CASE OF TOMCZYK v. POLAND

FOURTH SECTION

CASE OF TOMCZYK v. POLAND

(Application no. 7708/12)

JUDGMENT

STRASBOURG

13 January 2015

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

In the case of Tomczyk v. Poland,

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

Päivi Hirvelä, President,
Zdravka Kalaydjieva,
Krzysztof Wojtyczek, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 2 December 2014,

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

PROCEDURE

1. The case originated in an application (no. 7708/12) 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 Polish national, Mr Przemysław Tomczyk (“the applicant”), on 27 January 2012.

2. The applicant was represented by Mr P. Kozanecki, a lawyer practising in Łódź. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs.

3. On 6 May 2013 the application was communicated to the Government.

4. 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

5. The applicant was born in 1979 and is currently detained in Łódź Remand Centre.

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

6. On 25 September 2006 the Łódź District Court (Sąd Rejonowy) ordered the applicant’s detention on remand for a period of three months. He was charged with a number of offences committed with an armed organised criminal group.

7. In its decision, the District Court relied on a reasonable suspicion that the applicant had committed the offences in question. The court further emphasised the gravity of the offences in question, the applicant’s active role in the criminal group and the likelihood of a heavy prison sentence being imposed on him after conviction. In the domestic court’s view the fact that the applicant was at the time detained pending other criminal proceedings against him did not guarantee the proper course of the proceedings since the applicant could had been released at any time from the pre-trial detention without the relevant authorities, responsible for the impugned proceedings, being notified. Moreover, the necessity to obtain further evidence justified remanding the applicant in custody.

8. The applicant’s appeal against the decision of 24 September 2006 was dismissed by the Łódź Regional Court (Sąd Okręgowy) on 25 October 2006. The court emphasised that the applicant’s detention on remand was necessary even though at the relevant time he was in any event detained pending another set of criminal proceedings against him.

9. On 19 December 2006 and 26 June 2007 the Łódź Regional Court extended the applicant’s pre-trial detention. Subsequently, the Łódź Court of Appeal (Sąd Apelacyjny) extended the applicant’s detention on 19 September 2007, 19 December 2007, 28 March 2008, 18 June 2008, 22 October 2008 and on 23 December 2008.

10. On 18 March 2009 the State Prosecutor (Prokurator Krajowy) lodged a bill of indictment against the applicant with the Łódź Regional Court. The applicant was charged with several counts of extortion and robbery committed in an organised and armed criminal group and with participation in an organised and armed criminal group. The bill of indictment comprised 94 charges brought against 28 defendants. The prosecution authorities requested that 318 witnesses be heard before the court.

11. On 30 March 2009 the Łódź Court of Appeal extended the applicant’s detention on remand until 31 December 2009. Subsequently, the same court ordered prolongation of his detention on 21 December 2009 (detention extended until 30 September 2010), on 22 September 2010 (detention extended until 31 March 2011) and on 23 March 2011 (detention extended until 30 September 2011). The applicant lodged a number of motions to be released as well as appeals against the decisions extending his pre-trial detention, all in vain.

In their decisions the courts repeated the grounds previously given for the applicant’s detention.

12. On 3 April 2009 the applicant’s lawyer lodged an appeal against one of the decisions extending the applicant’s detention. The lawyer argued that the reasons for continued pre-trial detention ceased to exist since the applicant had started serving a seven years’ prison sentence imposed by the Łódź District Court in the case no. IV K 239/06.

13. Meanwhile, the court scheduled fifteen hearings for November and December 2009. Due to sick-leaves of the presiding judge and of some of the accused those hearings did not take place.

14. The trial was eventually opened on 18 January 2010. Subsequent scheduled hearings were adjourned due to absences of some of the co-accused and due to problems with sound system in the court room.

15. In May 2010 the Regional Court gave a severance order and decided to determine charges against two co-accused separately.

16. The bill of indictment was finally read out to the defendants at the hearing held on 27 May 2010.

17. At the hearing of 28 May 2010 the Regional Court started taking evidence from the accused. It subsequently held fourteen hearings until the end of 2010, during which some of the accused gave evidence. Five of the scheduled hearings were adjourned due to sick-leaves of the accused. One hearing was adjourned because of the motion for disqualification of the presiding judge lodged by one of the co-accused.

18. In 2011 the Regional Court continued taking evidence from the defendants. Of the twenty nine hearings scheduled for this year, eleven took place. The trial court adjourned fifteen hearings due to justified absences of the parties, three hearings were cancelled due to sick-leaves of the presiding judge and the lay judges.

