FOURTH SECTION

CASE OF LACHOWSKI v. POLAND

(Application no. 27556/03)

JUDGMENT

STRASBOURG

5 December 2006

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Lachowski v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 	Sir	Nicolas , President,
	Mr	 ,
	Mr	 ,
	Mr	 ,
	Mr	 ,
	Ms	 	Mr	  judges,
and Mr  , Section Registrar,
Having deliberated in private on 14 November 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 27556/03) 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 Ireneusz Lachowski (“the applicant”), on 8 August 2003.
2.  The applicant was represented by Ms D. Wojdyło-Nafalska, a lawyer practising in Chełm. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
3. On 19 December  the President of the Fourth Section decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it was decided to examine the merits of the application at the same time as its admissibility.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1961 and lives in Rejowiec Fabryczny.
5.  The applicant was arrested on 20 September 1999 on suspicion of homicide. On 22 September 1999 the Chełm District Court (Sąd Rejonowy) ordered that the applicant be remanded in custody for a period of 3 months in view of a reasonable suspicion that he had committed homicide. It further held that the likelihood that he would be given a heavy sentence justified his detention on remand.
6.  On 14 December 1999 the Lublin Regional Court (Sąd Okręgowy) prolonged the applicant’s detention until 19 March 2000. It relied on the reasonable suspicion of his having committed the offence in question and the likelihood of a heavy sentence being imposed on the applicant. In addition, it had regard to the need to obtain expert evidence and a psychiatric examination of the suspects.
7.  On 8 March 2000 the Lublin Court of Appeal (Sąd Apelacyjny) extended the applicant’s detention until 19 June 2000. It found that in the light of the evidence obtained there was a strong likelihood that the applicant had committed the offence. Furthermore, it relied on the severity of the likely sentence and the need to obtain further expert evidence. On 24 May 2000 the Court of Appeal prolonged the applicant’s detention until 4 September 2000, reiterating the grounds previously given. It appears that his detention was subsequently prolonged on an unspecified later date.
8.  In the course of the investigation the Regional Prosecutor obtained voluminous evidence and took a series of investigative measures. On 10 July 2000 the prosecution service filed a bill of indictment with the Lublin Regional Court. The applicant was charged with two counts of homicide and armed robbery. There were four other defendants in the case.
9.  On 20 March 2001 the Regional Court ordered that the applicant be kept in custody until 19 September 2001. It held that the gravity of the charges and the likelihood that the applicant would be given a heavy sentence confirmed the risk that he might obstruct the proceedings. It further held that the applicant’s detention on remand was the only measure which could secure the proper conduct of the proceedings. Lastly, when extending the applicant’s detention, the Regional Court had regard to its caseload.
10.  On 19 September 2001 the Court of Appeal granted the Regional Court’s application and prolonged the applicant’s detention until 31 December 2001. It noted that the period of the applicant’s detention had reached the 2-year statutory time-limit (Article 263 § 3 of the Code of Criminal Procedure) and criticised the trial court for not having indicated any particular circumstances which would justify the prolongation beyond the statutory time-limit. However, it held that the prolongation was justified on account of other significant obstacles to progress in the proceedings, namely the fact that one of the defendants had failed to appear at the hearing which had led to the adjournment of the trial. The Court of Appeal also noted that although the bill of indictment had been filed on 10 July 2000, the trial court listed the first hearing only for 16 May 2001.
11.  The applicant’s detention was subsequently prolonged on 28 November 2001 (until 15 March 2002), on 13 March 2002 (until 30 April 2002) and on 24 April 2002 (until 30 September 2002). In all those decisions the Court of Appeal relied on the same grounds as had been given in the earlier decisions.
12.  The trial court held 20 hearings in the period from 16 May 2001 to 19 September 2002. On 23 September 2002 the Lublin Regional Court convicted the applicant as charged and sentenced him to 25 years’ imprisonment. The applicant, who remained in detention, appealed against the first-instance judgment.
13.  On 22 October 2003 the Lublin Court of Appeal quashed the judgment of the Regional Court and ordered a retrial.
14.  It appears that the applicant’s detention was prolonged on further unspecified dates. On 7 May 2004 the Regional Court ordered that the applicant be kept in custody until 31 December 2004. The applicant’s detention was subsequently prolonged on 3 December 2004 (until 31 March 2005), on 29 March 2005 (until 30 September 2005) and on 19 September 2005 (until 31 December 2005). In all those decisions, the Regional Court relied on the reasonable suspicion that the applicant had committed the offences in question and the likelihood of a heavy sentence being imposed.
