European Court of Human Rights

 

 

 

FIRST SECTION

 

 

 

 

 

 

CASE OF JARMUŻ v. POLAND

 

( Application no. 63696/12 )

 

 

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

13 June 2019

 

 

 

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

In the case of Jarmuż v. Poland ,

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

Pere Pastor Vilanova , President,
Krzysztof Wojtyczek ,
Pauliine Koskelo , judges,
and Renata Degener , Deputy Section Registrar ,

Having deliberated in private on 21 May 2019 ,

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

PROCEDURE

1.     The case originated in an application (no. 63696/12) 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 Michał Jarmuż ("the applicant"), on 19 September 2012.

2.     The Polish Government ("the Government") were represented by their Agent, Ms J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.

3.     On 7   July 2015 notice of the application was given to the Government .

THE FACTS

I.     THE CIRCUMSTANCES OF THE CASE

4.     The applicant was born in 1966 and is detained in Włocławek .

A.     First set of proceedings

5.     Criminal proceedings against the applicant concerning charges of leading an organised criminal gang, assault and extortion have been pending since 29 September 2005 (case no. IV K 59/09, Łódź Regional Court).

B.     Second set of proceedings

1.     The criminal proceedings

6 .     On 1 October 2009 the applicant was arrested and detained on remand.

7 .     On 2 March 2010 the applicant was indicted before the Łódź Regional Court. The bill of indictment was directed against the applicant and twenty - two co-accused charged with over 900 offences in total. The applicant was charged on thirty-eight counts with respect to various offences related to stealing cars, dealing in drugs, assaults and burglaries, in the context of an organised criminal gang.

8 .     At a session on 23 November 2010 the trial court decided to sever the remainder of the case from the proceedings against the applicant, which would be dealt with at a separate trial and joined with other charges brought against him. In consequence, the proceedings against the applicant were to be transferred to another division of the Łódź Regional Court. The decision pertaining to the competence of the court was quashed on 14 December 2010. On 28   December 2010 the trial court extended the applicant ' s detention on remand. On 4 February 2011 the proceedings were stayed pending the outcome of another trial, but that decision was quashed upon appeal on 16   March 2011. The case was transferred to the relevant division of the court in March 2011, and thereafter the presiding judge scheduled the beginning of the trial for 14 September 2011 and undertook other preparative actions (such as tracing the addresses of some twelve witnesses).

During the proceedings the applicant lodged multiple procedural requests which were examined by the trial court. In particular, he asked for adjournments of hearings, asked for new evidence to be admitted, and challenged a judge and a prosecutor.

9 .     The Łódź Regional Court held about twenty-four hearings in total and on 13   May 2013 convicted the applicant and sentenced him to nine years ' imprisonment.

10.     The applicant appealed against the judgment.

11 .     A hearing of the appellate court scheduled for 15 April 2014 was cancelled due to the absence of the applicant ' s lawyer.

12.     On 12 June 2014 the Łódź Court of Appeal allowed the applicant ' s appeal in part and reduced his sentence to eight years ' imprisonment. The applicant lodged a cassation appeal.

13.     On 17 December 2014 the Supreme Court dismissed the cassation appeal.

2.     Proceedings under the 2004 Act

14.     The applicant lodged two complaints under the Law of 17 June 2004 on complaints of breaches of the right to have a case examined in an investigation conducted or supervised by a prosecutor, and in judicial proceedings, without undue delay ( 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").

15.     On 7 September 2011 the Łódź Court of Appeal dismissed the first complaint. The court, relying on the Convention principles, ruled that, taking into account the complexity of the case, the length of the proceedings had not been excessive. During the period under consideration the trial court had prepared diligently for trial by, for instance, securing the presence of a large number of witnesses who had been summoned from various detention facilities.

16.     On 28 November 2012 the Łódź Court of Appeal dismissed the applicant ' s second complaint. The court examined the course of the proceedings and ruled that there had been no delays on the part of the courts. It noted that the trial court had taken many procedural decisions requested by the parties, including the applicant.

II.     RELEVANT DOMESTIC LAW AND PRACTICE

17.     A detailed description of the relevant domestic law and practice concerning remedies for excessive length of judicial proceedings - in particular, the applicable provisions of the 2004 Act - is 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 in its judgments in the cases of Krasuski v.   Poland (no.   61444/00, §§   34-46, ECHR 2005-V (extracts)) and Rutkowski and Others v. Poland (nos. 72287/10and 2 others, §§ 75-107, 7   July 2015).