19. Meanwhile, on 13 September 2011 the Łódź Regional Court lodged a motion with the Łódź Court of Appeal to extend the applicant’s pre-trial detention. On 28 September 2011 the Łódź Court of Appeal dismissed the lower court’s motion.

Consequently, the applicant’s pre-trial detention was lifted on 30 September 2011.

20. The Regional Court scheduled twenty hearings for 2012, of which six hearings were eventually held. At the hearing of 16 April 2012 the trial court started taking evidence from wit

nesses.

Of the fourteen hearings cancelled this year, two were adjourned because of a sick-leave of the presiding judge, three because of absences of witnesses, and the remaining nine hearings – because of absences of the parties.

21. Until 30 July 2013 the Regional Court scheduled nine hearings for 2013, of which seven were adjourned due to justified absences of the defendants.

22. The criminal proceedings against the applicant are still pending before the first-instance court.

B. Proceedings under the 2004 Act

23. On 27 April 2011 the applicant lodged a complaint with the Łódź Court of Appeal under the Law 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 przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2004 Act”). He sought a finding that the length of the criminal proceedings against him had been excessive and 20,000 Polish zlotys (PLN) in compensation.

24. On 27 July 2011 the Łódź Court of Appeal dismissed the applicant’s complaint. The court found that, considering the complexity of the case and the number of co-accused who had actively tried to obstruct the proceedings, the Łódź Regional Court had conducted the proceedings in a correct and timely manner. Consequently, the appellate court refused to award the applicant compensation.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Length of pre-trial detention

25. The relevant domestic law and practice concerning the imposition of pre‑trial detention (tymczasowe aresztowanie), the grounds for its extension, release from detention and rules governing other, so-called “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 May 2006.

B. Length of proceedings

26. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings and investigation, in particular the applicable provisions of the 2004 Act, are set out in the Court’s decisions in the cases of Charzyński v. Poland (dec.), no. 15212/03, §§ 12-23, ECHR 2005‑V and Ratajczyk v. Poland (dec.), no. 11215/02, ECHR 2005‑VIII, and its judgments in the cases of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V and Krzysztofiak v. Poland, no. 38018/07, §§ 23‑30, 20 April 2010.

THE LAW

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

27. 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.”

28. The Government submitted that during the whole period of the applicant’s detention he was serving prison sentences imposed on him in other sets of proceedings. They relied on a document according to which in the period from 24 March 2006 until 31 May 2013 the applicant had served prison sentences imposed in two sets of criminal proceedings (case nos. IV K 239/06 and III K 39/09 before the Lódź District Court). They submitted that on 14 November 2012 the District Court gave a cumulative judgment and sentenced the applicant to 8 years’ imprisonment for those two convictions.

29. The applicant did not comment on the Government.

30. The Court notes that the applicant’s detention on remand started on 25 September 2006 and ended on 30 September 2011, when the preventive measure was lifted (see paragraphs 5 and 18 above).

From the document submitted by the Government it is not clear whether indeed the applicant had been serving a sentence of imprisonment from 26 March 2006. However, it has not been disputed by the parties that at least from April 2009 the applicant served a prison sentence imposed on him by the Łódź District Court (see paragraphs 11 and 27 above). Consequently, the applicant’s detention after that date falls under Article 5 § 1 (a) of the Convention.

31. Accordingly, the Court finds that the period to be taken into consideration for the purposes of Article 5 § 3 ended in April 2009. As the present application was lodged with the Court on 27 January 2012, this complaint has been introduced out of time (see Kawiecki v. Poland (dec.), no. 15593/07, §§ 108-109, 23 October 2012). It must therefore be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

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

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

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

33. The Government contested that argument.

34. The period to be taken into consideration began on 25 September 2006 and has not yet ended. It has thus lasted so far eight years for one level of jurisdiction.

A. Admissibility

35. The Government raised a preliminary objection that the applicant had not exhausted all the domestic remedies available to him under Polish law, as required by Article 35 § 1 of the Convention. They submitted that since the applicant’s complaint lodged under the 2004 Act had been dismissed on 27 July 2011, the applicant had a possibility to lodge another complaint about the length of the proceedings after a lapse of twelve months, according to section 14 of that Act. In a new complaint the applicant could have raised his arguments concerning the conduct of the proceedings after 27 July 2011 and could have sought compensation in this regard.

