FOURTH SECTION

CASE OF TROJANOWSKI v. POLAND

(Application no. 27952/08)

JUDGMENT

STRASBOURG

8 February 2011

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 Trojanowski v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
	Nicolas Bratza, President,
	Lech Garlicki,
	Ljiljana Mijović,
	Päivi Hirvelä,
	Ledi Bianku,
	Nebojša Vučinić,
	Vincent A. de Gaetano, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 18 January 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 27952/08) 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 Oskar Trojanowski (“the applicant”), on 4 June 2008.
2.  The Polish Government (“the Government”) were represented by their Agent, Mr Jakub Wołąsiewicz of the Ministry of Foreign Affairs.
3.  The applicant alleged, in particular, that his detention on remand exceeded a “reasonable time” within the meaning of Article 5 § 3 of the Convention. He further complained about the conditions of his detention.
4.  On 7 December 2009 President of the Fourth Section of the Court decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1978 and lives in Warsaw.
A.  Criminal proceedings against the applicant and his pre-trial detention
6.  On 7 July 2006 the applicant was charged with drug trafficking, committed in an organised and armed criminal group.
7.  On 22 September 2006 the Warsaw District Court (Sąd Rejonowy) gave a decision, ordering the applicant's detention on remand for a period of fourteen days. The applicant submitted that this decision has not been served on him and that he had been unaware of the charges introduced against him.
The Government contested that fact, submitting that the applicant had been in hiding.
8.  On 12 October 2006 a wanted notice (list gończy) was issued by the Warsaw District Court with a view to locating the applicant.
9.  On 24 October 2006 the applicant was arrested. In the applicant's record of arrest (protokół zatrzymania), the reasons for his arrest read as follows: 'wanted notice; transport to the closest remand centre or prison (...)' (“list gończy, doprowadzenie do najbliższego AŚ lub ZK”).
10.  On 3 November 2006 the Warsaw District Court remanded him in custody, relying on the reasonable suspicion that he had committed the offence in question. It also considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the risk that he might go into hiding and induce witnesses to give false testimony, particularly given that a wanted notice had been issued in the course of the investigation with a view to locating the applicant. The court also stressed the severity of the anticipated sentence and the fact that the applicant was charged with an offence committed in an organised and armed criminal group.
11.  Later, several other members of the same criminal group were detained and charged in connection with the investigation against the applicant.
12.  The applicant's appeal against the detention order, likewise his further appeals against decisions prolonging his detention and all his subsequent, numerous applications for release were unsuccessful. In his applications and appeals he argued that the charges against him were based on unreliable evidence. He also relied on his personal circumstances, in particular the need to ensure care for his elderly mother.
13.  In the course of the investigation, the applicant's detention was prolonged by decisions of the Warsaw Regional Court (Sąd Okregowy) delivered on 28 December 2006 and 21 May 2007.
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 underlined the grave nature of those offences and the likelihood of a severe sentence of imprisonment being imposed on the applicant. The courts attached great importance to the complexity of the case, the significant number of persons involved (around 100 persons) and the voluminous documentation gathered in the proceedings. They further considered that the need to secure the proper conduct of the proceedings justified holding the applicant in custody, as he could otherwise induce the witnesses to change their testimonies or go into hiding, regard being had in particular to the fact that a wanted notice had been issued in the course of the investigation with a view to locating the applicant. The courts stressed, on several occasions, that a number of experts' opinions had to be requested and legal help had to be sought from Sweden.
14.  On 11 April 2007 the Warsaw District Court dismissed the applicant's appeal against the detention order of 24 October 2006, holding that the arrest had been legitimate and lawful and that the applicant had been instructed about his rights, in particular about a right to appeal against the order. It further noted that the applicant was informed by the police authorities that a wanted notice had been issued in the proceedings, which justified his arrest.
15.  On 26 September 2007 a bill of indictment was lodged with the Warsaw Regional Court. The bill of indictment comprised numerous charges of drug trafficking and extortion committed in an organised criminal group brought against twenty-nine defendants.
16.  During the court proceedings the authorities further prolonged the applicant's detention pending trial. The applicant's detention was extended by decisions of the Warsaw Regional Court delivered on 8 October 2007 and 11 February 2008 and by decisions of the Warsaw Court of Appeal (Sąd Apelacyjny) delivered on 26 June and 4 December 2008 and 18 June 2009. The courts repeated the grounds previously given for the applicant's continued detention.
Furthermore, in its decision of 11 February 2008 the court noted that a special room had to be reserved for hearings in the present case, as it concerned a dangerous criminal group.
In its decision of 4 December 2008 the court stressed the need to have the proceedings completed within a reasonable time.
17.  On 25 March 2008 the trial court held the first hearing.
18.  On 21 May 2009 the Warsaw Regional Court decided that he could be released on payment of bail in the amount of 40,000 Polish zlotys (PLN) (approximately 10,000 euros (EUR)). The applicant did not pay the bail.
19.  On 20 November 2009 the Warsaw Regional Court lifted the applicant's detention.
20.  The proceedings are still pending before the first-instance court.
B.  Conditions of the applicant's detention
1.  The applicant's account

