CASE OF BAK v. POLAND
No violation of Art. 5-3;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
Nicolas Bratza
4. The applicant was born in 1979 and lives in Warsaw. 5. On 28 September 1999 the applicant was arrested on suspicion of having committed two armed robberies together with other persons. 6. On 4 October 1999 the Gdańsk District Court decided to detain the applicant on remand. The decision was based on the high probability that the applicant had committed the crimes with which he had been charged, which was confirmed by evidence, in particular the testimonies of one of the co-accused. In addition, the court stated that there was a serious risk that the applicant might attempt to influence the co-accused and the witnesses and thus obstruct the proper course of the proceedings, since as an imprisoned person he was entitled in particular to have breaks in serving the penalty and to correspond without any censorship. On 26 October 1999 the Gdańsk Regional Court upheld the decision. 7. Subsequently, the applicant’s detention was prolonged on several occasions (on 4 October and 9 December 1999, 8 March and 12 September 2000, 27 March, 26 July and 5 September 2001, 30 January, 24 April, 18 September and 31 October 2002, 28 January, 24 April, 21 June, 9 July, 14 October and 16 December 2003, 23 March and 16 September 2004, 25 January, 25 May, 21 July, 22 September and 6 December 2005, and 2 March 2006). The courts based their decisions on the reasonable suspicion that the applicant had committed the offence concerned, the severity of the penalty he faced and the risk of his collusion and absconding. During the preparatory proceedings the extension of his detention was also justified by the need to obtain further evidence, in particular to obtain expert opinions, to make inquiries at his home, to take evidence from the suspects and to confront them. 8. From 15 September 1999 to 10 April 2000 the applicant served a prison sentence imposed on him in separate proceedings. 9. The applicant lodged a considerable number of applications for release from detention or for commutation of the preventive measure to a less severe one, on the ground of his poor state of health or other reasons (on 20 September 2000, 20 August and 7 November 2002, 17 February 2003, 27 April, 17 June and 17 October 2004 and 17 July 2005); however, they were dismissed in decisions of 3 October 2000, 27 June 2002, 3 July 2002, 27 February 2003, 25 May 2004, 22 June 2004, 12 October 2004, 10 October 2005, 13 December 2005, and 31 January and 16 March 2006. 10. The applicant also challenged the decisions prolonging his detention, but those applications were likewise dismissed on 26 October 1999, 8 August and 3 October 2001, 22 May and 23 October 2002, 6 August 2003, 13 January and 11 July 2004, and 25 January, 14 June, 14 September, 19 October and 28 December 2005. 11. During the preparatory proceedings twelve persons (including the applicant) were arrested. The public prosecutor took evidence from 25 witnesses and the suspects were interviewed 32 times. 46 expert opinions were obtained, 17 confrontations and 24 searches of individuals, premises and other places were carried out and identity parades were conducted on eight occasions. Numerous documents were obtained, in particular bills of phone calls made by the suspects, their criminal records and copies of judgments. 12. From 10 April 2000 to 10 November 2001 the applicant served a sentence of one year and seven months’ imprisonment imposed on him in separate proceedings. 13. The applicant was indicted before the Gdańsk Regional Court on 1 September 2000. The bill of indictment concerned 61 charges and 12 accused (eight of whom, including the applicant, were detained). The applicant was charged with illegal possession of firearms, two armed robberies, one robbery involving the use of dangerous implements and resulting in serious injuries, and participation in an organised armed criminal gang. Charges against the other accused also concerned attempted murder, theft, burglary and handling stolen goods. The public prosecutor requested the court to examine nine experts and 78 witnesses and to read out the testimonies of a further 49 witnesses. The case file at that date comprised 22 volumes and the bill of indictment with the statement of reasons ran to more than 70 pages. 14. In the period from 14 November 2000 to 3 October 2002 the first-instance court held 30 hearings. In addition five separate sittings were held at which the court decided to prolong the applicant’s detention, and on two occasions witnesses were examined away from the court’s premises. Two hearings had to be cancelled, on grounds not attributable to the court. 15. From 10 November 2001 to 16 April 2004 the applicant served a prison sentence imposed on him in separate proceedings. 16. On 14 and 15 November and 20 December 2000 the court held hearings. It decided to examine the case against one of the co-accused separately as his serious illness could have led to delays in the proceedings, and heard evidence from an expert and nine defendants, including the applicant. 17. The hearing scheduled for 23 January 2001 was adjourned as one of the accused revoked his lawyer’s power of attorney. As a result the hearing scheduled for the next day had to be cancelled as well. 18. The hearing scheduled for 14 March and 18 April 2001 was cancelled because the defendants had not appeared in court. The court contacted the relevant police headquarters and instructed them to supervise and secure the appearance of the detainees. 19. Between 26 April and 7 November 2001 eight hearings were held and the court examined the defendants and a total of 47 witnesses. At a hearing of 30 August 2001 the court requested the Gdańsk Court of Appeal to extend the applicant’s detention until 28 February 2002. The trial court repeated the grounds given in earlier decisions on his detention. In addition it pointed to the increased risk of collusion since one of the other defendants had significantly changed his version of events at a previous hearing. The Court of Appeal granted the request on 5 September 2001, fully endorsing the reasons given by the first-instance court. It also noted that the proceedings were being conducted swiftly and that it had not been possible to terminate them for reasons not attributable to the trial court. 