FIRST SECTION

DECISION

Application no. 17864/18 Marek GARSKI against Poland

The European Court of Human Rights (First Section), sitting on 28 April 2020 as a Committee composed of:

Aleš Pejchal , President, Tim Eicke, Jovan Ilievski, judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 29 March 2018,

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

1 . The applicant, Mr Marek Garski , is a Polish national who was born in 1979 and is detained in Racibórz . He was represented before the Court by Ms J. Jarosz , his common-law partner, who was granted leave to represent the applicant pursuant to Rule 36 § 4 (a) of the Rules of Court.

2 . The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.

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

4 . In July 2012 the applicant, who at that time was a police officer, reported the disappearance of his wife.

5 . On 30 September 2015 the applicant was arrested and charged with murder and incitement to perjury. On the same day the Katowice- Wschód District Court ( Sąd Rejonowy ) ordered the applicant ’ s pre-trial detention for a period of two months. The domestic court relied on the reasonable suspicion that the applicant had killed his wife and had induced a witness to give false testimony. It stressed the need to ensure the proper conduct of the proceedings, given the gravity of the offence in question and the applicant ’ s past attempts to tamper with the investigation. The domestic court referred to the evidence, suggesting that the applicant had induced a witness to make a false statement as well as attempting to falsify other evidence (in particular by deleting data on his wife ’ s telephone and sending her telephone abroad). It also relied on the likelihood that a severe penalty would be imposed on the applicant.

6 . The applicant and the public prosecutor appealed. On 14 October 2015 Katowice Regional Court ( Sąd Okręgowy ) altered the lower court ’ s decision and extended the initial period of the applicant ’ s detention on remand to three months.

7 . The applicant ’ s detention was further extended by the decisions of Katowice Regional Court of 21 December 2015, 21 March, 21 June and 15 September 2016. The decisions were upheld by the Katowice Court of Appeal ( Sąd Apelacyjny ) on 14 January, 6 April, 6 July and 28 September 2016 respectively. The domestic courts continued to rely on the same reasons for his detention. They indicated additional evidence, suggesting that the applicant had attempted to tamper with the investigation, in particular by deleting data on his computer, and noted that, if released, the applicant would have a possibility to influence witnesses who were known to him and with whom he had close relationships. They further stressed that a number of items of evidence had still to be obtained in the case and that the search for the victim ’ s body continued.

8 . On 12 August 2016 a bill of indictment against the applicant was lodged with Katowice Regional Court. In addition to murder and incitement to perjury, the applicant was also accused of abuse of his powers as a police officer by accessing police databases without proper cause and with mishandling his firearm by allowing another person access to it (Article 131 of the Criminal Code).

9 . By decisions of 16 January, 20 July, and 30 August 2017 Katowice Regional Court extended the applicant ’ s detention on remand. The applicant unsuccessfully appealed against the decisions of 16 January and 20 July 2017. The domestic courts continued to rely on the severity of the anticipated penalty, as well as on the need to secure the proper conduct of the proceedings. They also underlined that the applicant ’ s trial was conducted efficiently and that the trial court was trying to conclude proceedings as promptly as possible.

10 . On 12 June 2017 the applicant requested the court to lift his detention on remand. On 26 June 2017, Katowice Regional Court refused his request, finding that the grounds for imposition of this measure remained valid. The applicant unsuccessfully appealed against this decision.

11 . The applicant ’ s detention was further extended by decisions of the Katowice Court of Appeal of 20 September 2017 and 20 March 2018. By the last decision, the domestic court extended his detention on remand until 28 September 2018. The Katowice Court of Appeal relied on the grounds previously invoked and on the complexity of the ongoing proceedings. It referred to the high likelihood that the applicant had committed the offences in question, as well as that of a severe penalty being imposed on him. It also stressed the need to secure the proper course of the proceedings, taking into consideration that the trial court was still to hear evidence from certain crucial witnesses, who were closely related to the applicant, and the circumstances of the offences in question. The Katowice Court of Appeal referred, in particular, to the fact that evidence suggested that the applicant had tampered with evidence and attempted to deceive the investigating authorities, for instance by having reported the disappearance of his wife. In addition, it underlined that the proceedings before the trial court were coming to an end and urged Katowice Regional Court to take all the necessary actions in order to conclude the proceedings promptly. These decisions were upheld on 18 October 2017 and 11 April 2018 respectively.

12 . On 19 January and 24 May 2018 the applicant again unsuccessfully requested the trial court to lift his detention.

