FOURTH SECTION

CASE OF GAŁĄZKA v. POLAND

(Application no. 18661/09)

JUDGMENT

STRASBOURG

14 February 2012

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

In the case of Gałązka v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
	Päivi Hirvelä, President,
	Ledi Bianku,
	Zdravka Kalaydjieva, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 24 January 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 18661/09) 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 Robert Jerzy Gałązka (“the applicant”), on 28 March 2009.
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 pre-trial detention exceeded a “reasonable time” within the meaning of Article 5 § 3 of the Convention.
4.  On 19 May 2011 the application was communicated to the Government.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1979 and lives in Warsaw. He is currently detained in Warsaw Remand Centre.
A.  First set of criminal proceedings (case no V K 64/05)
6.  On 21 December 2004 the applicant was held in custody. It does not result from the case-file whether the applicant remains detained in this set of proceedings.
B.  Second set of criminal proceedings (case no. III Kp 689/06)
7.  On 5 April 2006 the applicant was arrested on suspicion of murder, attempted robbery and drug trafficking committed in an organised criminal group.
8.  On the same date the Białystok District Court (Sąd Rejonowy) remanded him in custody, relying on a reasonable suspicion that he had committed the offences in question. The court indicated that the evidence which had been gathered in the case, in particular the testimonies of witnesses and other suspects, showed that there was a sufficient probability that the applicant had committed the offences with which he had been charged. It attached importance to the risk that he would attempt to induce witnesses to give false testimony or, by other means, would obstruct the proceedings. The latter risk was considered of the utmost importance in the light of the fact that the case involved a large number of alleged accomplices.
9.  An appeal by the applicant against the detention order, likewise his further appeals against decisions extending his detention and all of his subsequent, numerous applications for release and appeals against refusals to release him, were unsuccessful.
10.  In the course of the investigation, the applicant’s pre-trial detention was extended on several occasions, namely, on 27 June 2006 (to 5 October 2006), 29 September 2006 (to 5 December 2006), 28 November 2006 (to 5 March 2007), 2 March 2007 (to 5 May 2007), 27 April 2007 (to 5 August 2007), 30 July 2007 (to 5 November 2007) and 30 October 2007 (to 5 February 2008). In their decisions, the courts stressed the fact that the applicant had been acting in an organised criminal group. They underlined the unique nature of the proceedings involving organised crime, in which the authorities had to determine the degree of alleged responsibility of each of the suspects. The courts attached importance to the seriousness of the charges and the likelihood of a severe sentence being imposed on the applicant.
11.  On 30 January 2008 the Białystok District Court refused to extend the applicant’s detention. It stated that the applicant had been held in pre‑trial detention since April 2006 and that this period should have been sufficient for the authorities to collect evidence in the applicant’s case. In addition, it considered that the decision about the extension of the applicant’s pre-trial detention beyond the period of three months should be taken by the Białystok Regional Court (Sąd Okręgowy).
12.  The Prosecutor lodged an interlocutory appeal against this decision.
13.  On 13 February 2008 the Białystok Regional Court amended the contested decision and extended the applicant’s pre-trial detention to 5 May 2008. The court argued that as the applicant was remanded in custody in the first set of criminal proceedings, his detention in the second set of proceedings was merely administrative. It further stated that the applicant was charged with serious offences committed in an organised criminal group and that there was a high risk that, if released, he would attempt to induce witnesses to give false testimony or, by other means, would obstruct the proceedings. Finally, the court observed that the Prosecutor could not have completed the investigation as evidence in proceedings involving organised crime often emerged gradually.
14.  On 29 April 2008 the Białystok District Court extended the applicant’s detention to 5 June 2008.
15.  On an unspecified date the Prosecutor requested the Białystok District Court to extend the applicant’s detention to 5 September 2008.
16.  On 4 June 2008 the Białystok District Court extended the applicant’s detention to 31 July 2008. The court observed that the applicant’s pre-trial detention had been extended for over two years almost automatically and it did not seem that the investigation was reaching its final stage. It concluded that the extension of the applicant’s detention for a shorter period than was requested by the Prosecutor should prompt the authorities to accelerate the acts of investigation regarding the applicant.