20. Between 19 December 2001 and 13 June 2002 the court held 11 hearings during which the co-accused, eight experts and 39 witnesses were examined and seven other witnesses refused to make any statements. 21. The hearing scheduled for 27 June 2002 had to be adjourned owing to the absence of one of the co-defendants and the lawyers of two others. The court decided to address the relevant bodies of the Bar Association and ordered the detention of the absent defendants. 22. Between 10 July and 25 October 2002 seven hearings were held and the parties, an expert and ten witnesses gave evidence. The court read out testimonies of eight other witnesses, taken in the preparatory proceedings. 23. On 31 October 2002 the Gdańsk Regional Court sentenced the applicant to seven years’ imprisonment and a fine of 3,000 Polish zlotys (PLN). The length of his detention on remand was not deducted from the sentence because during the whole proceedings at issue the applicant had been serving a prison sentence imposed on him in separate proceedings. The judgment, with its reasoning, ran to more than 80 pages. 24. The applicant and other co-defendants appealed. 25. The appellate hearing scheduled for 30 October 2003 was adjourned because the court decided (at the request of the lawyer of one of the co-accused) to obtain an expert opinion on the co-accused’s mental state and to hear evidence from an expert. 26. On 1 December 2003 the Gdańsk Court of Appeal quashed the judgment in respect of eight of the accused, including the applicant, and remitted the case to the first-instance court, having found infringements of procedural law which might have influenced the outcome of the case. 27. In the period from 22 June 2004 to 28 March 2006 the Gdańsk Regional Court held 23 hearings; another seven were cancelled for various reasons. In addition, nine separate sittings were held at which the court decided on the applicant’s detention. 28. At this stage of the proceedings all the defendants, including the applicant, became very active. In particular, the applicant challenged all subsequent decisions concerning his detention, requested copies or records after almost all the hearings, on three occasions requested the court to transfer the case file to the detention centre in order to acquaint himself with its contents, made numerous applications for evidence to be adduced, for example requesting several expert opinions or the examination of witnesses, and lodged a considerable number of other applications. 29. The hearings scheduled for 4 and 25 May, 2, 8 and 22 June 2004 were cancelled or adjourned because of the illness of a judge or the absence of defendants. The court appointed a new lawyer to replace one who had fallen ill. 30. Between 7 September and 10 December 2004 the Regional Court held five hearings and examined 19 witnesses. Several other witnesses refused to testify or were absent. 31. From 9 December to 26 December 2004 the applicant served a prison sentence imposed in separate proceedings against him. 32. A hearing scheduled for 4 January 2005 had to be adjourned owing to the absence of a co-defendant’s lawyer. The court decided to contact the relevant bodies of the Bar Association on this matter. 33. Between 18 January and 30 June 2005 six hearings were held and an expert and 40 witnesses gave evidence; a further ten were absent. The court imposed a fine on one witness who failed to appear at a hearing. Two hearings were cancelled owing to the illness of a judge or the absence of a witness. 34. On 10 August 2005 the Gdańsk Court of Appeal dismissed the applicant’s complaint under the 2004 Act on the breach of the right to a trial within a reasonable time, considering that on the date of entry into force of the 2004 Act the proceedings had not exceeded the reasonable-time requirement. The court thoroughly analysed the proceedings before and after that date. It noted that the actual length of the proceedings, even if the applicant had not contributed to it, could not be taken as the only criterion for holding that the time taken was excessive. In the court’s opinion, the length of the proceedings could be found to be unreasonable if undue delays caused by inactivity or improper actions on the part of the court had occurred. The court did not establish any such circumstances in the case at issue and pointed to its extreme complexity, with the large number of plots and individuals involved, as the main cause of the length of the proceedings. The court noted that the trial court had conducted the proceedings in a proper way and had taken appropriate measures to discipline witnesses and other persons in the event of their absence. 35. Between 4 October 2005 and 28 March 2006 the Regional Court held four hearings and five others had to be adjourned owing to the illness of a judge, the absence of a lawyer or a lack of police officers to guard the defendants on their way from the detention centre to the court. The testimonies of three witnesses were heard and those of absent witnesses were read out. 36. The proceedings are currently pending before the Regional Court. 37. The relevant domestic law concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other so-called “preventive measures” (środki zapobiegawcze) is set out 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). 38. The relevant domestic provisions and practice concerning the State’s liability for a tort committed by its official, in connection with a right to a trial within a reasonable time, have already been cited in previous cases against Poland (see, for example, Rybczyńscy v. Poland, no. 3501/02, 3 October 2006, and Białas v. Poland, no. 69129/01, 10 October 2006).