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FOURTH
SECTION
CASE OF CZUWARA v. POLAND
(Application
no. 36250/06)
JUDGMENT
STRASBOURG
29 July
2008
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 Czuwara v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Giovanni Bonello, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Ledi
Bianku,
Mihai Poalelungi, judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 8 July 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 36250/06) 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, Ms Ewa
Mirosława Czuwara (“the applicant”), on 10 August
2006.
- The
Polish Government were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
- The
applicant alleged that her pre-trial detention had exceeded a
“reasonable time” within the meaning of Article 5 §
3 of the Convention.
- On
13 September 2007 the
President of the Fourth Section decided to give notice of the
application to the Government. It was decided to examine the merits
of the application at the same time as its admissibility
(Article 29 § 3 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1959 and lives in Warsaw.
- The
applicant was the director of a local branch in Warsaw of the bank
PKO BP.
- On
26 January 2001 the applicant was arrested by officers of the Central
Investigation Bureau (Centralne Biuro Śledcze, CBŚ)
on suspicion of fraud and forgery of documents. On 27 January 2001
the Pruszków District Court (Sąd Rejonowy)
dismissed the prosecutor's request to impose on the applicant
pre-trial detention finding that the suspicion against her had not
been sufficiently justified. The decision was upheld on appeal by the
Warsaw Regional Court (Sąd Okręgowy) on 20 March
2001.
- It
appears that the Pruszków District Prosecutor continued the
investigation against the applicant.
- On
9 June 2003 the applicant was again arrested by the CBŚ. She was
charged with fraud, in that with the aim of financial gain she had
caused substantial financial damage to the bank in granting suspect
loans to clients of the bank. Moreover, the applicant was charged
with having acted together with a member of her staff, in an
organised criminal group. On 11 June 2003 the Warsaw District
Court remanded the applicant in custody. The court relied on the
reasonable suspicion that the applicant had committed the offences
with which she had been charged. The District Court also considered
that only detention could secure the proper course of the proceedings
and that there existed a risk that the applicant would influence the
witnesses, many of whom were bank employees formerly under her
authority.
- On
7 July 2003 the Warsaw Regional Court dismissed an appeal by the
applicant.
- On
3 September 2003 the District Court extended the applicant's
detention. The court relied on the reasonable suspicion against the
applicant and on the risk that the applicant, who had pleaded not
guilty, would attempt to influence witnesses or otherwise interfere
with the proper course of the proceedings.
- The
applicant's detention was further extended on 3 December 2003 and 5
March 2004. In addition to the grounds given previously, the court
relied on the probability that a severe sentence would be imposed on
the applicant.
- The
applicant unsuccessfully appealed against all decisions prolonging
her detention, submitting that the risk of her influencing the course
of the proceedings had not been in any way substantiated. Prior to
her arrest in 2003 she had not made any attempt to tamper with
evidence or with the investigation that had been pending at the
material time.
- The
applicant's pre-trial detention was further extended on 8 June
2004. In a brief reasoning the court referred particularly to the
nature of the investigation that required the taking of voluminous
evidence.
- On
2 July 2004 the Warsaw Court of Appeal dismissed an appeal by the
applicant against the latter decision; nevertheless, it considered
that the District Court's reasoning for its decision had been “vague”
(ogólnikowe). It also stated that the prosecution
should intensify its actions and lodge a bill of indictment so as to
allow the trial court to examine the case within a reasonable time.
- The
subsequent decision to prolong the applicant's detention, given on
7 September 2004 by the Warsaw Court of Appeal, contains the
following reasoning:
“The Appellate Prosecutor's application is
justified. The continued pre-trial detention of [the applicant] is
justified under [the provisions of the Code of Criminal Procedure] on
the grounds given in the decision of 8 June 2004.
The evidence gathered in the case and presented in the
prosecutor's application fulfil the requirements of the [provisions
of the Code of Criminal Procedure].
The nature of the case, which requires the gathering of
extensive evidential material, is sufficient to find that there are
grounds to further prolong pre-trial detention.”
- An
appeal by the applicant against this decision was dismissed on
28 September 2004 on the grounds of the complexity of the case
and the probability that a severe sentence would be imposed on the
applicant.
- On
8 December 2004 the Warsaw Court of Appeal extended the applicant's
detention, pointing to the fact that the investigation had not yet
been concluded by the prosecutor.