17.  The applicant lodged an interlocutory appeal against this decision claiming that he had been detained for over 26 months and that this period should have been sufficient for completing the investigation.
18.  On 9 July 2008 the Białystok Regional Court quashed the contested decision. It stated that the decision about the extension of the applicant’s pre-trial detention beyond the period of one year should be taken by the Białystok Court of Appeal (Sąd Apelacyjny).
19.  On 17 July 2008 the Białystok Court of Appeal extended the applicant’s detention until 31 August 2008. The court underlined the complexity of the case and the severity of the penalty to which the applicant was liable. Having regard to the organised character of the alleged criminal activities, it also held that the applicant’s detention was necessary in order to prevent the applicant from interfering with the proceedings.
20.  The Prosecutor lodged an interlocutory appeal against this decision claiming that the period of one month would not be sufficient for collecting evidence in the applicant’s case.
21.  On 7 August 2008 the Białystok Court of Appeal modified the contested decision and extended the applicant’s detention until 30 September 2008. The court observed that the applicant’s pre-trial detention was indeed lengthy but necessary in the particular circumstances of the case.
22.  On 17 September 2008 a bill of indictment was lodged with the Białystok Regional Court. The applicant was charged with murder, attempted robbery and drug trafficking committed in an organised criminal group.
23.  On 23 September 2008 the Białystok Regional Court extended the applicant’s pre-trial detention to 30 December 2008.
24.  In October 2008 the case was referred to the Warszawa-Praga Regional Court.
25.  On several occasions the Warszawa-Praga Regional Court applied to the Warsaw Court of Appeal, asking for the applicant’s detention to be extended. The Warszawa Court of Appeal allowed all those requests extending the applicant’s pre-trial detention on 22 December 2008 (to 30 June 2009), 25 June 2009 (to 31 December 2009), 10 December 2009 (to 31 May 2010), 27 May 2010 (to 15 October 2010), 7 October 2010 (to 31 January 2011), 18 January 2011 (to 31 May 2011) and 24 May 2011 (to 30 September 2011).
26.  The criminal proceedings against the applicant are still pending. The applicant remains detained.
C.  Conditions of the applicant’s detention
27.  The applicant submitted that during the entire period of his detention he was held in overcrowded cells in conditions which did not comply with the basic standards of hygiene.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
28.  The relevant domestic law and practice concerning the imposition of pre-trial detention (tymczasowe aresztowanie), 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 May 2006.
THE LAW
I.  THE GOVERNMENT’S REQUEST TO STRIKE OUT THE APPLICATION UNDER ARTICLE 37 OF THE CONVENTION
29.  On 6 July 2011 the Government submitted a unilateral declaration similar to that in the case of Tahsin Acar v. Turkey (Tahsin Acar v. Turkey (preliminary objection) [GC], no. 26307/95, ECHR 2003‑VI) and informed the Court that they were ready to accept that there had been a violation of the applicant’s rights under Article 5 § 3 of the Convention as a result of the excessive length of his pre-trial detention. In respect of non-pecuniary damage the Government proposed to award 8,000 Polish zlotys (PLN) to the applicant (the equivalent of 2,000 euros (EUR)). The Government invited the Court to strike out the application in accordance with Article 37 of the Convention.
30.  The applicant did not agree with the Government’s proposal. He submitted that he had been held in pre-trial detention for over five years. He considered that the amount proposed did not constitute sufficient just satisfaction for the damage he had sustained and requested the Court to continue the examination of the application.
31.  The Court observes that, as it has already held on many occasions, it may be appropriate under certain circumstances to strike out an application or part of an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by the respondent Government even if the applicant wishes the examination of the case to be continued. It will depend on the particular circumstances whether the unilateral declaration offers a sufficient basis for finding that respect for human rights as defined in the Convention and its Protocols does not require the Court to continue its examination of the case (see Tahsin Acar, cited above, § 75, and Melnic v. Moldova, no. 6923/03, § 22, 14 November 2006).
