FOURTH SECTION

CASE OF CHRUŚCIŃSKI v. POLAND

(Application no. 22755/04)

JUDGMENT

STRASBOURG

6 November 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 Chruściński v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
	Mr	 , President,
	Mr	 ,
	Mr	 ,
	Mr	 ,
	Mr	 ,
	Ms	 	Mr	  judges,
and Mrs F. , Deputy Section Registrar,
Having deliberated in private on 9 October 2007,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 22755/04) 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 Sławomir Chruściński (“the applicant”), on 28 May 2004.
2.  The applicant, who had been granted legal aid, was represented by Mr J. Brydak, a lawyer practising in Warszawa. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
3.  On 16 September 2005 the President of the Fourth Section of the Court decided to communicate 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 born in 1975 and lives in Wyględy, Poland.
A.  The pre-trial detention
5.  On 2 April 2003 the applicant was arrested by the police. On the same date the applicant was charged by the Warsaw District Prosecutor with having helped to sell two stolen cars while acting in an organised criminal gang. The applicant was instructed that it was open to him to make a request under Article 313 of the Code of Criminal Procedure to be served with the written reasons for the decision to charge him.
6.  On 4 April 2003 the Warsaw District Court (Sąd Rejonowy) ordered that the applicant be detained on remand in view of the reasonable suspicion that he had committed the offences with which he had been charged. The court held that keeping him in custody was necessary to secure the proper conduct of the proceedings as there was a fear that the applicant would influence witnesses.
7.  On 18 June 2003 the District Prosecutor lodged a request to prolong the applicant's detention. In his motion he indicated 138 investigative actions that would be taken with respect to 23 suspects. The District Court on 27 June 2003 accordingly prolonged the applicant's detention, relying in particular on evidence obtained from one of the co-accused.
8.  In his subsequent application of 19 September 2003 for an extension of the applicant's detention the prosecutor relied on extensive evidence that had already been obtained from 7 witnesses and an expert witness. The application was granted on 30 September 2003.
9.  On 29 December 2003 the Warsaw District Court further prolonged the applicant's pre-trial detention.
10.  On 6 November 2003 the Warsaw District Prosecutor decided to supplement the charges against the applicant, adding several other offences relating to the handling of stolen cars. The applicant was again informed of his right to request the written reasons for the decision, but he failed to make a request.
11.  On 26 March 2004 the Warsaw Court of Appeal (Sąd Apelacyjny), on the application of the appellate prosecutor, decided to prolong further the applicant's detention. In addition to the existence of a reasonable suspicion that the applicant had committed the offences, the court relied on the complexity of the case, the severity of the penalty that might be imposed and the need to secure the proper conduct of the investigation.
12.  On 25 June and 28 December 2004 the Warsaw Court of Appeal prolonged the applicant's detention. It reiterated the grounds previously given for keeping him in custody. It further pointed to the particular complexity of the case, which explained the length of the investigative phase of the proceedings. The court in particular relied on the evidence gathered by the prosecutor and referred in its decision to the statements given by the witnesses and co-accused which were included in the case file.
13.  On 3 December 2004 the prosecutor decided to sever the charges against the applicant and 16 co-accused and to deal separately with his charges.
14.  On 22 December 2004 the applicant was indicted before the Warsaw District Court. The applicant was accused of having committed 12 offences, in particular handling stolen cars and forging licence plates while acting in an organised criminal gang.
15.  Subsequently, his detention on remand was prolonged on 18 March 2005. The applicant's numerous applications for release and his appeals against the detention decisions were to no avail.
16.  The trial started on 18 April 2005. Afterwards, hearings were held at regular intervals. In October 2005 the applicant and the prosecutor negotiated an agreement whereby the applicant would plead guilty and voluntarily submit to a penalty.
17.  At the hearing held on 10 November 2005 the court gave a judgment in which it accepted the agreement concluded between the applicant and the prosecutor according to which the applicant voluntarily accepted a sentence of 3 years and 6 months' imprisonment and a fine. The applicant was released on the same day.
18.  The applicant did not appeal against the judgment and it became final on 18 November 2005.
B.  Access to the case-file
19.  On 9 March and 3 September 2004 the applicant, represented by his lawyer, requested leave to consult the case file against him.
