Communicated on 24 January 2014

FOURTH SECTION

Application no. 48794/11 Radosław HOŁOWIŃSKI against Poland lodged on 19 July 2011

STATEMENT OF FACTS

The applicant, Mr Radosław Hołowiński , is a Polish national, who was born in 1981 and lives in Elbląg .

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

A. The applicant ’ s pre-trial detention and the criminal proceedings against him

On 17 May 2005 the applicant was arrested on suspicion of participation in an organised and armed criminal group, two counts of aggravated murder, drug-trafficking committed in an organised criminal group and kidnapping committed in an organised criminal group.

On 18 May 2005 the Bia ł ystok District Court ( Sąd Rejonowy ) remanded him in custody, relying on the reasonable suspicion th at he had committed the offences in question. The court also considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the gravity of the offences in question. It emphasised the need to apprehend other members of the criminal group and to obtain further evidence in the proceedings at issue. In the court ’ s view, if released, the applicant could try to obstruct the proceedings by passing vital information about the investigation onto the other members of the criminal group and by tampering with evidence. Furthermore, the court stressed the likelihood of a heavy prison sentence being imposed on the applicant after conviction.

The applicant ’ s pretrial detention was subsequently prolonged by the decisions of the Elbl ą g Regional Court ( Sąd Okręgowy ) of 8 August 2005 (until 31 October 2005) and 24 October 2005 (until 31 January 2006).

The applicant appealed against those decisions. They were upheld by the Gda ń sk Court of Appeal ( Sąd Apelacyjny ) on 30 August and 23 November 2005 respectively. The courts relied essentially on the same grounds as in the original decision ordering the applicant ’ s detention on remand.

In the period from 30 January 2006 until 21 August 2007 the applicant was serving a prison sentence imposed in other criminal proceedings. During this period his detention on remand was continuously prolonged by the decisions of the Elbl Ä… g Regional Court and the Gda Å„ sk Court of Appeal.

Meanwhile, on 18 April 2006 a bill of indictment (case no. Ap 2/04 /S ) was lodged with the Elbl Ä… g Regional Court. The applicant was charged with participating in an organised and armed criminal group, two counts of aggravated murder committed in an organised and armed criminal group, and drug-trafficking and kidnapping committed in an organised and armed criminal group. According to the bill of indictment the organised criminal group was involved, in particular, in international drug-trafficking, smuggling of cigarettes and alcohol and insurance frauds. The bill of indictment concerned altogether sixteen defendants, the prosecution requested that over 130 witnesses be heard by the trial court. As regards the charges of murder against the applicant, the bill of indictment was based on numerous pieces of circumstantial evidence, mainly testimonies of witnesses and co-accused and logs of telephone calls. The material evidence was limited as the bodies of the alleged victims had never been found, there were also no direct witnesses of the offences in question.

On 30 September 2006 the Elbl Ä… g Regional Court held the first hearing in the case.

The applicant ’ s detention was subsequently prolonged by the decisions of the Gda Å„ sk Court of Appeal of 8 May, 25 September and 18 December 2007. The applicant appealed against all of those decisions, but to no avail. The Court of Appeal relied on the reasonable suspicion against the applicant, the gravity of the charges concerning offences committed in an organised and armed criminal group and the severity of the anticipated sentence. The Court of Appeal considered that, if released, the applicant could obstruct the proper course of the proceedings by influencing the co ‑ accused or the witnesses. It also emphasised the exceptional complexity of the case as regards evidentiary proceedings. Moreover, several new witnesses had been requested to be heard before the trial court, some of them residing abroad. Requests for international legal assistance had been addressed in that regard to the relevant authorities. The hearings had been held three times a week, their duration limited due to the state of health of one of the defendants in the case, a certain J. R., accused of leading of the organised and armed criminal group in question.

The Gda ń sk Court of Appeal further extended the applicant ’ s detention by the decisions of 18 March, 24 June and 23 September 2008. The applicant appealed against the decisions of 18 March 2008 and 24 June 2008. The Gda ń sk Court of Appeal upheld the contested decisions on 15 April and 23 July 2008 respectively.

On 10 December 2008 the applicant ’ s detention was prolonged by the Gda ń sk Court of Appeal. The court considered that the bail in the amount of PLN 100,000 (approximately EUR 25,000), as proposed by the applicant, would not sufficiently secure the proper conduct of the proceedings, given the risk that the applicant might influence the witnesses. On 13 January 2009 the Gda ń sk Court of Appeal, sitting in a different panel of three judges, upheld this decision.

