CASE OF KOWALENKO v. POLAND

FOURTH SECTION

CASE OF KOWALENKO v. POLAND

(Application no. 26144/05)

JUDGMENT

STRASBOURG 

26 October 2010

This judgment is final but it may be subject to editorial revision.

In the case of Kowalenko v. Poland,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

Ján Šikuta, President,
Lech Garlicki,
Vincent Anthony de Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 5 October 2010,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 26144/05) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Siergiej Kowalenko (“the applicant”), on 10 July 2005.

2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

3. The applicant alleged, in particular, that his detention on remand exceeded a “reasonable time” within the meaning of Article 5 § 3 of the Convention.

4. On 6 April 2009 the Court decided to give notice of the application to the Government. In accordance with Protocol 14, the application was assigned to a Committee of three Judges.

5. The Government objected to the examination of the application by a Committee. After having considered the Government's objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant, Mr Siergiej Kowalenko, is a Ukrainian national who was born in 1969 and is currently serving a prison sentence in Bydgoszcz Remand Centre.

A. The applicant's pre-trial detention and criminal proceedings against him

7. The applicant was a defendant in a criminal case, which is not a subject of the instant application. He was at liberty, however, as no pre-trial detention had been imposed on him in connection with that case.

8. On 15 October 2001 he was arrested by the police in connection with a new case, in which he was suspected of having committed numerous offences, among others, aiding and abetting in the concealment and trafficking of stolen cars, fraud and many counts of car hijacking.

9. On 17 October 2001 the Toruń District Court (Sąd Rejonowy) ordered preventive measures, namely police supervision and a security deposit of 50,000 Polish zlotys (PLN) and the applicant was released. On 26 March 2002 those preventive measures were lifted but the applicant remained at liberty.

10. On 15 July 2002 the prosecutor introduced additional charges against the applicant concerning membership of an organised criminal gang and additional offences of car hijacking and fraud.

11. On 22 July 2002 the applicant, who came voluntarily to the prosecutor's office in connection with the other criminal case, was once more arrested and the new charges were brought against him.

12. On 24 July 2002 the Toruń District Court decided to remand the applicant in custody. That decision was justified by the authorities by strong evidence against the applicant, the risk that he would obstruct the proceedings and the possibility of a severe penalty being imposed for the offences charged.

13. Subsequently, the measure was extended by numerous decisions, inter alia, the decisions of the Toruń District Court of 21 October 2002, 22 January, 12 February,18 April, 28 July and 28 October 2003, 29 January, 29 April and 20 July 2004. The first-instance court's decision of 22 January 2003 was upheld by the Toruń Regional Court on 12 February 2003.

14. The domestic courts relied on the original grounds for the applicant's pre‑trial detention. In addition, it was noted that the applicant was presumed to have played an important role in the commission of the offences charged, irrespective of the fact that he had not pleaded guilty. The authorities also argued that a likelihood that a severe sentence would be imposed on the applicant given the serious nature of the offences with which he had been charged, created a presumption that he would obstruct the proceedings by going into hiding if released. Lastly, it was reiterated that the applicant was likely to attempt to induce witnesses to give false evidence because one of the charges which he was facing at the trial in question was that he had allegedly instructed two co-defendants to lie about the circumstances surrounding the burglary into the house of a certain E.C.

15. Meanwhile, on 15 March 2003 the bill of indictment was lodged with the Toruń District Court.

16. It appears that the investigation file at this stage of the proceedings comprised forty volumes, the bill of indictment was 198-page long and that the thirty-three defendants faced the total number of 214 counts, out of which the applicant himself was charged with as many as twelve offences.

17. The first trial was scheduled for 3 July 2003. Before that, however, on 18 April 2003 the trial court gathered to decide on the extension of the applicant's pre-trial detention (see paragraph 13 above).

18. On 17 June 2004 the applicant started serving his prison sentence which had been imposed in the other criminal case.

19. On 30 September 2004 the preventive measure was lifted. However, on 20 May 2005 the prosecutor made a formal request to the trial court that the applicant be remanded in custody as soon as he had completed his prison sentence in connection with his first criminal case, on 15 June 2005.