36. The Court has already established that the remedies provided by the 2004 Act were effective in respect of excessive length of criminal proceedings (see Charzyński v. Poland, cited above). In the instant case the applicant’s complaint under the 2004 Act was dismissed by the domestic court when the proceedings in his case had already been pending for four years and some ten months. He subsequently introduced his application with the Court on 27 January 2012, that is without any substantial delay. Moreover, in similar cases against Poland the Court has considered that it was not necessary for the applicants, in order to comply with the requirements of Article 35 § 1 of the Convention, to lodge new complaints under the 2004 Act every 12 months (see Wolf v. Poland, nos. 15667/03 and 2929/04, § 62, 16 January 2007 and Szydłowski v. Poland, no. 1326/04, § 64, 16 October 2007). The Court sees no reason to depart from the reasoning adopted in the above-mentioned cases. It follows that the Government’s plea of inadmissibility on the ground of non‑exhaustion of domestic remedies must be dismissed.

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

B. Merits

1. The parties submissions

(a) The Government

38. The Government submitted that the national authorities displayed due diligence in the conduct of the proceedings in issue. They argued that the length of the proceedings was not excessive in the light of the complexity of the case, which concerned the charges of organised crime brought against several defendants. The Government further submitted that the frequent adjournments of the hearings were not attributable to the State, as they resulted from absences of the parties. They stressed that the trial court had scheduled altogether 101 hearings for a period of some 3 years and 9 months of judicial proceedings.

(b) The applicant

39. The applicant submitted that the length of the proceedings against him was unreasonable.

2. The Court’s assessment

40. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

41. The Court can accept that some delays in the procedure can be explained by the fact that the domestic authorities had to deal with a very complex case which involved a number of defendants and voluminous evidence. Moreover, the proceedings concerned charges of organised crime which inevitably made the task of trying the accused considerably more difficult than in an ordinary criminal case (see Horych v. Poland, no. 13621/08, § 115, 17 April 2012). However, these facts in themselves cannot justify the overall length of the proceedings.

42. As regards the conduct of the applicant, the Court notes that he had not contributed to the delays in the proceedings.

43. With respect to the conduct of the authorities, the Court observes that during the judicial stage of the proceedings, between June 2009 and July 2013, the trial court held only some forty hearings, that is less than one hearing per month (see paragraphs 9-17 above). It is true that a considerable number of hearings were scheduled and that most of the adjournments were caused by reasons which could not in themselves be attributed to the trial court (see paragraphs 9-16 and 40 above). However, the duty to administer justice expeditiously was incumbent in the first place on the domestic authorities (see Kudła, cited above, § 130). Notwithstanding the significant difficulties which they faced in the present case, they were required to organise the trial efficiently and to ensure that the Convention guarantees were fully respected in the proceedings.

Lastly, the Court notes that the proceedings, which have already lasted eight years, are still pending before the first-instance court.

44. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

There has accordingly been a breach of Article 6 § 1.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

45. The applicant complained, without invoking any provisions of the Convention, that he had been detained in cells where window shutters had been installed and that constant darkness had caused deterioration of his sight. He also alleged that during his detention he had had limited contact with his family and that he had not been allowed to work and had to rely on his family’s financial support.

The Court observes that the applicant failed to raise any of the above complaints at the domestic level. They must therefore be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

46. Lastly, the applicant complained under Article 13 of the Convention that he had had no ‘effective remedy’ against the excessive length of the proceedings. Article 13 provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

47. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time. However, the “effectiveness” of a “remedy” within the meaning of that provision does not depend on the certainty of a favourable outcome for the applicant (see Kudła, cited above, § 154, §§ 156-157; Figiel v. Poland (no. 2), no. 38206/05, § 31, 16 September 2008).

48. The fact that in the present case the applicant’s claim for just satisfaction failed does not in itself render the remedy under the 2004 Act incompatible with Article 13. The expression “effective remedy” used in Article 13 cannot be interpreted as a remedy bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint (see Figiel (no. 2), cited above, § 33, with further references).

In the light of the foregoing, the Court considers that in the circumstances of the present case it cannot be said that the applicant’s right to an effective remedy under Article 13 of the Convention has not been respected.

49. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

50. 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.”

51. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint concerning the excessive length of the proceedings under Article 6 § 1 of the Convention admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention.

Done in English, and notified in writing on 13 January 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıPäivi Hirvelä
Deputy RegistrarPresident

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