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FOURTH
SECTION
CASE OF GŁADCZAK v. POLAND
(Application
no. 14255/02)
JUDGMENT
STRASBOURG
31 May
2007
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 Gładczak v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L.
Mijović,
Mr J. Šikuta,
Mrs P. Hirvelä,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 10 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 14255/02) 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 Roman Gładczak (“the
applicant”), on 14 August 2001.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
25 October 2005 the Court declared the application partly
inadmissible and decided to communicate the complaint concerning the
length of the applicant's detention to the Government. Under the
provisions of Article 29 § 3 of the Convention, it decided to
examine the merits of the application at the same time as its
admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1961 and lives in Gdynia.
- On
28 October 1996 the applicant was arrested on suspicion of having
committed armed robbery while acting in an organised criminal gang.
- On
30 October 1996 he was brought before the Gdańsk Regional
Prosecutor and charged with armed robbery, kidnapping and extortion.
On the same date the Gdańsk District Court remanded the
applicant in custody in view of the reasonable suspicion that he had
committed the offences in question while acting in an organised
criminal gang. It held that there was a risk that the applicant might
obstruct the proceedings or abscond. It further relied on the
severity of the anticipated penalty.
- Later,
several other persons were detained and charged in connection with
the same investigation conducted by the Department of Organised Crime
of the Gdańsk Regional Prosecutor's Office.
- On
16 January 1997 the Gdańsk Regional Court prolonged his
detention until 28 April 1997.
- On
16 April 1997 the Gdańsk Court of Appeal ordered that the
applicant be kept in custody until 29 July 1997. It relied on the
reasonable suspicion that the applicant had committed the offences in
question and the gravity of the charges. It also had regard to the
number of suspects and the need to obtain further evidence.
- On
16 July 1997 the Court of Appeal extended the applicant's detention
until 27 October 1997. It found that there was a reasonable risk that
the applicant might go into hiding or obstruct the proceedings. It
also relied on the severity of the anticipated penalty. Lastly, it
noted that further prolongation of the investigation was not
attributable to the prosecuting authorities, but resulted from the
fact that further suspects had been identified and arrested.
Furthermore, the prolongation was due to a delay in the preparation
of some expert reports and the need to request legal assistance from
the German authorities.
- On
17 September 1997 the Supreme Court prolonged the applicant's
detention until 31 December 1997. It found that there was a
reasonable risk that the suspects might intimidate witnesses, given
the nature of the charges against them. It further observed that the
investigation could not be terminated on account of the prolonged
preparation of an expert report and the need to hear a witness, W.B.,
who was serving his prison sentence in Germany.
- On
28 November 1997 the prosecution
filed a bill of indictment with the Gdańsk Regional Court. The
applicant was charged with, inter alia, armed
robbery, kidnapping, extortion and inflicting bodily harm which had
been committed while being a member of an armed organised criminal
gang. The bill of indictment specified that the applicant was a
recidivist offender. There were 16 defendants in the case, all
charged with numerous counts of armed
robbery and extortion.
- On
7 January 1998 the Gdańsk Regional Court ordered that the
applicant be held in custody until 21 September 1998. In addition to
the grounds previously invoked, it relied on the complexity of the
case and the number of defendants.
- On
24 February 1998 the trial court held the first hearing. It
subsequently held some 56 hearings in the case.
- On
17 September 1998 the Regional Court extended his detention on remand
until 21 October 1998.
- On 6 October 1998 the Supreme Court prolonged the
applicant's pre-trial detention until 30 January 1999. It observed
that the fact that the trial had not been terminated could not be
attributed to the authorities, given the volume of evidence and the
fact that some hearings had to be cancelled as the defendants'
counsel or witnesses had not appeared. It further considered that the
applicant had been charged with the commission of the crimes for
which he was liable to a sentence of imprisonment exceeding 8 years,
and that the circumstances of the case indicated that there was a
reasonable risk that the applicant might obstruct the proceedings.
- On
19 January 1999 the Supreme Court ordered that the applicant and his
9 co-defendants be kept in custody until 30 June 1999. It relied
on the fact that witnesses had informed the trial court about having
been threatened by the defendants. It also had regard to the severity
of the anticipated penalty and the presumption established by Article
258 § 2 of the Code of Criminal Procedure. Furthermore, the
Supreme Court considered that the prolongation of the detention
beyond the statutory time-limit of two years was justified by the
complexity of the case and the volume of evidence to be heard. In
that respect, it also observed that in December 1998 the trial court
had been prevented from hearing evidence on account of the absence of
two defence counsel.
