FOURTH SECTION

DECISION

Application no . 13939/11 Wojciech ZAGROCKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 13 May 201 4 as a Committee composed of:

George Nicolaou , President, Zdravka Kalaydjieva , Faris Vehabović , judges,

and Fatoş Aracı, Deputy Section Registrar ,

Having regard to the above application lodged on 23 February 2011 ,

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

THE FACTS

1. The applicant, Mr Wojciech Zagrocki, is a Polish national, who was born in 1979 and lives in Gniezno. He was repres ented before the Court by Mr A. Baszkowski, a lawyer practising in Poznań.

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

A. The circumstance s of the case

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

4. On 23 April 2006 the prosecution service initiated investigation into an international criminal gang which dealt with trafficking in women and forcing them in to prostitution in Poland and in Germany.

5. On 21 September 2006 the Pozna Å„ District Court decided to arrest the applicant on remand and issued an arrest warrant against him. On 20 November 2006 the Pozna Å„ Regional Court issued a European Arrest Warrant against him. The authorities considered that the applicant had been in hiding in Germany.

6. On 12 March 2008 the applicant was arrested by the police under the suspicion of having led an organised criminal gang trading in women , some of them minors, and deriving profits from prostitution.

7. Between 12 March 2008 and 12 March 2009 he was serving a prison sentence ordered by a court in another set of criminal proceedings against him (judgment of the Gniezno District Court of 30 November 2005).

8. On 18 March 2008 the Poznań District Court decided to detain the applicant on remand (file no. III K 278/08).

9. The applicant ’ s pre-trial detention was subsequently extended by the Poznań Regional Court on 2 September, 25 August and 1 December 2008.

10. The applicant ’ s detention on remand was further extended on 17 February and 27 May 2009 .

11. On 12 August 2009 the applicant and ten other co-accused were indicted before the Poznań Regional Court (file no. Ap V Ds. 37/09).

12. On 31 Aug us t 2009 the Poznan Regional Court further extended his detention. In addition to the grounds invoked so far the court considered that there had been a risk of the applicant going into hiding as he had been avoiding justice before his arrest.

13. On 25 May 2010 the Poznań Court of Appeal decided to extend the applicant ’ s pre-trial detention. In addition to the reasonable suspicion against the applicant, the court relied on the risk of him going into hiding and on the fact that the applicant had been previously convicted. Moreover, the court relied on the severity of the penalty that might be imposed and a risk that the applicant would interfere with the proper course of the proceedings. The court finally considered that the criminal proceedings had been very complex as it involved eleven co-accused charged with a dozen of offences each.

14. The applicant ’ s appeal against this de cision was dismissed on 29 June 2010.

15. Afterwards the applicant ’ s pre-trial detention was extended on 19 August, 26 October, and 21 December 2010. All decisions were unsuccessfully appealed against by the applicant. The court in particular relied on the severity of the possible penalty and on the fact that the applicant acted in an organised criminal gang. In the last of the above listed decisions the Court of Appeal considered that the risk of a severe sentence should no longer be a valid ground for the applicant ’ s very lengthy pre-trial detention. However, the other grounds, namely the risk of him interfering with the proper course of the proceedings and going into hiding, remain the valid grounds for his continued detention.

16. On 24 March and 26 May 2011 the Poznań Court of Appeal further extended the applicant ’ s pre-trial detention.

17. On 8 September 2011 the Poznań Court of Appeal decided that the applicant could be released on bail in the amount of 70,000 Polish zlotys (PLN).

18. On 12 September 2011 the applicant was released from detention on bail and police supervision.

19. The trial court scheduled the first hearings for 1 and 2 October 2009. Afterwards hearings were held systematically, on average two or three times per month. On some occasions the hearings were rescheduled due to illnesses of the accused, their lawyers, or witnesses, or absences for other justified reasons. The trial court disciplined witnesses and other persons who failed to appear at hearings by fining them.

20. On 6 June 2012 the Poznań Regional Court convicted the applicant and sentenced him to seven years and six months ’ imprisonment. One group of offences of which the applicant was convicted consisted of buying a minor girl from a co-accused with a purpose of pro stituting her. The girl ra n away from home and was without any financial resources when the applicant promised to help her. For a few days he was taking her to a road in Poland where he was arranging clients for her and was taking almost all the money she earned. Afterwards, the applicant went with her to Germany where he took her passport away and placed her in various public houses. For almost one year he derived profits from her prostitution. In total t he applicant was convicted of 53 offences committed between 2002 and 2006 against fifteen women. The applicant was leading an organised criminal gang, buying and selling women to public houses, deriving profits from their prostitution and using threats and force against them.