32.  According to the Court’s case-law, the amount proposed in a unilateral declaration may be considered a sufficient basis for striking out an application or part thereof. The Court will have regard in this connection to the compatibility of the amount with its own awards in similar cases, bearing in mind the principles which it has developed  for determining victim status and for assessing the amount of non-pecuniary compensation to be awarded where it has found a breach of the reasonable time requirement (see Cocchiarella v. Italy [GC], no. 64886/01, §§ 85‑107, ECHR 2006‑...,; Scordino v. Italy (no.1) [GC], no. 36813/97, §§ 193‑215, ECHR-2006-...; and Dubjakova v. Slovakia (dec.), no. 67299/01, 10 October 2004).
33.  As to whether it would be appropriate to strike out the present application on the basis of the unilateral declaration made by the Government, the Court notes that despite the Government’s acknowledgement of a violation of the applicant’s rights guaranteed under Article 5 § 3 of the Convention, the applicant continues to be remanded in custody.
34.  In view of the length of the applicant’s detention and the fact that he continues to be deprived of his liberty in the alleged breach of Article 5 § 3 of the Convention, the Court finds that the Government failed to submit a statement offering a sufficient basis for finding that respect for human rights as defined in the Convention and its Protocols does not require the Court to continue its examination of the case (see Bieniek v. Poland, no. 46117/07, § 22, 1 June 2010).
35.  This being so, the Court rejects the Government’s request to strike this part of the application out under Article 37 of the Convention and will accordingly pursue its examination of the admissibility and merits of the case.
II.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
36.  The applicant complained that the length of his pre-trial detention 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.”
A.  Admissibility
37.  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
38.  The applicant’s detention started on 5 April 2006, when he was arrested on suspicion of murder, attempted robbery and drug trafficking committed in an organised criminal group.
39.  Accordingly, the period to be taken into consideration amounts so far to five years and seven months.
2.  The Court’s assessment
(a)  General principles
40.  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
41.  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 need to secure the proper conduct of the proceedings given the risk that the applicant might attempt to induce witnesses to give false testimony. As regards the latter, they did not, however, specify any concrete grounds justifying their opinion other than the fact that the applicant was a member of an organised criminal group (see paragraphs 8, 13 and 19 above).
42.  The applicant was charged with murder, attempted robbery and drug trafficking committed in an organised criminal group (see paragraph 22 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).
43.  The Court accepts that the reasonable suspicion against the applicant of having committed the serious offences could initially warrant his detention. In addition, it notes that the authorities were faced with the difficult task of determining the facts and the degree of alleged responsibility of each of the defendants. In these circumstances, the Court also accepts that the need to voluminous evidence constituted relevant and sufficient grounds for the applicant’s initial detention.
44.  Furthermore, the judicial authorities also relied on the likelihood that a severe sentence might have been imposed on the applicant given the serious nature of the offences at issue (see paragraphs 10 and 19). However, the Court reiterates that, while the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or reoffending, the gravity of the charges cannot of itself justify long periods of detention (see for instance, Ilijkov v. Bulgaria, no. 33977/96, §§ 80‑81, 26 July 2001 and Michta v. Poland, no. 13425/02, § 49, 4 May 2006).
45.  As regards the risk that the applicant would obstruct the proceedings, the Court is not persuaded that it constituted a valid ground for the entire length of his pre-trial detention. Firstly, it notes that the Białystok District Court, when originally remanding the applicant in custody, made only a general reference to the risk that the applicant would attempt to induce witnesses to give false testimony or, by other means, would obstruct the proceedings. Secondly, the Court notes that the relevant decisions did not contain any argument capable of showing that these fears were well‑founded. Such a generally formulated risk, flowing from the nature of the offences with which the applicant had been charged, might possibly be accepted as the basis for his detention at the initial stages of the proceedings. Nevertheless, in the absence of any other factor capable of showing that the risk of his influencing witnesses actually existed, the Court cannot accept that ground as a justification for holding the applicant in custody for the entire period in question.
