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FOURTH
SECTION
CASE OF SKURAT v. POLAND
(Application
no. 26451/07)
JUDGMENT
STRASBOURG
14 June
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Skurat v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a
Committee composed of:
Ljiljana Mijović,
President,
Lech Garlicki,
Nebojša Vučinić,
judges,
and Fatoş Aracı,
Deputy Section Registrar,
Having
deliberated in private on 24 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 26451/07) 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 Ernest
Skurat (“the applicant”), on 18 June 2007.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr Jakub Wołąsiewicz of the Ministry of
Foreign Affairs.
- The
applicant alleged that his detention on remand in the second set of
criminal proceedings exceeded a “reasonable time” within
the meaning of Article 5 § 3 of the Convention. He further
complained about the excessive length of the first set of criminal
proceedings against him.
- On
28 January 2010
President of the Fourth Section of the Court decided to give notice
of the application to the Government. In accordance with Protocol No.
14, the application was assigned to a Committee of three Judges.
- 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
- The
applicant was born in 1977 and lives in Gdańsk.
A. First set of
criminal proceedings against the applicant (Sygn. akt II K 670/05)
- On
16 May 2005 the applicant was arrested.
- On
17 May 2005 he was charged with having assisted in counterfeiting a
secondary education diploma (udzielenie pomocy w podrobieniu
świadectwa maturalnego). The applicant was released on the
same day, after having paid a bail of 6,000 Polish zlotys (PLN).
- On
30 August 2005 a bill of indictment against the applicant and two
other persons was lodged with the Gdańsk District Court (Sąd
Rejonowy).
- On
an unspecified date, one of the co-accused, A.D., requested the court
to sentence her without carrying out the whole proceedings and her
case was severed for separate examination. A judgment against A.D.
was given on 5 October 2005.
- A
first hearing, scheduled on 30 November 2005, was adjourned. No
reasons for this decision were provided.
- The
trial started on 22 December 2005.
- On
one occasion a hearing was adjourned, as the applicant’s
co accused failed to appear.
- Two
hearings were adjourned, as the applicant and his co-accused have not
been transferred to the court from prison.
- On
five occasions the applicant’s lawyer failed to attend the
hearings. It appears that on two of those occasions he has not been
properly summoned.
- Two
hearings, scheduled on 9 October and 6 November 2007, were adjourned,
as the case-file concerning another set of criminal proceedings has
not been delivered to the trial court.
- Two
hearings, scheduled on 11 December 2007 and 18 January 2008, were
adjourned, without any reasons being provided.
- A
hearing scheduled on 27 February 2008 was cancelled due to the
judge-rapporteur’s illness.
- On
11 April 2008 the District Prosecutor (Prokurator Prokuratury
Rejonowej) requested the trial court to exclude judge J.M., to
whom the applicant’s case was assigned, from the proceedings.
The prosecutor relied on the fact that J.M. had given a judgment
against A.D. and that, according to the recent case-law of the
Supreme Court, in circumstances like those of the present case, the
same judge could not examine a case against several co-accused on the
basis of the same evidentiary material.
- On
21 April 2008 the Gdańsk District Court granted the prosecutor’s
request and excluded J.M. from the proceedings. The trial has
recommenced.
- On
9 October 2008 the Gdańs Distirct Court quashed the preventive
measure imposed on the applicant (see paragraph 8 above). The amount
paid as bail was returned to the applicant.
- The
proceedings are still pending before the first-instance court.
B. Proceedings under the 2004 Act
- On
10 April 2008 the applicant lodged a complaint about a breach of his
right to a trial within a reasonable time with respect to the first
set of criminal proceedings against him. He relied on 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 sądowym
bez nieuzasadnionej zwłoki) (“the 2004 Act”).
The applicant sought PLN 10,000 in just-satisfaction.
