that the applicant and other accused had committed the offences with which they had been charged and on the complexity of the case. The court also considered that the persons accused might take actions aiming at obstructing the proper course of the proceedings, because they had known other accused, and the charges against them included being members of an armed and organised criminal gang. The Court of Appeal also considered that there was a high likelihood of a severe sentence being imposed. The relevant decisions were often phrased in general terms and no particular instances of the applicant’s conduct during the investigation or at the judicial stage was provided to substantiate the extension of detention on remand.

19. The applicant’s appeals against those decisions were unsuccessful. His numerous requests for release, including on bail, were dismissed.

20. On 4 March 2016 the Warsaw Regional Court gave judgment. The applicant was convicted of multiple offences and sentenced to six years’ imprisonment and to a fine of 8,000 Polish zlotys (PLN) (approximately 1,850 euros (EUR)). On the same date the applicant’s detention on remand was lifted.

21. On 12 May 2017 the Warsaw Court of Appeal upheld that judgment in respect of the applicant.

II. RELEVANT DOMESTIC LAW AND PRACTICE

22. The relevant domestic law and practice concerning the imposition of pre-trial detention (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Gołek v. Poland (no. 31330/02, §§ 27-33, 25 April 2006) and, most recently, Kauczor v. Poland (no. 45219/06, §§ 26-27, 3 February 2009).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

23. 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.”

24. The Government contested that argument.

A. Admissibility

25. The Government submitted a preliminary objection of non‑exhaustion of domestic remedies by the applicant, pointing out that he had failed to lodge an interlocutory appeal against the decisions of 23 May, 22 August and 16 September 2011 and 13 March 2012.

26. The applicant did not make any comment on that objection.

27. In the present case, the applicant appealed against the great majority of the decisions which had extended his detention (compare and contrast Bronk v. Poland (dec.), no. 30848/03, 11 September 2007 – in that case the applicant did not challenge any of the decisions concerning his detention). The Court considers that the purpose of the remedies used by the applicant was to obtain a review of his detention pending trial. In the circumstances of the case, these remedies constituted adequate and effective remedies within the meaning of Article 35 of the Convention as their aim was to obtain his release.

28. The Court notes that the arguments raised by the Government are similar to those already examined and rejected in previous cases against Poland (see Tomecki v. Poland, no. 47944/06, §§ 19-21, 20 May 2008, and Bielski v. Poland and Germany, no. 18120/03, §§ 31-35, 3 May 2011) and that the Government have not submitted any new circumstances which would lead the Court to depart from its previous findings.

29. It follows that the Government’s objection should be dismissed. The Court further 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

30. The applicant’s detention on remand lasted from 26 November 2010, when he was arrested by the police, until 4 March 2016, when he was convicted by the first-instance court, which amounts to five years, three months and nine days.

31. However, during the periods from 18 March to 12 April 2011, from 24 October 2011 to 24 October 2012 and from 24 October 2012 to 23 October 2013, the applicant served prison sentences. Therefore, he was detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a) and that period of his detention falls outside the scope of Article 5 § 3. Accordingly, the period to be taken into consideration in the present case amounted to three years, two months and nine days.

2. The parties’ submissions

(a) The Government

32. The Government submitted that, should the Court find that the applicant had exhausted domestic remedies, there had been no violation of Article 5 § 3 of the Convention. They argued that, according to the Court’s case-law, the particular circumstances of the case had justified a period of the applicant’s detention of over three years.

33. In the Government’s opinion, the criteria laid down in the Court’s case-law concerning the application and extension of detention on remand were met. In, particular the reasonable suspicion that the applicant had committed an offence had persisted throughout the whole period of detention. There were also other relevant and sufficient grounds that justified the detention: the applicant, who faced the likelihood of being sentenced to a severe penalty, might go into hiding or attempt to interfere with the course of the criminal proceedings. The complexity of the case also contributed to the length of the applicant’s detention on remand.