46.  In addition, the judicial authorities relied on the fact that the applicant had been charged with being a member of an organised criminal group (see paragraphs 10, 13 and 19 above). In this regard, the Court reiterates that the existence of a general risk flowing from the organised nature of the alleged criminal activities of the applicant may be accepted as the basis for his detention at the initial stages of the proceedings (see Górski v. Poland, no. 28904/02, § 58, 4 October 2005) and in some circumstances also for subsequent extensions of the detention (see Celejewski, cited above, § 37).
47.  While all the above factors could justify even a relatively long period of detention, they did not give the domestic courts unlimited powers to extend this measure. Even if the particular circumstances of the case required detention to be extended beyond the period generally accepted under the Court’s case-law, particularly strong reasons would be needed to justify further extensions of the applicant’s pre‑trial detention (see Wolf v. Poland, no. 15667/03 and 2929/04, § 90, 16 January 2007). In this respect, the Court observes that the applicant has been held in custody for five years and seven months.
48.  Having regard to the foregoing, even taking into account the fact that the courts were faced with particularly difficult task of trying the 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.
III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
49.  Invoking in substance Article 3 of the Convention, the applicant complained of overcrowding and inadequate living conditions of his detention. The applicant further complained under Article 6 § 1 of the Convention that the criminal proceedings against him had been lengthy and unfair. Finally, relying on Article 8 of the Convention he also complained about the restrictions put on his family life during his detention.
50.  As regards the applicant’s complaint under Article 3 of the Convention, the Court observes that the applicant failed to bring a civil action for compensation against the State Treasury statio fisci Warsaw Remand Centre to seek compensation for the infringement of his personal rights on account of inadequate conditions of his detention. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
51.  As to the complaint under Article 6 § 1 of the Convention concerning the excessive length of criminal proceedings, the Court notes that the applicant failed 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). It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
52.  As regards the complaint concerning the restrictions put on his family life during his detention, the Court has examined it as submitted by the applicant. However, having regard to all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the applicant has failed to substantiate his complaint. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
53.  Finally, in its letter of 26 July 2011 the applicant complained in substance under Article 5 § 1 of the Convention that between 9 and 17 July 2008 he had been unlawfully held in pre-trial detention. It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
54.  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
55.  The applicant claimed EUR 250,000 in respect of non-pecuniary damage and PLN 69,000 in respect of pecuniary damage.
56.  The Government contested the claim for non-pecuniary damage finding it exorbitant. They further considered the applicant’s claims for pecuniary damage groundless.
57.  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 6,000 under this head.
B.  Costs and expenses
58.  The applicant also claimed EUR 300 for the costs and expenses incurred before the domestic courts and for those incurred before the Court, in particular the costs of photocopies, stamps and envelopes.
59.  The Government submitted that the applicant had not presented any invoices or other documents supporting his claims and therefore they should be rejected as unjustified.
60.  Regard being had to the documents in its possession and to its case‑law, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 100 for the proceedings before the Court.
C.  Default interest
61.  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.  Rejects the Government’s request to strike the application out of its list of cases;

2.  Declares the complaint concerning the length of the applicant’s pre-trial detention admissible and the remainder of the application inadmissible;

3.  Holds that there has been a violation of Article 5 § 3 of the Convention;

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months, EUR 6,000 (six thousand euros) in respect of non-pecuniary damage and EUR 100 (one hundred euros) for costs and expenses, 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 14 February 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Päivi Hirvelä
	Deputy Registrar	President