FOURTH SECTION
DECISION
Application no. 25928/07
Andrzej JĘDRZEJCZAK
against Poland
The European Court of Human Rights (Fourth Section), sitting on 14 February 2012 as a Committee composed of:
Päivi Hirvelä, President,
Ledi Bianku,
Zdravka Kalaydjieva, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 22 May 2007,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Andrzej Jędrzejczak, is a Polish national who was born in 1981 and lives in Konin. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was an officer of the Border Guard. On 5 July 2005 he was arrested on suspicion of drug-trafficking. At the time of his arrest the applicant had in his possession a large quantity of ecstasy tablets. He was charged on the following day.
A certain KA was also charged with drug-trafficking. He pleaded guilty and gave evidence incriminating the applicant.
On 7 July 2005 the Opole District Court ordered that the applicant and KA be remanded in custody in view of the reasonable suspicion that they had committed drug-trafficking offences. It had regard to evidence of KA, protocols of arrest and classified evidence obtained by covert recordings of telephone conversations. The court held that there was a risk that the applicant might obstruct the investigation by exerting pressure on witnesses or other suspects. The court further relied on the severity of the anticipated penalty.
On 12 August 2005 the Opole Regional Court dismissed the applicant’s appeal against the detention order. In addition to the grounds invoked in the impugned decision, it noted that the applicant had attempted to escape during his arrest.
In none of the subsequent decisions on the prolongation of the applicant’s detention did the courts rely on the evidence obtained by covert recordings of telephone conversations.
On 3 October 2005 the Zgorzelec District Court prolonged the applicant’s detention until 5 January 2006. It relied on the severity of the anticipated penalty and the risk that the applicant might obstruct the proceedings. On 3 January 2006 the same court extended his detention until 5 April 2006. It underlined the severity of the anticipated penalty, having regard to the large scale of the alleged criminal activities, their nature and the fact that the applicant had been an officer of the Border Guard. On 19 January 2006 the Jelenia Góra Regional Court dismissed the applicant’s appeal. It stated, among others, that further recipients of drugs from the applicant had not yet been identified.
The prosecution identified and charged four other persons allegedly involved in the same criminal activity.
On 15 February 2006 the applicant was charged with additional drug‑related offences.
Subsequently, the Zgorzelec District Court prolonged the applicant’s detention on several occasions. The relevant decisions were given on 31 March 2006 (until 4 July 2006; reduced on appeal to 4 June 2006), 31 May 2006 (until 4 July 2006), 30 June 2006 (until 4 October 2006) and on 18 September 2006 (until 4 December 2006). In all those decisions the Zgorzelec District Court invoked the severity of the anticipated penalty and the risk that the applicant might obstruct the proceedings. In its decision of 31 March 2006 the court urged the prosecutor to complete the investigation as soon as possible. In its decision of 29 June 2006 the Jelenia Góra Regional Court noted that at the time of his arrest the applicant had attempted to destroy his mobile telephone and its SIM card.
During the proceedings the applicant filed numerous but unsuccessful applications for release and appealed, likewise unsuccessfully, against the decisions prolonging his detention.
According to the applicant, on 1 June 2006 KA, his co-accused, was released in exchange for giving incriminating evidence against him.
On 29 June 2006 the prosecution filed a bill of indictment with the Zgorzelec District Court. The applicant was charged with drug-trafficking offences. The trial court held seven hearings between 29 June and 16 November 2006.
KA was called to give evidence at the hearing on three occasions. However, he refused to testify on the ground that he was a co-accused.
On 16 November 2006 the Zgorzelec District Court convicted the applicant as charged and sentenced him to five years’ imprisonment and a fine. The applicant appealed.
On 21 March 2007 the Jelenia Góra Regional Court quashed the first‑instance judgment and remitted the case. It found that that the two lay judges who were in the composition of the trial court had not heard classified evidence obtained by telephone tapping while this evidence had served as a basis for the applicant’s conviction. It also found that this evidence had not been properly admitted since the recordings had not been heard by the court during the trial.
On 23 April 2007 the Zgorzelec District Court prolonged the applicant’s detention until 30 July 2007. It pointed to the risk of obstruction of the proceedings given the fact that the applicant had attempted to flee during his arrest. The applicant appealed. On 18 May 2007 the Jelenia Góra Regional Court amended the impugned decision. It held that the applicant would be released if he put up bail in the amount of PLN 50,000. On 13 June 2007 the applicant was released on bail. The court imposed a ban on the applicant’s leaving the country and ordered the seizure of his passport.
On 8 February 2008 the Zgorzelec District Court gave judgment. It convicted the applicant as charged and sentenced him to three years’ imprisonment and a fine. The applicant appealed. He alleged that the trial court had unlawfully admitted in evidence the covert recordings of telephone conversations.