- The
decision of 1 March 2005, which further extended the applicant's
detention, referred back to prior decisions concerning the
prolongation of her detention.
- The
applicant appealed against this decision. The appeal was dismissed on
30 March 2005.
- On
13 May 2005 the applicant was indicted before the Warsaw District
Court.
- On
20 May 2005 the trial court extended the applicant's detention
relying, in addition to the reasonable suspicion against the
applicant, on two grounds: a risk that she would interfere with the
proper course of the proceedings and the likelihood that a severe
sentence would be imposed.
- As
the length of the applicant's detention had reached the statutory
time limit of two years laid down in Article 263 § 3
of the Code of Criminal Procedure (Kodeks postępowania
karnego) the District Court made several applications to the
Warsaw Court of Appeal for the applicant's detention to be extended
beyond that term. On 3 June and 25 November 2005 and on 7 March
2006 the court granted such requests, reiterating the grounds
previously given for her detention and pointing to the complexity of
the case.
- On
30 May 2006 the Warsaw Court of Appeal extended the applicant's
detention until 9 December 2006, considering that the trial court
should be able to finish the trial before that date.
- At
a hearing on 21 December 2006 the Warsaw District Court decided to
lift the applicant's detention finding that it had lasted for too
long. The court considered that police supervision would secure the
applicant's appearance at her trial. The applicant was released on
the same date.
- The
trial against the applicant started on 12 August 2005 and is pending
before the first-instance court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice concerning the imposition of
pre-trial detention (aresztowanie tymczasowe), the grounds for
its extension, release from detention and rules governing other
“preventive measures” (środki zapobiegawcze)
are set out in the Court's judgments in the cases of Gołek v.
Poland, no. 31330/02, §§ 27-33, 25 April 2006, and
Celejewski v. Poland, no. 17584/04, §§ 22-23, 4
August 2006.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the length of her pre-trial detention had
been excessive. She relied on Article 5 § 3 of the
Convention, which, in so far as relevant, reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that the application 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
applicant's detention started on 9 June 2003, when she was arrested
on suspicion of having committed fraud. On 21 December 2006 she was
released from pre-trial detention.
Accordingly,
the period to be taken into consideration amounts to three years, six
months and thirteen days.
2. The parties' submissions
- The
applicant submitted that she had been kept in detention pending trial
for an unjustified period of time. The applicant maintained that the
authorities had extended her detention on the basis of standard
reasoning that had had no justification in the facts of the case. In
particular, the courts had repeatedly invoked the risk of her
interfering with the proper course of the proceedings without
pointing to any specific incident that would justify their
conviction. The applicant reiterated the fact that she had been at
liberty for the first thirty months of the investigation against her
in 2001 and 2002 and, later, during her trial since December 2006.
- The
applicant complained that the charges against her had been
groundless, particularly as regards her alleged participation in the
organised criminal group. This charge had been frequently used by the
prosecution service without justification. The proceedings against
her, so far pending for over seven years, had not shown what her role
in the alleged organised group might have been. The applicant had
instituted civil proceedings for reinstatement against her former
employer but they had been stayed pending the outcome of the criminal
case.
- The
Government refrained from expressing an opinion on the merits of the
complaint under Article 5 § 3. However, they asked the
Court to take into consideration the fact that the applicant had been
accused of membership of an organised criminal gang. They further
underlined the complexity of the case, which had involved sixteen
co-accused, against whom almost fifty charges had been laid. The
Government also 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.
3. The Court's assessment
(a) General principles
- The
Court reiterates 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, have been set out
in a number of its previous judgments (see, among many other
authorities, Kudła v. Poland [GC], no. 30210/96,
§ 110 et seq, ECHR 2000 XI, and McKay v. the
United Kingdom [GC], no. 543/03, §§ 41-44, ECHR
2006-..., with further references).
(b) Application of the above principles in
the present case
- In
their detention decisions, the authorities, in addition to the
reasonable suspicion against the applicant, relied principally on two
grounds: the severity of the penalty to which she was liable and the
need to secure the proper conduct of the proceedings. As regards the
latter ground, however, they did not specify any concrete reasons
justifying their opinion that the applicant would pervert the course
of justice if released. Finally, the courts pointed to the particular
complexity of the case.
- The
applicant was charged with numerous counts of fraud committed in an
organised criminal group (see paragraph 9 above).