20.  The Warsaw District Prosecutor, on 24 March and 15 September 2004 respectively, dismissed the applicant's requests. The reasoning of both decisions was identical. The prosecutor referred to the fact that the preparatory proceedings were still pending and since the case concerned an organised criminal gang the documents in the file should not be revealed until all suspects had been arrested and charged. Finally, the prosecutor noted that most items of evidence had been considered confidential which “automatically prevents access being granted to them”.
21.  The applicant appealed against both decisions complaining that he had been detained for more than one year and that during this time he had had no access to the case-file. That constituted a breach of his defence rights in violation of the European Convention on Human Rights.
22.  On 12 May and 2 November 2004 the Warsaw Appellate Prosecutor dismissed the appeals against the decisions of 24 March and 15 September respectively. In identically reasoned decisions the Appellate Prosecutor found that the interests of the investigation could in some circumstances limit the defence rights of the accused. Therefore, in the present case the applicant should not be allowed to consult the file. In addition, in the decision of 2 November 2004 the prosecutor concluded:
“As regards the ECHR invoked by the [applicant] it should be noted that the overriding aim of the criminal proceedings is to establish all the circumstances in which the offence was committed and to find the perpetrators. It is a concrete aim and in achieving it the prosecutors and the courts aim at ensuring respect for the rule of law and the security of the State and its citizens. Therefore, it is not the intention of the Convention to disregard those rules by making the rights of the citizens who breached the laws absolute. A premature disclosure of the documents in the case-file could prevent the achievement of the aims of the proceedings...”
23.  On 6 December 2004 the applicant's lawyer acquainted himself with the case‑file. The applicant was allowed to consult the file between 6 and 14 December 2004.
II.  RELEVANT DOMESTIC LAW
24.  The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the so‑called “preventive measures” (środki zapobiegawcze).
25.  A more detailed rendition of the relevant domestic law provisions is set out in the Court's judgments in Kudła v. Poland [GC], no. 30210/96, § 75, ECHR 2000‑XI and Celejewski v. Poland, no. 17584/04, §§ 22 and 23, 4 May 2006.
26.  Article 156 § 5 of the Code concerns access to the file during investigation. It provides:
“Unless provided otherwise by law, during the preparatory proceedings parties, defence counsel, and legal representatives shall be allowed to consult the files and make certified copies and photocopies but only with the permission of the person conducting the preparatory proceedings. With the permission of a prosecutor and in exceptional circumstances access to the files in the preparatory proceedings may be given to another person.”
27.  Article 313 § 3 provides as follows:
“Before a suspect is given notice of the date on which he can have access to the investigation materials, he may request an oral presentation of the grounds for the charges against him and the written reasons, on which he shall be advised. The written reasons shall be notified to the suspect and his counsel within 14 days.”
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
28.  The applicant complained that the length of his detention on remand had been unreasonable. 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.”
29.  The Government contested that argument.
A.  Admissibility
30.  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.  The parties' submissions
31.  The applicant submitted that he had been kept in detention pending trial for an unjustified period of time. He claimed that the case had not been as complex as claimed by the Government because only a small fraction of the investigation had concerned the charges against him. Moreover, the procedure for prolongation of the applicant's detention had been automatic and the grounds given for the decisions contained suppositions which were not supported by any evidence.
The applicant maintained that the grounds for his detention were not “relevant” and “sufficient” and that the authorities had failed to display the required degree of diligence.
32.  The Government considered that the applicant's pre-trial detention satisfied the requirements of Article 5 § 3. It was justified by “relevant” and “sufficient” grounds. These grounds were, in particular, the gravity of charges against the applicant who had been accused of membership of an organised criminal gang. The Government further underlined the complexity of the case which had required expert evidence to be obtained. In this respect the Government submitted that the case-file at the time of the lodging of the bill of indictment had consisted of 82 volumes.
The Government argued that the domestic authorities had shown due diligence, as required in cases against detained persons, and that the length of the applicant's detention had been attributable to the exceptional complexity of the case.
2.  The Court's assessment
(a)  Principles established under the Court's case-law
