CASE OF SIMONOV v. POLAND

FOURTH SECTION

CASE OF SIMONOV v. POLAND

(Application no. 45255/07)

JUDGMENT

STRASBOURG

17 April 2012

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

In the case of Simonov v. Poland,

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

George Nicolaou, President,
Ledi Bianku,
Vincent A. De Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 27 March 2012,

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

PROCEDURE

1. The case originated in an application (no. 45255/07) 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 an Armenian national, Mr Siergiej Simonov (“the applicant”), on 12 October 2007.

2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

3. The applicant alleged, in particular, that the length of his pre-trial detention had been excessive.

4. On 13 January 2011 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1958 and currently lives in Łódź.

6. On 14 February 2007 the applicant was arrested on suspicion of several counts of fraud and incitement to murder committed in an organised criminal group.

7. On 16 February 2007 the Katowice District Court remanded him in custody, relying on the reasonable suspicion that he had committed the offences in question. It attached importance to the serious nature of those offences and the likelihood of a severe prison sentence being imposed on the applicant. In this connection the court noted that the applicant had admitted to having committed some of the offences of which he had been suspected, including incitement to murder. 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. As regards the latter, the court relied on the fact that he did not have a permanent place of residence in Poland and that he had already been hiding from the police. Finally, the court underlined that the applicant was a member of an organised criminal group and that some other members of that group were still at large which increased the risk that a detainee, if released, might obstruct the proceedings.

8. The applicant’s appeal against the detention order, likewise his further appeals against decisions extending his detention and all his subsequent applications for release and appeals against refusals to release him, were unsuccessful.

9. In April 2007 the applicant had a heart attack and had to be hospitalised three times during that year.

10. In the course of the investigation, the applicant’s detention was extended on several occasions, namely on 7 May 2007 (to 7 October 2007), 10 September 2007 (to 7 January 2008) and on an unspecified subsequent date. In their detention decisions the courts repeatedly relied on the original grounds given for the applicant’s detention underlining the complexity of the case and the substantial volume of evidence to be examined. They also found no grounds warranting the applicant’s release from detention as provided for by Article 259 of the Criminal Code. In particular, the courts observed that it resulted from medical reports that the applicant could be treated within a penitentiary facility.

11. On 10 June 2008 the Katowice Regional Prosecutor lodged a bill of indictment with the Katowice Regional Court. The applicant was charged with an incitement to murder as well as several counts of thefts and extortions committed while acting as a leader of an organised criminal group. The bill of indictment comprised numerous charges brought against several defendants.

12. On 23 June 2008 the case was transferred to the Gliwice Regional Court.

13. In an opinion of 26 February 2009 experts from the cardiology institute of the Medical University in Katowice declared the applicant fit to participate in the proceedings, though limiting the duration of the hearings.

14. During the court proceedings the courts further extended the applicant’s detention, namely on 24 September 2008 (to 14 February 2009), on unspecified subsequent dates and 23 June 2010 (to 30 September 2010). The courts repeated the grounds previously given for the applicant’s continued detention.

15. On 30 June 2010 the Gliwice Regional Court gave judgment. The applicant was convicted as charged and sentenced to six years’ imprisonment.

16. The applicant and the Prosecutor appealed.

17. On 24 March 2011 the Katowice Court of Appeal decided that the applicant be released from custody and placed under police supervision. The court also barred the applicant from leaving the country.

18. It appears that the appellate proceedings against the applicant are still pending.

II. RELEVANT DOMESTIC LAW AND PRACTICE

19. The relevant domestic law and practice concerning the imposition of pre-trial detention (tymczasowe aresztowanie), the grounds for its extension, release from detention and rules governing other, so-called “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 Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 May 2006.

THE LAW

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

20. The applicant complained that the length of his pre-trial detention 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.”

A. Admissibility

21. The Court 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

22. The applicant’s detention started on 14 February 2007, when he was arrested on suspicion of incitement to murder and other offences. On 30 June 2010 the Gliwice Regional Court convicted him as charged. As from that date he was detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a) and, consequently, that period of his detention falls outside the scope of Article 5 § 3 (cf. Kudła, cited above, § 104). On 24 March 2011 the applicant was released from custody.

23. Accordingly, the period to be taken into consideration amounts to three years, four months and sixteen days.

2. The parties’ submissions

24. The parties did not comment on the case.

3. The Court’s assessment

(a) General principles

25. The Court recalls 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], no. 30210/96, § 110 et seq, ECHR 2000‑XI; and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006-..., with further references).

