Communicated on 16 January 2014

FOURTH SECTION

Application no. 38509/11 Pawe ł ŁAKOMIEC against Poland lodged on 16 June 2011

STATEMENT OF FACTS

The applicant, Mr Paweł Łakomiec , is a Polish national, who was born in 1976 and lives in Andrespol .

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 4 November 2009 the applicant was arrested on suspicion of aiding and abetting murder.

On 6 November 2009 the Kielce District Court ( Sąd Rejonowy ) remanded him in custody, relying on the reasonable suspicion th at he had committed the offence 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 offence in question and the fact that the applicant had not pleaded guilty . In the court ’ s view, if released, the applicant could try to obstruct the proceedings by influencing witnesses. Furthermore, the court stressed the likelihood of a heavy prison sentence being imposed on the applicant after conviction.

The applicant lodged an appe al against this decision. On 23 November 2009 the Kielce Regional Court ( Sąd Okręgowy ) upheld the contested decision.

On 5 January 2010 the Kielce Regional Prosecutor ( Prokurator Okręgowy ) refused the applicant ’ s request for the preventive measure to be varied. The prosecutor considered that the reasons for the applicant ’ s detention on remand remained valid.

The applicant ’ s pre-trial detention was further prolonged by the Kielce Regional Court.

Meanwhile, on 23 July 2010 the Kielce Regional Prosecutor lodged a bill of indictment (case no. V Ds. 25/10/ S ) with the Kielce Regional Court. The applicant was indicted of aiding and abetting murder. The bill of indictment concerned altogether twenty-six defendants indicted inter alia on charges of leading and participating in an organised and armed criminal group, murder, robbery and fraud.

On 2 August 2010 the applicant ’ s detention was prolonged by the Kielce Regional Court until 31 December 2010. The court again relied on the strong suspicion that the applicant had committed the offence and the severity of the anticipated sentence which, in the court ’ s view, resulted in a presumption that the applicant would obstruct the proceedings. It further referred to the complexity of the case, noting that the case-file at that time comprised 173 volumes. The applicant lodged an appeal against this decision which was dismissed by the Kraków Court of Appeal ( Sąd Apelacyjny ) on 2 September 2010.

On 20 September 2010 the applicant again requested for the preventive measure to be varied, relying on his family situation. He argued that he was the br eadwinner for his family. On 22 September 2010 the Kielce Regional Court dismissed his request, finding that the issues raised by the applicant constituted inevitable consequences of deprivation of liberty. In particular, it noted that the applicant ’ s common-law wife ( konkubina ) and his child could receive help from their family.

On 12 April 2011 the Kielce Regional Court refused the applicant ’ s another request for the detention to be lifted.

On 24 May 2011 the Kielce Regional Court further prolonged the applicant ’ s detention until 31 October 2011. The applicant lodged an appeal against this decision which was dismissed by the Kraków Court of Appeal on 6 July 2011.

On 20 July 2011 the Kielce Regional Court refused the applicant ’ s request for the preventive measure to be lifted.

The applicant ’ s detention was subsequently extended by decisions of the Kraków Court of Appeal of 27 October 2011 and 26 April 2012 (extension until 30 October 2012). In the above decisions the Court of Appeal referred to extensive evidence on which the reasonable suspicion against the applicant was based. In particular, it noted that the evidence given by the main witness was corroborated by the other evidence obtained. It further considered that the applicant ’ s detention was justified by the risk that he might obstruct the proceedings, given that he was charged with having committed an offence which was closely linked with the activities of an organised and armed criminal group. In that connection, the Court of Appeal observed that several witnesses still were to be heard before the trial court. It also relied on the likelihood that a severe prison sentence would be imposed on the applicant. The applicant appe aled against the decision of 26 April 2012, but to no avail. On 6 June 2012 it was upheld by the Kraków Court of Appeal, sitting in a different panel of judges.

On 25 September 2012 the applicant requested the Kielce Regional Court for release.