15.  The applicant appealed against the decision of 3 December 2004 to prolong his detention. He argued, in particular, that the Regional Court had failed to explain why other non-custodial measures were considered insufficient in his case. On 21 December 2004 the Court of Appeal upheld the contested decision. It agreed with the applicant that the reasons given by the Regional Court were very brief and general. However, referring to Article 5 § 3 of the Convention, it held that the applicant’s continued detention served the public interest of protecting society, given that the applicant had been charged with the homicide of two women, having first cruelly treated them. 
16.  In its decision of 20 April 2005 upholding the decision of 29 March on the prolongation of the applicant’s detention, the Court of Appeal held that his continued detention on the basis of Article 258 § 2 of the Code of Criminal Procedure remained valid. Having regard to the nature of the alleged offences, it held that Article 258 § 2 established a presumption to the effect that the likelihood of a severe penalty being imposed on an accused might induce him to obstruct the proceedings.
17.  On 5 October 2005 the Court of Appeal, having examined the applicant’s appeal against the decision of 19 September 2005 on prolongation of his detention, ordered the applicant’s release under police supervision. It also imposed a ban on leaving the country. The Court of Appeal had regard to the excessive length of the applicant’s detention on remand and the fact that the process of hearing evidence was very advanced. In those circumstances, it was not necessary to prolong further the applicant’s detention. The Court of Appeal also noted that despite the significant length of the applicant’s detention, the Regional Court had failed to ensure the diligent conduct of the trial and, in particular, had not held hearings at reasonable intervals. Furthermore, it observed that the reasons for the continued detention as given by the Regional Court in its decision of 19 September 2005 were very terse. The applicant was released on 6 October 2005.
18.  The Regional Court held 22 hearings in the period from 28 January 2004 to 11 April 2006. The proceedings are still pending.
II.  RELEVANT DOMESTIC LAW
19.  The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
20.  The applicant complained that the length of his detention on remand had been excessive. He relied on Article 5 § 3 of the Convention, which 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.”
21.  The Government contested that argument.
A.  Admissibility
22.  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
23.  The Court observes that the applicant was arrested on 20 September 1999 and remanded in custody on 22 September 1999. On 23 September 2002 the Lublin Regional Court convicted him of two counts of homicide and armed robbery and sentenced him to twenty-five years’ imprisonment. As from that date he was detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a) and therefore that period of his detention falls outside the scope of Article 5 § 3 (cf. Kudła v. Poland [GC], no. 30210/96, § 104, ECHR 2000‑XI). On 22 October 2003 the Lublin Court of Appeal quashed the applicant’s conviction. As from that date his detention was again covered by Article 5 § 3. It continued until 6 October 2005, when the applicant was released. 
24.  Consequently, the period to be taken into consideration under Article 5 § 3 lasted 4 years, 11 months and 19 days.
2.  The reasonableness of the length of detention
(a)  The parties’ arguments
25.  The Government argued that there had been valid reasons for holding the applicant in detention for the entire period in question. They stressed that the applicant’s detention had been justified by the persistence of a reasonable suspicion that he had committed the offences and by the gravity of the charges against him which attracted a heavy sentence. The Government further argued that there had been a risk that the applicant, if released, might obstruct the proceedings and tamper with evidence. That risk, in their submission, stemmed from the fact that there had been five defendants in the case and that on the date of the applicant’s remand in custody, the investigation was still in progress and a number of suspects were in hiding. There was thus a risk of collusion if the applicant were to be released. The Government also asserted that the sentence given by the trial court, although later quashed, justified the continuation of the applicant’s detention, since the severity of the likely sentence could have him tempted to go into hiding. The Government contended that there had been a risk that the defendants might exert pressure on witnesses. They submitted that according to the case file one of the defendants had attempted to intimidate a witness. Lastly, they maintained that the authorities displayed adequate diligence in dealing with the applicant’s case, having regard to its complexity and the need to obtain voluminous evidence. In conclusion, the Government refrained from expressing their opinion on the merits of the applicant’s complaint, having regard to the Court’s case-law in similar cases.
26.  The applicant disagreed and maintained that the length of his detention had been unreasonable.
(b)  The Court’s assessment
(i)  Principles established under the Court’s case-law
27.  The presumption is in favour of release. As established in Neumeister v. Austria (judgment of 27 June 1968, Series A no. 8, p.37, § 4), the second limb of Article 5 § 3 does not give judicial authorities a choice between either bringing an accused to trial within a reasonable time or granting him provisional release pending trial. Until conviction, he must be presumed innocent, and the purpose of the provision under consideration is essentially to require his provisional release once his continuing detention ceases to be reasonable (see McKay v. the United Kingdom [GC], no. 543/03 , § 41, ECHR 2006-...).