In
the Court's view, the fact that the case concerned a member of such a
criminal group should be taken into account in assessing compliance
with Article 5 § 3 (see Bąk v. Poland, no. 7870/04,
§ 57, 16 January 2007).
- The
Court accepts that the reasonable suspicion that the applicant had
committed offences warranted her detention initially. Also, the need
to obtain a large volume of evidence and to determine the degree of
the alleged responsibility of each of the defendants, who had acted
in a criminal group and against whom numerous charges of serious
offences had been laid, constituted valid grounds for the applicant's
initial detention.
- In
cases such as the present one concerning organised criminal groups,
the risk that a detainee, if released, might bring pressure to bear
on witnesses or other co-accused or might otherwise obstruct the
proceedings is often, by the nature of things, high. However, such a
risk should be justified by reference to concrete factors pertaining
to the particular accused. In the case under consideration the
authorities did not rely on any specific circumstance capable of
showing that the applicant's release would interfere with the proper
course of the proceedings, and if so why and how. The authorities did
not point to any instance of the applicant's attempting to intimidate
witnesses or to disrupt the trial during the whole period of her
detention or when she had been at liberty. The Court reiterates that
the applicant did not have a criminal record and had been at liberty
for thirty months prior to her arrest. During that time, and after
her release in December 2006, the applicant did not make any attempt
to pervert the course of justice. However, these circumstances were
not taken into consideration by the authorities although the
applicant had relied on them in her appeals against the decisions
extending her detention.
- Furthermore,
according to the authorities, the likelihood of a severe sentence
being imposed on the applicant created a presumption that the
applicant would obstruct the proceedings. However, the Court would
reiterate that, while the severity of the sentence faced is a
relevant element in the assessment of the risk that the defendant
might abscond or re-offend, the gravity of the charges cannot by
itself justify long periods of pre-trial detention (see Michta
v. Poland, no. 13425/02, §§ 49, 4 May 2006).
- Apart
from the grounds examined above, the domestic courts failed to
advance any other argument justifying the extension of the
applicant's pre-trial detention. Indeed the reasons for their
decisions were particularly repetitive and vague, as the domestic
court itself observed on 2 July 2004 (see paragraph 15 above). The
Court notes that in spite of this criticism of the Regional Court,
the subsequent decision extending the applicant's detention did not
refer to any particular ground justifying keeping the applicant in
pre-trial detention (see paragraph 16 above).
- Finally,
the Court would emphasise that under Article 5 § 3 the
authorities, when deciding whether a person is to be released or
detained, are obliged to consider alternative means of guaranteeing
his appearance at the trial (see Jablonski v. Poland,
no. 33492/96, § 83, 21 December 2000). The Court
observes that the applicant was released following the District
Court's decision of 21 December 2006 which had considered that police
supervision would ensure her presence at trial (see paragraph 25
above). Indeed, it does not appear that before that date the domestic
courts gave any careful consideration to measures other than
detention to secure the applicant's appearance at her trial.
- Having
regard to the foregoing, even taking into account the fact that the
courts were faced with the particularly difficult task of trying a
case involving an organised criminal group, the Court concludes that
the grounds given by the domestic authorities could not justify the
overall period of the applicant's detention. In these circumstances
it is not necessary to examine whether the proceedings were conducted
with special diligence.
There
has accordingly been a violation of Article 5 § 3 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed 9,200 euros (EUR) in respect of pecuniary damage
and an equal amount in respect of non-pecuniary damage.
- The
Government considered that these claims were excessive and as such
should be rejected. They asked the Court to rule that the finding of
a violation constituted in itself sufficient just satisfaction.
- 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 considers that the applicant suffered
non-pecuniary damage which is not sufficiently compensated by the
finding of a violation of the Convention. Considering the particular
circumstances of the case, especially the non-violent nature of the
offence the applicant was charged with and the low risk that she
might abscond or re-offend, and making its assessment on an equitable
basis, the Court awards the applicant EUR 2,500 under this head.
B. Costs and expenses
- The
applicant submitted no claim for costs and expenses.
C. Default interest
- 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
- Declares the application admissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- 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 2,500 (two
thousand five hundred euros) in respect of non-pecuniary damage, plus
any tax that may be chargeable, to be converted into Polish zlotys at
the rate applicable at the date of settlement;
(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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 29 July 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Giovanni Bonello
Registrar President
