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
1.  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.
2.  The Polish Government (“the Government”) were represented by their Agent, Mr Jakub Wołąsiewicz of the Ministry of Foreign Affairs.
3.  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.
4.  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.
5.  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
6.  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)
7.  On 16 May 2005 the applicant was arrested.
8.  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).
9.  On 30 August 2005 a bill of indictment against the applicant and two other persons was lodged with the Gdańsk District Court (Sąd Rejonowy).
10. 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.
11. A first hearing, scheduled on 30 November 2005, was adjourned. No reasons for this decision were provided.
12.  The trial started on 22 December 2005.
13.  On one occasion a hearing was adjourned, as the applicant’s co‑accused failed to appear.
14.  Two hearings were adjourned, as the applicant and his co-accused have not been transferred to the court from prison.
15.  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.
16.  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.
17.  Two hearings, scheduled on 11 December 2007 and 18 January 2008, were adjourned, without any reasons being provided.
18.  A hearing scheduled on 27 February 2008 was cancelled due to the judge-rapporteur’s illness.
19.  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.
20.  On 21 April 2008 the Gdańsk District Court granted the prosecutor’s request and excluded J.M. from the proceedings. The trial has recommenced.
21.  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.
22.  The proceedings are still pending before the first-instance court.
B.  Proceedings under the 2004 Act
23.  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.
24.  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)
25.  On 21 November 2006 the applicant was arrested on suspicion of drug trafficking.
26.  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.
27.  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.
28.  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.
29.  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.
30.  On 11 April 2007 the trial court held its first hearing.
31.  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.
32.  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).
33.  On 2 June 2008 the judge was excluded from the proceedings. The trial had to restart.
34.  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.
35.  From 20 November 2007 to 23 September 2008 the applicant served a prison sentence ordered in another set of criminal proceedings against him.
36.  The proceedings are still pending before the District Court.
D.  Censorship of the applicant’s correspondence
37.  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
38.  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
39.  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
40.  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
41.  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
42.  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.
43.  The applicant did not submit any comments.
44.  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.
45.  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
46.  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.
47.  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.
48.  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.
49.  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.
50.  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
51.  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
52.  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.
53.  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).
54.  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).
55.  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.
56.  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.
57.  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.
58.  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
59.  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
60.  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).
61.  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).
62.  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
63.  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.
64.  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.
65.  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.
66.  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.
67.  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
68.  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
69.  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.
70.  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.
71.  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
72.  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.
73.  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.
74.  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
75.  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
1.  Declares the complaint concerning the length of the first set of proceedings admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the first set of criminal proceedings;

3.  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;

4.  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