13 . On 7 September 2018 Katowice Regional Court acquitted the applicant of the charge of incitement to perjury and convicted him on all the remaining charges. It sentenced the applicant to fifteen years ’ imprisonment (case no. XVI K 121/16). The applicant remained in custody during the appellate proceedings.

14 . On 8 August 2019 the Katowice Court of Appeal upheld the applicant ’ s conviction for murder, abuse of power and mishandling his firearm. With regard to the charge of incitement to perjury, the second ‑ instance court quashed the applicant ’ s acquittal and discontinued the proceedings on the grounds that, having taken into consideration the gravity of the applicant ’ s other offences and of his sentence, it would have been futile to convict the applicant also on this charge (Article 11 § 1 of the Code of Criminal Procedure). The appellate court also amended the applicant ’ s sentence by imposing on him a penalty of twenty-five years ’ imprisonment (case no. II AKa 141/19).

15 . The applicant lodged a cassation appeal with the Supreme Court. The proceedings concerning this appeal seem to be pending.

16 . The relevant domestic law and practice concerning detention during criminal proceedings ( tymczasowe aresztowanie ), the grounds for its extension, release from detention and rules governing other “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); Celejewski v. Poland (no. 17584/04, §§ 22-23, 4 May 2006); Kauczor v. Poland (no. 45219/06, § 25-33, 3 February 2009); and Porowski v. Poland (no. 34458/03, § 71-82, 21 March 2017).

COMPLAINT

17 . The applicant complained under Article 5 § 3 of the Convention that the length of his detention had been excessive.

THE LAW

18 . The applicant complained that the length of his detention had been excessive. He relied on Article 5 § 3 of the Convention, the relevant part of 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.”

19 . The applicant has been detained since 30 September 2015, when he was remanded in custody. He remains imprisoned. However, the first ‑ instance judgment convicting the applicant was delivered on 7 September 2018. From that date onwards he was detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a); consequently that period of his detention falls outside the scope of Article 5 § 3 (see KudÅ‚a v. Poland [GC], no. 30210/96, § 104).

20 . Accordingly, the period to be taken into consideration under Article 5 § 3 lasted from 30 September 2015 until 7 September 2018 and amounted to two years, eleven months and eight days.

21 . The Government argued that the application was manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention.

22 . They maintained that the applicant ’ s detention had been justified during the whole period under consideration not only by the strong likelihood that he had committed the offences in question and their serious character, but also by the evidence indicating that the applicant had tried to obstruct the investigation prior to his arrest. In addition to that, they submitted that the decisions to extend the applicant ’ s detention had been based on a thorough analysis of the relevant circumstances, well ‑ reasoned and subject to thorough supervision of the Katowice Court of Appeal. The Government also argued that the decisions regarding the applicant ’ s detention had not relied on the same reasons throughout the whole period under consideration, but had taken into account new elements that had arisen during the proceedings (such as the need to finalise the process of collecting evidence and to hear new expert witnesses).

23 . Finally, the Government argued that the domestic authorities had displayed adequate diligence when dealing with the applicant ’ s case. They indicated that the case was extremely complex due to its circumstantial character and the volume of evidence obtained by the domestic authorities. The trial court had to become familiar with the extensive case material (thirty-seven volumes). It took evidence from 182 witnesses, examined a large number of expert reports (in particular in such fields as psychology, psychiatry, medicine, fingerprints, criminal profiling and forensic science), documents requested from various entities and results of experiments conducted by investigative authorities. The Government pointed out that the trial court had held twenty ‑ nine hearings, which had taken place at regular intervals and none of which had been cancelled.

24 . The applicant submitted that his detention pending trial had continued for an unreasonably long period. He argued that the domestic courts had not provided sufficient reasons to support their decisions and that their conclusions had been based on a one-sided assessment of evidence. He also stressed that the domestic court relied to a significant extent on the fact that he had been charged with inducing false testimony from a witness, but finally he had not been convicted of this charge.

25 . The applicant also alleged that the trial had not been organised with adequate diligence. He submitted that the intervals between hearings were extensive. Furthermore, the trial court had decided to hear many witnesses whose evidence had not contributed to the establishment of facts relevant to the outcome of the proceedings. In addition, the applicant pointed out that most of the expert reports relied on at the trial had been submitted before his arrest. Consequently, the need to obtain them could not have justified the length of his detention.

