I correctly predicted that there was a violation of human rights in RUSSJAN v. POLAND.

Information

  • Judgment date: 2022-10-27
  • Communication date: 2019-03-07
  • Application number(s): 79509/17
  • Country:   POL
  • Relevant ECHR article(s): 5, 5-3
  • Conclusion:
    Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)
  • Result: Violation
  • SEE FINAL JUDGMENT

JURI Prediction

  • Probability: 0.850203
  • Prediction: Violation
  • Consistent


Legend

 In line with the court's judgment
 In opposition to the court's judgment
Darker color: higher probability
: In line with the court's judgment  
: In opposition to the court's judgment

Communication text used for prediction

The applicant, Mr Tomasz Zbigniew Russjan, is a Polish national who was born in 1970 and is detained in Gdańsk Detention Centre.
He is represented before the Court by Mr K. Szocik, a lawyer practising in Gdańsk.
A.
The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows.
In 2012 the prosecution service began an investigation into allegations of fraud by a company called The Treasury Polish Financial Corporation (Polska Korporacja Finansowa “Skarbiec”), which was on an unspecified date renamed “Cash Loan” (Pożyczka Gotówkowa).
The company was founded by the applicant in 2004 and offered loans on condition of payment of fees.
It operated until 2014.
In 2017 it was declared bankrupt.
On 26 January 2015 the applicant was arrested by the police.
On 27 January 2015 the Gdańsk-Południe District Court (Sąd Rejonowy) ordered that the applicant be detained on remand for three months in view of the reasonable suspicion that he had committed large-scale fraud (X Kp 84/15, VI Ds 65/12).
The court cited the likelihood that the applicant might try to interfere with the proper course of the proceedings because of the likelihood of a severe sentence being imposed on him.
Following an appeal by the applicant, on 16 February 2015 the Gdańsk Regional Court (Sąd Okręgowy) upheld that decision.
The applicant’s detention on remand was extended on 23 April 2015 by the Gdańsk Regional Court, which, aside from the same reasons as given in the decision of 27 January 2015, pointed out that the applicant’s accomplice had taken steps to leave the country.
It was therefore possible that the applicant also planned to abscond.
Moreover, aid in gathering evidence was requested from the authorities in other countries, and an analysis of the bank accounts was being prepared.
Following an appeal by the applicant, on 13 May 2015 the Gdańsk Court of Appeal (Sąd Apelacyjny) eliminated one of the legal bases of the detention (concerning the fear of his absconding) and upheld the remainder of the challenged decision.
The Gdańsk Regional Court extended the applicant’s detention on 21 July 2015.
On 9 September 2015 the Gdańsk Court of Appeal changed the end date of the detention, eliminating from the legal basis the fear of absconding and upheld the remainder of the decision.
On 20 October 2015 the Gdańsk Regional Court extended the detention, but decided that the applicant could be released on bail in the amount of 500,000 Polish zlotys (PLN – approximately 125,000 euros (EUR)).
Following an appeal by the prosecutor against the decision to release the applicant on bail, the decision was stayed.
On 27 October 2015, the Gdańsk Court of Appeal quashed the decision allowing the applicant’s release on bail.
The court pointed out that, if released, the applicant could try to interfere with the proper course of the proceedings, in particular to go into hiding or to abscond, because of the likelihood of a severe sentence being imposed on him.
Subsequently, the Gdańsk Court of Appeal extended the applicant’s detention on 7 January, 12 April, 6 July and 11 October 2016 and 4 January, 5 April, 5 July, 28 September and 28 December 2017.
Following appeals by the applicant, these decisions were upheld by the Gdańsk Court of Appeal.
In the decision of 4 January 2017 the Gdańsk Court of Appeal, when describing the complexity of the case, pointed out that the main case file comprised 482 volumes and that the complete documentation amounted to more than 2,950 volumes.
On 3 April 2018 the Gdańsk Court of Appeal extended the applicant’s detention on remand, and decided that the applicant could be released on bail in the amount of PLN 5,000,000 (approximately EUR 1,250,000).
The prosecutor and the applicant appealed.
On 25 April 2018 the Gdańsk Court of Appeal amended the bail order so that the applicant was to pay PLN 3,000,000 (approximately EUR 750,000) and secure a further PLN 5,000,000 (approximately EUR 1,250,000) by re‐mortgaging property belonging to him and other members of his family.
The court stated that the amount of bail should have corresponded to the damage that had allegedly been caused by the applicant and not only to the financial means available to him.
On 27 June 2018 the Gdańsk Court of Appeal extended the applicant’s detention on remand, and decided that he could be released on bail in the amount of PLN 5,000,000 (approximately EUR 1,250,000).
The applicant appealed.
On 25 July 2018 the Gdańsk Court of Appeal upheld that decision.
On an unspecified date in September 2018 a bill of indictment was lodged with the Gdańsk Regional Court.
On 28 September 2018 the Gdańsk Court of Appeal extended the applicant’s detention on remand until 31 December 2018 and decided that he could be released on bail in the amount of PLN 4,000,000 (approximately EUR 1,000,000).
B.
Relevant domestic law and practice The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are 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) and, more recently, Kauczor v. Poland (no.
45219/06, §§ 26-27, 3 February 2009).
COMPLAINT The applicant complains under several Articles of the Convention of the unreasonable length of his detention on remand.
He submits that the amount of bail set by the courts was excessive and could not be paid by him.