THE LAW

I.     ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION

18.     The applicant complained of the excessive length of the proceedings in his cases and, under Article   13 of the Convention, of lack of effective remedy for the excessive length of proceedings. He relied on Article 6 § 1 and Article 13 of the Convention, which, in so far as relevant, provide:

Article 6

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

Article 13

"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."

A.     First set of proceedings

19.     By a letter dated 13 July 2017 the Government informed the Court that they proposed to make a unilateral declaration with a view to partly resolving the issues raised by the application. The Government acknowledged a violation of Article 6 § 1 on account of the excessive length of the first set of criminal proceedings against the applicant and a violation of Article 13 on account of the lack of an effective remedy securing sufficient redress for a violation of Article   6 § 1. They offered payment to the applicant in the sum of 9,180 Polish z ł otys . The Government further undertook to adopt a range of general measures in respect of other persons who were victims of similar violations or might be affected by similar violations in the future. The sum referred to above is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, and is to be paid free of any taxes that may be applicable. It would be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. In the event of failure to pay this sum within the said three-month period, the Government undertook to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. In addition, the Government made a declaration as to general measures to be adopted in the implementation of the Rutkowski and Others v. Poland pilot judgment (no.   72287/10and 2 others, 7 July 2015 - see Załuska and Rogalska v.   Poland ( dec. ), nos. 53491/10and 72286/10, §§ 23-25, 20 June 2017 ). They further requested the Court to strike out this part of the application in accordance with Article   37 of the Convention.

20.     On 27 February 2018 the applicant indicated that he was not satisfied with the terms of the unilateral declaration.

21.     The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under Article 37 § 1 (a), (b) or (c). In particular, Article   37   §   1   (c) enables the Court to strike a case out of its list if

" for any other reason established by the Court, it is no longer justified to continue the examination of the application."

22.     It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the case to be continued.

23.     To this end, the Court has examined the declarations in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey (preliminary issue) [GC], no.   26307/95, §§ 75-77, ECHR 2003-VI; WAZA Sp. z o.o . v. Poland ( dec. ), no.   11602/02, 26 June 2007; and Sulwińska v. Poland ( de c. ), no.   28953/03, 18   September 2007).

24.     The conclusions reached by the Court on the admissions and undertakings contained in the Government ' s declarations in the first group of 400 cases submitted in the pilot-judgment procedure also apply to the present case (see Załuska and Rogalska , cited above, §§ 51-53).

25.     Having regard to the nature of the admissions contained in the Government ' s declarations, as well as the amount of compensation proposed - which is consistent with the amounts awarded in similar cases - the Court considers that it is no longer justified to continue the examination of the complaint relating to the first set of proceedings (Article 37 § 1 (c)).

26.     Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of that complaint (Article 37 § 1).

27.     Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the complaint can be restored to the list in accordance with Article 37 § 2 of the Convention (see Josipović v. Serbia ( dec. ), no. 18369/07, 4 March 2008).

28.     In view of the above, it is appropriate to strike this part of the application out of the list .

B.     Second set of proceedings

1.     Article 6 § 1 of the Convention

(a)     Admissibility

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

(b)     Merits

30.     The applicant complained in general that the length of the second set of criminal proceedings had been unreasonable. He argued that he had not contributed to the length of the proceedings as he had had the right to make use of his procedural rights.

31 .     The Government contested the allegation and considered that there had been no violation of the Convention. The Government submitted that the proceedings had been particularly complex as they had concerned twenty-three defendants charged with some 900 offences in total. Although later on the trial court had severed the case against the applicant from the rest in order to facilitate the proceedings, it had nevertheless remained complex owing to the large number of charges that had been brought against the applicant. The courts dealing with the case had been diligent and there had been no significant periods of inactivity attributable to the domestic authorities. At the initial stage, the domestic court took many procedural steps in particular in 2010 decided that another court should be competent to deal with the case and in 2011 stayed the proceedings. Moreover, although the Government acknowledged that the applicant had not substantially contributed to the total length of the proceedings, he had nevertheless lodged multiple unsubstantiated procedural requests. A few hearings had been adjourned due to either his or his lawyer ' s absence.