20. As a result, on 6 June 2005 the Toruń District Court decided to remand the applicant in custody. The court reiterated the grounds indicated in the decision of 20 July 2004. The court also relied on the presumption that the applicant would obstruct the proceedings since a heavy penalty could be imposed for the offences charged. Moreover, the risk that the applicant would attempt to induce the witnesses to give false evidence was considered a valid ground for his detention even at that stage of the proceedings. The latter was justified by the applicant's obstructive behaviour and his attempts to delay the proceedings. The court also pointed to the complexity of the case and the fact that at that stage of the proceedings as many as twenty-two co-defendants were on trial. Lastly, it was observed that the proceedings were already at an advanced stage and they were likely to be concluded shortly.

21. The applicant and his lawyer lodged two interlocutory appeals against that decision. The Gdańsk Court of Appeal (Sąd Apelacyjny) entertained the appeal lodged by the applicant's lawyer on 16 June 2005 and decided not to entertain the appeal lodged by the applicant himself. On an unspecified date the interlocutory appeal lodged by the applicant's lawyer was dismissed as no grounds had been found to justify the lifting of the applicant's pre-trial detention.

22. Subsequently the applicant's pre-trial detention was extended by the decisions of the Gdańsk Court of Appeal of 13 July and 11 October 2005, and 17 January 2006. The Court of Appeal found that the original grounds for the preventive measure in question were still valid. Moreover, mindful of the fact that the applicant's pre-trial detention had exceeded the statutory limit of two years, the court noted that the further extension of the measure was nevertheless justified because the proceedings were about to be concluded.

23. The applicant and his lawyer lodged interlocutory appeals against all the decisions extending the preventive measure. They also lodged numerous applications for release. All those appeals were rejected by the domestic courts.

24. On 16 February 2006 the Toruń Regional Prosecutor discontinued the investigation into the applicant's allegations that a judge competent to decide on the lifting of his pre-trial detention had asked him for a bribe. The investigation was discontinued due to the lack of evidence justifying any suspicion that the offence had been committed.

25. On 3 March 2006 the Toruń District Court convicted the applicant of several offences and sentenced him to 6.5 years' imprisonment.

26. In the course of the proceedings before the first-instance court the applicant and his lawyer lodged numerous requests to challenge both the lay and professional judges. All those requests were rejected as no reasons had been found to consider the judges biased. The applicant submitted that his lawyer and he had lodged approximately 100 different procedural motions in the course of the proceedings before the first-instance court.

27. Similarly, on 28 December 2006 the President of the Toruń Regional Court informed the applicant that the two judges with the same family name who had been assigned to the bench in the first and second-instance court were, in fact, not related.

28. On 21 June 2007 the Toruń Regional Court upheld the first-instance judgment in the part concerning the applicant.

29. On 18 March 2008 the Toruń Regional Court appointed a legal-aid lawyer to lodge a cassation appeal on behalf of the applicant. On an unspecified date the lawyer informed the court and the applicant that she had not found any grounds for lodging a cassation appeal in the case.

30. On 10 June 2008 the same court refused to appoint another lawyer as requested by the applicant. The court noted that the previously appointed lawyer had made a thorough analysis of the case file and found no reasons to contest the lawyer's decision not to lodge a cassation appeal.

B. Proceedings under the 2004 Act

31. On 16 September 2006 the applicant complained about the length of the proceedings under the Act of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). In particular, he submitted that the proceedings had been lengthy because the trial court had not severed his case from the cases of dozens of other co-defendants and because there had been long delays between hearings.

32. On 17 November 2006 the Toruń Regional Court dismissed the complaint.

33. The court took note of the fact that three years had lapsed from the date of the lodging of the bill of indictment against the applicant until the date when the applicant had been convicted by the first-instance court.

34. The court also observed that the applicant's case was complex because of the nature of the charges brought against the defendants and the voluminous evidence.