28.  Continued detention therefore can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, §§ 110-111 with further references, ECHR 2000-XI).
29.  It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must, paying due regard to the principle of the presumption of innocence, examine all the facts arguing for or against the existence of the above-mentioned requirement of public interest justifying a departure from the rule in Article 5 and must set them out in their decisions on the applications for release. It is essentially on the basis of the reasons given in these decisions and of the established facts stated by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 (see, for example, Labita v. Italy [GC], no. 26772/95, § 152, ECHR 2000-IV, and Kudła, cited above, § 110).
30.  The persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. The Court must then establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also be satisfied that the national authorities displayed “special diligence” in the conduct of the proceedings. The complexity and special characteristics of the investigation are factors to be considered in this respect (see, for example, Scott v. Spain, judgment of 18 December 1996, Reports 1996-VI, pp. 2399-2400, § 74, and I.A. v. France, judgment of 23 September 1998, Reports 1998-VII, p. 2978, § 102).
31.  In sum, domestic courts are under an obligation to review the continued detention of persons pending trial with a view to ensuring release when circumstances no longer justify continued deprivation of liberty. For at least an initial period, the existence of reasonable suspicion may justify detention but there comes a moment when this is no longer enough. As the question whether or not a period of detention is reasonable cannot be assessed in the abstract but must be assessed in each case according to its special features, there is no fixed time-frame applicable to each case (see McKay, cited above, § 45).
(ii)  Application of the principles to the circumstances of the present case
32.  The Court observes that the judicial authorities relied, in addition to the reasonable suspicion against the applicant, on the severity of the penalty to which the applicant was liable and the serious nature of the charges against him. On account of those circumstances, they considered that there had been a risk that the applicant might obstruct the proceedings. Furthermore, the Government submitted that the applicant’s detention was also justified by the risk that the defendants would exert pressure on witnesses, since according to the case file one of the defendants had attempted to intimidate a witness.
33.  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 in the early stage of the proceedings. However, with the passage of time that ground inevitably became less relevant. In particular, the Court considers that that ground cannot suffice to justify the entire period in issue. It must then establish whether the other grounds advanced by the judicial authorities were “relevant” and “sufficient” to continue to justify the deprivation of the applicant’s liberty.
34.  The Court notes that the judicial authorities continuously relied on the likelihood that a heavy sentence might be imposed on the applicant given the serious nature of the offences with which he had been charged. In this respect, the Court recalls that the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or re-offending. It acknowledges that in view of the seriousness of the charges against the applicant the authorities could justifiably consider that such a risk existed. However, 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).
35.  As to the risk that the applicant might obstruct the proceedings, the Court observes that the judicial authorities appear to have presumed that risk by basing themselves on the likelihood that a heavy sentence would be imposed on the applicant as well as on the nature of the offences in question. It notes however that the relevant decisions did not mention any argument capable of showing that these fears were well-founded. The Court considers that such a generally formulated risk based on the nature of the offences with which the applicant had been charged may possibly have justified his detention in the initial stages of the proceedings. Nevertheless, in the absence of other factors capable of showing that the risk relied on actually existed, the Court cannot accept those grounds as a justification for holding the applicant in custody for the entire period under consideration. Furthermore, it appears that this risk did not materialise following his release under police supervision on 6 October 2005. As regards the Government’s assertion that there was a risk of exerting pressure on witnesses given the fact that one of the defendants had intimidated a witness, the Court notes that the Government have failed to produce any evidence to substantiate their contention. In any event, the alleged intimidation of a witness was the work of one of the defendants, and not the applicant.
36.  Accordingly, in the circumstances of the present case, the Court finds that the severity of the likely sentence alone, or in conjunction with the other grounds relied on by the authorities, cannot constitute a “relevant and sufficient ground” for holding the applicant in detention for a period of 4 years and over 11 months.