- On
2 June 1999 the Supreme Court prolonged the applicant's detention
until 31 December 1999. It noted that the trial was being efficiently
conducted and that it had not been terminated for reasons which were
attributable to the defendants and their counsel. It noted in
particular that the defendants had attempted to intimidate witnesses
and protract the trial. Further, it had regard to the nature of the
charges and the severity of the likely penalty.
- On
14 December 1999 the Regional Court convicted the applicant of
armed robbery, kidnapping, extortion and inflicting bodily harm and
sentenced him to 9 years' imprisonment and a fine.
- Further
decisions on the prolongation of the applicant's detention were given
by the Regional Court on 21 December 1999 (ordering his continued
detention until 30 June 2000) and 21 June 2000 (extending that period
until 30 November 2000).
- On
11 August 2000 the applicant was served with a copy of the Regional
Court's judgment. He subsequently appealed against that judgment.
- On
22 November 2000 the Gdańsk Court of Appeal prolonged the
applicant's detention until 31 January 2001. On 17 January 2001 his
detention was extended until 31 March 2001.
- On
6 March 2001 the Court of Appeal held a hearing.
- On
7 March 2001 the Court of Appeal quashed the first-instance judgment
in respect of the applicant and remitted the case for retrial.
- On
14 March 2001 the Court of Appeal ordered that the applicant and his
11 co-defendants be held in custody until 30 June 2001. Having
regard to Article 258 § 2 of the Code of Criminal Procedure, it
observed that the applicant might attempt to obstruct the proceedings
given the likelihood of a severe penalty being imposed on him. It
also relied on the nature of the charges.
- On
19 June 2001 the Gdańsk Regional Court held the first retrial
hearing. It subsequently held some 20 hearings.
- On
19 June 2001 the Court of Appeal prolonged his detention until
30 September 2001. It noted that continuation of that measure
was necessary in order to secure the proper conduct of the
proceedings, given the severity of the anticipated penalty.
- On
28 September 2001 the Gdańsk Regional Court ordered that the
applicant and 11 of his co-defendants be kept in custody until
30 December 2001. It found that the applicant's continued
detention was necessary in order to prevent the applicant from
interfering with witnesses. On 10 October 2001 the Court of
Appeal dismissed the applicant's appeal against that prolongation.
Referring to Article 5 § 3 of the Convention, it observed that
the applicant's detention, although undeniably long, was justified by
the particular circumstances of the case. In this respect, it
emphasised that the applicant had been charged with particularly
serious and violent crimes, and thus his continued detention
was justified on public interest grounds.
- On
28 December 2001 the Regional Court prolonged the applicant's
detention until 30 March 2002. It held that following the Court of
Appeal's instructions most of the witnesses who had given evidence at
the original trial had to be heard again. In that case there was a
reasonable risk that the defendants might interfere with witnesses.
In addition, the court held that given the gravity of the charges and
the likelihood that severe penalties would be imposed on them, the
defendants might obstruct the proceedings by going into hiding. On 23
January 2002 the Gdańsk Court of Appeal upheld that decision. It
considered, inter alia, that the Regional Court had attempted
to examine the case within a reasonable time, but there had been
significant delays in the trial which were attributable to the
defendants or their counsel. In this respect, it pointed out to the
obstructive conduct of all the defendants on 18 December 2001 which
had prevented the Regional Court from holding a hearing on that day.
On the other hand, the Court of Appeal instructed the Regional Court
to assess the length of detention of each defendant separately. It
pointed out that the further prolongation of the detention of those
defendants who were not simultaneously serving prison sentences could
not be accepted in the long term.
- Subsequently,
the Regional Court prolonged the applicant's detention on 15 March
2002 (until 30 June 2002) and 21 June 2002 (until 30 September
2002). It invoked the same grounds as in its previous decisions. The
applicant appealed against the latter decision.
- On
31 July 2002 the Court of Appeal altered the Regional Court's
decision and ordered that the applicant be released. It underlined
that the applicant's detention on remand had been exceptionally long
and thus lost its provisional nature. Having regard to the current
progress of the trial, the court observed that it was not possible to
predict when the proceedings would be terminated. Furthermore, it
noted that 7 out of 10 co-defendants were serving long-term prison
sentences.