34. In conclusion, the Government submitted that there existed relevant and sufficient grounds which justified the applicant’s detention on remand during the whole period in question and that the detention had been lifted as soon as the domestic courts had found it no longer necessary.

(b) The applicant

35. The applicant submitted that the national courts had not given relevant and sufficient grounds for continuing his detention. In particular, the courts repeated the same wording as in their decisions and failed to take into account his individual circumstances. Moreover, they consistently relied on the gravity of the charges against him as the main justification for a risk of his absconding or obstructing the proper course of the proceedings. According to the applicant, such an approach was incompatible with the guarantees enshrined in Article 5 § 3 of the Convention.

36. The applicant argued that, according to the Court’s case-law, although the severity of the sentence was a relevant element in the assessment of the risk of absconding or reoffending, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view. Nor could continuation of the detention be used to anticipate a sentence. The domestic authorities had failed to demonstrate convincingly the existence of concrete facts relevant to the grounds for his continued detention.

3. The Court’s assessment

(a) General principles

37. The Court reiterates that the general principles regarding the right to a 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 v. Poland [GC], no. 30210/96, § 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

38. In their detention decisions, the authorities, in addition to the reasonable suspicion against the applicant, relied principally on three grounds, namely (1) the serious nature of the offences with which he had been charged, (2) the severity of the penalty to which he was liable and (3) the need to secure the proper conduct of the proceedings, given the risk that the applicant might attempt to induce other persons involved in the proceedings to give false statements.

39. The applicant was charged with participating in an organised and armed criminal gang which was dealing in drugs, as well as battery, making profits from prostitution and other charges. In the Court’s view, the fact that the case concerned a member of a criminal gang should be taken into account in assessing compliance with Article 5 § 3 (see Bąk v. Poland, no. 7870/04, § 57, 16 January 2007).

40. The Court accepts that the reasonable suspicion that the applicant had committed serious offences could initially warrant his detention. In addition, it notes that the authorities were faced with the difficult task of determining the facts and the degree of alleged responsibility of each of the defendants and that the investigation also concerned other persons. In these circumstances, the Court also accepts that the need to gather voluminous evidence constituted relevant and sufficient grounds for the applicant’s initial detention.

41. It is to be noted that the judicial authorities had presumed that there was a risk of the applicant’s obstructing the proceedings, based on the serious nature of the offences and the fact that the applicant had been charged with being a member of an organised and armed criminal gang. The Court acknowledges that in view of the seriousness of the accusations against the applicant, the authorities could justifiably have considered that such a risk existed.

42. However, the Court notes that in all the decisions extending the applicant’s detention, no other specific substantiation of the risk that the applicant would tamper with evidence, persuade other persons to testify in his favour, abscond or otherwise disrupt the proceedings, emerged. Moreover, the reasons for detention were very often identical with regard to all co-accused and did not include arguments pertaining specifically to the applicant (see paragraph 18 above). Therefore, with the passage of time, the grounds relied on became less relevant and cannot justify the entire period of over three years and two months during which the most serious preventive measure against the applicant was imposed.

43. 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 and armed criminal group, 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. APPLICATION OF ARTICLE 41 OF THE CONVENTION

44. 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

45. The applicant claimed 10,000 euros (EUR) in respect of non‑pecuniary damage.

46. The Government submitted that this amount was excessive, having regard to the Court’s case-law in similar cases, and asked that if the Court found that there had been a violation of Article 5 § 3 of the Convention, the compensation should be assessed on the basis of well-established jurisprudence, on the amount of just satisfaction given to applicants in similar cases and national economic circumstances.

47. The Court, having regard to the circumstances of the case and ruling on an equitable basis, awards the applicant EUR 3,500 in respect of non‑pecuniary damage.

B. Costs and expenses

48. The applicant did not make a claim concerning costs and expenses.

C. Default interest

49. The Court considers it appropriate that the default interest rate 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,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 5 § 3 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months, the following amount, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: EUR 3,500 (three thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(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;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 18 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Renata DegenerAleš Pejchal
Deputy RegistrarPresident

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