The applicant ’ s detention was further extended by the decisions of the Gda ń sk Court of Appeal of 24 March, 23 June and 23 September 2009. The applicant appealed against the decisions of 23 June and 23 September 2009, which were upheld by the Gda ń sk Court of Appeal on 22 July and 20 October 2009, respectively. The Court of Appeal considered that the Elbl ą g Regional Court proceeded diligently and expediently in the applicant ’ s case. It emphasised that the length of the proceedings resulted not only from the complexity of the case, but also from the actions of the accused J. R. It noted that J. R. had been posing multiple irrelevant questions to witnesses and had filed numerous procedural motions, for example for disqualification of the judges and experts.

On 22 December 2009 the Gda ń sk Court of Appeal gave a decision prolonging the applicant ’ s detention until 31 March 2010. The Court of Appeal at the same time ordered that the applicant ’ s detention on remand be lifted on condition that he paid the bail in the sum of PLN 800,000 (approximately EUR 200,000) by 12 January 2010. The same conditions of bail were applied to two other co-accused in the applicant ’ s case. As regards the amount of bail the Court of Appeal considered that it reflected the gravity of the charges they were facing.

The applicant appealed. On 20 January 2010 the Gda Å„ sk Court of Appeal upheld the decision. As regards the amount of the security, the Court of Appeal considered that, in accordance with the well-established case-law of the domestic courts, the financial situation of the accused should be taken into account in fixing this amount. However, the decisive criteria should be the gravity of the charges, the amount of loss and the modus operandi of the accused. In the light of these criteria, the Court of Appeal considered the amount of bail set at PLN 800,000 adequate.

On 24 March 2010 the Gda ń sk Court of Appeal further prolonged the applicant ’ s detention. The Court of Appeal at the same time ordered that the detention on remand be lifted on condition that the applicant paid the bail of PLN 800,000 by 30 June 2010. The amount of security was justified by the Court of Appeal on the basis of the character of the offences in question. The Court of Appeal further noted that the risk of the applicant ’ s absconding resulted from the organised character of the offences in question and from the fact that, according to the bill of indictment, the applicant had used a passport bearing another person ’ s name.

Upon the applicant ’ s appeal, the Gda ń sk Court of Appeal upheld the contested decision on 14 April 2010 . As regards the applicant ’ s arguments concerning security in the form of mortgage, the Court of Appeal considered that it would not secure the proper conduct of the proceedings because it could not be executed as effectively as security in the form of cash.

On 22 June 2010 the Gda ń sk Court of Appeal again prolonged the applicant ’ s detention while simultaneously ordering that it be lifted on condition of payment of bail of PLN 800,000. The applicant ’ s appeal against this decision was dismissed by the Gda ń sk Court of Appeal on 14 July 2010.

On 13 September 2010 the Elbl ą g Regional Court requested for the applicant ’ s detention on remand to be prolonged. As to the length of the proceedings at issue, the trial court noted that already 288 hearings had been held in the case, their duration limited due to the state of health of the accused J. R. Moreover, the trial court noted that J. R. and another accused in the case had requested for all the official documents contained in the voluminous case-file (such as expert reports or records of searches, seizures etc.) to be read out loud during the hearings. The trial court also referred to several other obstructive actions of J. R.

On 21 September 2010 the Gda ń sk Court of Appeal prolonged the applicant ’ s detention. It found that the Regional Court had conducted the proceedings with the required special diligence, considering the circumstances set out in detail in the request of 13 September 2010.

On 14 December 2010 the Gda ń sk Court of Appeal again extended the applicant ’ s detention on remand. The Court of Appeal repeated the grounds for the applicant ’ s detention stated in the previous decisions. As regards the complexity of the case, it noted that the case-file comprised 253 volumes at that time and the trial court had already read out the documents from 174 volumes. The Court of Appeal added that the length of the proceedings had been greatly influenced by the behavior of the defendant J.R. Upon the applicant ’ s appeal, this decision was upheld by the Gda ń sk Court of Appeal on 19 January 2011.

On 17 February 2011 the Elbl Ä… g Regional Court ordered that the applicant ’ s detention on remand be lifted on condition that he paid the bail in the sum of PLN 300,000 (approximately EUR 75,000) by 28 February 2011. The applicant failed to pay the security within the prescribed time ‑ limit.

On 3 March 2011 the applicant requested the Regional Court to be released on bail of PLN 200,000. He argued that it was not possible for him or his family to pay the security in the amount of PLN 300,000. He considered that it was discriminative that, in contrast to the two other accused who had been released on bail, he remained in custody in consequence of his financial situation. His request was unsuccessful.

The applicant ’ s detention was further prolonged on 15 March 2011 by the Gda ń sk Court of Appeal. The Court of Appeal relied on essentially the same grounds as in the previous decisions: the reasonable suspicion against the applicant, the likelihood that a severe prison sentence would be imposed and the risk that the applicant might obstruct the proceedings due to the organised character of the offences in question. Finally, it noted the exceptional complexity of the case and the extensiveness of evidence obtained. At that time the trial was in the final stage of evidentiary proceedings, the trial court had already held 311 hearings and several requests for evidence had been filed by the parties, in particular the defendants, at this late moment.