(b) Application of the above principles in the present case

26. 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 tamper with evidence or go into hiding. As regards the latter, they relied on the fact that the applicant was a member of an organised criminal group without a permanent place of residence in Poland.

27. The applicant was charged with incitement to murder as well as several counts of extortion and theft committed in an organised criminal group (see paragraph 11 above). The Court acknowledges that the seriousness and the nature of the accusations against the applicant could initially warrant his detention. The Court also notes that the latter was amplified by the fact that during the preliminary stage of the domestic proceedings the applicant admitted to having committed some of the offences of which he had been suspected (see paragraph 7 above). It was therefore reasonable to believe for the authorities extending the applicant’s pre-trial detention that a severe sentence could be imposed on him. Further, in the Court’s view, the fact that the case concerned a member of a criminal group should be taken into account in assessing compliance with Article 5 § 3 (see Bąk v. Poland, no. 7870/04, § 57, 16 January 2007).

28. Furthermore, according to the authorities, the likelihood of a severe sentence being imposed on the applicant created a risk that he would obstruct the proceedings. The Court reiterates that, while the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or reoffending, the gravity of the charges cannot by itself justify long periods of pre-trial detention (see Michta v. Poland, no. 13425/02, § 49, 4 May 2006).

29. In addition, however, the judicial authorities relied on the fact that the applicant had been charged with being a member of an organised criminal group. In this regard, the Court reiterates that the existence of a general risk flowing from the organised nature of the alleged criminal activities of the applicant may be accepted as the basis for his detention at the initial stages of the proceedings (see Górski v. Poland, no. 28904/02, § 58, 4 October 2005) and in some circumstances also for subsequent extensions of the detention (see Celejewski, cited above, § 37). It is also accepted that in such cases, involving numerous accused, the process of gathering and hearing evidence is often a difficult task. Moreover, the Court considers that in cases such as the present one concerning organised criminal groups, the risk that a detainee, if released, might bring pressure to bear on witnesses or other co-accused, or might otherwise obstruct the proceedings, is in the nature of things often particularly high.

30. The danger of the applicant’s absconding was one of the main grounds referred to by the domestic courts (see paragraphs 7 and 10 above). The Court is of the opinion that there was objectively a substantial risk of the applicant’s absconding which persisted throughout his pre-trial detention. This risk was confirmed by a number of relevant factors, such as the fact that the applicant was a foreigner and did not have a permanent place of residence in Poland, lacking social links to or property in the country. It was therefore reasonable to assume that the applicant would be under considerable pressure to evade trial, especially in light of the heavy prison sentence to which he was liable. In view of the above, the Court is persuaded that the danger of absconding constituted, in the particular circumstances of the present case, a relevant and sufficient ground for refusing the applicant’s applications for release and to remand him in custody for the relevant period (see, mutatis mutandis, Van der Tang v. Spain, 13 July 1995, §§ 64-67, Series A no. 321).

31. Given the above and in view of the fact that the relevant period of the applicant’s detention lasted three years, four months and sixteen days, the Court considers that the grounds given for the applicant’s pre-trial detention were both “relevant” and “sufficient” to justify holding him in custody for the entire relevant period.

32. It therefore remains to be ascertained whether the national authorities displayed “special diligence” in the conduct of the proceedings.

33. The Court observes that there were no significant periods of inactivity on the part of the prosecution authorities and the trial court during the period to be taken into consideration. The investigation was completed by the Regional Prosecutor within a relatively short period of time and the proceedings before the first instance court lasted two years.

34. For these reasons, the Court considers that the domestic authorities displayed “special diligence” in the handling of the applicant’s case.

35. In view of the above considerations and in the light of the criteria established in its case-law in similar cases, the Court considers that the period of the applicant’s detention does not disclose any appearance of a breach of the “reasonable time” requirement of Article 5 § 3 of the Convention.

36. There has accordingly been no violation of Article 5 § 3 of the Convention.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

37. Invoking Article 3 of the Convention, the applicant also complained about the inadequate conditions of his detention. The Court observes that the applicant failed to lodge with the Polish civil courts an action under Article 24 taken in conjunction with Article 448 of the Civil Code seeking compensation for the infringement of his personal rights. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

38. Finally, relying in substance on Article 6 of the Convention, the applicant complained about the alleged unfairness of the criminal proceedings. The Court notes that the relevant proceedings against the applicant are still pending before the second-instance court. Accordingly, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention as being premature.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaint concerning the length of detention admissible and the remainder of the application inadmissible;

2. Holds that there has been no violation of Article 5 § 3 of the Convention.

Done in English, and notified in writing on 17 April 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıGeorge Nicolaou
Deputy RegistrarPresident

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