- On
1 July 2008 the Gdańsk Regional Court (Sąd Okręgowy)
acknowledged that the proceedings have indeed been lengthy and
awarded PLN 1,000 to the applicant. It underlined that the trial
court has failed to ensure that the hearings were adequately prepared
and organised. It also noted that the applicant’s lawyer has
partly contributed to the overall length of the proceedings. In that
respect the trial court was criticised for not having taken
disciplinary measures against the applicant’s lawyer at an
earlier stage of the proceedings, by informing the Gdańsk
Regional Bar about the advocate’s failure to perform his
duties.
C. Second set of criminal proceedings against the
applicant and his detention on remand
(Sygn. akt II 79/07)
- On
21 November 2006 the applicant was arrested on suspicion of drug
trafficking.
- On
22 November 2006 the Gdańsk Distirct Court remanded him in
custody, relying on the reasonable suspicion that he had committed
the offence in question. It also
considered that keeping the applicant in detention was necessary to
secure the proper conduct of the proceedings, given the risk that if
released, the applicant might tamper with evidence. In that respect
the court underlined the fact that the applicant has not admitted to
having committed the offence he had been charged with. The court also
stressed the severity of the anticipated sentence.
- The
applicant’s appeal against the detention order, likewise his
further appeals against decisions prolonging his detention and all
his subsequent applications for release were unsuccessful.
- On
12 January 2007 a bill of indictment was lodged with the Gdańsk
District Court. It comprised forty-seven charges of drug trafficking
brought against six defendants.
- On
an unspecified date charges against four of the co-accused, A.S.,
M.S., D.G. and M.K., were severed, as they requested the court to
sentence them without carrying out the whole proceedings. A judgment
in their case was delivered on 4 July 2007.
- On
11 April 2007 the trial court held its first hearing.
- During
the court proceedings, the applicant’s
detention was further prolonged on 17 January, 21 May, 10
August and 16 November 2007 and on 16 February and 16 May 2008.
In
all their detention decisions the authorities repeatedly relied on a
strong suspicion that the applicant had committed the offence in
question, which was supported by evidence from witnesses. They
attached importance to the grave nature of that offence and the
likelihood of a severe sentence of imprisonment being imposed on the
applicant. They further considered that the need to secure the proper
conduct of the proceedings, especially the need to obtain evidence
from witnesses, justified holding him in custody.
- On
16 May 2008 the applicant requested the trial court to exclude judge
J.M. from the proceedings. He relied on the fact that J.M. had given
a judgment against A.S., M.S., D.G. and M.K. and that consequently,
he could not examine a case against him, on the basis of the same
evidentiary material (see also paragraph 19 above).
- On
2 June 2008 the judge was excluded from the proceedings. The trial
had to restart.
- On
25 July 2008 the Gdańsk District Court lifted the applicant’s
detention. The court found that the applicant’s detention was
already approaching a two-year period and that, taking into
consideration that the trial had to be repeated, he could no longer
be held in detention. According to the court, the risk that the
applicant would obstruct the proceedings has no longer been a
relevant factor, in view of the lapse of time.
- From
20 November 2007 to 23 September 2008 the applicant served a prison
sentence ordered in another set of criminal proceedings against him.
- The
proceedings are still pending before the District Court.
D. Censorship of the applicant’s correspondence
- On
14 April 2008 the applicant received a letter from his lawyer. In
that respect the applicant presented a copy of an envelope which
bears a stamp “censored (“ocenzurowano”).
The stamp is crossed out. The envelope also contains a handwritten
note which says “censorship abandoned” (“odstąpiono
od cenzury”), date and
illegible signature.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Preventive
measures, including pre-trial detention
- The relevant domestic law and practice 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) 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. Relevant
statistical data
- The
relevant statistical data, recent amendments to the Code of Criminal
procedure designed to streamline criminal proceedings and references
to the 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).
C. Length of judicial proceedings
- 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 presented 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 judgment s in the cases of Krasuski
v. Poland, no. 61444/00,
§§ 34-46, ECHR 2005-V and Krzysztofiak
v. Poland, no. 38018/07,
§§ 23 31, 20 April 2010.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the length of his pre-trial detention in
the second set of proceedings 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.”
