FOURTH SECTION

CASE OF JASARI v. POLAND

(Application no. 17888/07)

JUDGMENT

STRASBOURG

12 October 2010

This judgment is final but it may be subject to editorial revision.

In the case of Jasari v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
	Ljiljana Mijović, President,
	Lech Garlicki,
	Nebojša Vučinić, judges,
and Fatoş AracıDeputy Section Registrar,
Having deliberated in private on 21 September 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in  against  lodged with the  of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by .
2.  The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
3.  The applicant alleged that his detention on remand exceeded a “reasonable time” within the meaning of Article 5 § 3 of the Convention.
4.  On  the President of the Fourth Section of the Court decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was assigned to a Committee of three Judges.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1952 and lives in Nadarzyn.
6.  On 8 March 2006 the applicant was arrested on suspicion of numerous counts of forgery of identity documents (including passports) committed in an organised criminal group.
7.  On 10 March 2006 the applicant was remanded in custody by a decision of the Warsaw District Court (Sąd Rejonowy). The court based its detention order on a reasonable suspicion that the applicant had committed the offences and on the severity of the likely penalty. It also considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the risk that he could go into hiding, particularly as he had had at his disposal a number of forged identity documents.
8.  The applicant's appeal against the detention order, likewise his further appeals against decisions prolonging his detention and his subsequent applications for release were unsuccessful.
9.  In the course of the investigation, the applicant's detention was prolonged by decisions of the Warsaw District Court delivered on 1 June, 30 August and 24 November 2006, 21 February and 10 July 2007. In the decision of 1 June the court stressed that an expertise on several documents, due at the end of May, had not yet been submitted.
In all their detention decisions the authorities repeatedly relied on a strong suspicion that the applicant had committed the offences in question, which was supported by evidence from witnesses. They attached importance to the fact that they had been committed in an organised criminal group. They further stressed that the applicant, if released, could cross the Polish border with ease, having established contacts with criminal groups abroad. In that respect they stressed that the applicant had access to forged identity documents which could help him flee Poland and establish a new identity abroad. Lastly, the courts found no special grounds, as specified in Article 259 § 1 of the Code of Criminal Procedure, that would justify lifting the detention and imposing a more lenient measure.
10.  In the meantime, on 3 July 2007, the bill of indictment against the applicant and four other defendants was lodged with the Warsaw District Court. It appears that three defendants, including the applicant, were charged with offences committed in an organised criminal group.
11.  On 9 January 2008 the Warsaw Court of Appeal (Sąd Apelacyjny) further extended the applicant's detention.
12.  On 15 February 2008 the trial court held the first hearing. It subsequently held, until 24 October 2008, some seventeen hearings in the case.
13.  During the court proceedings the applicant's detention was further prolonged by the Warsaw Court of Appeal on 4 March 2008. The court repeated the grounds previously given for the applicant's continued detention.
14.  On 3 July 2008 the Warsaw Court of Appeal lifted the applicant's detention. The court decided that the applicant could be released under police supervision and a prohibition on his leaving the country.
15.  Following the introduction of additional charges of organising illegal border crossings, the applicant was again arrested in the same set of criminal proceedings. It appears that he was arrested on 5 February 2009 and on 7 February 2009 the Warsaw Regional Court (Sąd Okręgowy) remanded him in custody.
16.  The applicant's detention was further extended by decisions of the Warsaw Regional Court delivered on 27 April and 27 July 2009. The applicant's lawyer appealed against the latter decision.
17.  On 24 July 2009 the Warsaw Regional Prosecutor (Prokurator Prokuratury Okręgowej) refused the applicant's request to have the detention lifted. The prosecutor stressed that the applicant had previously been convicted of similar offences.
18.  On 7 September 2009 the Warsaw Court of Appeal decided to lift the applicant's detention. The court held that his detention after 5 February 2009 lacked a legal basis and was therefore in breach of criminal procedure, as ordered and subsequently extended by courts that had not been competent to deal with the case. It stressed that having regard to the fact that the applicant had already been detained in the same set of proceedings for over two years, his re-arrest should have been ordered and extended by the Appellate Court.
19.  The proceedings are still pending before the first-instance court.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
APreventive measures, including pre-trial detention
20.  The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are 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.
BRelevant statistical data
21.  Relevant statistical data, recent amendments to the Code of Criminal Procedure designed to streamline criminal proceedings and references to the relevant Council of Europe materials including the 2007 Resolution of the Committee of Ministers , no. 45219/06, § 27-28 and 30-35, 3 February 2009).
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
22.  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.”
23.  The Government contested that argument.
A.  Admissibility
24.  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
25.  The Court notes that the applicant's pre-trial detention can be divided into two consecutive periods, the first lasting from 8 March 2006 until 3 July 2008 and the second from 5 February until 9 September 2009. Since the applicant's two periods of detention were imposed in a single set of criminal proceedings (see paragraph 18 above) both periods should be examined jointly (see, for example, Rozmarynowski v. Poland, no. 37149/02, § 26, 15 January 2008, Letellier v. France, 26 June 1991, § 34, Series A no. 207).