37.  The Court further observes that the applicant was detained on charges of homicide and armed robbery committed together with 4 accomplices. The defendants had not been formally charged with acting in an organised criminal group. In these circumstances, the Court is not persuaded that the instant case presented particular difficulties for the investigation authorities and for the courts to determine the facts and mount a case against the perpetrators as would undoubtedly have been the case had the proceedings concerned organised crime (see Celejewski v Poland, no. 17584/04, § 37, 4 May 2006).
38.  The Court would also emphasise that under Article 5 § 3 the authorities, when deciding whether a person should be released or detained, are obliged to consider alternative measures of ensuring his appearance at trial. Indeed, that provision proclaims not only the right to “trial within a reasonable time or to release pending trial” but also lays down that “release may be conditioned by guarantees to appear for trial” (see Neumeister, cited above, p. 36, § 3; and Jabłoński v. Poland, no. 33492/96, § 83, 21 December 2000).
39.  In the present case the Court notes that there is no specific indication that during the entire period in question the authorities gave consideration to the possibility of ensuring the applicant’s presence at trial by imposing on him other “preventive measures” expressly foreseen by Polish law to secure the proper conduct of criminal proceedings (see paragraph 19 above).
40.  What is more, it is not apparent from the relevant decisions why the judicial authorities considered that those other measures would not have ensured the applicant’s appearance before the court or in what way the applicant, had he been released, would have obstructed the course of the trial. Nor did they mention any factor indicating that there was a real risk of his absconding or obstructing the proceedings. In that regard the Court would also point out that, although such a potential danger may exist where an accused is charged with a serious offence and where the sentence faced is a long term of imprisonment, the degree of that risk cannot be gauged solely on the basis of the severity of the offence and the anticipated sentence (see Muller v. France, judgment of 17 March 1997, Reports 1997-II, p. 388, § 43).
41.  The Court accordingly concludes that the reasons relied on by the courts in their decisions were not sufficient to justify the applicant’s being held in custody for 4 years and over 11 months.
42.  That finding would, as a rule, absolve the Court from determining whether the national authorities displayed “special diligence” in the conduct of the proceedings. However, in that context the Court cannot but note that even though the applicant was indicted on 10 July 2000, the first hearing was listed only for 16 May 2001. It observes that the Court of Appeal criticised the trial court for the above-mentioned delay. Furthermore, during the re-trial stage of the proceedings, the Court of Appeal again censured the Regional Court for having failed to organise the conduct of the trial in a diligent manner (see paragraph 17 above). On account of the above circumstances, the Court considers that it cannot be said that the authorities displayed “special diligence” in the conduct of the criminal proceedings against the applicant.
43.  There has accordingly been a violation of Article 5 § 3 of the Convention.
II.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
44.  The applicant also complained under Article 6 § 1 of the Convention that the criminal proceedings against him had been unfair.
45.  However, the Court notes that the impugned proceedings are still pending and therefore it is premature to examine the applicant’s complaint. It follows that this complaint must be rejected under Article 35 § 3 and 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
46.  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
47.  The applicant claimed 144,000 Polish zlotys (PLN) in respect of pecuniary damage and PLN 60,000 in respect of non-pecuniary damage.
48.  The Government argued that the applicant’s claims were exorbitant and should be rejected. They asked the Court to rule that a finding of a violation of Article 5 § 3 constituted in itself sufficient just satisfaction. In the alternative, they invited the Court to assess the amount of just satisfaction on the basis of its case-law in similar cases and having regard to national economic circumstances.
49.  The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it considers that the applicant has suffered non-pecuniary damage which is not sufficiently compensated by the finding of a violation of the Convention. Considering the circumstances of the case and making its assessment on an equitable basis, the Court awards the applicant EUR 2,000 under this head.
B.  Costs and expenses
50.  The applicant submitted no claim for costs and expenses.
C.  Default interest
51.  The Court considers it appropriate that the default interest 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 complaint concerning the excessive length of the applicant’s detention on remand admissible and the remainder of the application inadmissible;

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 from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage, to be converted into Polish zlotys at the rate applicable at the date of settlement, plus any tax that may be chargeable;
(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 5 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	T.L. 	Nicolas  
	Registrar	President