- Prior
to his release, the applicant filed numerous but unsuccessful
applications for release and appealed, likewise unsuccessfully,
against the decisions prolonging his detention. He maintained that
the length of his detention was excessive.
- It
appears that the criminal proceedings against the applicant are still
pending.
- From
27 March 2000 to 15 November 2002 the applicant served a prison
sentence imposed on him in a separate set of proceedings.
II. RELEVANT DOMESTIC LAW
- The relevant domestic law and practice concerning the
imposition of detention on remand (tymczasowe aresztowanie),
the grounds for its prolongation, release from detention and rules
governing other, so-called “preventive measures” (środki
zapobiegawcze) at the material time are stated in the Court's
judgments in the cases of Kudła v. Poland [GC],
no. 30210/96, §§ 75-79, ECHR 2000-XI; Bagiński
v. Poland, no. 37444/97, §§ 42-45, 11 October
2005; and Celejewski v. Poland, no. 17584/04, §§ 2-23,
4 August 2006.
THE LAW
ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
- 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.”
- The
Government contested that argument.
A. Admissibility
- 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
- The Court observes that the applicant was arrested on
28 October 1996 and remanded in custody on 30 October 1996. On
14 December 1999 the Gdańsk Regional Court convicted him of
armed robbery, kidnapping, extortion and inflicting bodily harm. 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, cited above, § 104).
On 7 March 2001 the Gdańsk Court of Appeal quashed the
applicant's conviction. Following that date his detention was again
covered by Article 5 § 3. It continued until 31 July 2002
when the applicant was released.
- However,
between 27 March 2000 and 15 November 2002 the applicant served a
prison sentence which had been imposed on him in another set of
proceedings. The Court recalls that in view of the essential link
between Article 5 § 3 of the Convention and paragraph 1 (c) of
that Article, a person convicted at first instance cannot be regarded
as being detained “for the purpose of bringing him before the
competent legal authority on reasonable suspicion of having committed
an offence”, as specified in the latter provision, but is in
the position provided for by Article 5 § 1 (a), which
authorises deprivation of liberty “after conviction by a
competent court” (see, for example, B. v. Austria,
judgment of 28 March 1990, Series A no. 175, pp. 14-16, §§
36-39). Thus, the period of the applicant's detention from 27 March
2000 to 15 November 2002 must be subtracted from the total period of
the applicant's detention since during this time he had been serving
a prison sentence resulting from another conviction. Accordingly, the
period to be taken into consideration under Article 5 § 3
amounts to 3 years, 1 month and 16 days.
2. The reasonableness of the length of detention
(a) The parties' arguments
- The
Government submitted that the applicant's pre-trial detention had
been justified by the existence of substantial evidence of his guilt,
the nature of the offences with which he had been charged and the
severity of the anticipated penalty. They underlined that the length
of the applicant's detention should be assessed taking into account
the fact that he and his co-defendants had acted in an organised
criminal gang. The risk that the defendants might obstruct the
proceedings or tamper with evidence was aggravated by the fact they
been closely linked as members of an organised criminal gang. Thus,
the domestic courts had considered it necessary to remand the
applicant and his co-defendants in custody until all relevant
witnesses had been heard.
- The
Government emphasised that the serious nature of the charges as well
as the fact that there had been 16 defendants charged with numerous
offences committed in a criminal gang required that the proper
conduct of the proceedings be secured with particular diligence. The
necessity of the applicant's continued detention had been thoroughly
examined by the courts which on each occasion had given sufficient
reasons for their decisions. Lastly, they maintained that the
authorities had displayed special diligence in dealing with the
applicant's case.
- The
applicant's case has been extremely complex on account of the number
of charges and the defendants, and the volume of evidence.
Furthermore, the conduct of the proceedings had been significantly
hindered by the unwarranted exercise of procedural rights by the
defendants and their defence counsel. The defendants had lodged
hundreds of applications and appealed against every decision, even
when they had been informed that the appeal had been inadmissible.
Thus, the applicant and other defendants contributed to the length of
the proceedings.
- The
applicant argued that the length of his detention had been
unreasonable.
(b) The Court's assessment
(i) Principles established under the
Court's case-law
- 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-...).
- 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, cited
above, §§ 110-111).
- 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).
- 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 of Judgments and Decisions 1996-VI,
pp. 2399-2400, § 74, and I.A. v. France, judgment of
23 September 1998, Reports 1998-VII, p. 2978, §
102).