Judgment

FIRST SECTION
CASE OF RUSSJAN v. POLAND
(Application no.
79509/17)

JUDGMENT

STRASBOURG
27 October 2022

This judgment is final but it may be subject to editorial revision.
In the case of Russjan v. Poland,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Erik Wennerström, President,
Krzysztof Wojtyczek,
Lorraine Schembri Orland, judges,and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 6 October 2022,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.
The case originated in an application against Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 9 November 2017. 2. The applicant was represented by Mr K. Szocik, a lawyer practising in Gdańsk. 3. The Polish Government (“the Government”) were given notice of the application. THE FACTS
4.
The applicant’s details and information relevant to the application are set out in the appended table. 5. The applicant complained of the excessive length of his pre-trial detention. THE LAW
6.
The applicant complained that his pre-trial detention had been unreasonably long. He relied on Article 5 § 3 of the Convention, which reads as follows:
Article 5 § 3
“3.
Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
7.
The Court observes that the general principles regarding the right to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000‐XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006‐X, with further references). 8. In the leading cases of Kauczor v. Poland, no. 45219/06, 3 February 2009, and Celejewski v. Poland, no. 17584/04, 4 May 2006, the Court already found a violation in respect of issues similar to those in the present case. 9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the applicant’s pre-trial detention was excessive. 10. These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention. 11. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
12.
Regard being had to the documents in its possession and to its case‐law (see, in particular, Kauczor, cited above), the Court considers it reasonable to award the sums indicated in the appended table. 13. The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 27 October 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Viktoriya Maradudina Erik Wennerström
Acting Deputy Registrar President

APPENDIX
Application raising complaints under Article 5 § 3 of the Convention
(excessive length of pre-trial detention)
Application no.
Date of introduction
Applicant’s name
Year of birth

Representative’s name and location
Period of detention
Court which issued detention order / examined appeal
Length of detention
Specific defects
Amount awarded for pecuniary and non‐pecuniary damage per applicant
(in euros)[1]
Amount awarded for costs and expenses per application
(in euros)[2]
79509/17
09/11/2017
Tomasz Zbigniew RUSSJAN
1970
Szocik Krzysztof
Gdańsk
26/01/2015
to
17/01/2020
the Gdańsk-Południe
District Court;
27/01/2015,
case no.
X kp 84/15
(first detention on remand);
the Gdańsk Court of Appeal, 19/12/2019,
case no.
II AKp 263/19, (extending the detention and setting the amount of bail)
4 year(s) and 11 month(s) and 23 day(s)

use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice;
failure to examine the possibility, as the case progressed, of applying other measures to secure attendance at the trial;
fragility and repetitiveness of the reasoning employed by the courts, as the case progressed;
failure to conduct the proceedings with due diligence during the period of detention
4,500
250

[1] Plus any tax that may be chargeable to the applicant.
[2] Plus any tax that may be chargeable to the applicant. FIRST SECTION
CASE OF RUSSJAN v. POLAND
(Application no.
79509/17)

JUDGMENT

STRASBOURG
27 October 2022

This judgment is final but it may be subject to editorial revision.
In the case of Russjan v. Poland,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Erik Wennerström, President,
Krzysztof Wojtyczek,
Lorraine Schembri Orland, judges,and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 6 October 2022,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.
The case originated in an application against Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 9 November 2017. 2. The applicant was represented by Mr K. Szocik, a lawyer practising in Gdańsk. 3. The Polish Government (“the Government”) were given notice of the application. THE FACTS
4.
The applicant’s details and information relevant to the application are set out in the appended table. 5. The applicant complained of the excessive length of his pre-trial detention. THE LAW
6.
The applicant complained that his pre-trial detention had been unreasonably long. He relied on Article 5 § 3 of the Convention, which reads as follows:
Article 5 § 3
“3.
Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
7.
The Court observes that the general principles regarding the right to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000‐XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006‐X, with further references). 8. In the leading cases of Kauczor v. Poland, no. 45219/06, 3 February 2009, and Celejewski v. Poland, no. 17584/04, 4 May 2006, the Court already found a violation in respect of issues similar to those in the present case. 9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the applicant’s pre-trial detention was excessive. 10. These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention. 11. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
12.
Regard being had to the documents in its possession and to its case‐law (see, in particular, Kauczor, cited above), the Court considers it reasonable to award the sums indicated in the appended table. 13. The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 27 October 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Viktoriya Maradudina Erik Wennerström
Acting Deputy Registrar President

APPENDIX
Application raising complaints under Article 5 § 3 of the Convention
(excessive length of pre-trial detention)
Application no.
Date of introduction
Applicant’s name
Year of birth

Representative’s name and location
Period of detention
Court which issued detention order / examined appeal
Length of detention
Specific defects
Amount awarded for pecuniary and non‐pecuniary damage per applicant
(in euros)[1]
Amount awarded for costs and expenses per application
(in euros)[2]
79509/17
09/11/2017
Tomasz Zbigniew RUSSJAN
1970
Szocik Krzysztof
Gdańsk
26/01/2015
to
17/01/2020
the Gdańsk-Południe
District Court;
27/01/2015,
case no.
X kp 84/15
(first detention on remand);
the Gdańsk Court of Appeal, 19/12/2019,
case no.
II AKp 263/19, (extending the detention and setting the amount of bail)
4 year(s) and 11 month(s) and 23 day(s)

use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice;
failure to examine the possibility, as the case progressed, of applying other measures to secure attendance at the trial;
fragility and repetitiveness of the reasoning employed by the courts, as the case progressed;
failure to conduct the proceedings with due diligence during the period of detention
4,500
250

[1] Plus any tax that may be chargeable to the applicant.
[2] Plus any tax that may be chargeable to the applicant.