33.  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 principles to the circumstances of the present case
34.  The Court first notes that the applicant remained in pre-trial detention between 2 April 2003, when he was arrested, and 10 November 2005, when the judgment in his case was given and he was released. The detention thus lasted 2 years, 7 months and 10 days.
35.  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 which made it probable that the applicant would obstruct the course of the criminal proceedings, and (3) the need to secure the proper conduct of the proceedings, in particular, in view of the risk that the applicant might influence witnesses.
36.  The applicant was charged with and convicted of handling stolen cars committed while acting in an organised criminal gang (see paragraphs 5 and 17 above).
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).
37.  The Court accepts that the suspicion against the applicant of having committed the offences might initially have justified his detention. Also, the need to determine the degree of the alleged responsibility of each of the defendants constituted a valid ground for the applicant's initial detention.
38.  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. 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).
39.  It is to be noted that the judicial authorities had presumed the risk of pressure being exerted on witnesses or of obstruction of the proceedings, basing themselves on the serious nature of the offences and the fact that the applicant had been charged with being a member of an organised criminal gang. In this respect, the Court reiterates that the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or re‑offending (see, , no. 28904/02, § 57, 4 October 2005). It acknowledges that in view of the seriousness of the accusations against the applicant, the authorities could justifiably have considered that such an initial risk was established.
40.  The foregoing considerations are sufficient for the Court to conclude that, taking into account the particular difficulties in dealing with a case concerning an organised criminal gang, 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 of 2 years and 7 months.
41.  It therefore remains to be ascertained whether the national authorities displayed “special diligence” in the conduct of the proceedings. In this regard, the Court recalls that the criminal case at issue was complex. The Court takes note of the seriousness of the charges against the applicant and the number of other persons charged in the same proceedings and the need for the implementation of special measures in cases concerning organised crime (see Bąk v. Poland, cited above, § 64). It observes that a substantial amount of evidence had to be examined in the course of the proceedings. The complexity of the case undoubtedly prolonged its examination and contributed to the length of the applicant's detention on remand.
42.  The Court further notes that there were no significant periods of inactivity on the part of the prosecution authorities and the trial court. It considers that the need to supplement the charges against the applicant apparently prolonged the investigation and that the charges against him were severed so as to deal with them separately and more efficiently (see paragraphs 10 and 13 above). For these reasons, the Court considers that the domestic authorities displayed “special diligence” in the handling of the applicant's case.
There has therefore been no violation of Article 5 § 3 of the Convention.
II.  ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
43.  The applicant complained that in the preparatory proceedings pending between April 2003 and December 2004 neither he nor his lawyer had been able to have access to the case-file. In consequence, he had not been able to effectively challenge the decisions prolonging his pre‑trial detention. He alleged a violation of Article 5 § 4 of the Convention, which reads:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
44.  The Government contested that argument.
A.  Admissibility
45.  The Government stated that the applicant had failed to exhaust domestic remedies in respect of his complaint in that he had failed to lodge a constitutional complaint. Nor had he made a request under Article 313 of the Code of Criminal Procedure to be served with the written reasons for the District Prosecutor's decision to charge him.
46.  The applicant disagreed with the Government and submitted that there was no effective remedy which he could have used to complain about the lack of access to the case-file. He maintained that the Government had failed to provide any evidence or any judicial practice that would prove that the constitutional complaint would have been an effective remedy within the meaning of Article 35 § 1 of the Convention.
47.  The Court observes that the applicant complained that he and his lawyer had no access to the case-file during the preparatory proceedings. He made several requests to be granted access to the file and had raised this complaint, relying inter alia on the Convention, in his appeals against the prosecutor's decisions refusing access. In those circumstances the Court finds that the Government failed to demonstrate in what way a request to be served with the written reasons for the charges against the applicant could remedy the prosecutor's decisions refusing him access to the file.
