FOURTH SECTION

CASE OF GROCHULSKI v. POLAND

(Application no. 33004/07)

JUDGMENT

STRASBOURG

18 January 2011

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

In the case of Grochulski v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
	Ján Šikuta, President,
	Lech Garlicki,
	Vincent A. de Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 14 December 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 33004/07) 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 Arkadiusz Grochulski (“the applicant”), on 26 July 2007.
2.  The applicant was represented by Mr J. Lachowicz, a lawyer practising in Szczecin. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry for 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.
4.  On 10 November 2009 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 1962 and lives in Szczecin.
6.  On 20 March 2003 the Krakow District Court ordered the applicant's detention on remand. The court referred to the fact that the evidence collected in the case indicated a high probability that the applicant had committed fraud and money laundering while acting in an organised criminal gang. It further stressed that it was impossible to establish the applicant's domicile and it appeared that he resided outside the country.
7.  On 22 July 2003 the Kraków Appeal Prosecutor issued an international wanted notice for the applicant.
8.  On 16 September 2004 the Kraków Regional Court issued an European Arrest Warrant for the applicant.
9.  On 8 March 2005 the applicant was arrested on suspicion of fraud and money laundering committed while acting in an organised criminal gang.
10.  On 10 March 2005 the Krakow District Court remanded the applicant in custody. The court stressed that the evidence collected in the case indicated a high probability that the applicant had committed the offences in question. In addition, it referred to the need to secure the proper course of the proceedings as there was a fear that the applicant would attempt to avoid the trial and also influence witnesses.
11.  During the proceedings the applicant's detention was extended on 7 June, 2 September, 5 December 2005 and 7 March 2006. The court referred to the reasons previously given.
12.  On 23 June 2006 a bill of indictment against the applicant and twenty three co-accused was lodged with the Kraków District Court. It appears that only two other co-accused were remanded in custody. The applicant was charged with various counts of fraud, money laundering, and organising and leading a criminal group. The bill of indictment comprised 1,092 pages and the prosecutor requested to hear evidence from 200 witnesses.
13.  On 28 June 2006 the Kraków District Court extended the applicant's detention. The court relied on the reasonable suspicion that he had committed the offences in question. It attached importance to the likelihood of a severe sentence of imprisonment being imposed on the applicant and the risk that he would attempt to obstruct the proceedings.
14.  On 12 July 2006 the applicant lodged an appeal against this decision. He claimed that the investigation of the present case had already been terminated. In addition, he stressed that he had reported himself voluntarily to the District Prosecutor on 8 March 2005. It appears that his appeal was dismissed at a later, unknown date.
15.  During the trial, the courts further extended the applicant's detention on several occasions, namely on 27 September 2006 (to 30 December 2006), 21 December 2006 (to 8 March 2007), 2 March 2007 (to 8 September 2007) and 6 September 2007 (to 8 March 2008). The courts repeated the grounds previously given for the applicant's continued detention. They attached importance to the likelihood of a severe sentence of imprisonment being imposed on the applicant and the risk that he would obstruct the proceedings.
16.  The applicant's further appeals against some of the decisions extending his detention and all his subsequent applications for release and appeals against refusals to release him were unsuccessful.
17.  On 10 November 2006 the Kraków District Court considered itself not competent to examine the case and decided to refer it to the Zielona Góra District Court. The applicant appealed against this decision. It was upheld by the Kraków Regional Court on 29 December 2006.
18.  On 29 March 2007 the Zielona Góra District Court referred the case back to the Kraków District Court. It argued that the Kraków District Court had already acquainted itself with the case file and, in addition, two of the co‑accused were allegedly involved in bribery of judges in the Zielona Góra region. On 12 June 2007 the Supreme Court refused to refer the case to the Kraków District Court and ordered the Zielona Góra District Court to proceed with the examination of the case.
19.  On 21 June 2007 the Zielona Góra District Court applied to the Poznan Court of Appeal for permission to refer the case to the Zielona Góra Regional Court because of its complicated nature. The case was referred to the Zielona Góra Regional Court on 17 July 2007.
20.  The first hearing in the case was held on 19 November 2007.
21.  At a hearing held on 20 December 2007, the applicant asked to be released on bail. The Zielona Góra Regional Court considered that the applicant could be released providing that he paid 2,000,000 Polish zlotys (PLN) bail by 28 December 2007. The applicant paid the required sum and was released from detention on 24 December 2007. On 29 January 2008, on a prosecutor's appeal, the Poznan Court of Appeal decided to place the applicant back in detention. The court held in particular that the applicant was charged with organising and leading a criminal group and there was a risk that he would obstruct the proceedings. It further referred to the likelihood of a severe sentence of imprisonment being imposed on the applicant. On 7 February 2008 the applicant was placed in a detention centre.
