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FOURTH
SECTION
CASE OF MARIAN SOBCZYŃSKI v. POLAND
(Application
no. 35494/08)
JUDGMENT
STRASBOURG
2 February
2010
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 Marian Sobczyński v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Giovanni
Bonello,
Ljiljana
Mijović,
Päivi
Hirvelä,
Ledi
Bianku,
Nebojša
Vučinić,
judges,
and Fatoş
Aracı, Deputy
Section Registrar,
Having
deliberated in private on 12 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 35494/08) 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 Marian
Sobczyński (“the applicant”), on 11 July 2008.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr Jakub Wołąsiewicz of the Ministry of
Foreign Affairs.
- The
applicant alleged that his detention on remand exceeded a “reasonable
time” within the meaning of Article 5 § 3 of the
Convention.
- On
20 January 2009 the
President of the Fourth Section decided to give notice of the
application to the Government. It was also decided that the merits of
the application be examined at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, Mr Marian Sobczyński, is a Polish national who was
born in 1950 and who lives in Zabrze, Poland.
- On
7 June 2006 the applicant was arrested on suspicion of being a member
of an organised criminal gang, tax fraud, perjury and other related
offences.
- On
9 June 2006 the Katowice District Court (Sąd Rejonowy)
remanded him in custody. That decision was justified by the strong
evidence against the applicant, the gravity of the offences with
which he had been charged and the severity of the penalty which could
be imposed if convicted. In addition, the court relied on the risk
that the applicant would induce witnesses to give false testimony and
also go into hiding if released. The latter ground was justified in
the light of the fact that the applicant did not have a fixed
residence prior to his arrest.
- It
appears that the applicant's interlocutory appeal against the above
detention order was dismissed on 23 June 2006.
- Subsequently,
the applicant's pre-trial detention was extended by the decisions of
the Katowice District Court issued on 25 August, 24 November and
18 December 2006, 19 February, 25 April and 18 June 2007 and by
the decisions of the Gliwice Regional Court (Sąd Okręgowy)
issued on 20 September and 27 December 2007 and 25 March
2008.
- The
domestic courts relied on the original grounds for the applicant's
detention. In addition it was noted that the proceedings were complex
and involved a large number of witnesses and voluminous evidence. The
investigating authorities had to obtain expert reports on
accountancy, finance and forensics. Lastly, it was noted that new
aspects of the alleged criminal activities of the applicant were
being revealed in the course of the progressing investigation.
- On
22 April 2008 the prosecutor lodged a bill of indictment against the
applicant and his two alleged accomplices with the Katowice Regional
Court. The applicant was indicted of numerous counts of tax fraud,
money laundering and perjury, allegedly committed within an organised
criminal gang.
- The
first hearing took place on 23 October 2008. It appears that since
then the trials have been taking place once a month or more
frequently.
- Pending
trial, the applicant's detention was extended by the Katowice
Regional Court's decisions of 5 May and 5 November 2008.
- The
applicant or his lawyer challenged a number of decisions to extend
his detention. It appears that an interlocutory appeal was not
brought against seven of those decisions. The interlocutory appeals
lodged by the applicant's lawyer against the decisions of 25 March,
5 May and 5 November 2008 were rejected by the Katowice Court of
Appeal on 4 June 2008 and two unspecified dates
respectively. Likewise, the applicant's request for release was
rejected by the Katowice Regional Court on 21 July 2008.
- On
6 March 2009 the Katowice Regional Court released the applicant from
detention, placing him under police supervision (dozór
policyjny). The court considered that keeping the applicant in
detention was no longer necessary since the majority of witnesses had
already been examined by the trial court and in the light of the fact
that the applicant had been recently registered at a fixed residence
address.
- It
appears that the criminal proceedings against him are currently
pending.
- In
parallel to his pre-trial detention subject of the instant
application, the applicant served two separate prison sentences
imposed on him by a competent criminal court. The two prison terms
amounted to one year, six months and nineteen days. And thus
from 2 March 2007 until 31 July 2008 the applicant was
serving a sentence imposed on him by the Wieluń District Court
in its judgment of 5 February 2007 and from 8 September
until 28 October 2008 the applicant was serving a sentence,
which was imposed on him by the same court in its decision of
28 July 2008.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice concerning the imposition of
detention on remand (aresztowanie tymczasowe), the grounds for
its extension, release from detention and rules governing other,
so-called “preventive measures” (środki
zapobiegawcze) are stated 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 his detention on remand had
been excessive. He 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
21. The Government submitted that the applicant had not exhausted all
the remedies provided for by Polish law in that he had failed to
appeal against several decisions extending his detention.
- The applicant did not comment.
- The Court observes that the applicant did not
challenge every decision extending his detention. However, he did
lodge an interlocutory appeal against his detention order of 9 June
2006 and at least three appeals against decisions extending the
preventive measure (see paragraphs 8 and 14 above). He also
unsuccessfully requested that his detention be lifted (see paragraph
14 above).
