FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29293/02 by Zbigniew GUZ against Poland

The European Court of Human Rights (Fourth Section), sitting on 26 September 2006 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr M. Pellonpää , Mr S. Pavlovschi , Mr L. Garlicki , Ms L. Mijović , Mr J. Šikuta, judges , and Mr T.L. Early , Section Registrar ,

Having regard to the above application lodged on 24 June 2002 ,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together ,

Having regard to the partial decision of 19 May 2005 ,

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 Zbigniew Guz, is a Polish national who was born in 1962 and lives in Subkowy . He was represented before the Court by Mr C. Pastwa, a lawyer practising in Ś wiecie. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz 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 27 October 1995 the Tczew Police opened an investigation against the applicant on suspicion of aggravated assault.

It appears that on 2 November 1995 the applicant went to Germany . Subsequently, the Tczew District Prosecutor ( Prokurator Rejonowy ) stayed the investigation since the applicant had not replied to the summons and his place of residence was unknown. On 30 November 1995 t he District Prosecutor issued a search and arrest warrant in respect of the applicant on suspicion of aggravated assault.

On 13 November 2000 the applicant was arrested by the police and subsequently the investigation against him was resumed . The District Prosecutor laid additional charges against the applicant.

Subsequently, the District Prosecutor applied to the Tczew District Court ( Sąd Rejonowy ) for the applicant to be detained pending the investigation. On 16 November 2000 the District Court remanded the applicant in custody until 13 February 2001 on suspicion of aggravated assault, handling stolen goods and forgery of a car body. I t foun d that in the light of the evidence obtained, in particular witnesses ’ testimonies, there was a strong likelihood that the applicant had committed the offences with which he had been charged. It also observed tha t there was a reasonable risk that the applicant would go into hiding given that he had been at large since 1995.

On 11 December 2000 the Gdańsk Regional Court ( Sąd Okręgowy ) upheld that decision. It underlined that the applicant had been suspected of committing the offences in question between April 1993 and August 1995 and that five search and arrests warrants had been issued. It also observed that progress in the proceedings against the applicant had been impossible as he had gone into hiding for five years. Further, it held that the applicant ’ s detention was justified by the sev erity of the anticipated sentence .

It appears that the applicant ’ s pre-trial detention was prolonged by the Gdańsk Regional Court on 8 February 2001 for an unspecified period .

On 7 March 2001 the Gdańsk Court of Appeal ( Sąd Apelacyjny ) upheld the Regional Court ’ s decision of 8 February 2001. In addition to the arguments previously invoked, it also found that on the day of his arrest, the applicant had been using a forged driving licence. That, in the court ’ s view, further warranted the prolongation of the applicant ’ s detention so as to prevent him from absconding.

On 5 April 2001 the District Prosecutor ordered that the applicant undergo psychiatric observation. The relevant report was submitted to the prosecutor on 7 May 2001.

On 12 April 2001 the Regional Court extended the applicant ’ s detention until 13 June 2001, relying on the same grounds as in the earlier decisions. That decision was upheld on appeal on 23 May 2001.

On 7 June 2001 the Regional Court ordered that the applicant be held in custody until 13 July 2001. It reiterated the grounds previously given.

On 11 July 2001 the Tczew District Prosecutor filed a bill of indictment against the applicant . He was charged with attempted homicide, handling stolen goods, forgery of documents and a car body and having used a forged driving licence. The second defendant, S.G., was charged with directly endangering the life of another person. The prosecution requested the trial court to hear evidence from 21 witnesses.

On 12 July 2001 the Regional Court extended the applicant ’ s detention until 13 October 2001. It considered, having regard in particular to the victim ’ s evidence, that there was a strong suspicion that the applicant had committed the offence s in question. It also observed that the applicant ’ s continued detention was necessary in order to secure the proper conduct of the proceedings given the severity of the likely sentence. On 8 August 2001 the Gdańsk Court of Appeal upheld the Regional Court ’ s decision. It observed that the applicant ’ s detention was necessary given the fact that he had evaded justice for several years. It also noted that the severity of the sentence which could be imposed justified of itself the applicant ’ s continued detention. It appears that the applicant ’ s detention was subsequently extended on later unspecified dates.

On 9 April 2002 the Regional Court ordered that the applicant be held in custody until 30 June 2002, reiterating the grounds previously given.

