FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33778/06 by Krzysztof DŁUGIEWICZ against Poland

The European Court of Human Rights (Fourth Section), sitting on 8 December 2009 as a Chamber composed of:

Nicolas Bratza , President, Lech Garlicki , Giovanni Bonello , Ljiljana Mijović , David Thór Björgvinsson , Mihai Poalelungi , Nebojša Vučinić , judges, and Lawrence Early, Section Registrar ,

Having regard to the above application lodged on 26 July 2006,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Krzysztof Długiewicz , is a Polish national who was born in 1969 and lives in Helmstedt , Germany . He was represented before the Court by Mr J. Angerman n , a lawyer practising in Helmstedt , Germany . The Polish Government (“the Government”) were represented by their Agent, Mr J. Wo łą siewicz of the Ministry of Foreign Affairs.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 21 May 2004 the applicant was arrested by the police.

On 22 May 2004 the Gdańsk District Court ( Sąd Rejonowy ) decided to detain the applicant on remand in view of the reasonable suspicion that he had smuggled into Poland a large quantity of an illegal substance used for the production of amphetamines. The court held that his detention was necessary to secure the proper course of the proceedings as there was a fear that the applicant would attempt to influence witnesses or evade his trial since he lived in Germany .

On 14 June 2004 the Gdańsk Regional Court ( Sąd Okręgowy ) dismissed an appeal by the applicant against the decision to detain him.

On 13 August and 17 November 2004 the District Court further extended the applicant ’ s detention. In the latter decision the court relied on the likelihood that a heavy sentence might be imposed on the applicant.

On 16 December 2004 the applicant was charged with having committed other offences relating to prostitution, deriving profits from it and participating in an organised criminal gang.

On 10 February 2005 the applicant and two co-accused were indicted before the Gdańsk Regional Court .

On the same day the trial court extended the applicant ’ s detention, referring to the grounds given previously and holding that there was a risk that the accused would try to put pressure on witnesses.

On 15 March 2005 the Gdańsk Regional Court decided that the Gdynia District Court was competent to try the applicant ’ s case. That decision was quashed on appeal by the Gdańsk Court of Appeal ( Sąd Apelacyjny ) on 27 April 2005.

On 28 June, 27 September and 15 December 2005 and 14 March 2006 the Gdańsk Regional Court extended the applicant ’ s pre-trial detention. The trial court reiterated the grounds given previously and found that the accused had not proved the existence of circumstances justifying their release. The court also held that keeping the applicant in detention was necessary to secure the proper course of the trial as not all the witnesses had been heard yet.

The applicant lodged an appeal against the decision of 28 June 2005 but it was dismissed on 3 August 2005 by the Gdańsk Court of Appeal.

As the length of the applicant ’ s detention had reached the statutory time ‑ limit of two years laid down in Article 263 § 3 of the Code of Criminal Procedure ( Kodeks postÄ™ powania karnego ), the Regional Court applied to the GdaÅ„sk Court of Appeal ( SÄ…d Apelacyjny ), asking for the applicant ’ s detention to be extended beyond that term. The GdaÅ„sk Court of Appeal extended his detention on 18 May and 30 August 2006. The court justified it by the probability that a severe sentence might be imposed on the applicant, which made it likely that, if released, he would obstruct the proceedings.

The applicant appealed against the decision of 30 August 2006 but the appeal was dismissed by the Gdańsk Court of Appeal on 13 September 2006.

Applications by the applicant for release or for the imposition of other preventive measures were dismissed on 2 February 2005 and on 14 March and 10 August 2006.

The trial court held the first hearing on 27 October 2005. Thereafter, hearings were held at regular intervals.

On 24 November 2006 the Gdańsk Regional Court gave judgment in the applicant ’ s case. The applicant was convicted as charged and sentenced to four years ’ imprisonment and a fine. The applicant did not appeal against that judgment and it became final.

On 2 December 2006 the applicant was released.

B. Relevant domestic law

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 ) .

COMPLAINTS

1. The applicant complained under Article 5 § 3 of the Convention about the unreasonable length of his pre-trial detention .

2. Secondly, he complained about censorship of his correspondence and restriction of his contact with his wife and children. The applicant also submitted that he had not had access to his case file until July 2006.

THE LAW

1. The applicant complained that the length of hi s detention on remand had been excessive. He relied on Article 5 § 3 of the Convention, which, in so far as relevant, reads as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

The applicant ’ s detention started on 21 May 2004 , when he was arrested on suspicion of having committed several drug-related offences. On 24 November 2006 the Gdańsk Regional Court convicted him as charged . Accordingly, the period to be taken into consideration amounts to two years and six months .