48.  Moreover, the Court finds that the Government's contention that a constitutional complaint under Article 156 of the Code of the Criminal Procedure should be considered an effective remedy for the applicant's complaint under Article 5 § 4 of the Convention not been substantiated. The Court reiterates that Article 35 § 1 of the Convention, which sets out the rule on exhaustion of domestic remedies, provides for a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success (see [GC], no. 25803/94, § 76, ECHR 1999-V and  (dec.), no. 57220/00, § 15, ECHR 2002-VIII). The Government have not provided any examples of concrete cases in which a constitutional complaint was shown to be an effective remedy in respect of a complaint such as the applicant's.
49.  Accordingly, the Court rejects the Government's preliminary objection. It further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. The Court therefore declares it admissible.
B.  Merits
1.  The parties' submissions
50.  The applicant submitted that the authorities' refusal to grant him and his lawyer access to the case-file had violated his defence rights and the principle of equality of arms. He maintained that the first request to be allowed to consult the file against him had been lodged by his lawyer as early as 17 April 2003. However, it was dismissed, as were all his other applications lodged in 2004.
51.  The applicant argued that only access to the case-file would have allowed him to challenge effectively the decisions to prolong his pre-trial detention. His defence was severely impaired given the extraordinary length of the investigation against him which had lasted over 20 months. During that time he had been deprived of liberty and had had no access to witnesses' statements and documents obtained in the course of the investigation.
52.  The Government considered that the principle of equality of arms had been sufficiently guaranteed in the applicant's case. The prosecutor's refusal to allow him access to his case-file was in accordance with the law, was justified by the particular circumstances of the case and did not limit the applicant's right to raise arguments in favour of his release.
53.  The Government underlined that the case had concerned organised crime and was very complex. The prosecutor's decisions were motivated by the interest of the investigation as there existed a risk that the applicant would tamper with evidence or even threaten witnesses. Moreover, the Government underlined that a part of the case-file had contained documents that were classified as confidential or secret. The applicant could consult the totality of the file when the interests of the investigation allowed for this.
2.  The Court's assessment
(a)  Principles established under the Court's case-law
54.  The Court reiterates that although it is not always necessary that the procedure under Article 5 § 4 be attended by the same guarantees as those required under Article 6 of the Convention for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the kind of deprivation of liberty in question (see, for instance, , judgment of 28 October 1998,  1998-VIII, p. 3302, § 162, and   no. 27785/95,§ 125, ECHR 2000-XI, both with reference to , judgment of 12 May 1992, Series A no. 237-A, p. 11, § 22).
55.  The proceedings must be adversarial and must always ensure “equality of arms” between the parties. More specifically, the Court reiterates that a certain degree of access to the case-file, if only to such an extent as to afford the detainee an opportunity of effectively challenging evidence on which his detention was based, may in certain instances be envisaged in proceedings concerning review of the lawfulness of detention on remand (see Lamy v. Belgium, judgment of 30 March 1989, Series A no. 151, pp. 16-17, § 29). These requirements are derived from the right to an adversarial trial as laid down in Article 6 of the Convention, which means, in a criminal case, that both the prosecution and the defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. According to the Court's case-law, it follows from the wording of Article 6 – and particularly from the autonomous meaning to be given to the notion of “criminal charge” – that this provision can be applied to pre-trial proceedings (see Imbrioscia v. Switzerland, judgment of 24 November 1993, Series A no. 275, p. 13, § 36). It thus follows that, in view of the dramatic impact of deprivation of liberty on the fundamental rights of the person concerned, proceedings conducted under Article 5 § 4 of the Convention should in principle also meet, to the largest extent possible under the circumstances of an ongoing investigation, the basic requirements of a fair trial, such as the right to adversarial procedure (see no. 25116/94, 13 February 2001, § 44; no24479/94, 13 February 2001, § 44).