21. From 24 October 2006 to 19 November 2009 the applicant was detained in Warszawa-Białołęka Remand Centre. He was released on 20 November 2009.
22.  According to the applicant's submissions, all of the cells where he was held were dark and overcrowded and the detention facility had poor sanitary conditions. In that respect he complained about insufficient supply of basic hygiene products (one toilet paper roll, one soap bar, one tube of toothpaste and some shaving gel per month). He further complained that a hot, ten-minute long shower has been offered to prisoners once a week only.
23. The applicant submitted that initially he had been placed in a six‑person cell, which measured 15 m².
Later, approximately in June 2008, he was held in a two-person cell, which measured 7.6 m².
Subsequently, he was held together with five other prisoners in a cell measuring 12 m². The cell was equipped with bunk-beds and a table. There was also a sanitary corner in the cell.
24. The applicant further claimed that there was mould on the ceiling and the walls of the cell. There was no ventilation in the cell, which made breathing difficult, particularly since the cells were opened only when meals were served and when the prisoners took a one-hour long daily walk in the outside yard. The electricity in the cells was cut off between 9 and 12 a.m. and 1 and 3 p.m.
Lastly, the applicant submitted that when a hearing had been held before the trial court, no hot meals have been served at the remand centre.

2.  The Government's account

25. The Government submitted that between 25 October 2006 and 14 October 2008 and on 10 December 2008 the applicant was detained in cells in which the statutory minimum requirement of 3 m² per person was not respected.
26.  They supplied the following details concerning the conditions of the applicant's detention:
- from 24 to 26 October 2006 the applicant was placed in a cell with a surface area of 12.69 m², which he shared with four other inmates;
 - from 27 October to 20 November 2006 he remained, together with four other inmates, in a cell measuring 12.67 m²;
- from 21 November 2006 to 8 March 2007 he was detained in a cell of 12.32 m², together with four other persons;
- from 9 to 29 March 2007 the applicant was held in a cell of 12.33 m², together with five other inmates;
- from 30 March 2007 to 31 March 2008 he remained in a cell measuring 12.70 m², together with four persons;
- from 1 April to 19 August 2008 he was placed in a cell of 5.16 m² that he shared with another person;
- from 20 August to 7 October 2008 he shared a cell measuring 12.68 m² with four persons;
- from 8 to 13 October 2008 he was detained with another person in a cell of 5.22 m²;
- from 14 October to 9 December 2008 he shared a cell of 12.68 m² with three other inmates;
- on 10 December 2008 he was held together with another person in a cell measuring 5.15 m²;
- from 11 December 2008 to 20 November 2009 he remained in a cell with a surface area of 12.58 m², which he shared with four other inmates.
27.  Lastly, the Government submitted that personal hygiene products were always issued at the request of a detainee and that the applicant had access to radio and television in the remand centre. He also had a right to a sixty‑minute walk every day.