- 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
- The
Court observes that the judicial authorities, in addition to the
reasonable suspicion against the applicant, relied principally on
three grounds, namely (1) the serious nature of the charges against
him, (2) the severity of the penalty to which he was liable and (3)
the risk of obstruction of the proceedings. In respect of the latter,
they relied on the defendants' attempts to intimidate witnesses. The
domestic courts also referred to the obstructive attitude of the
defendants and their counsel aimed at delaying the trial. Lastly,
they had regard to the complexity of the case related to the nature
of the charges, the number of defendants and volume of evidence to be
heard.
- The
Court notes that the applicant was charged with kidnapping,
armed robbery, extortion and inflicting bodily harm which had been
committed in an organised armed criminal gang. When assessing
compliance with Article 5 § 3 of the Convention,
it will take into account the fact that the present case concerned a
member of a criminal gang (Bąk v. Poland,
no. 7870/04, § 57, 16 January 2007).
- The
Court accepts that the reasonable suspicion against the applicant of
having committed the serious offences may initially have warranted
his detention. In addition, it considers that the authorities were
faced with a difficult task of determining the facts and the degree
of alleged responsibility of each of the defendants, who had been
charged with acting in an organised criminal gang. In these
circumstances, the Court also accepts that the need to obtain
voluminous evidence from many sources, coupled with the fact that in
the course of the investigation new suspects had been identified,
constituted relevant and sufficient grounds for the applicant's
detention at the early stages of the trial.
- However,
with the passage of time those grounds inevitably became less and
less relevant. It must then establish whether the other grounds
advanced by the judicial authorities were “relevant” and
“sufficient” to continue to justify the deprivation of
liberty.
- The
Court notes that the judicial authorities relied heavily on the
likelihood that a severe sentence would be imposed on the applicant
given the serious nature of the offences at issue. According to them,
that likelihood created a presumption that the applicant would
obstruct the proceedings. 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 accusations against the
applicant the authorities could justifiably consider that such an
initial risk was established. 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).
-
Furthermore, the judicial authorities relied on the fact that the
applicant had been charged with being a member of an organised
criminal gang. 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
prolongations 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. In these circumstances, the Court considers
that the need to obtain voluminous evidence from many sources and to
determine the facts and degree of alleged responsibility of each of
the co-defendants, constituted relevant and sufficient grounds for
the applicant's detention during the period necessary to terminate
the investigation, to draw up the bill of indictment and to hear
evidence from the accused. Moreover, the Court considers that in
cases such as the present concerning organised criminal gangs, the
risk that a detainee, if released, might bring pressure to bear on
witnesses or other co-accused, or otherwise obstruct the proceedings,
is by the nature of things often particularly high.
- As
regards the risk of pressure being brought to bear on witnesses, the
Court notes that at the initial stages of the proceedings the
judicial authorities appeared to presume that such risk existed on
the ground that the applicant had been a member of an organised
criminal group. However, the subsequent decisions to prolong the
applicant's detention pending trial underlined the fact that these
fears were well-founded, since the witnesses had informed the trial
court about having been threatened by the defendants (see paragraphs
17 and 18 above). Thus the Court accepts that the risk of
intimidating witnesses actually existed and justified holding the
applicant in custody at the later stages of the trial.
- The
foregoing considerations are sufficient for the Court to conclude
that the grounds given for the applicant's pre-trial detention were
“relevant” and “sufficient” to justify
holding him in custody for the entire relevant period.
- It
therefore remains to be ascertained whether the national authorities
displayed “special diligence” in the conduct of the
proceedings. In this regard, the Court observes that the proceedings
were of considerable complexity, regard being had to the number of
defendants, the extensive evidentiary proceedings and the
implementation of special measures required in cases concerning
organised crime. Nevertheless, the hearings in the applicant's case
were held regularly and at short intervals. Furthermore, the Court
cannot overlook the fact that the obstructiveness on the part of the
defendants, including the applicant (see paragraphs 18 and 29 above),
and some defence counsel had a negative impact on the progress of the
trial. For these reasons, the Court considers that the domestic
authorities handled the applicant's case with relative expedition.
- Having
regard to the foregoing, the Court finds that there has been no
violation of Article 5 § 3 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the remainder of the application
admissible;
- Holds that there has been no violation of
Article 5 § 3 of the Convention.
Done in English, and notified in writing on 31 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