56.  The Court acknowledges the need for criminal investigations to be conducted efficiently, which may imply that part of the information collected during them is to be kept secret in order to prevent suspects from tampering with evidence and undermining the course of justice. However, this legitimate goal cannot be pursued at the expense of substantial restrictions of the rights of the defence. Therefore, information which is essential for the assessment of the lawfulness of a person's detention should be made available in an appropriate manner to the suspect's lawyer (see , above,§ 42 and Migoń v. Poland, no. 24244/94, § 80, 25 June 2002).
(b)  Application of the principles to the circumstances of the present case
57.  Turning to the particular circumstances of the instant case the Court notes that the applicant who was arrested on 2 April 2003 did not have any access to the case-file until 6 December 2004 as his requests were dismissed by the prosecutor. On the latter date the applicant's lawyer was able to study the file for the first time. Thus, for over 20 months during which the applicant was detained on remand, neither he nor his lawyer had been allowed to consult the file (see paragraphs 19-23 above).
58.  During this period of time the only documents with which they had been served were the statements of charges against the applicant, the decisions ordering his detention and those concerning the prolongation of his pre‑trial detention. The prosecutor's motions to apply for and to prolong the applicant's detention were also served on them. In appealing against those decisions the applicant did not have an opportunity to examine the evidence relied on by the prosecuting authorities and the courts or to contest the findings based on the evidence collected. The applicant was deprived of access to the case-file during the entire investigation phase given that the bill of indictment against him had been lodged with the trial court only in December 2004.
59.  In this connection the Court observes that the prosecuting authorities relied on very many items of evidence to substantiate their motions to the courts to prolong the applicant's detention (see paragraphs 7, 8, 12 above). Moreover, the courts in prolonging the applicant's detention based the existence of the reasonable suspicion against the applicant on the evidence that had been furnished by the prosecutor. In their decisions the courts referred to particular witnesses' statements and other evidence included in the case-file. The applicant and his lawyer had no access to any of those documents.
60.  The Court also takes note of the Government's argument that the prosecutor's refusal to allow the applicant access to the case-file was justified by the fact that the case had concerned a complex investigation of the criminal activity of an organised gang and that the file included classified documents. However, it reiterates that the efficient conduct of an investigation, albeit a legitimate goal, cannot be pursued at the expense of substantial restrictions of the rights of the defence of the applicant who, along with his lawyer, was prevented from accessing the entirety of his case-file during a period of over 20 months.
61.  The Court considers that it was essential for the applicant and his lawyer to have access to the file and to inspect the documents in it in order to challenge the lawfulness of the applicant's arrest and subsequent prolongations of his pre-trial detention. The documents made available to the applicant did not provide an adequate basis on which to address the arguments relied on by the court or by the prosecutor, particularly given the rapidly increasing amount of evidence collected and which was relied on by the authorities in their decisions to prolong the applicant's detention on remand (see Migoń, cited above, § 86).
62.  In the light of the above, given the extensive period of time during which neither the applicant nor his lawyer could access any of the documents in the case-file, the Court considers that the applicant could not effectively exercise his defence rights in the proceedings concerning the review of the lawfulness of his pre-trial detention. Moreover, the prosecutor was familiar with the whole file. Thus, the procedure failed to ensure equality of arms and was not truly adversarial (see Lamy v. Belgium, cited above, § 29).
Accordingly, there has been a violation of Article 5 § 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
63.  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
64.  The applicant claimed 10,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.
65.  The Government contested this claim.
66.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 1,000 in respect of non‑pecuniary damage.
B.  Costs and expenses
67.  The applicant, who was represented by a lawyer and had been granted legal aid from the Council of Europe, did not claim reimbursement of any costs and expenses.
C.  Default interest
68.  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 application admissible;

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

3.  Holds that there has been a violation of Article 5 § 4 of the Convention;

4.  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 1,000 (one 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;

5.  Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 6 November 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş 	Josep 
	Deputy Registrar	President