On 5 September 2008 the Jelenia Góra Regional Court upheld the first‑instance judgment. It found that the trial court had admitted in evidence recordings of telephone communications ordered in respect of the applicant and in respect of KA. The Regional Court held that the evidence obtained as a result of tapping of KA’s telephone could not have been relied on by the trial court. However, it held that the trial court’s error committed in this respect had not rendered the conviction unsafe since there was other evidence which had served as the basis for the applicant’s conviction, in particular the statements of KA. Furthermore, it noted that the court order of 24 March 2005 authorised recording of the applicant’s telephone communications and the trial court’s reliance on this evidence had been correct. The Regional Court dismissed a number of other arguments raised by the applicant in his appeal, including that his conviction had been based solely on statements of KA.
The applicant did not lodge a cassation appeal.
According to the Government, following his release the applicant attempted to make contact with the key witness KA.
B. Relevant domestic law and practice
The relevant domestic law and practice concerning detention on remand can be found in the Court’s judgment in the case of Kauczor (no. 45219/06, § 27-28 and 30-35, 3 February 2009).
COMPLAINTS
1. The applicant complained under Article 5 § 3 of the Convention about the excessive length of his pre-trial detention. He alleged that the authorities had not sufficiently justified his detention on remand, in particular that their reliance on the alleged risk of obstruction of the proceedings had been entirely hypothetical
2. The applicant complained under Articles 5 § 2 and 6 § 3 (a) that the decision to charge him of 6 July 2005 had not contained detailed information.
3. The applicant alleged numerous breaches of Articles 5 and 6 in respect of the original detention order of 7 July 2005 and in respect of subsequent decisions prolonging his detention on remand and decisions upholding those prolongations up until the Zgorzelec District Court’s decision of 25 October 2006. He complained, inter alia, that he had been deprived access to the case file until May 2006 and alleged a breach of Article 6 § 2 in respect of the reasons for the Jelenia Góra Regional Court’s decision of 19 January 2006.
4. In the context of the decisions prolonging his pre-trial detention, the applicant complained that the incriminating evidence gathered as a result of the tapping of telephone of KA, including alleged conversations between KA and him, had been obtained in breach of section 19 of the Police Act and of Article 8 of the Convention.
5. The applicant alleged a breach of Article 2 in that the authorities had not ensured him necessary protection in detention against violence from other prisoners, having regard to the fact that he was an officer of the Border Guard.
6. The applicant alleged a breach of Article 3 in respect of the conditions of his detention. He claimed that he had been kept in an overcrowded cell with smokers and in very poor sanitary conditions.
7. The applicant complained under Article 8 of the Convention that his fiancée had been refused visits for twelve months and that the authorities had impaired contacts with his parents. He further generally alleged that the prosecution service had unlawfully controlled his correspondence with the domestic courts. He submitted copies of two envelopes dated respectively 4 and 12 October 2005 which contained letters (decisions) from the Zgorzelec District Court to the applicant.
8. He claimed that he had been deprived of a possibility to study while in detention in breach of Article 2 of Protocol No. 1 and that he had not had an effective remedy in this respect.
9. In his letter of 26 April 2010 the applicant complained under Article 6 § 3 (d) that his conviction had been based on statements of KA and that he had never been afforded an opportunity to cross-examine that witness. He also alleged a breach of Article 8 in that his conviction had been based on evidence obtained by police by means of unlawful interception of telephone communications.
THE LAW
A. Length of pre-trial detention
The applicant complained under Article 5 § 3 of the Convention about the excessive length of his pre-trial detention. He alleged that the authorities had not sufficiently justified his detention on remand, in particular that their reliance on the alleged risk of obstruction of the proceedings had been entirely hypothetical.
1. Period to be taken into consideration
The applicant’s detention started on 5 July 2005, when he was arrested on suspicion of drug-trafficking. On 16 November 2006 the Zgorzelec District 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 (see Kudła v. Poland [GC], no. 30210/96, § 104, ECHR 2000‑XI).
On 21 March 2007 the Jelenia Góra Regional Court quashed the applicant’s conviction. Following that date his detention was again covered by Article 5 § 3. It continued until 13 June 2007 when the applicant was released. Accordingly, the period to be taken into consideration under Article 5 § 3 lasted 1 year, 7 months and 5 days.
2. The parties’ arguments
The Government argued that the length of pre-trial detention in the applicant’s case had been compatible with the standards stemming from Article 5 § 3 of the Convention.
The applicant disagreed and submitted that his detention had not been justified. He claimed that decisions ordering his detention on remand had been based on evidence obtained as a result of the unlawful tapping of telephone of KA He further argued that there had been no real risk of exerting pressure on witnesses. Lastly, the applicant claimed that the authorities had not conducted the proceedings diligently.
3. The Court’s assessment
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], cited above, § 110 et seq; and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006-..., with further references).