On 18 June 2002 the Regional Court prolonged the applicant ’ s detention until 30 September 2002. That decision was upheld by the Court of Appeal on 10 July 2002. The courts repeatedly relied on the strong likelihood that the applicant had committed the offences with which he was charged. In addition, they had regard to the sev erity of the likely sentence and the fear that he might go into hiding if released. The latter was justified, in the courts ’ view, by the length of time the applicant had evaded justice prior to his arrest and his having used a forged identity document.

T he Gdańsk Regional Court held 18 hear ings on the following dates: 12 and 24 October, 13 November, 4 and 19 December 2001 ; 8 January, 12 and 19 February, 12 March, 9 and 30 A pril, 21 May, 4 and 18 June, 3 September, 1, 17 and 25 October 2002. One trial hearing was adjourned on account of the absence of the applicant ’ s lawyer (19 December 2001).

On numerous occasions the applicant requested the trial court to release him. However, his requests were dismissed for the same reasons which had served to justify his continued detention.

On 31 October 2002 the Gdańsk Regional Court gave judgment. It convicted the applicant as charged and sentenced him to seven and a half years ’ imprisonment. It also prolonged the applicant ’ s detention on remand until 31 January 2003. The applicant appealed against the first-instance judgment.

On 15 October 2003 the Gdańsk Court of Appeal upheld the judgment of the Regional Court . The applicant lodged a cassation appeal against the judgment of the Court of Appeal.

On 20 May 2004 the Supreme Court ( Sąd Najwyższy ) dismissed the applicant ’ s cassation appeal due to its manifestly ill-founded character .

B. Relevant domestic law

The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998 , defines detention on remand as one of the so-called “preventive measures” ( środki zapobiegawcze ). The other measures are bail ( poręczenie majątkowe ), police supervision ( dozór policji ), surety by a responsible person ( poręczenie osoby godnej zaufania ), surety by a social entity ( poręczenie społeczne ), temporary ban on engaging in a given activity ( zawieszenie oskarżonego w określonej działalności ) and prohibition o n leaving the country ( zakaz opuszczania kraju ).

Article 249 § 1 sets out the general grounds for imposition of preventive measures. That provision reads:

“1. Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused ’ s committing another, serious offence; they may be imposed only if the evidence gathered shows a significant probability that an accused has committed an offence.”

Article 249 § 5 of the 1997 Code, in the version applicable at the relevant time, provides:

“The court shall inform the detainee ’ s lawyer of the time of a court session at which a decision is to be taken on the prolongation of detention on remand or at which an appeal against a decision imposing or prolonging detention on remand is to be examined.”

Article 258 lists grounds for detention on remand. It provides, in so far as relevant:

“1. Detention on remand may be imposed if:

(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland ];

(2) there is a reasonable risk that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means;

2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years ’ imprisonment, or if a court of first instance has sentenced him to at least 3 years ’ imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.”

The Code sets out the margin of discretion as to the continuation of a specific preventive measure. Article 257 reads, in so far as relevant:

“1. Detention on remand shall not be imposed if another preventive measure is sufficient.”

Article 259, in its relevant part, reads:

“1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would:

(1) seriously jeopardise his life or health; or

(2) entail excessively harsh consequences for the accused or his family.”

The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue.

Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided:

“1. In imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months.

2. If, due to the particular circumstances of the case, an investigation cannot be terminated within the term referred to in paragraph 1, the court of first instance competent to deal with the case may – if need be and on the application made by the [relevant] prosecutor – prolong detention for a period [or periods] which as a whole may not exceed 12 months.

3. The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed 2 years.

4. Only the Supreme Court may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, a prolonged psychiatric observation of the accused, a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad, when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.”

On 20 July 2000 paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs 2 and 3 has been vested with the court of appeal within whose jurisdiction the offence in question has been committed. In addition, new paragraph 5 was added. It provides:

“A decision of the Court of Appeal taken pursuant to paragraph 4 may be appealed against to the Court of Appeal sitting in a panel of three judges.”

COMPLAINT

The applicant complained under Article 5 § 3 of the Convention about the unreasonable length of his detention on remand.

THE LAW

The applicant alleged that the length of his detention on remand had been excessive. He r elied on Article 5 § 3 of the Convention, which 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 . Period to be taken into consideration

The Court observes that the applicant was arrested on 13 November 2000 and remanded in custody on 16 November 2000 . On 31 October 2002 the GdaÅ„sk Regional Court convicted him as charged and sentenced him to seven and a half years ’ imprisonment. As from that date he was detained “after conviction by a competent court”, within t he meaning of Article 5 § 1 (a), and therefore that period of his detention falls outside the scope of Article 5 § 3 ( cf. KudÅ‚a v. Poland [GC], no. 30210/96, § 104 , ECHR 2000 ‑ XI ). Consequent ly, the period to be taken into consideration under Article 5 § 3 lasted 1 year, 11 months and 17 days.