A. Period to be taken into consideration
- The
applicant’s pre-trial detention in the present proceedings
lasted from 21 November 2006 until 25 July 2008, when the applicant
was released and the police supervision was imposed on him.
However,
the Government submitted that from 20 November 2007 to 23 September
2008 the applicant was serving a prison sentence imposed on him in
other set of proceedings. Therefore, the Government were of the
opinion that the applicant had effectively been detained from 21
November 2006 to 19 November 2007. In this respect they relied on the
Court’s decision in the case of Prokopyszyn v. Poland
(dec.) no. 1427/03, 23 January 2007.
- The
applicant did not submit any comments.
- The
Court reiterates that, in view of the essential link between Article
5 § 3 of the Convention and paragraph 1 (c) of that
Article, a person convicted at first instance cannot be regarded as
being detained “for the purpose of bringing him before the
competent legal authority on reasonable suspicion of having committed
an offence”, as specified in the latter provision. Such person
is in the position provided for by Article 5 § 1 (a), which
authorises deprivation of liberty “after conviction by a
competent court” (see, for example, B. v. Austria,
judgment of 28 March 1990, Series A no. 175, pp. 14-16, §§
36-39).
The
Court notes that indeed, between 20 November 2007 and 23 September
2008 the applicant served a prison sentence which had been imposed on
him in other criminal proceedings. 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.
- Accordingly,
the period to be taken into consideration began on 21 November
2006 and ended on 19 November 2007. It thus amounted to eleven months
and twenty-eight days.
B. Reasonableness of the length of pre-trial detention
- The
Government were of the opinion that the whole period of the
applicant’s detention had been justified. They stressed that
the domestic courts dealing with the applicant’s case had found
his detention to be compatible with the provisions of Article 258 of
the Code of Criminal Procedure and that no grounds warranting the
applicant’s release from detention as provided for by Article
259 of the Code had been established. They observed that the evidence
obtained in the proceedings had indicated that there had been a
reasonable suspicion that the applicant had committed the offence and
that this offence had been of a serious nature.
The
Government also argued that the applicant’s detention had been
aimed at securing the proper conduct of the proceedings, given the
risk that he might tamper with evidence.
The
Government drew the Court’s attention to the applicant’s
criminal record. In that respect they submitted that the applicant
had been found guilty of being a member of an organised criminal
group.
- The
Government pointed out that the applicant’s detention had been
reviewed at regular intervals. On each occasion the decisions had
been reasoned in a relevant and sufficient manner. They also stressed
that the applicant had been assisted by a lawyer.
- With
regard to the proceedings on the merits, the Government argued that
these had been quite complex, as they concerned six persons.
The
Government concluded that in the circumstances of the case, the
length of the applicant’s detention could not be regarded as
excessive.
- The
Court notes that there are no new elements in the present case which
would lead the Court to depart from its previous case-law, the more
so since the grounds given by the judicial authorities for the
applicant’s pre trial detention satisfied the requirement
of being “relevant” and “sufficient”, that
the applicant’s detention was reviewed by the courts at regular
intervals; that the case was rather complex.
- In
view of the above considerations, the Court considers that the
applicant’s almost one-year long pre-trial detention was not in
breach of the “reasonable time” requirement of Article 5
§ 3 of the Convention.
It
follows that this part of the application is inadmissible as being
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention and must be rejected pursuant to Article 35 § 4
of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE PROCEEDINGS
- The
applicant complained that the length of the first set of criminal
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 his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
- The
Government expressed the opinion that the
applicant could no longer claim to be a victim, as a violation
of his rights guaranteed by Article 6 § 1 of the Convention
had been recognised and remedied at the national level. In this
respect they referred to the Gdańsk Regional Court’s
judgment by which the applicant was awarded PLN 1,000 in just
satisfaction. In that respect they
further underlined that the applicant himself has partly contributed
to the overall length of the proceedings. The Government requested
that the Court declare this part of the application incompatible
ratione personae
with the Convention.