On the same date the court held a hearing during which the applicant, upon the presiding judge ’ s question, declared that he was unable to pay bail and that “everyone had turned away from him”. The Kielce Regional Court ordered that the applicant ’ s detention on remand be lifted on condition that he paid the bail in the sum of 30,000 Polish zlotys (PLN) (approximately EUR 7,500) until 16 October 2012. The grounds of the decision did not contain any reference to the factors the court took into account when fixing the amount of bail.

The applicant appealed against this decision, arguing that he did not have financial means to provide security in the amount fixed by the court. He argued, in particular, that he had been kept in detention for a period of nearly three years and that he had not had any employment during this period. He further argued that his family also did not dispose of such an amount of money, they also had no possibilities to borrow this sum.

On 10 October 2012 the Regional Court upheld the contested decision.

The applicant failed to pay the security within the prescribed time ‑ limit.

On 29 October 2012 the Kraków Court of Appeal extended his detention until 30 April 2013. The Court of Appeal considered that the applicant ’ s detention was necessary to secure the proper conduct of the proceedings, given the severity of the anticipated sentence. It further relied on the complexity of the case, noting that the case- file at that time comprised 212 volumes, twenty four of the witnesses called by the prosecution still were to be heard and requests for further evidence had been submitted by the defence. As regards the applicant ’ s health condition, the Court of Appeal considered that he could be adequately treated within the penitentiary system. In that respect, it relied on the medical certificates issued by prison doctors and the medical expert report.

The applicant lodged an appeal. He argued, in particular, that his continued detention was only a consequence of his inability to pay the bail in the amount fixed by the trial court. He considered himself discriminated against on the basis of his financial situation.

On 22 November 2012 the Kraków Court of Appeal upheld the contested decision. As regards the applicant ’ s arguments concerning the amount of security, it considered that the bail should act as a real deterrent against obstruction of proceedings. Thus, the amount of security should be fixed primarily in relation to seriousness of the charges against the applicant and the gravity of the anticipated sentence, rather than on the basis of his financial situation.

On 19 February 2013 the Kielce Regional Court refused the applicant ’ s request for release on health grounds. The Regional Court relied on an expert medical report, stating that the applicant suffered from gallstones ( kamica woreczka ż ó ł ciowego ) and that this condition could be adequately treated within the penitentiary system. An expert nephrologist also found that the applicant ’ s condition did not require an immediate surgical intervention. On 12 March 2013 the Kielce Regional Court upheld this decision.

On 25 April 2013 the Kraków Court of Appeal extended the applicant ’ s detention until 30 October 2013. It repeated the reasons for the applicant ’ s detention, noting that thirteen witnesses called by the prosecution still were to be heard.

The applicant appealed, requesting to be released on bail of PLN 10,000 (approximately EUR 2,500). He argued that all of the witnesses against him had already been heard and that the amount of bail as indicated by him was adequate, given the difficult financial situation of him and his family.

On 28 May 2013 the Kraków Court of Appeal upheld the contested decision. It considered that, as the applicant was accused of having committed an offence of aiding and abetting murder - which was intrinsically linked with actions of other accused in case - the risk that he might obstruct the proceedings persisted.

On 27 August 2013 the Kielce Regional Court ordered that the applicant ’ s detention on remand could be lifted on condition that he paid the bail in the sum of PLN 15,000 (approximately EUR 3,750). The security was paid on 30 August 2013.

Consequently, on 2 September 2013, the Regional Court ordered that the applicant be released on bail. The court also imposed on the applicant police supervision and a ban on leaving the country .

The applicant was released on 2 September 2013.

The criminal proceedings against the applicant (case no. III K 109/10 ) are apparently still pending before the Kielce Regional Court.

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, §§ 2 2-23, 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.

COMPLAINT S

1. The applicant complains in substance under Article 5 § 3 of the Convention that the length of his pre-trial detention was excessive . He submits that the decisions concerning his pre-trial detention were not based on relevant and sufficient reasons.

2. He further complains, in essence under the same provision of the Convention, that the amount of PLN 30,000 fixed for bail by the Kielce Regional Court on 25 September 2012 was excessive and that the domestic court 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 )?

In this connection, t he Government are invited to provide a copy of the decision of 10 October 2012 given by the Kielce Regional Court with reasoning .