22.  On 7 March 2008 the Zielona Góra Regional Court released the applicant on bail of PLN 2,000,000. It further prohibited the applicant from leaving Poland.
23.  The criminal proceedings against the applicant are pending.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
A.  Preventive measures, including pre-trial detention
24.  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 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.
B.  Relevant statistical data
25.  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).
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
26.  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.”
27.  The Government contested that argument.
A.  Admissibility
28.  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
29.  The applicant's detention started on 8 March 2005, when he was arrested on suspicion of having committed fraud and money laundering in an organised criminal group. On 24 December 2007 he was released. On 7 February 2008 he was detained again and released on 7 March 2008.
30.  Accordingly, the period to be taken into consideration amounts to two years, ten months and nineteen days.
2.  The parties' submissions
(a)  The applicant
31.  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
32.   The Government considered that the measure in question had satisfied the requirements of Article 5 § 3. Throughout its entire period it had been justified by “relevant” and “sufficient” grounds, in particular the existence of a reasonable suspicion that he had committed the offences he had been charged with. The case concerned offences committed in an organised criminal group. Moreover, the Government considered that the applicant's protracted detention pending trial was justified by the gravity of the charges which the applicant was facing and the severity of the anticipated penalty, as well as the fact that the case involved numerous co‑accused and witnesses. As a consequence, there was a risk that the applicant, if released, would attempt to induce them to give false testimony.
3.  The Court's assessment
(a)  General principles
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 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
34.  In their detention decisions, the authorities, in addition to the reasonable suspicion against the applicant, relied principally on two grounds, namely the need to secure the proper conduct of the proceedings, the risk that the applicant might go into hiding and the fear that the applicant would attempt to influence the witnesses.
35.  The applicant was charged with numerous counts of fraud, money laundering, counterfeiting and forgery of documents committed in an organised criminal group (see paragraphs 9 and 12 above). In the Court's view, the fact that the case allegedly 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).
36.  The Court accepts that the reasonable suspicion against the applicant of having committed serious offences could initially warrant his detention. Also, 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.
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 often is, by the nature of things, high.
38.  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 the first hearing in the proceedings was held one year and five months after the bill of indictment had been filed with the trial court. In addition, the proceedings are still pending before the court of first-instance (see paragraph 23 above).
39.  Having regard to the foregoing, even taking into account the fact that the courts were faced with a particularly difficult task of trying a case allegedly 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.
40.  There has accordingly been a violation of Article 5 § 3 of the Convention.
II.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
41.  The applicant further complained that the criminal proceedings against him had lasted an unreasonably long time. He relied on Article 6 § 1 of the Convention, which, in so far as relevant reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...”
42.  The Court reiterates that pursuant to Article 35 § 1 of the Convention it may only deal with the matter after all domestic remedies have been exhausted. In this connection, the Court observes that the applicant failed to make proper use of the remedy under the 2004 Act.
43.  It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
III.  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 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 allegedly 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. As in other numerous similar detention cases, the authorities did not justify the applicant's continued detention by relevant and sufficient reasons. 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).
IV.  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 36,000 euros (EUR) in respect of non‑pecuniary damage.
52.  The Government contested this claim.
53.  The Court 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 complaint concerning the length of the 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, EUR 1,000 (one thousand 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;

4.  Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 18 January 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Ján Šikuta	Deputy Registrar	President