- The Court reiterates that it
falls first to the national authorities to redress any violation
of the Convention. In this regard, the question of whether an
applicant can claim to be the victim of the violation alleged
is relevant at all stages of the proceedings under the
Convention (see, inter alia,
Siliadin v. France,
no. 73316/01, § 61, ECHR 2005-VII). A decision or measure
favourable to the applicant is not in principle sufficient to deprive
him of his status as a “victim” for the purposes
of Article 34 of the Convention unless the national authorities
have acknowledged, either expressly or in substance, and then
afforded redress for, the breach of the Convention (see, inter
alia, Eckle
v. Germany, judgment of 15 July
1982, § 66, Series A no. 51, p. 30; Dalban
v. Romania [GC], no. 28114/95, §
44, ECHR 1999-VI; and Siliadin,
cited above, § 62).
- As to the redress which has to
be afforded to an applicant in order to remedy a breach of a
Convention right at the national level, the Court has generally
considered this to be dependent on all the circumstances of the case,
having regard to, in particular, the nature of the Convention
violation found. As it has already been held in other length of
proceedings cases, the question of whether he or she has received
reparation for the damage caused – comparable to just
satisfaction as provided for under Article 41 of the Convention –
is an important issue. It is the Court’s settled
case-law that where the national authorities have found a violation
and their decision constitutes appropriate and sufficient redress,
the party concerned can no longer claim to be a victim within the
meaning of Article 34 of the Convention (see Scordino
v. Italy (no. 1) [GC],
no. 36813/97, §§ 178-213, ECHR 2006-V, and
Cocchiarella v. Italy
[GC], no. 64886/01, §§ 69 107, ECHR 2006-V).
- The
Court notes that, by the judgment of the Gdańsk Regional Court
(see paragraph 24 above), the applicant was awarded PLN 1,000 in
respect of non-pecuniary damage. The court further acknowledged that
the proceedings in his case had been unreasonably lengthy and that
his right to a trial within a reasonable time, as guaranteed by
Article 6 of the Convention, had been breached.
- Having regard to the compatibility of the
above-mentioned amount with its own awards in similar length of
proceedings cases, bearing in mind the principles which it has
developed for determining victim status and for assessing the amount
of non-pecuniary compensation to be awarded where it has found a
breach of the reasonable time requirement (see Cocchiarella
v. Italy [GC], cited above, §§ 85 107,
Scordino v. Italy (no.1) [GC], cited above, §§ 193-215
and Dubjakova v. Slovakia (dec.), no. 67299/01,
10 October 2004), the Court cannot conclude that the applicant
has been sufficiently redressed at the domestic level. It follows
that his complaint cannot be rejected for being incompatible ratione
personae with the Convention.
- Accordingly,
the applicant can still claim to be a victim, within the
meaning of Article 34 of the Convention, of a violation of
his right to a trial within a reasonable time in respect of the
first set of criminal proceedings.
- The
Court further notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 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 period to be taken into consideration
- The
period to be taken into consideration began on 17 May 2005, when the
applicant was charged with having assisted in counterfeiting a
secondary education diploma and has not yet ended. It has thus lasted
some six years at one level of jurisdiction.
2. The Court’s assessment
- 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).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
In particular, the Court notes that three hearings were adjourned
without any reasons having been produced by the court. It further
underlines that several hearings did not take place, as either the
accused have not been transferred to the court from prison, or the
authorities have failed to ensure that all the necessary case-files
have been handed over to the court.
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
- The
applicant alleged, invoking Article 5 § 5 of the Convention,
that his arrest had been illegal.
The
Court notes that in this respect the applicant has failed to
substantiate his allegations.
- Further,
invoking Articles 6 §§ 1 and 3, 13 and 14 of the
Convention, the applicant complained about unfairness of the first
set of criminal proceedings against him, alleging that they have not
fulfilled the standards of a “fair trial”, as he has been
discriminated against and the court had refused his requests to have
certain witnesses questioned. In that respect the applicant further
complained that judge J.M. had examined his case.