21. The applicant lodged an appeal against the judgment .

22. On 24 January 2013 the Pozna ń Court of Appeal quashed a part of the judgment and upheld the remainder. The court sentenced the applicant to five years ’ imprisonment. The criminal proceedings relating to those charges which had not been upheld are pending before the Pozna ń Regional Court.

B. Relevant domestic law and practice

23. The relevant domestic law and practice concerning the imposition of pre ‑ trial detention ( aresztowanie tymczasowe ), the grounds for its extension, release from detention and rules governing other “preventive measures” ( Å›rodki zapobiegawcze ) are stated in the Court ’ s judgments in the cases of GoÅ‚ek v. Poland , no. 31330/02, §§ 27 ‑ 33, 25 April 2006, and Celejewski v. Poland , no. 17584/04, §§ 22 ‑ 23, 4 August 2006.

COMPLAINTS

24. The applicant complained under Articles 5 § 3 and 6 § 1 of the Convention about the unreasonable length of his pre-trial detention and the length of the criminal proceedings in his case.

THE LAW

A. The alleged violation of Article 5 of the Convention

25. The applicant ’ s first complaint related to the length of his detention. He alleged that it had been excessive, relying on Article 5 § 3 of the Convention, which provides 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.”

26. The Government disputed this argument with reference to the facts of the case. They further submitted that given the severity of charges against the applicant the grounds given for the applicant ’ s pre-trial detention were “relevant” and “sufficient” to justify holding him in custody for the entire relevant period.

27. The applicant ’ s detention started on 12 March 2008 when he was arrested on suspicion of human trafficking within an organised criminal gang. O n 12 Sept ember 2011 he was released on bail.

28. However, the Government submitted that between 12 March 2008 and 12 March 2009 the applicant ha d been serving a prison sentence which had been imposed on him in another s et of criminal proceedings. The applicant did not contest those facts. The Court considers that this term, as being covered by Article 5 § 1 (a), must therefore be subtracted from the period of the applicant ’ s pre-trial detention for the purposes of Article 5 § 3.

29. Thus, the period to be taken into consideration lasted from 12 March 20 09 until 12 September 2011 . It amounts to two years and six months.

30. 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).

31. 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 three grounds, namely (1) the serious nature of the offences with which he had been charged, (2) the need to secure the proper conduct of the proceedings and (3) the unusual complexity of the proceedings.

32. The applicant was charged with lead ing an organised criminal gang trafficking in women and deriving profits from prostitution . In the Court ’ s view, the fact that the case concerned a member of such criminal gang should be taken into account in assessing com pliance with Article 5 § 3 (see Bąk v. Poland , no. 7870/04, § 57, 16 January 2007).

33. The Court also accepts that the reasonable suspicion against the applicant of having committed serious offences warranted his initial detention. Also, the need to obtain a large volume of 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 had been laid, constituted valid grounds for the applicant ’ s initial detention. Regard being had to the type of charges against the applicant the vulnerability of the victims, some of them minors, must be seen as relevant. Accordingly, the risk of pressure being brought to bear on witnesses or other co-accused can reasonably be considered to have been high, as indeed was found by the domestic courts. Moreover, the Court agrees with the domestic court ’ s assessment that there existed a risk of abscondment given the fact that the applicant had been avoiding justice before his arrest and had been searched for by arrest warrants. Finally the Court notes that the Pozna ń Court of Appeal decided to release the applicant on bail as soon as the reasons for his continued detention ceased to exist .

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

35. 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 (see Kopij v. Poland (dec.), no. 7676/06, 1 July 2008).

36. Nevertheless, in the particular circumstances of the case involving an organised criminal gang and in view of its above findings as to the total length of the applicant ’ s detention, 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 relevant period (see Nowak v. Poland , no. 18390/02, § 37 , 18 September 2007 ) .

37. It therefore remains to be ascertained whether the national authorities displayed “special diligence” in the conduct of the proceedings.

38. The Court 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 t he Regional Prosecutor within a relatively short period of time and the trial court held many hearings and gave a judgment . For these reasons, the Court considers that the domestic authorities displayed “special diligence” in the handling of the applicant ’ s case.

39. In view of the above considerations and in the light of the criteria established in its case-law in similar cases, the Court considers that the applicant ’ s detention was in conformity with the "reasonable time" requirement of Article 5 § 3 of the Convention. This complaint is therefore manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

B. The alleged violation of Article 6 of the Convention

40. The applicant ’ s second complaint related to the length of the proceedings, which began in April 2006 and are still pending. According to the applicant, the length of the proceedings was in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.

41. However, u nder Article 35 § 1 of the Convention, the Court may only deal with the matter after all domestic remedies have been exhausted.

42. The Court observes that the applicant failed to lodge a complaint under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time ( Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ).

43. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these re asons, the Court, unanimously,

Declares the application inadmissible.

FatoÅŸ Aracı George Nicolaou              Deputy Registrar President