The Court observes that the judicial authorities relied, in addition to the reasonable suspicion against the applicant, on the risk of obstruction of the proceedings by exerting pressure on witnesses. In this respect they invoked the fact that the applicant had attempted to flee during his arrest. Secondly, the authorities relied on the severity of the penalty to which the applicant was liable. They had regard in this context to the large scale of the alleged criminal activities and their nature (drug-trafficking) and the fact that the applicant had been an officer of the Border Guard. The Government additionally claimed that the applicant had attempted to exert pressure on witness KA
The Court accepts that the reasonable suspicion that the applicant had committed the offences with which he had been charged may have warranted his detention at the early stage of the proceedings. Moreover, given the relative complexity of the case and the need to obtain a considerable amount of evidence, the Court is prepared to accept that there existed relevant and sufficient grounds for the applicant’s detention during the time necessary to terminate the investigation, to draw up the bill of indictment and to hear evidence from the accused.
In respect of the subsequent period, the Court considers that in the present case there was also a risk that the applicant might evade justice, given that he had attempted to escape during his arrest.
In addition, the authorities relied on the severity of the sentence which was likely to be imposed on the applicant. In this respect, the Court notes that the severity of the possible sentence is a relevant element in the assessment of the risk of absconding or re-offending. Nevertheless, the Court has repeatedly held that the gravity of the charges cannot by itself serve to justify long periods of detention on remand (see Ilijkov v. Bulgaria, no. 33977/96, §§ 80-81, 26 July 2001; Garycki v. Poland, no. 14348/02, § 47, 6 February 2007). However, taking into account the particular circumstances of the instant case, the Court considers that the severity of the anticipated penalty taken in conjunction with the other grounds relied on by the authorities were “sufficient” and “relevant” to justify holding the applicant in detention for the entire period. With regard to the requirement of special diligence, the Court firstly notes that no significant periods of inactivity occurred on the part of the prosecution authorities and the trial court. The Court observes that the investigation was completed by the District Prosecutor within a relatively short period of time and the trial court held hearings at regular intervals. Furthermore, the Court notes that the criminal case at issue was a relatively complex one on account of the seriousness and number of the charges against the applicant. A significant amount of evidence had to be examined in the course of the proceedings. For these reasons, the Court considers that the domestic authorities handled the applicant’s case with relative expedition.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. Alleged breach of Article 8 of the Convention in respect of decisions concerning the applicant’s detention on remand
In the context of the decisions prolonging his pre-trial detention, the applicant complained that the incriminating evidence gathered as a result of the tapping of telephone of KA, including alleged conversations between KA and him, had been obtained in breach of section 19 of the Police Act and of Article 8 of the Convention.
The Court notes that the Opole District Court referred in its original decision of 7 July 2005 to the fact that the reasonable suspicion against the applicant had been supported, among others, by evidence obtained by telephone tapping. In subsequent decisions on the applicant’s detention the courts did not make any reference to that evidence and the applicant did not raise any objections in this respect.
In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that the complaint under Article 8 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
C. Remaining complaints
The applicant complained under Articles 5 § 2 and 6 § 3 (a) that the decision to charge him of 6 July 2005 had not contained detailed information. The applicant also alleged numerous breaches of Articles 5 and 6 in respect of the original detention order of 7 July 2005 and in respect of subsequent decisions prolonging his detention on remand and decisions upholding those prolongations up until the Zgorzelec District Court’s decision of 25 October 2006. He complained, inter alia, that he had been deprived access to the case file until May 2006 and alleged a breach of Article 6 § 2 in respect of the reasons for the Jelenia Góra Regional Court’s decision of 19 January 2006.
The Court notes that the applicant lodged his application on 22 May 2007 while the above various complaints under Articles 5 and 6 of the Convention concerned the period up until 25 October 2006. It follows that these complaints have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
The applicant further alleged a breach of Article 2 in that the authorities had not ensured him necessary protection in detention against violence from other prisoners. He further alleged a breach of Article 3 in respect of the conditions of his detention. He claimed that he had been kept in an overcrowded cell with smokers and in very poor sanitary conditions. The applicant complained under Article 8 of the Convention that his fiancée had been refused visits for twelve months and that the authorities had impaired contacts with his parents. He further generally alleged that the prosecution service had unlawfully controlled his correspondence with the domestic courts. He submitted copies of two envelopes dated respectively 4 and 12 October 2005 which contained letters (decisions) from the Zgorzelec District Court to the applicant. Lastly, he claimed that he had been deprived of a possibility to study while in detention in breach of Article 2 of Protocol No. 1 and that he had not had an effective remedy in this respect.
In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols arising from these complaints. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
D. Complaints submitted in the applicant’s letter of 26 April 2010
In his letter of 26 April 2010 the applicant complained under Article 6 § 3 (d) that his conviction had been based on statements of KA and that he had never been afforded an opportunity to cross-examine that witness. He also alleged a breach of Article 8 in that his conviction had been based on evidence obtained by police by means of unlawful interception of telephone communications.
The Court notes that the applicant did not lodge a cassation appeal against the Jelenia Góra Regional Court’s judgment of 5 September 2008. It follows that these complaints, irrespective of other grounds of inadmissibility, must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
Fatoş AracıPäivi HirveläDeputy Registrar President
Full & Egal Universal Law Academy