3.  The applicant's actions concerning the conditions of his detention

28.  The applicant did not lodge any formal complaints with the penitentiary authorities regarding specifically the conditions of his detention. Nor did he bring a civil action in tort to seek an improvement of his detention conditions or compensation for the infringement of his personal rights.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
A.  Preventive measures, including pre-trial detention
29.  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 presented 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 May 2006.
B.  Relevant statistical data
30.  The 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 can be found in the Court's judgment in the case of Kauczor (see Kauczor v. Poland, no. 45219/06, § 27-28 and 30-35, 3 February 2009).
C.  Conditions of detention
31.  A detailed description of the relevant domestic law and practice concerning general rules governing conditions of detention in Poland and domestic remedies available to detainees alleging that conditions of their detention are inadequate are set out in the Court's pilot judgments given in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v. Poland (no. 17599/05) on 22 October 2009 (see §§ 75-85 and §§ 45-88 respectively). More recent developments are described in the decision given by the Court in the case of Łatak v. Poland (no. 52070/08) on 12 October 2010 (see §§ 25-54).
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
32.  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.”
33.  The Government contested that argument.
A.  Admissibility
34.  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
35.  The applicant's detention started on 24 October 2006, when he was arrested on suspicion of having committed several drug trafficking offences, while acting in an organised and armed criminal group. On 20 November 2009 the applicant's detention was lifted.
Accordingly, the period to be taken into consideration amounts to three years and almost one month.
2.  The parties' submissions
(a)  The applicant
36.  The applicant submitted in general terms that his detention was excessively lengthy.
(b)  The Government
37. The Government refrained from expressing their opinion on the merits of the complaint.
3.  The Court's assessment
(a)  General principles
38.  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 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
39.  In their detention decisions, the authorities, in addition to the reasonable suspicion against the applicant, relied principally on four 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; (3) the complexity of the case; (4) the need to secure the proper conduct of the proceedings given the risk that the applicant might tamper with evidence and go into hiding. As regards the latter, they relied on the fact that the applicant had been sought by a wanted notice (see paragraph 8 above).
40.  The applicant was charged with numerous counts of drug trafficking committed in an organised and armed criminal group (see paragraphs 6 and 15 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).
41.  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, constituted valid grounds for the applicant's initial detention.
42.  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. 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 or intimidate witnesses 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.
43.  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).
44.  As regards the risk of the applicant's fleeing, the Court's attention has been drawn to the fact that a wanted notice had been issued against him in the course of the investigation. However, the Court cannot agree with the domestic authorities' assessment that the fact that the applicant had gone into hiding in the past was alone sufficient to establish, without further inquiry, a risk that he would abscond or otherwise obstruct the proceedings (see, for example, Kacprzyk v. Poland, 50020/06, § 40, 21 July 2009).
In the Court's opinion, the national authorities lacked sufficient arguments to conclude that the risk of the applicant's going into hiding existed throughout the entire period of his detention.
In that respect the Court recalls that the risk of absconding has to be assessed in the light of 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, 9190/03, § 58, 4 October 2005).
The Court lastly notes that following the decision lifting the detention, the applicant has respected the conditions of his release.
45.  As regards the complexity of the case, the Court's attention has been drawn to the nature of the charges and the number of the accused (see paragraph 15 above). It appears, however, that the authorities referred to the complexity of the case in a very general manner. There is no indication that the nature of the case required the applicant's continuous detention. Moreover, it seems that the authorities failed to envisage, at an earlier stage in the proceedings, the possibility of imposing other preventive measures on the applicant.
46.  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. In this context, the Court would observe that until the date of his release, the applicant had already spent three years and almost one month in pre-trial detention.
47.  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.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
48.  The applicant alleged a breach of Article 3 of the Convention in that he had been detained in overcrowded cells and that the State had failed to secure to him adequate living conditions throughout his detention.
A.  The Government's objection on exhaustion of domestic remedies
49.  Article 35 § 1 of the Convention reads, in so far as relevant, as follows:
“1.  The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ...”
50.  The Government argued that the applicant had not exhausted domestic remedies available to him, as required by Article 35 § 1 of the Convention. They raised a preliminary objection similar to that relied on in the case of Łatak v. Poland (see Łatak v. Poland (dec.) no. 52070/08, 12 October 2010, §§ 63-64). In particular, they stressed that the applicant had already been released on 20 November 2009. In these circumstances, the situation giving rise to the alleged breach of Article 3 of the Convention no longer existed and the applicant should bring a civil action under Article 24 taken in conjunction with Article 448 of the Civil Code in order to seek compensation for the past violation.
51.  In view of the foregoing, the Government invited the Court to reject this part of the application for non-exhaustion of domestic remedies, pursuant to Article 35 § 1 of the Convention.
B.  The applicant's' position
52.  The applicant did not submit any comments.
C.  The Court's conclusion
53.  The Court already examined the same objection raised by the Government in the above mentioned case of Łatak v. Poland and considered their arguments not only in the context of that particular applicant but also in respect of other actual or potential applicants with similar cases (see Łatak, cited above, §§ 71-85).
54.  In so doing, the Court had regard to the fact that on the date of the adoption of its decision there were 271 cases pending before it where the applicants had raised complaints similar in substance, alleging a violation of Article 3 in that at various times and for various periods they had been adversely affected by the same structural problem, having been detained in overcrowded, insanitary cells (ibid. § 84).
55.  Having found that a civil action under Article 24 taken in conjunction with Article 448 of the Civil Code could be considered an “effective remedy” for the purposes of Article 35 § 1 of the Convention as from 17 March 2010 and having regard to the 3-year limitation period for lodging such an action, the Court held that essentially in all cases in which in June 2008 the alleged violation had either been remedied by placing the applicant in Convention-compliant conditions or had ended ipso facto because the applicant had been released, the applicants concerned should bring a civil action for the infringement of personal rights and compensation (ibid. § 85 and § 76 respectively).
56.  In the present case the situation giving rise to the alleged violation of Article 3 ended on 20 November 2009, the date on which the applicant was released. That being so and having regard to the fact that he still has adequate time to prepare and lodge with the Polish civil courts an action under Article 24 taken in conjunction with Article 448 of the Civil Code, he should, before having his Convention claim examined by the Court, be required to seek redress at domestic level.
57.  It follows that the complaint about the conditions of the applicant's detention must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