The first term of the applicant's detention started on 8 March 2006, when he was arrested on suspicion of numerous counts of forgery of identity documents committed in an organised criminal group. On 3 July 2008 the Warsaw Court of Appeal lifted the detention.
The second term of the detention began on 5 February 2009, when the applicant was again detained in the same set of criminal proceedings. His detention was quashed by decision of the Warsaw Court of Appeal delivered on 9 September 2009.
26.  Accordingly, the period to be taken into consideration amounts to approximately two years and eleven months.
(a)  The applicant
27.  The applicant submitted in general terms that the length of his pre‑trial detention had been excessive.
In subsequent letters, following his re-arrest, the applicant underlined that after his detention had been lifted on 3 July 2008, he had always respected the conditions of his release and had reported regularly to the police.
(b)  The Government
28.  The Government submitted that the applicant's detention had been based on all the prerequisites of detention listed in the Code of Criminal Procedure as applicable at the material time, in particular the persistence of a reasonable suspicion that he had committed the offence in question and the severity of the anticipated sentence.
They underlined that the present case concerned offences committed in an organised criminal group and that the applicant's detention had been justified by the need to prevent collusion.
29.  The Government stressed that the pre-trial proceedings had been regularly and positively assessed by the domestic courts.
Further, they submitted that the length of the applicant's detention had resulted from the complex nature of the proceedings. In that respect they recalled that the applicant had been charged with eighty-three offences and that the case file submitted by the prosecution comprised twenty volumes. They underlined that the court had had to hear sixteen witnesses and acquaint itself with the testimonies of six others and that, in view of the applicant's Albanian origin, an Albanian interpreter had had to be present at every hearing. Lastly, they noted that the proceedings had been conducted efficiently and hearings had been regularly held.
30.  Accordingly, the Government submitted that the length of detention had been compatible with the standards of Article 5 § 3 of the Convention.
31.  The Government did not submit any information concerning the second term of the applicant's pre-trial detention.
2.  The Court's assessment
(a)  General principles
32.  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 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
33.  In their detention decisions, the authorities, in addition to the reasonable suspicion against the applicant, relied principally on two grounds, namely (1) the severity of the penalty to which he was liable and (2) the need to secure the proper conduct of the proceeding in particular in view of the risk that he might interfere with witnesses and go into hiding. As regards the latter, they relied on the fact that the applicant had access to forged identity documents which could help him cross borders under a new identity (see paragraph 9 above).
34.  The applicant was charged with numerous counts of, inter alia, forgery of identity documents, committed in an organised criminal group (see paragraph 6 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).
35.  The Court accepts that the reasonable suspicion against the applicant of having committed serious offences could initially warrant his detention. Also, the need 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 were laid and the need to secure the proper conduct of the proceedings, in particular the process of obtaining evidence from witnesses, constituted valid grounds for the applicant's initial detention.
36.  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).
37.  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 is, by the nature of things, often high. In this respect, the Court notes, however, that in all the decisions extending the applicant's detention, no specific substantiation of the risk that the applicant would tamper with evidence, intimidate witnesses or attempt to otherwise disrupt the trial emerged. In the absence of any other factor capable of showing that the risk relied on actually existed, this argument cannot be accepted in the context of the whole period.
38.  As regards the risk of the applicant's absconding, the Court's attention has been drawn to the nature of the charges against the applicant. However, the mere fact that the applicant was charged with forgery of identity documents, which led the authorities to believe that if released he could easily conceal his true identity, was not, in the Court's view, sufficient to conclude that the risk of the applicant's going into hiding existed throughout the entire period of his detention. Moreover, the Court recalls that the risk of absconding has to be assessed in light of the factors relating to the person's character, his morals, home, occupation, assets, family ties and all kinds of links with the country in which he is prosecuted (see Becciev v. Moldova, no. 9190/03, § 58,4 October 2005).
In this respect the fears of the domestic authorities have not proved well‑founded. It notes in this connection that following the decision of 3 July 2008 by which the applicant's detention was lifted, the applicant has respected the conditions of his release.
39.  While all those above factors could justify even a relatively long period of detention, they did not give the domestic courts an unlimited power to prolong this measure.
40.  Further, it is true, as the Government submitted, that the case was of a certain complexity, given the volume of evidence. However, it seems that the bill of indictment was lodged against five defendants, three of whom had been indicted with offences committed in an organised criminal group (see paragraph 10 above). However, it does not appear that the domestic courts relied on this as a factor militating against the applicant's release (see paragraphs 7, 9, 13 and 17 above).