The
Court notes that the relevant criminal proceedings are still pending
and the complaint is therefore inadmissible as being premature.
Furthermore, as to the applicant’s complaint about judge J.M.,
the Court notes that the judge in question was excluded from the
proceedings and that the proceedings have subsequently been
restarted.
- Under
Articles 1 and 18 of the Convention the applicant appeared to be
complaining about the bail that he has paid in the first set of
criminal proceedings.
Having
examined all the material in its possession, regardless of other
possible grounds of inadmissibility, the Court finds nothing in the
case file which might disclose any appearance of a violation of the
right guaranteed by the provision relied on. It is further to be
underlined that the amount paid as bail was returned to the applicant
at a later stage of the proceedings (see paragraph 21 above).
It
follows that this part of the application is manifestly ill-founded
and must be rejected pursuant to Article 35 §§ 3 and 4 of
the Convention.
- Lastly,
invoking Article 8 of the Convention, the applicant complained about
the censorship of the correspondence with his lawyer.
The Court recalls that in the case of Biśta v. Poland
(no. 22807/07, 12 January 2010, §§ 44-49) it was
established, having regard to the relevant developments in the
domestic practice, that in respect of the alleged infringements of
the secrecy of a prisoner’s correspondence which took place
after 28 June 2007, the applicants were required to have recourse to
a civil action under Articles 23 and 24 § 1 read in conjunction
with Article 448 of the Civil Code.
In
the present case, even assuming that the letter sent to the applicant
from his lawyer has indeed been censored (see paragraph 37 above),
the alleged interference occurred on 14 April 2008, that is after the
relevant date (28 June 2007) set out in the Biśta
judgment, the date on which the Warsaw Court of
Appeal gave its judgment granting compensation for the infringement
of the confidentiality of a prisoner’s correspondence.
- That
being so, the Court considers that the applicant should, as required
by Article 35 § 1, put the substance of his Convention
claim under Article 8 before the domestic courts.
It follows that this complaint must be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
A. Damage
- The
applicant claimed 85,770 euros (EUR) in respect of pecuniary damage.
This sum covered the expenses that he had to
bear during his detention, inter
alia, his health insurance and a
loan allegedly taken to pay attorney’s fees, tuition fee, house
rent and the income he has allegedly lost. He further claimed
EUR 300,000 in respect of non-pecuniary damage.
- As
to the pecuniary-damage, the Government submitted that the applicant
has failed to prove any causal link between the damage allegedly
suffered and the subject-matter of the application. As to the amount
claimed in respect of non-pecuniary damage, the
Government considered this sum unreasonable in the light of the
Court’s case-law concerning similar cases brought against
Poland and invited the Court to reject the applicant’s claim as
excessive.
- The Court does not discern any causal link between the
violation found and the pecuniary damage alleged; it therefore
rejects this claim. On the other hand, it awards the applicant EUR
3,000 in respect of non pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 225 for the costs of photocopies and court
fees incurred before the domestic courts and EUR 130 for those
incurred before the Court.
- The
Government submitted that the costs and expenses incurred before the
domestic courts had no direct link with the present application. The
further contested the amount claimed by the applicant for the costs
incurred before the Court.
- Regard
being had to the documents in its possession and to its case law,
the Court rejects the claim for costs and expenses in the domestic
proceedings and considers it reasonable to award the sum of EUR 130
for the proceedings before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the complaint concerning the length of
the first set of proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the first set of criminal
proceedings;
- Holds
(a) that
the respondent State is to pay the applicant, within three months,
EUR 3,000 (three thousand euros) in respect of non-pecuniary damage
and EUR 130 (one hundred thirty euros) in respect of costs and
expenses, plus any tax that may be chargeable, 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 14 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Ljiljana Mijović
Deputy
Registrar President