The case had initially involved thirty-three co-defendants and at the time of the first‑instance judgment, twenty-two. A number of the defendants were foreigners. The investigation files comprised forty volumes and an additional fifty-eight volumes had been produced in the course of the trial. The prosecutor had requested that eighty-seven witnesses be heard and the testimonies of eighty-nine other witnesses be read out at the trial. Moreover, the trial court had to examine over 500 items of evidence and obtain medical reports on the applicant's mental health. It was stressed that the defendants, especially the applicant, had made extensive use of their procedural rights to challenge the judges, submit motions for new evidence or to ask for adjournment of the hearings. The trial court had to rule on all those issues and, in addition, at separate sessions, on preventive measures. The court's first sessions, which concerned the preventive measures of the applicant and two other defendants, were held shortly after the bill of indictment had been lodged, namely on 28 March and 18 April 2003. Moreover, in 2003 the trial court held twenty-two hearings, in 2004 – thirty‑two, in 2005 – fourteen and in 2006 - eight.

35. The court also addressed the applicant's complaint that too many defendants had been tried in one trial. To that effect the court noted that the cases of two defendants had been severed already in May 2003, of eight others, gradually, prior to August 2003 and of another defendant, at the later stage of the proceedings. The trial court had considered that the remaining twenty-two co-defendants had to be tried together because the charges against them were intertwined and the testimonies of witnesses summoned concerned several defendants at a time.

36. Moreover, the court observed that some delays had occurred because the applicant had been making use of his procedural rights in an abusive manner or because he had been taken ill.

The applicant had lodged multiple applications to challenge each judge of the bench. His oral submissions at some hearings had lasted several hours. He had applied for the adjournment of many hearings because of a medical indisposition. Several other hearings had to be interrupted because the applicant had asked for an ambulance to be called to the court. Finally, when the trial had come to an end on 24 February 2006 the applicant had asked for an adjournment in order to prepare his own closing speech. The trial court had complied with the request and had scheduled a new hearing for 3 March 2006. On that date, however, the applicant had left the court room, refusing to participate in the proceedings.

37. Lastly, the court pointed out that the first-instance judgment, convicting the applicant and all other defendants, comprised eighty pages and additional 373 pages of a reasoned opinion. That element proved, in the court's opinion, that the case in question had been very complex and justified further procedural extensions (for example, to serve the hard copy of the judgment on the parties).

38. It was also taken under consideration that, at the time when the court was giving its ruling under the 2004 Act, two appeals, which had been lodged by the applicant and his lawyer, were pending for three weeks before the court of appeal.

39. In the light of the above findings, the Toruń Regional Court concluded that the time taken by the trial court to complete the applicant's case was not excessive. On the contrary, the overall length of the proceedings was justified by the complexity of the charges, the voluminous material and the necessity to secure to all co-defendants the effective enjoyment of their procedural rights.

C. Monitoring of the applicant's correspondence

40. The applicant has corresponded extensively with the State authorities, non-governmental organisations and the Court. He submitted that his letters had been withheld and censored by the authorities.

Practically each envelope of the applicant's numerous letters sent during his incarceration had the stamp of the detention facility in which he was being held at the relevant time. The stamp in question also indicated the date of receipt of the letter and a registration number. For example: “Bydgoszcz Remand Centre ... received on... No. ...” (Areszt Śledczy w Bydgoszczy Wpł. ... Nr...), Toruń Remand Centre ... received on... No. ... Signature” (Areszt Śledczy w Toruniu Wpł. ... Nr...Podpis). The blank spaces were filled in by a printed or handwritten date and a handwritten number. In addition, an illegible signature was visible on several of the envelopes. It appears that the envelopes had not been opened before they were forwarded to the addressee.

41. The envelope containing the applicant's letter sent to the Registry of the Court on 5 April 2006 bears a stamp: “Censored ‑ agreeing on delivery ‑Toruń on ... [space for date and signature] President of Criminal Department” (Ocenzurowano zezwalam na doręczenie, dn ... Przewodniczący Wydz. Karnego). The stamp, however, is crossed out and the space for the date and signature are not filled in. It appears that the envelope had not been opened before it was received by the Court.

