Examination of an appeal against the extension of temporary detention one month later. Obligation to immediate examination of the request. Violation of Article 5 § 4 of the Convention
JUDGMENT
MARCINIAK v. POLAND 02.02.2023 (app. no. 52089/18)
SUMMARY
The applicant complained about the excessive length of the applicant’s detention on remand and the alleged failure of the domestic authorities to examine speedily appeals lodged by the applicant against decisions to extend her pre-trial detention.
The applicant was detained in the course of criminal proceedings which concerned, inter alia, tax evasion amounting to several tens of millions of Polish zlotys (PLN) and money-laundering. She was also charged with leading an organised criminal group.
She was arrested on 5 December 2016. On 7 December 2016 the Łódź-Śródmieście District Court (Sąd Rejonowy dla Łodzi-Śródmieścia) ordered that the applicant be detained on remand for three months in view of a reasonable suspicion that she had committed the offences in question. The court also relied on the likelihood that the applicant might try to obstruct the proper course of the proceedings because she was facing a severe penalty, she had refused to plead guilty and she had committed the offences together with other persons. Following an appeal by the applicant, on 13 January 2017 the Łódź Regional Court (Sąd Okręgowy) upheld that decision.
On 30 May and 29 August 2017 the Łódź Regional Court extended the applicant’s detention. Subsequently, the Łódź Court of Appeal extended the applicant’s detention several times and afterwards, acting as a court of second instance, dismissed her respective appeals.
The courts held there was a real risk that she might abscond and interfere with evidence. The courts additionally referred to the complexity of the case. On 24 June 2019 the Łódź Provincial Prosecutor’s Office released the applicant on bail. The amount of bail was set at PLN 800,000 (EUR 200,000).
The applicant complained under Article 5 § 3 of the Convention that the length of her detention had been unreasonable and under Article 5 § 4 of the Convention that the domestic courts had failed to examine “speedily” her appeals against the decisions to extend her detention.
As far as it concerns the alleged violation of article 5 § 4 of the Convention, the applicant’s appeal against the detention order of 10 July 2018 was examined after twenty-eight days. The Government have not provided arguments capable of justifying such a delay. So, the Court found a violation of Article 5 § 4 of the Convention and held that Poland was to pay the applicant EUR 1,600 in respect of non-pecuniary damage.
PROVISIONS
Article 5 § 3
Article 5 § 4
THE DECISION OF THE COURT…
The Government argued that the applicant’s complaint under Article 5 § 3 was manifestly ill‑founded since the reasons relied on by the domestic courts had justified the entire duration of the applicant’s detention. The case had been extremely complex and had concerned very serious criminal offences committed within an organised criminal group, and the applicant had tried to interfere with the proper conduct of the proceedings.
The applicant contested those arguments. The general principles concerning the right to “trial within a reasonable time” or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been summarised in Kudła v. Poland ([GC], no. 30210/96, § 110, ECHR 2000-XI) and Buzadji v. the Republic of Moldova ([GC], no. 23755/07, §§ 84-91, 5 July 2016).
The applicant’s detention started on 5 December 2016 and ended on 24 June 2019, when she was released. It follows that the period to be taken into account amounts to two years, six months and eighteen days.
The suspicion that the applicant had committed the criminal offences in question was supported by evidence relied on by the domestic courts and initially warranted her detention.
The risk of the applicant’s absconding and interfering with the proper conduct of the investigation was substantiated by the fact that she had helped other persons involved in the case to leave Poland. She had also instructed witnesses in respect of their testimony and had tried to contact co-defendants while she was in detention (see paragraph 6 above). It follows that the extension of the applicant’s detention was warranted by “relevant” and “sufficient” reasons.
In view of the scale of the alleged criminal offences, the complexity of tax evasion and money-laundering cases in general, the international assistance required in the case and the scale of the alleged organised criminal group, the case was inevitably time-consuming. Nothing in the case file suggests that there were undue delays attributable to the authorities. Consequently, the Court concludes that the investigation was conducted with due diligence.
This complaint was manifestly ill-founded and should be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
With reference to the complaint under Article 5 § 4 of the Convention, the Government emphasised that only the period after the lodging of the applicant’s appeals should be taken into consideration for the purposes of this Article. They further argued that the domestic courts had acted with the requisite diligence and that this complaint was manifestly ill-founded.
The applicant maintained her complaint. The Court noted that the applicant calculated the delays in the examination of her appeals starting from the dates of the respective decisions of the Łódź Court of Appeal. However, it was more appropriate to calculate the time that elapsed from the moment when the defence lodged the appeal, because the preceding period cannot be attributed to the State (see Khodorkovskiy v. Russia, no. 5829/04, § 247, 31 May 2011).
The periods in question amount to (in ascending order) nine, fourteen, fifteen, sixteen and twenty-eight days (see paragraph 5 above). The Court reiterated that where the original detention order was imposed by a court in a procedure offering appropriate guarantees of due process, and where the domestic law provides for a system of appeal, the Court was prepared to tolerate longer periods of review in the proceedings before the second-instance court (see Shcherbina v. Russia, no. 41970/11, § 65, 26 June 2014). Since in the present case the detention orders were given by a judicial authority, the Court concluded that delays of up to sixteen days do not amount to a breach of the “speediness” requirement of Article 5 § 4. It followed that the length of the examination of the applicant’s appeals against the Łódź Court of Appeal’s decisions of 10 May, 4 October and 28 December 2018 and 3 April 2019 did not amount to a breach of the “speediness” requirement of Article 5 § 4 but was manifestly ill-founded and should be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention..
However, the applicant’s appeal against the detention order of 10 July 2018 was examined after twenty-eight days. The Government have not provided arguments capable of justifying such a delay. In the light of its well‑established case-law (see, among many other authorities, Baranowski v. Poland, no. 28358/95, §§ 68-77, ECHR 2000-III; Shcherbina, §§ 62-65; and Khodorkovskiy, §§ 243-48), and having examined all the material before it, the Court concluded that this complaint was admissible and disclosed a violation of Article 5 § 4 of the Convention.
Just satisfaction (article 41)
The Court held that Poland was to pay the applicant EUR 1,600 in respect of non-pecuniary damage.
