(Application no. 27992/06)
20 January 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Żywicki v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 16 December 2008,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
In their observations the Government submitted that the applicant's appeal of 23 January 2006 had been examined by the Szczecin Court of Appeal on 2 February 2006 and dismissed. They failed however to submit the relevant documents. As regards the applicant's request for release of 3 April 2006, the Government admitted that, “by mistake” it had not been examined by the court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
“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.”
1. Period to be taken into consideration
Accordingly, the period to be taken into consideration amounts to two years, eight months and twenty-three days.
2. The parties' submissions
(a) The applicant
(b) The Government
The Government also submitted that after one year and nine months of detention the applicant could be released on bail. However he had failed to pay the required amount and therefore the detention was continued.
3. The Court's assessment
(a) General principles
(b) Application of the above principles in the present case
There has accordingly been a violation of Article 5 § 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF EXCESSIVE LENGTH OF THE PROCEEDINGS.
51. The applicant complained that the length of criminal proceedings had been incompatible with the “reasonable time” requirement provided for in Article 6 § 1 of the Convention.
However, pursuant to Article 35 § 1 of the Convention:
“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ...”
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention the following amounts to be converted into Polish zlotys at the rate applicable at the date of settlement:
(i) EUR 2,500 (two thousand five hundred euros) in respect of non pecuniary damage plus any tax that may be chargeable;
(ii) EUR 100 (one hundred euros) in respect of costs and expenses, plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 20 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Early Nicolas Bratza