On 16 June 2011 the Elbl ą g Regional Court again requested for the applicant ’ s detention to be prolonged. It observed that the applicant had requested for release on bail in the form of mortgage but failed to produce all the relevant documents in this regard. Nevertheless, the Regional Court considered that only the bail in the amount of PLN 300,000 would secure the proper conduct of the proceedings, given the severity of the charges faced by the applicant.

On 21 June 2011 the Gda ń sk Court of Appeal granted the Regional Court ’ s request and extended the applicant ’ s detention on remand until 31 August 2011.

On 11 July 2011 the applicant requested to be released on bail of PLN 100,000. He argued that it had been impossible for him and his family to obtain the amount of PLN 300,000 as fixed by the decision 17 February 2011.

On 14 July 2011 the Elbl ą g Regional Court again ordered that the applicant ’ s detention on remand be lifted on condition that he paid the bail in the sum of PLN 300,000. The Regional Court considered that only the bail in the amount set would secure the proper conduct of the proceedings. Furthermore, it noted that the financial situation of the applicant ’ s parents was significantly better than the situations of families of the other accused in the case, in respect of whom the bails in the amounts of PLN 800,000 and PLN 300,000 had been paid.

On 27 July 2011, upon the applicant ’ s appeal, the Gda ń sk Court of Appeal upheld the decision concerning prolongation of the applicant ’ s detention.

The applicant ’ s detention was subsequently prolonged by the decisions of the Gda ń sk Court of Appeal of 23 August and 27 September 2011. The applicant appealed against both of those decisions. They were upheld by the Gda ń sk Court of Appeal on 14 September and on 26 October 2011 respectively. The court referred to the reasons previously relied on when prolonging the applicant ’ s detention. It further noted that the detention on remand had not been applied in an automatic manner in the applicant ’ s case. On the contrary, the courts had regularly considered other, more lenient preventive measures, and in particular they had agreed to release the applicant on bail in the amount adequate to the severity of the anticipated sentence and the complexity of the case.

On 31 October 2011 the Elbl ą g Regional Court gave judgment. The applicant was convicted as charged but the offences of murder were not classified as aggravated. The Regional Court sentenced the applicant to a cumulative sentence of fifteen years ’ imprisonment. His detention in the periods from 17 May 2005 until 30 January 2006 and from 21 January 2007 was deducted from the sentence.

The applicant lodged an appeal against the first instance judgment.

The Gda Å„ sk Court of Appeal, after holding hearings on 20, 21 and 22 May 2013, quashed the impugned judgment and remitted the case.

The applicant was released on 29 May 2013.

B. Relevant domestic law and practice

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” ( Å›rodki zapobiegawcze ) are stated in the Court ’ s judgments in the cases of KudÅ‚a v. Poland [GC], no. 30210/96, §§ 75–79, ECHR 2000– XI; BagiÅ„ski v. Poland , no. 37444/97, §§ 42– 46, 11 October 2005; and Celejewski v. Poland , no. 17584/04, §§ 22– 23, 4 May 2006.

Pursuant to Article 26 6 of the Code of Criminal Procedure , bail surety, in the form of cash, securities , lien or mortgage, can be deposited by the accused, or by another person. Determination of the sum, form and all relevant modalities of the bail surety should be made, having regard to the financial situation of the accused and, as the case may be, another person depositing the bail surety, as well as to the assessed damage which could have been caused by the offence concerned and to the character of the offence.

COMPLAINTS

1. The applicant complains under Article 5 § 3 of the Convention that the length of his pre-trial detention was excessive . He argues that the decisions concerning his detention on remand were not based on relevant and sufficient reasons and that the domestic courts did not display special diligence in the conduct of the proceedings against him.

2. He further complains, under the same provision of the Convention, that the bail, fixed by the domestic courts at the amount of PLN 800,000 on 22 December 2009 and at the amount of 300,000 PLN on 17 February 2011, was excessive and that the domestic courts failed to take into account his and his family ’ s financial circumstances when fixing the bail.

QUESTIONS TO THE PARTIES

1. Was the length of the applicant ’ s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?

2 . Were the bail conditions imposed on the applicant to ensure his appearance at his trial in conformity with the requirements of Article 5 § 3 of the Convention ( see Mangouras v. Spain [GC], no. 12050/04 , ECHR 2010 ; Toshev v. Bulgaria , no. 56308/00, 10 August 2006; Neumeister v. Austria , 27 June 1968, Series A no. 8; Piotr Osuch v. Poland , no. 30028/06 , 3 November 2009 )?