The Court has already considered that those remedies, namely an
appeal against a detention order or a request for release, whether
submitted to the prosecutor or to the court, depending on the stage
of the proceedings, and also an appeal against a decision to extend
detention, serve the same purpose under Polish law. Their objective
is to secure the review of the lawfulness of detention at any given
time in the proceedings, both in their pre-trial and trial stage, and
to obtain release if the circumstances of the case no longer justify
continued detention (see Iwańczuk v. Poland (dec.),
no. 25196/94, 9 November 2000, and Wolf v. Poland, nos.
15667/03 and 2929/04, § 78, 16 January 2007). It follows from
the Court's case-law that the applicant is not required to appeal
against each and every decision extending his detention (see, by
contrast, Bronk v. Poland (dec.), no. 30848/03, 11
September 2007).
- It follows that this complaint cannot be rejected for
non-exhaustion of domestic remedies. The Court further notes that it
is not manifestly ill founded within the meaning of Article 35 §
3 of the Convention and 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 7 June 2006, when he was arrested on
suspicion of being a member of an organised criminal gang, tax fraud,
perjury and other related offences. On 6 March 2009 the
applicant was released from detention and placed under police
supervision.
The
relevant criminal proceedings against the applicant are currently
pending before the domestic court.
- In
parallel to his pre-trial detention subject of the application, for
the total of one year, six months and nineteen days, from 2 March
2007 until 31 July 2008 and 8 September until
28 October 2008 the applicant served two separate prison
sentences, which had been imposed on him in other criminal
proceedings (see paragraph 17 above). These terms, as being covered
by Article 5 § 1 (a), must therefore be subtracted from the
period of the applicant's pre-trial detention for the purposes of
Article 5 § 3.
Accordingly,
the period to be taken into consideration amounts to one year, two
months and ten days.
2. The parties' submissions
(a) The applicant
- The
applicant submitted that the length of his pre-trial detention had
been excessive and that the measure had not been sufficiently
justified by the authorities.
(b) The Government
- The Government firstly presented some statistical
data, indicating that in the years 2000-2005 the number of
indictments and convictions in cases concerning organised crime had
increased both in absolute terms and in relation to other crimes.
They argued that in organised crime cases the authorities were faced
with particular problems relating to the taking and assessment of
evidence and various logistical issues.
- With reference to the present case, the Government
submitted that the applicant's pre-trial detention had been justified
by the nature of the charges, the scale of the alleged criminal
activities and the severity of the anticipated penalty. They
underlined that the length of the applicant's detention should
be assessed with reference to the fact that he and his co-defendants
had allegedly acted in an organised criminal gang. The latter
element aggravated the risk that the applicant might obstruct the
proceedings or tamper with evidence. Thus, the domestic courts had
considered it necessary to remand the applicant in custody during the
relevant period. However, the applicant had been released when the
authorities had considered that further prolongation of his detention
would not be justified. Thus, the authorities had attempted to find a
balance between the competing interests in the case.
3. The Court's assessment
(a) General principles
- 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 above principles in
the present case
- 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; and (3) the risk that the applicant might go into
hiding. As regards the latter, they relied on the fact that the
applicant did not have a fixed residence prior to his arrest (see
paragraph 7 above).
- The
applicant was charged with numerous counts of tax fraud, money
laundering, perjury and other related offence allegedly committed in
an organised criminal gang (see paragraphs 6 and 11 above).
In
the Court's view, the fact that the case concerned a member of a such
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).
- Indeed,
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 often is, by the nature of things, high.
- The
Court accepts that the reasonable suspicion against the applicant of
having committed serious offences could initially warrant his
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 of
absconding or re-offending, the gravity of the charges cannot by
itself justify long periods of detention on remand (see Michta
v. Poland, no. 13425/02, §§ 49, 4 May 2006).
- On
the other hand, the need to obtain voluminous evidence and the need
to secure the proper conduct of the proceedings, in particular the
process of obtaining evidence from witnesses, including experts in
finance and forensics constituted valid grounds for maintaining of
the applicant's detention for the period of one year, two months and
ten days.
- As
regards the risk of the applicant's going into hiding, the Court
finds the authorities' argument justified in the light of the fact
that the applicant did not have a fixed residence prior to his
arrest.
- The
Court takes notice of the fact that when the authorities could no
longer justify the applicant's protracted detention, they replaced it
with a less stringent preventive measure and placed the applicant
under police supervision.
- 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, that is one
year, two months and ten days.
- 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 investigation was of
considerable complexity, regard being had to the number of witnesses,
the extensive evidentiary proceedings and the implementation of
special measures required in cases concerning organised crime. The
Court does not discern any significant periods on inactivity in the
investigation or the initial phase of the trial. Furthermore, as
noted by the authorities, the proceedings were additionally
complicated by the need to obtain evidence from the experts in
finance, accounting and forensics. For these reasons, the Court
considers that during the relevant period 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 application admissible;
- Holds that there has been no violation of
Article 5 § 3 of the Convention.
Done in English, and notified in writing on 2 February 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza Deputy Registrar President
