CASE OF HILGARTNER v. POLAND
Violation of Article 5 - Right to liberty and security
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
5. The applicant was born in 1976 and lives in Strzelce Opolskie. 6. On 1 July 2003 the applicant was arrested on suspicion of two counts of kidnapping, deprivation of liberty, extortion and battery, committed in an organised and armed criminal group. 7. On 2 July 2003 the Katowice District Court remanded him in custody, relying on the reasonable suspicion that he had committed the offences in question. It also considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the risk that he might tamper with evidence. The court also stressed the severity of the anticipated sentence and the fact that the offences had been committed in an organised criminal group. 8. Subsequently, fourteen other persons suspected of belonging to the same criminal group were charged in connection with the investigation of the applicant. 9. The applicant’s appeal against the detention order, likewise his further appeals against decisions prolonging his detention and all his subsequent, numerous applications for release and appeals against refusals to release him, were unsuccessful. In his applications and appeals, he argued that the charges against him were based on unreliable evidence. He further relied on his personal circumstances; in particular the fact that he was unable to complete his university education and continue running his business, and the need to ensure that his parents were cared for. Lastly, the applicant stressed, on several occasions, that he had never made any attempts to disrupt the trial. 10. In the course of the investigation the applicant’s detention was prolonged on 22 September and 22 December 2003, 22 March, 23 June and 22 September 2004. 11. On 18 November 2004 the bill of indictment was lodged with the Częstochowa Regional Court. The applicant was charged with kidnapping, deprivation of liberty, extortion and battery committed in an organised criminal group. The bill of indictment contained fourteen other persons. 12. Further decisions extending the applicant’s detention were taken on 21 December 2004, 29 June and 21 December 2005, 19 April and 11 October 2006, 22 February, 20 June and 28 November 2007. In all their detention decisions the authorities repeatedly relied on a strong suspicion that the applicant had committed the offences in question, which was supported by evidence from witnesses, and on the likelihood of a severe sentence of imprisonment being imposed on the applicant. They attached importance to the complexity of the case, the significant number of persons involved and the voluminous documentation. They further considered that the need to secure the proper conduct of the proceedings, especially the need to verify evidence from suspects and witnesses justified holding him in custody and that the applicant, if released, could obstruct the proper course of the proceedings. The courts found no special grounds that would justify lifting the detention and imposing a less severe measure. In its decision of 21 December 2005 the Katowice Court of Appeal recommended to the Częstochowa Regional Court that hearings should be held more frequently, in order to ensure the speedy progress of the proceedings. Further, in the decisions of 11 October 2006 and 22 February and 20 June 2007, the Katowice Court of Appeal stressed the need to terminate the criminal proceedings pending before the first-instance court. 13. By letters of 12 January, 29 June, 8 August and 26 September 2005 and 1 December 2006 the Częstochowa Regional Court refused the applicant’s requests to receive visits from friends in detention. It held that the permission to receive visits was limited to the members of the applicant’s close family only. 14. On 21 August 2007 the Częstochowa Regional Court did not allow the applicant to have a book written by Charles Dickens in English delivered to the detention centre. 15. On 10 January 2008 the Częstochowa Regional Court delivered its judgment. The applicant was convicted and sentenced to seven years’ imprisonment and a fine of 2,250 Polish zlotys (PLN). 16. By decisions of 17 January and 19 June 2008 the Częstochowa Regional Court further extended the applicant’s detention. It held that in the light of the first-instance judgment, the reasons for keeping the applicant in detention were still valid. 17. On 17 July 2008 the applicant lodged an appeal. 18. On 26 November 2008 the Katowice Court of Appeal prolonged the applicant’s detention until 31 January 2009. 19. On 22 December 2008 the Katowice Court of Appeal lifted the applicant’s detention and placed him under police supervision. The court held that the applicant’s presence at home was necessary to ensure the care of his parents in the light of their difficult financial situation and the forthcoming surgery of the applicant’s father. The applicant was released on 23 December 2008. 20. It appears that the criminal proceedings are still pending before the appellate court. 21. The relevant domestic law and practice concerning the imposition of detention (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006, and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006. 22. On 6 June 2007 the Committee of Ministers adopted on the Interim Resolution concerning the judgments of the European Court of Human Rights in 44 cases against Poland relating to the excessive length of detention on remand (“the 2007 Resolution”). Noting that the number of cases in which the European Court had found similar violations was constantly increasing. It concluded that the number of the Court’s judgments finding Poland in violation of Article 5 § 3 of the Convention revealed a structural problem. A more detailed rendition of the 2007 Resolution can be found in the Court’s judgment given in the case of Kauczor v. Poland (see Kauczor v. Poland, no. 45219/06, § 34, 3 February 2009; not final). 23. On 20 June 2007 the Council of Europe’s Commissioner for Human Rights released the Memorandum to the Polish Government concerning, among other issues, the use of the detention measure in Poland, stressing that examples of cases brought to the Court where pre-trial detention had lasted between four to six years were not uncommon. The Commissioner urged the Polish authorities to review the application and functioning of pretrial detention in Polish law. A more detailed rendition of the relevant parts of the memorandum can be found in the above mentioned Kauczor judgment (see Kauczor v. Poland, cited above, § 35).