26 . 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 stated in a number of its previous judgments (see, among many other authorities, KudÅ‚a v. Poland [GC], cited above, §§ 110 et seq., ECHR 2000 ‑ XI; McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006-X, Buzadji v. the Republic of Moldova [GC], no. 23755/07 , §§ 84-91, ECHR 2016 (extracts); and Merabishvili v. Georgia [GC] , no. 72508/13, § 222-225 , 28 November 2017 with further references).

27 . The Court observes that the judicial authorities relied on the following grounds when deciding on the applicant ’ s detention: (1) the reasonable suspicion that the applicant had committed the offences in question; (2) the risk of his tampering with evidence and obstructing the proceedings, (3) the particular complexity of the case; and (4) the severity of the penalty to which he was liable. As regards the risk of tampering with evidence and obstructing the proceedings, the domestic courts referred, inter alia , to the allegation that the applicant had attempted to induce a witness to give false statements, as well as to the evidence that he had attempted to falsify and dispose of evidence in the case, in particular by sending his wife ’ s telephone abroad and deleting data on that telephone and his electronic devices (see paragraphs 5 , 7 and 11 above). As regards the complexity of the case, the domestic courts indicated in particular that the evidence in the applicant ’ s case was mostly circumstantial and that the victim ’ s body had never been found.

28 . The case concerned serious charges. The applicant had been charged with killing his wife as well as a number of lesser offences, including abuse of his powers as a police officer (see paragraphs 5 and 8 above). In the Court ’ s view, the fact that the case concerned serious offences should be taken into account in assessing compliance with Article 5 § 3 (see, among many other authorities, Nowak v. Poland , no. 18390/02, § 36, 18 September 2007).

29 . The Court has repeatedly held that, although the severity of the sentence faced is a relevant element in assessing the risk of an accused absconding, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view, taking into consideration solely the gravity of the offence. The Court will therefore examine whether the other grounds referred to by the domestic courts were sufficient to justify the applicant ’ s detention (see, among many other authorities, Topekhin v. Russia , no. 78774/13, § 104, 10 May 2016). In the present case, the Court finds that the domestic courts referred to other grounds justifying the applicant ’ s continuing detention. Those reasons were, in particular, the credible allegations of the applicant ’ s attempts to influence a witness and to tamper with evidence (see paragraphs 5 , 7 and 11 above).

30 . The Court also accepts that in the present case the investigating authorities and the courts were undoubtedly faced with significant difficulties in obtaining the voluminous and circumstantial evidence, including statements from a number of witnesses, including the applicant ’ s family members, friends and co-workers (see paragraph 7 above) as well as the need to obtain expert opinions and conduct evidentiary experiments. In such circumstances, the continuous supervision and limitation of the defendant ’ s contact with potential witnesses may have been considered essential to prevent the applicant ’ s tampering with evidence and, most importantly, influencing witnesses.

31 . Having regard to the above, the Court considers that in the circumstances of the present case, involving serious crimes and a complex process of obtaining evidence, the grounds given for the applicant ’ s detention were “relevant” and “sufficient” to justify holding him in custody for the entire period in question.

32 . It therefore remains to be ascertained whether the national authorities displayed “special diligence” in the conduct of the proceedings (see Nowak v. Poland , cited above, §§ 37-38, and Mierzejewski v. Poland , no. 15612/13, §§ 44-45, 24 February 2015). The complexity and special characteristics of the investigation are factors to be considered in this respect (see Scott v. Spain , 18 December 1996, Reports of Judgments and Decisions 1996-VI, pp. 2399-2400, § 74).

33 . In that regard, the Court has already noted that in the applicant ’ s case the process of collecting evidence was complex and difficult (see paragraphs 30- 31 above). In particular, a substantial amount of evidence, such as expert reports, testimony of multiple witnesses, including expert witnesses who testified and submitted additional opinions during the trial, and results of experiments conducted by investigative authorities had to be examined in the course of the proceedings (see paragraph 23 above).

34 . The Court further notes that there were no significant periods of inactivity on the part of the prosecution authorities and the domestic courts. Both the investigation and the judicial proceedings were conducted smoothly. The bill of indictment against the applicant was lodged ten months after his arrest, i.e. on 12 August 2016 (see paragraph 8 above). During two years and one month that elapsed from that date until the first-instance judgment was rendered, the trial court held twenty-nine hearings, which took place at regular intervals. For these reasons, the Court considers that overall the domestic authorities displayed “special diligence” in the handling of the applicant ’ s case.

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

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 4 June 2020 .

Renata Degener Aleš Pejchal Deputy Registrar President