42. The applicant lodged several complaints with the prosecution and penitentiary authorities alleging that his correspondence had been withheld or monitored.

43. On 2 February 2006 the Toruń District Prosecutor decided not to open an investigation into the matter because the applicant had failed to substantiate his allegations. On 14 June 2006, however, the Toruń Regional Prosecutor quashed the above decision and ordered an additional inquiry.

44. On 28 November 2006 the Toruń District Prosecutor upheld the police decision of the same date to discontinue the inquiry into the applicant's allegations that his letters had been withheld or monitored by the administration of Bydgoszcz Remand Centre and the Toruń District Court. The inquiry did not confirm that the alleged facts had taken place. On 9 February 2007 the Toruń Regional Prosecutor quashed that decision and ordered a further inquiry. The applicant did not submit any information as to the subsequent developments in the case.

45. By letter of 6 March 2007 a penitentiary judge of the Toruń Regional Court informed the applicant that his letters had not been sent by Toruń Remand Centre via the court because the applicant had the status of a convicted person. Consequently, the applicant's correspondence could not have been withheld or monitored.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Preventive measures, including pre-trial detention

46. The relevant domestic law and practice concerning the imposition of pre‑trial detention (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.

B. Remedies for the excessive length of judicial proceedings

47. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court's decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V; Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII; and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.

C. Monitoring of the applicant's correspondence

48. The legal provisions concerning monitoring of detainees' correspondence applicable at the material time and questions of practice are set out in paragraphs 65-66 of the judgment delivered by the Court on 4 May 2006 in Michta v. Poland , no. 13425/02.

D. Relevant statistical data, measures taken by the State to reduce the length of pre-trial detention and relevant Council of Europe documents

49. The relevant statistical data, recent amendments to the Code of Criminal Procedure designed to streamline criminal proceedings and references to relevant Council of Europe materials can be found in the Court's judgment in the case of Kauczor (see Kauczor v. Poland, no. 45219/06, §§ 27-28 and 30-35, 3 February 2009).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

50. The applicant complained that the length of his detention on remand had been excessive. He relied on Article 5 § 3 of the Convention, which, in so far as relevant, reads as follows:

“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.”

51. The Government contested that argument.

A. Admissibility

52. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Period to be taken into consideration

53. The applicant's detention started on 22 July 2002, when he was arrested on suspicion of having committed numerous offences as a member of an organised criminal gang, namely many counts of car hijacking, fraud and aiding and betting in the concealment and trafficking of stolen cars.

On 3 March 2006 the Toruń District Court convicted the applicant of several offences charged and sentenced him to 6.5 years' imprisonment.

As from that date the applicant was detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a) and, consequently, that period of his detention falls outside the scope of Article 5 § 3 (cf. Kudła, cited above, § 104).

54. However, between 17 June 2004 and 15 June 2005 the applicant served a prison sentence which had been imposed on him in an unrelated criminal trial. This term, as being covered by Article 5 § 1 (a), must therefore be subtracted from the period of the applicant's pre-trial detention for the purposes of Article 5 § 3.

55. Accordingly, the period to be taken into consideration amounts to two years, seven months and fourteen days.

2. The parties' submissions

(a) The applicant

56. The applicant submitted that the length of his pre-trial detention had been excessive and that the measure had not been sufficiently justified by the authorities.

(b) The Government

57. The Government submitted that the applicant's detention, throughout its entire length, was based cumulatively on all the prerequisites of detention listed in the Code of Criminal Procedure as applicable at the material time. Throughout its entire period the measure in question had been justified by “relevant” and “sufficient” grounds, in particular the existence of a reasonable suspicion that he had committed the offences he had been charged with. Moreover, the Government considered that the applicant's protracted detention pending trial was justified by the gravity of the charges which the applicant was facing and the severity of the anticipated penalty, as well as the fact that the case involved numerous co‑accused and witnesses. As a consequence, there was a risk that the applicant, if released, would attempt to induce them to give false testimony.