58.  The applicant complained, under Article 5 § 2 of the Convention, that at the time of his detention, that is on 24 October 2006, he had not been properly informed about the reasons for his arrest, nor of any charge brought against him. He further claimed that it had not been until 3 November 2006, when charges were laid against him, that he learned of the reasons for his arrest and the nature of the charges.
59.  Even assuming that the applicant had been informed about the nature of the charges as late as he claimed, the Court notes that, in any event, he had been informed by the national authorities about the charges against him more than six months before lodging his application with the Court.
It follows that this complaint has been introduced out of time and must therefore be rejected in compliance with Article 35 §§ 1 and 4 of the Convention.
60.  The applicant invoked Article 6 § 1 of the Convention, complaining about the unreasonable length of the criminal proceedings against him.
61.   The Court notes that persons complaining about the length of proceedings before the Polish courts are required by Article 35 of the Convention to lodge a complaint about the breach of the right to a trial within a reasonable time under the Law of 17 June 2004 on complaints about a breach of the right to an investigation conducted and supervised by a Prosecutor and to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora I postępowaniu sądowym bez nieuzasadnionej zwłoki) (see Charzyński v. Poland (dec.) no. 15212/03, 1 March 2005). The applicant failed to make use of this remedy.
It follows that the complaint concerning the excessive length of the proceedings must be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.
IV.  APPLICATION OF ARTICLE 46 OF THE CONVENTION
62.  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.”
63.  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 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.
64.  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 40-41 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 42‑47 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. 37976/06, §§ 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).
V.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
65.  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
66.  The applicant claimed 50,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.
67.  The Government contested this claim. They submitted that the applicant had failed to provide any evidence of his allegedly suffered pecuniary loss. They further stated that the amount claimed by the applicant in respect of non-pecuniary damage was unreasonable in the light of the Court's case-law concerning similar cases brought against Poland.
68.  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
69.  The applicant submitted no claim for costs and expenses.
C.  Default interest
70.  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 complaint concerning the length of the applicant's pre-trial detention admissible and the remainder of the application inadmissible;

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 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, 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 8 February 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Lawrence Early	Nicolas Bratza
	Registrar	President