FOURTH SECTION

CASE OF KUROWSKI v. POLAND

(Application no. 9635/12)

JUDGMENT

STRASBOURG

13 January 2015

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

In the case of Kurowski 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. 9635/12) 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 Tomasz Kurowski (“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 1973 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. At the time, the applicant was serving a prison sentence imposed in another set of criminal proceedings against him. The end of that sentence fell on 7 November 2007.
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 in reference to 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.
The applicant’s appeal against the decision of 25 September 2006 was dismissed by the Łódź Regional Court (Sąd Okręgowy) on 25 October 2006.
7.  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.
The applicant’s appeals against the decisions to extend his pre-trial detention were dismissed by the Łódź Court of Appeal on 24 January 2007, 16 April 2008, 2 July 2008, 12 November 2008 and 21 January 2009.
8.  In the period from 7 November 2007 until 7 May 2011 the applicant served a prison sentence imposed by the Łódź Regional Court in separate set of criminal proceedings against him (case no. XVIII K 28/06).
9.  During this period the Łódź Court of Appeal extended the applicant’s the applicant’s detention on remand by the decisions of 30 March 2009 (detention extended until 31 December 2009), of 21 December 2009 (detention extended until 30 September 2010), of 22 September 2010 (detention extended until 31 March 2011) and of 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.
10.  Meanwhile, 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 drug-trafficking committed 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.  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.
12.  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.
13.  In May 2010 the Regional Court gave a severance order and decided to determine charges against two co-accused separately.
14.  The bill of indictment was finally read out to the defendants at the hearing held on 27 May 2010.
15.  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 judge lodged by one of the co-accused.
16.  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.
17.  Meanwhile, on 17 August 2011 the Łódź Regional Court decided to continue pre-trial detention unless the applicant would post bail of 20,000 Polish zlotys (PLN) within two weeks from the date of the decision.
The applicant was released on bail and police supervision on 19 August 2011. He was also prohibited from leaving the country.
18.  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 witnesses.
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
19.  Until 30 July 2013 the Regional Court scheduled nine hearings for 2013, of which seven were adjourned due to justified absences of the defendants.
20.  The criminal proceedings against the applicant are still pending before the first-instance court.
B.  Request for leave to attend funeral
21.  On 26 January 2011 the Łódź Regional Court (Sąd Okręgowy) dismissed the applicant’s motion to take part in a funeral of his grandfather, who had been also his godfather. The applicant did not lodge an appeal against this decision.
22.  The funeral took place on 27 January 2011.
C.  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 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 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.”
A.  Period to be taken into consideration
28.  The applicant’s detention started on 25 September 2007, when he was detained on remand and ended on 19 August 2011, when the applicant was released.
29.  However, between 25 September 2007 and 11 June 2011 the applicant served prison sentences imposed on him in other sets of criminal proceedings. This period, 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 lasted from 11 June until 19 August 2011. It thus amounts to two months and eight days.
B.  The parties’ submissions
30.  The Government considered that the length of the applicant’s pre-trial detention satisfied the requirements of Article 5 § 3 as it was duly justified and the authorities had given relevant and sufficient reasons for prolonging it. The Government also maintained that the applicant had been serving at the relevant time several prison sentences resulting from his previous convictions.
C.  The Court’s assessment
31.  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 judgments (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).
32.  Turning to the facts of the present case, the Court observes that the authorities relied on the reasonable suspicion that the applicant had committed the offence with which he had been charged and on the severity of the sentence that might be imposed. The judicial authorities further considered that the applicant’s detention was necessary to secure the proper conduct of the proceedings. Having regard to the length of the applicant’s pre-trial detention the Court finds that the grounds given by the judicial authorities for the applicant’s pre-trial detention satisfied the requirement of being “relevant” and “sufficient”.
33.  It further notes that the case was very complex and that there were no significant periods of inactivity on the part of the trial court during the period to be taken into consideration. For these reasons, it considers that the domestic authorities cannot be criticised either for a failure to observe “special diligence” in the handling of the applicant’s case.
34.  In view of the above considerations, the Court considers that the length of the applicant’s detention does not disclose any appearance of a breach of the “reasonable time” requirement of Article 5 § 3 of the Convention. It follows that the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention
II.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE PROCEEDINGS
35.  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 ...”
36.  The Government contested that argument.
37.  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
38.  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 the applicant’s complaint under the 2004 Act had been dismissed on 27 July 2011 and the applicant had a possibility to lodge another complaint about the length of the proceedings after a lapse of twelve months in accordance with 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.
39.  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.
40.  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
41.  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 three years and nine months of judicial proceedings.
(b)  The applicant
42.  The applicant submitted that the length of the proceedings against him was unreasonable.
2.  The Court’s assessment
43.  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).
44.  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.
45.  As regards the conduct of the applicant, the Court notes that he had not contributed to the delays in the proceedings.
46.  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.
47.  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
48.  The applicant complained, without invoking any provisions of the Convention, that he had been detained in cells where window shutters were 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 notes 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.
49.  The applicant further complained that on 21 January 2011 the Łódź Regional Court had refused to grant him leave to attend his grandfather’s funeral. However, as he lodged his application with the Court on 27 January 2012, this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
50.  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.”
51.  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).
52.  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.
53.  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
54.  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.”
55.  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 under Article 6 § 1 of the Convention concerning the excessive length of the proceedings 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 Aracı	Päivi Hirvelä
	Deputy Registrar	President