The Government also argued that the domestic authorities had shown due diligence, as required in cases against detained persons, and that the length of the applicant's detention had been attributable to the exceptional complexity of the case.

3. The Court's assessment

(a) General principles

58. The Court recalls 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 were stated in a number of its previous judgements (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110 et seq, ECHR 2000‑XI; and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006-..., with further references).

(b) Application of the above principles in the present case

59. The relevant case against the applicant concerned serious offences, namely membership in an organised criminal gang, numerous counts of car high jacking, fraud and trafficking of stolen cars (see paragraphs 8 and 10 above). In the Court's view, the fact that the case concerned an alleged member of a criminal gang should be taken into account in assessing compliance with Article 5 § 3 (see Bąk v. Poland, no. 7870/04, § 57, 16 January 2007). Such cases by definition present more difficulties for the investigation authorities and, later, for the courts in determining the facts and the degree of responsibility of each of the alleged members of the group.

It is also obvious that in cases of this kind continuous control and limitation of the defendants' contact with each other and with other persons may be essential to avoid their absconding, tampering with evidence and, most importantly of all, influencing, or even threatening, witnesses.

Accordingly, longer periods of detention than in other cases may be considered reasonable.

60. In the present case the authorities in their detention decisions relied on (1) a reasonable suspicion against the applicant, (2) the serious nature of the offences with which he had been charged, (3) the severity of the penalty to which he was liable; and (4) the need to secure the proper conduct of the proceedings in the light of the risk that the applicant might tamper with evidence. As regards the latter, they noted that the applicant had been charged, among others, with the offence of inducing witnesses to give false testimony (see paragraph 14 above).

61. The Court accepts that the reasonable suspicion against the applicant of having committed serious offences could initially warrant his detention. Also, the need to obtain voluminous evidence to determine the degree of the alleged responsibility of each of the defendants, who had allegedly acted in a criminal group and against whom numerous charges of serious offences were laid, constituted valid grounds for the applicant's detention at the initial and the later stage.

62. On the other hand, the Court notes that although the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or re-offending, the gravity of the charges cannot by itself serve to justify long periods of pre-trial detention (see Michta v. Poland, no. 3425/02, §§ 49, 4 May 2006).

63. As regards the need to secure the proper conduct of the proceedings the Court notes that in cases such as the present one concerning organised criminal groups, the risk that a detainee, if released, might bring pressure to bear on witnesses or other co-accused or might otherwise obstruct the proceedings often is, by the nature of things, high. Moreover, in the instant case this element of general risk was converted into a particular and legitimate threat because of the fact that the applicant faced a charge of having made, in the course of the criminal investigation, attempts to instruct certain witnesses to lie about the facts of the case (see paragraph 14 above).

The Court accepts that the above-mentioned factor could indeed indicate that the risk of the applicant's influencing witnesses existed both at the beginning and towards the end of the proceedings.

64. Furthermore, the Court's attention has been drawn to the significant number of defendants standing the trial (initially, thirty-three and later, twenty-two), the number of charges which they were facing (214 in total, out of which the applicant was charged with twelve counts), the magnitude of the evidence to be analysed (forty volumes of investigation files and an additional fifty-eight volumes produced in the course of the trial) and the large number of witnesses to be heard at the trial (eighty-seven witnesses to be heard and the testimonies of eighty-nine other witnesses to be read out at the trial) (see paragraphs 16 and 32 above).

65. In these circumstances, the Court accepts that the need to obtain voluminous evidence from many sources, coupled with the existence of a general risk flowing from the organised nature of the applicant's alleged criminal activities and an individual risk flowing from the fact that the evidence obtained in the case indicated that the applicant might have instructed certain witnesses to give false testimony, constituted relevant and sufficient grounds for extending his detention during the time necessary to complete the investigation, to draw up the bill of indictment and to hear and to analyse evidence from the accused at trial (see Rażniak v. Poland, no. 6767/03, 7 October 2008; Pińkowski v. Poland, no. 16579/03, 23 February 2010).