The Government submitted that the applicant ’ s pre-trial detention satisfied the requirements of Article 5 § 3. It had been justified by “relevant” and “sufficient” grounds, including, in particular, the risk that the applicant would try to induce the co-accused to give false testimony or obstruct the proper course of the proceedings since he had been charged with being a member of an organised criminal group. The Government also argued that the domestic authorities had shown due diligence, as required in cases against detained persons.

The applicant disagreed and submitted in general terms that he had been kept in pre-trial detention for an unjustified length of time. He argued that the lengthy pre-trial detention was no longer a temporary measure but amounted to his serving a sentence of imprisonment.

The Court reiterates 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 , have been set out in a number of its previous judgments (see, among many other authorities, KudÅ‚a 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).

Turning to the circumstances of the instant case the Court notes that in their detention decisions, the authorities, in addition to the reasonable suspicion against the applicant, relied principally on two grounds, namely the severity of the penalty to which he was liable and the ne ed to secure the proper conduct of the proceedings . As regards the latter, they considered that there had been a risk that the applicant might go into hiding as prior to his arrest he had been living in Germany . Furthermore, the authorities considered that since the applicant had been charged with participating in an organised criminal gang there had been a greater risk of his obstructing the proceedings. The authorities also relied on the complexity of the case.

The applicant was charged with having committed several offences relating to production of drugs and deriving profits from prostitution as part of an organised criminal group . 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, ECHR 2007 -II ).

The Court also accepts that the reasonable suspicion that the applicant had committed serious offences could initially have warrant ed his detention. Also, the need to obtain voluminous evidence and 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, constituted valid grounds for the applicant ’ s initial detention.

It is to be noted that the judicial authorities had presumed the risk of pressure being exerted on witnesses or obstruction of the proceedings, basing themselves on the serious nature of the offences and the fact that the applicant had been charged with membership of an organised criminal gang. The Court acknowledges that in view of the seriousness of the accusations against the applicant, the authorities could justifiably have considered that such an initial risk was established. Regard being had to the fact that the applicant had been charged with offences relating to prostitution, and deriving profits from it, the particular vulnerability of the victims must be seen as relevant (see Nowak v. Poland , no. 18390/02, § 36 , 18 September 2007 ) . Indeed, in cases such as the present one concerning organised criminal groups, the risk that a detainee, if released, might bring pressure to bear on witnesses or other co-accused or might otherwise obstruct the proceedings is often, by the nature of things, high.

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 pre-trial detention (see Michta v. Poland , no. 13425/02, §§ 49, 4 May 2006).

While all the above factors could justify even a relatively long period of detention, they did not give the domestic courts unlimited power to extend the measure.

Nevertheless, in the particular circumstances of the case involving an organised criminal g ang, the Court considers that the grounds given for the applicant ’ s pre-trial detention were “relevant” and “sufficient” to justify holding him in custody for the entire period of two years and six months (see Nowak , cited above, § 37 and Chruściński v. Poland , no. 22755/04, § 40 , 6 November 2007 .

It therefore remains to be ascertained whether the national authorities displayed “special diligence” in the conduct of the proceedings. In this regard, the Court recalls that the criminal case at issue was a complex one. The Court takes note of the seriousness of the charges against the applicant and the number of other persons charged in the same proceedings and the need for the implementation of special measures in cases concerning organised crime (see Bąk v. Poland , cited above, § 64). It observes that a substantial amount of evidence had to be examined in the course of the proceedings. The complexity of the case undoubtedly prolonged its examination and contributed to the length of the applicant ’ s pre-trial detention.

The Court further notes that there were no significant periods of inactivity on the part of the prosecution authorities and the trial court. The investigations were completed by the Regional Prosecutor within a relatively short period of time and the trial court held many hearings. For these reasons, the Court considers that the domestic authorities displayed “special diligence” in the handling of the applicant ’ s case.

It follows that the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant further complained that his correspondence had been censored, that his contact with his wife and children had been restricted and that he had only been allowed access to his case file in July 2006.

However, these complaints have not been substantiated. In particular, the applicant failed to provide any prima facie evidence indicating that his correspondence had been censored by the authorities or that he had been hindered in his contact with his family, in a manner giving rise to a breach of Article 8 of the Convention. Nor is there anything in the file that could allow the Court to establish that the applicant could not effectively exercise his defence rights in the proceedings concerning the review of the lawfulness of his pre-trial detention.

In the light of all the material in its possession, in so far as the matters complained of are within its competence, and regardless of other possible grounds of inadmissibility, the Court finds that this part of the application does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Lawrence Early Nicolas Bratza Registrar President