B. The reasonableness of the length of detenti on

1. The parties ’ arguments

The Government argued that there had been valid reasons for holding the applicant in detention for the entire period in question. They submitted that the applicant ’ s detention had been justified by the severity of the penalty to which he was liable . Further, the Government referred to the serious suspicion based on voluminous evidence that the applicant had committed the offences with which he had been charged. Lastly, they argued that the applicant ’ s detention was justified by the significant risk that he might go into hiding as he had been at large for five years.

The applicant maintained that the length of his detention had been unreasonable.

2. The Court ’ s assessment

( a ) Principles established under the Court ’ s case-law

The Court reiterates that the question of whether or not a period of detention is reasonable cannot be assessed in the abstract. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, §§ 110-111 with further references, ECHR 2000-XI).

It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must, paying due regard to the principle of the presumption of innocence, examine all the facts arguing for or against the existence of the above-mentioned requirement of public interest justifying a departure from the rule in Article 5 and must set them out in their decisions on the applications for release. It is essentially on the basis of the reasons given in these decisions and of the well-documented facts stated by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 (see, for example, Labita v. Italy [GC] , no. 26772/95, § 152, ECHR 2000-IV, and Kudła , cited above, § 110).

The persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. The Court must then establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also be satisfied that the national authorities displayed “special diligence” in the conduct of the proceedings. The complexity and special characteristics of the investigation are factors to be considered in this respect (see, for example, Scott v. Spain , judgment of 18 December 1996, Reports 1996-VI, pp. 2399-2400, § 74, and I.A. v. France , judgment of 23 September 1998, Reports 1998-VII, p. 2978, § 102).

( b ) Application of the principles to the circumstances of the present case

The Court observes that the judicial authorities relied, in addition to the reasonable suspicion against the applicant, on two principal grounds, namely (1) the severity of the penalty to which the applicant was liable and (2) the risk that he might go into hiding. The domestic courts based the latter finding on the fact that prior to his arrest the applicant had been evading justice for five years. In addition, the Gdańsk Court of Appeal referred in its decisions of 7 March 2001 and 10 July 2002 to the fact that at the time of his arrest the applicant had been using a forged driving licence.

The Court accepts that the reasonable suspicion that the applicant ha d committed the offences with which he had been charged may have warranted his detention at the early stage of the proceedings. Moreover, given the relative complexity of the case and the need to obtain a considerable amount of evidence, the Court is prepared to accept that there existed relevant and sufficient grounds for the applicant ’ s detention during the time necessary to terminate the investigation, to draw up the bill of indictment and to hear evidence from the accused.

In respect of the subsequent period, the Court agrees that in the present case there was a considerable risk that the applicant might go into hiding, given that he had been evading justice for a period of five years prior to his arrest on 13 November 2000.

In addition, the authorities relied on the severity of the sentence which was likely to be imposed on the applicant. In this respect, the Court notes that the severity of the possible sentence is a relevant element in the assessment of the risk of absconding or re-offending. Nevertheless, t he Court has repeatedly held that the gravity of the charges cannot by itself serve to justify long periods of detention on remand (see Ilijkov v. Bulgaria , no. 33977/96, §§ 80-81, 26 July 2001). However, taking into account the particular circumstances of the instant case, the Court considers that the severity of the anticipated penalty taken in conjunction with the other grounds relied on by the authorities were “sufficient” and “relevant” to justify holding the applicant in detention for the entire period.

It therefore remains to be ascertained whether the national authorities displayed “special diligence” in the conduct of the proceedings. In this regard, the Court firstly notes that no significant periods of inactivity occurred on the part of the prosecution authorities and the trial court. The Court observes that the investigation was completed by the District Prosecutor within a relatively short period of time and the trial court held hearings at regular intervals. Furthermore, the Court notes that the criminal case at issue was a relatively complex one on account of the seriousness and number of the charges against the applicant. A significant amount of evidence had to be examined in the course of the proceedings. For these reasons, the Court considers that the domestic authorities handled the applicant ’ s case with relative expedition.

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

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention;

Declares the remainder of the application inadmissible.

T.L. Early Nicolas Bratza Registrar President