66. The Court lastly observes that the proceedings were of considerable complexity, regard being had to the number of defendants, the extensive evidentiary proceedings and the implementation of special measures required in cases concerning organised crime. Nevertheless, the hearings in the applicant's case were held regularly and at very short intervals (see aragraph 32 above). The Court therefore concludes that the national authorities displayed special diligence in the conduct of the proceedings. The length of the investigation and of the trial was justified by the exceptional complexity of the case.

67. Having regard to the foregoing, the Court considers that there has been no violation of Article 5 § 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF PROCEEDINGS

68. The applicant further complained that the length of the proceedings was incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

A. Admissibility

69. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The applicant

70. The applicant reiterated that the proceedings had lasted too long.

2. The Government

71. The Government submitted that the impugned proceedings were not unreasonably lengthy. The public prosecutor and trial courts had showed special diligence in handling the applicant's case.

72. The Government emphasised that the case had been complex, mainly because of the volume of the evidence gathered by the prosecuting authorities during the investigation. There had initially been thirty-three and ultimately, twenty-two accused in the case. The authorities had assigned numerous experts to prepare various reports concerning, inter alia, the mental health of the applicant. Expert reports were also submitted by specialists in car mechanics.

73. Regarding the conduct of the authorities, the Government submitted that the authorities had conducted the applicant's case diligently.

The investigation had lasted seventeen months and had resulted in a bill of indictment which listed 214 charges. The court hearings had been held regularly and frequently. The judicial proceedings had been terminated after seventy- six hearings.

Procedural obstacles had occurred irrespectively of the conduct of the authorities and could not, therefore, be held against the courts. Witnesses had repeatedly failed to attend the hearings or had been unable to testify, which had made it necessary for the court to adjourn several hearings. Many other hearings had had to be adjourned because certain defence counsel had failed to comply with the summonses.

The trial court had made efforts to expedite the proceedings, for instance, by imposing disciplinary measures on several of the defence lawyers who failed to appear at court's hearings.

74. As to the applicant's conduct, the Government claimed that the applicant had intentionally employed tactics to delay the proceedings.

Many hearings had been adjourned or interrupted at his request, usually because of an alleged medical indisposition. The applicant had made multiple requests that new evidence be admitted by the court. He had also filed hundreds of procedural motions, challenging all judges of the bench, asking that a new counsel be appointed to represent him or that the case be referred to another court. The applicant had also appealed against each and every single court's decision, even if he had been instructed that no such appeal was available under the applicable law.

3. The Court

75. The Court observes that the impugned criminal proceedings lasted five years and eight months, from 15 October 2001 until 21 June 2007 and included a seventeen-month long investigation, three years' trial before the first-instance court and fifteen months' appellate proceedings (see paragraphs 8, 15, 25 and 28 above).

76. The Court recalls that the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court's case-law, in particular the complexity of the case and the conduct of the applicant and of the authorities dealing with the case (see, among other authorities, Sałapa v. Poland, no. 35489/97, § 83, 19 December 2002 and Szeloch v. Poland, no. 33079/96, § 101, 22 February 2001).

77. The Court is of the opinion that the case can be considered complex. There were thirty-three and, later, twenty-two accused, some of whom were foreigners (see paragraph 34 above). They were facing serious charges concerning, inter alia, membership of an organised criminal gang, car hijacking and trafficking of stolen cars (see paragraphs 8 and 10 above). During the investigation the prosecuting authorities gathered 500 items of evidence to be presented to the court and asked that eighty-seven witnesses be heard and the testimonies of eighty-nine other witnesses be read out at the trial. The investigation files comprised forty volumes and an additional fifty-eight volumes were produced in the course of the trial (see paragraph 34 above).

78. As to the conduct of the authorities, the Court observes that the bill of indictment was submitted to the Toruń District Court on 15 March 2003 and that the first hearing on the merits of the case was held four months later, on 3 July 2003. It must be noted, however, that there were considerable procedural activities throughout that period because the court was deciding on the preventive measures of three defendants including the applicant (see paragraph 17 above). Altogether, the trial court ruled on the applicant's pre-trial detention at least thirteen times (see paragraphs 9, 12, 13,19 and 20 above) and held seventy-six main hearings (see paragraph 34 above).