32.     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 conduct of the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no.   25444/94, § 67, ECHR   1999-II, and Kuśmierek v. Poland , no. 10675/02, §   62, 21 September 2004).

33.     The Court firstly notes that the period to be taken into consideration began on 1 October 2009 and ended on 17 December 2014. The proceedings thus lasted five years and two months at three levels of jurisdiction.

34.     Considering the nature of the case, the Court accepts the Government ' s arguments that it was complex and that the domestic courts dealt with a vast amount of evidence (see paragraph 31 above). The allegations against the applicant were very serious and included charges of acting within an organised criminal gang (see paragraph 6 above).

35.     As regards the conduct of the applicant, the Court notes that the Government agreed that the applicant had not substantially contributed to the prolongation of the proceedings (see paragraph 31 above).

36.     As to the conduct of the authorities, the Court first observes that the bill of indictment was submitted to the Regional Court on 2 March 2010 and that the first hearing on the merits was held on 14 September 2011. The Court notes that this period amounted to eighteen months, which contributed significantly to the overall length of the proceedings. As regards the diligence of the authorities during the above period, the Court is not persuaded by the Government ' s arguments that it had been necessary to transfer the case to another court or to stay the proceedings. Those decisions of the domestic authorities were flawed and were quashed upon appeal (see paragraph 8 above). The Court considers that for a period of over eighteen months the domestic authorities concentrated on technical and administrative measures and not on the examination of the merits of the criminal case against the applicant. The necessity of those measures, which delayed the examination of the case, was not sufficiently justified by the Government.

37.     The Court takes note of the subsequent efforts of the trial and appellate courts to finish the trial against the applicant (see paragraphs 9 and   11 above). However, that final consolidation of the court ' s actions cannot make up for the previous delays (see Rutkowski and Others, cited above, §   139).

38.     Accordingly, having regard in particular to the delays occurring at the initial stage of the proceedings, the Court considers that in the present case there has been a violation of Article 6 § 1 of the Convention on account of the unreasonable length of the second set of the proceedings.

2.     Article 13 of the Convention

39.     The applicant further submitted that he had had no effective domestic remedy in respect of the protracted length of the second set of proceedings in his case.

40.     The Government contested the allegation that there had been a breach of this provision of the Convention.

41.     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 v. Poland [GC], no. 30210/96, §§ 154 et seq., ECHR 2000-XI ).

42.     While the subsidiarity principle underlying the Convention system requires the Contracting States to introduce a mechanism addressing complaints about the excessive length of proceedings within the national legal system, they are afforded - subject to compliance with the requirements of the Convention - some discretion as to the manner in which they provide individuals with the relief required by Article 13 and thus conform to their Convention obligations under that provision.

43.     The Court further reiterates that the word "remedy" within the meaning of Article 13 does not mean a remedy which is bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint (see, for example , Šidlová v. Slovakia , no.   50224/99, § 77, 26 September 2006; Figiel v.   Poland (no. 2) , no.   38206/05, § 33, 16   September 2008; and Baszczy ń ski v. Poland ( dec. ), no.   77103/13, § 51, 12   December 2017).

44.     Having regard to its finding in respect of Article 6 § 1 of the Convention and the fact that the applicant had the opportunity to raise complaints under the 2004 Act, and made use of that opportunity on several occasions, the Court concludes that this part of the application is manifestly ill - founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

III.     APPLICATION OF ARTICLE   41 OF THE CONVENTION

45.     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."

46.     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.     Takes note of the terms of the respondent Government ' s declaration under Article 6 § 1 and Article 13 of the Convention with respect to the first set of proceedings and of the modalities for ensuring compliance with the undertakings referred to therein;

 

2.     Decides to strike part of the application with respect to the first set of proceedings out of its list of cases in accordance with Article   37   §   1   (c) of the Convention;

 

3.     Declares the complaint concerning the unreasonable length of the second set of proceedings admissible and the remainder of the application inadmissible;

 

4.     Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the second set of proceedings.

Done in English, and notified in writing on 13 June 2019 , pursuant to Rule   77   §§   2 and 3 of the Rules of Court.

              Renata Degener Pere Pastor Vilanova
Deputy Registrar President