41.  In the case of Janulis (see Janulis v. Poland, no. 20251/04, § 37, 4 November 2008), the Court held that a relatively long period of detention must be thoroughly and duly justified by the domestic authorities both from a substantive point of view (the existence of reasons justifying keeping the applicant in detention) and from a formal point of view (a proper formulation and justification of the courts' decisions). A failure to fulfil the formal requirements for decisions extending detention on remand is per se sufficient for finding a violation of Article 5 § 3 (see Janulis v. Poland, cited above, § 38). The Court further explained that such a failure may, in particular, consist in (1) simply repeating reasons for detention contained in the Code of Criminal Procedure, without explaining how they apply in a given case or (2) simply repeating reasons given in the initial phase of detention, without explaining in further decisions why continuing detention is indispensable (see Janulis v. Poland, cited above, § 39).
42.  The Court notes that in the present case the reasons relied upon by the domestic courts in their decisions prolonging the applicant's detention were limited to simply repeating the reasons given in the initial phase of the investigation and proceedings, without explaining their relevance to the applicant's prolonged detention.
43.  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 46 OF THE CONVENTION
44.  Article 46 of the Convention provides:
“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”
A.  The parties' submissions
1.  The applicant
45.  The applicant did not submit any observations concerning this provision.
2.  The Government
46.  The Government referred to the arguments submitted previously in the case of Figas v. Poland (no. 7883/07, §§ 41-44, 23 June 2009).
47.  The Government concluded that, bearing in mind the efforts of the Polish authorities and the legislative reforms which were and had been undertaken by them to solve the problem of the length of detention on remand, Poland could not be said to have failed to comply with its obligations under Article 46 of the Convention to obey the Court's judgments.
B.  The Court's assessment
48.  Recently, in the case of Kauczor v. Poland (see Kauczor, cited above, § 58 et seq. with further references) the Court held that the 2007 Resolution of the Committee of Ministers taken together with the number of judgments already delivered and of the pending cases raising an issue of excessive detention incompatible with Article 5 § 3 demonstrated that the violation of the applicant's right under Article 5 § 3 of the Convention had originated in a widespread problem arising out of the malfunctioning of the Polish criminal justice system which had affected, and may still affect in the future, an as yet unidentified, but potentially considerable number of persons charged in criminal proceedings.
49.  It is true that the present case concerns a person involved in an organised criminal group. However, as stated above, while this element is to be taken into account in assessing compliance with Article 5 § 3 and may justify a longer period of detention than in a case concerning an individual offender, a member of an organised criminal group is entitled to the protection against unreasonably lengthy detention afforded by this provision (see paragraphs 32, with further references, 34-35, 37, and 44 above). As in other numerous similar detention cases, the authorities did not justify the applicant's continued detention by relevant and sufficient reasons (see paragraphs 33-44 above). Moreover, as demonstrated by the ever increasing number of judgments in which the Court has found Poland to be in breach of Article 5 § 3 in respect of applicants involved in organised crime, the present case is by no means an isolated example of the imposition of unjustifiably lengthy detention but a confirmation of a practice found to be contrary to the Convention (see, among many other examples, Celejewski v. Poland, no. 17584/04, 4 May 2006; Kąkol v. Poland, no. 3994/03, 6 September 2007; Malikowski v. Poland, no. 15154/03, 16 October 2007 and also Hilgartner v. Poland, no. 976/06, §§ 46-48, 3 March 2009). Consequently, the Court sees no reason to diverge from its findings made in Kauczor as to the existence of a structural problem and the need for the Polish State to adopt measures to remedy the situation (see Kauczor, cited above, §§ 60-62).
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
50.  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
51.  The applicant claimed 200,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. He submitted that being in detention he had no access to any marerials to support his claim.
On 6 October 2009 the applicant submitted rental invoices and several bills from, inter alia, a telecommunications company, a garage and a car insurance company. The applicant did not explain the relevance of the above-mentioned invoices to the present case.
52.  The Government claimed that the applicant had sent his invoices out of time. They further submitted that he had failed to substantiate his claim for non-pecuniary damage.
53.  Leaving aside the question whether the applicant's invoices had been submitted within the prescribed time-limit, 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 has suffered non-pecuniary damage which is not sufficiently compensated by the finding of a violation of the Convention. Considering the circumstances of the case and making its assessment on an equitable basis, the Court awards the applicant EUR 1,000 under this head.
B.  Costs and expenses
54.  The applicant submitted no claim for costs and expenses.
C.  Default interest
55.  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 a violation of Article 5 § 3 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months, EUR 1,000 (one thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into the currency of the respondent State 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;

4.  Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 12 October 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Ljiljana Mijović
	Deputy 	President