79. The Court further observes that a number of hearings in the case were adjourned because either the accused or the lawyers failed to comply with the summonses (see paragraphs 36 and 74 above). By contrast, it appears that no hearings were adjourned for reasons, which could be attributed to the court's failure to organise the proceedings efficiently. It is clear that the authorities made efforts to expedite the proceedings. On the whole, the hearings in the case were scheduled at regular intervals, and when they were adjourned it was mostly for reasons which cannot be attributed to the domestic court.

80. As to the applicant's conduct, the Court observes that the applicant made an extensive use of his procedural rights by, inter alia, challenging all decisions ordering the extension of his pre-trial detention or lodging repeated requests for release (see paragraph 23 above). Therefore, the case‑file had to be forwarded several times from the Toruń Regional Court to the Gdańsk Court of Appeal in order for the latter to rule on the applicant's appeals. This necessarily prolonged the proceedings. Finally, the applicant submitted at least one hundred procedural motions and requests, many of which were clearly ill-founded or formally inadmissible under the law (see paragraphs 26 and 75 above). To that effect the Court notes that the applicant lodged motions to challenge the impartiality of each and every professional and lay judge of the bench, including two judges, who, simply, shared the same family name, to, eventually, ask to have his case referred to another court altogether (see paragraphs 26, 27 and 75 above). Lastly, the applicant asked several times to have a new lawyer appointed to represent him (see paragraph 75 above) and filed his own interlocutory appeal against the extension of his pre-trial detention even though his lawyer had already done so on his client's behalf (see paragraph 21 above).

The applicant's conduct contributed inevitably to the prolongation of the proceedings. It also leaves the Court with an impression that the applicant had acted with intention to delay the proceedings.

81. Having regard to the foregoing, the Court considers that has been no violation of Article 6 § 1 of the Convention.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

82. In addition, the applicant submitted the following complaints: (1) complaint under Article 5 § 4 that his interlocutory appeal lodged against the decision of the Toruń Regional Court of 6 June 2005 to detain him in custody had not been examined; (2) complaint under Article 6 § 1 about the alleged unfairness of the trial court and (3) complaint under Article 8 that his correspondence had been monitored and withheld.

83. Regarding the complaint under Article 5 § 4 of the Convention, it must be noted that the decision to remand the applicant in custody was challenged first by the applicant's lawyer and then, by the applicant himself in a separate appeal. The Gdańsk Court of Appeal examined the lawyer's appeal on the merits and therefore, decided not to entertain the appeal lodged by the applicant (see paragraph 21 above).

84. As regards the complaint under Article 6 § 1 of the Convention, assessing the circumstances of the case as a whole, the Court finds no indication that the impugned proceedings were conducted unfairly.

85. Lastly, regarding the complaint under Article 8 of the Convention, the Court notes that the fact that the applicant's envelopes bear stamps of different remand centres is indicative only of the fact that the letters in question had been registered by the relevant authorities before being sent out to their addressees (see paragraphs 40, 41 and 45 above). None of the letters appears to have been opened by the authorities. Moreover, the applicant failed to substantiate his allegation that the letters had been sent out with a delay.

86. Having examined all the material in its possession, the Court concludes that there is nothing in the case file which might disclose any appearance of a violation of the rights guaranteed by the above-mentioned provisions of the Convention.

87. It follows that this part of the application is inadmissible and must be rejected pursuant to Article 35 §§ 1, 3 and 4 of the Convention.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaints under Articles 5 § 3 and 6 § 1 of the Convention, concerning the length of the applicant's pre-trial detention and criminal proceedings respectively, admissible and the remainder of the application inadmissible;

2. Holds that there has been no violation of Articles 5 § 3 and 6 § 1 of the Convention.

Done in English, and notified in writing on 26 October 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıJán ŠikutaDeputy Registrar              President

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