FOURTH SECTION

DECISION

Applications nos . 45518/09 and 12210/12 Leszek BAJOŁEK against Poland and Krzysztof BAJOŁEK against Poland

The European Court of Human Rights (Fourth Section), sitting on 7 March 2017 as a Committee composed of:

Nona Tsotsoria, President, Krzysztof Wojtyczek, Marko Bošnjak, judges, and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above applications both lodged on 17 August 2009,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. The applicant in the first case, Mr Leszek Bajołek, is a Polish national who was born in 1952.

2. The applicant in the second case, Mr Krzysztof Bajołek, is a Polish national who was born in 1977. He is the son of the first applicant. Both applicants live in Skierniewice.

3. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs.

A. The circumstances of the case

4. The facts of the case, as submitted by the parties, may be summarised as follows.

1. The main case

5. On 5 July 1998 the applicant in the second case was beaten up by a group of twelve men in Skierniewice in front of a nightclub. In the course of the brawl a Polonez car owned by both applicants was destroyed.

6. On 29 October 1999 the prosecutor lodged a bill of indictment against twelve accused, including I.P. and A.S. (case no. II K 363/99).

7. The applicants were considered victims and as such could participate in the proceedings. On unspecified dates they joined the proceedings as auxiliary prosecutors ( oskarżyciel posiłkowy ).

8. Subsequently, the court decided to sever the charges against some of the accused, to be dealt with in separate sets of proceedings.

9. In particular, on 13 March 2001 the Skierniewice District Court severed the charges against I.P., to be dealt with in a separate set of proceedings (see paragraphs 14-22 below).

10. On 3 March 2004 both applicants lodged applications to receive compensation from the accused for non-pecuniary and pecuniary damage sustained due to the attack.

11. On 26 May 2004 the Skierniewice District Court severed the charges against A.S., to be dealt with in a separate set of proceedings (see paragraphs 23-28 below).

12. The proceedings against seven co-accused were terminated on 4 March 2008 by the Łódź Regional Court (which partly amended the first-instance judgment of 26 June 2007). The court ordered each defendant to pay each applicant the sum of 107 Polish Zlotys (PLN – approximately 25 euros (EUR)).

13. Some other accused were convicted on different dates in 2006.

2. The proceedings against I.P.

14. The criminal proceedings against I.P. (who had gone into hiding) in respect of charges of participation in a brawl and causing damage to property were continued before the Skierniewice District Court. The court ordered that I.P. be placed in pre-trial detention for three months from the moment of his arrest. The court issued an arrest warrant with respect to I.P. All charges stemming from the events of 5 July 1998 made against this accused were added to this set of proceedings.

15. On 8 May 2001 the proceedings were stayed by the Skierniewice District Court. The domestic court considered that I.P. had gone into hiding and that it was impossible to establish his place of residence.

16. On 24 September 2001, 9 January, 14 May, and 15 October 2002, 9 June and 15 November 2003, and 14 June and 24 November 2004 the court requested the Skierniewice police headquarters to provide information as to whether I.P. ’ s place of residence had been established. On the same date it asked the Central Address Office for I.P. ’ s address and the National Criminal Register for information about I.P. ’ s possible incarceration in other cases. Subsequently, the domestic court made the same requests many times (between 2006 and 2009).

17. On 8 July 2005 of the Łódź Regional Court issued a European arrest warrant against I.P.

18. In 2009 the police informed the court that I.P. had made use of his passport abroad. It appears that he was subsequently arrested and brought before the trial court.

19. On 17 December 2009 I.P. lodged with the Skierniewice District Prosecutor an application for his case to be resumed and pleaded guilty.

20. On 26 January 2010 the proceedings were resumed. The first hearing was scheduled for 12 March 2010. The applicants were duly notified of the date of the hearing.

21. On 23 February 2010 the applicants joined the proceedings against I.P. as auxiliary prosecutors. On 11 March 2010 they submitted their claims for compensation.

22. At a hearing on 12 March 2010 the Skierniewice District Court delivered a judgment convicting I.P. and sentencing him to one year ’ imprisonment suspended on probation. The applicants, even though they had been duly notified, did not attend the hearing. It appears that no appeal was lodged and that accordingly, the judgment became final.

3. The proceedings against A.S.

23. The criminal proceedings against A.S. (who had gone into hiding) in respect of his alleged participation in a brawl and causing damage to property, were continued before the Skierniewice District Court. The court ordered that A.S. be placed in pre-trial detention for three months from the moment of his arrest. The court issued an arrest warrant with respect to A.S. All charges stemming from the events of 5 July 1998 made against this accused were added to this set of proceedings.

24. On 14 April and 20 September 2005 the Skierniewice District Court requested information from the Skierniewice police headquarters regarding A.S. ’ s place of residence. On the same date it asked the Central Address Office for A.S. ’ s addresses and the National Criminal Register for A.S. ’ s possible incarceration in other cases. The court made the same requests many times during the period between 2006 and 2012.

25. On 2 December 2005 the Skierniewice District Court decided to stay the proceedings due to the fact that the accused, A.S., had gone into hiding and that it was impossible to establish his place of residence.

26. On 29 January 2009 the Skierniewice police headquarters informed the District Court that A.S. might have left Poland and gone to the United Kingdom.

27. On 16 March 2009 the Łódź Regional Court issued a European arrest warrant in respect of A.S. However, this did not result in A.S. being found.

28. According to the information in the case files (which was supplied in March 2015 by the parties) the proceedings remain stayed.

4. Proceedings under the 2004 Act

29. On 26 May 2009 the applicants lodged with the Łódź Regional Court complaints under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to an investigation conducted or supervised by a prosecutor and 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”). The complaint concerned the length of all proceedings stemming from the event of 5 July 1998.

30. On 17 July 2009 the Łódź Regional Court dismissed the applicants ’ complaints. The court noted that the criminal proceedings against I.P. and A.S. had been stayed as the accused could not be found. It further observed that a European arrest warrant had been issued in respect of those two accused. As regards the original set of proceedings, which terminated with the judgment of 26 June 2007 , upheld on 4 March 2008, (see paragraph 12 above), the court did not examine the complaint under the 2004 Act regarding the allegedly excessive length of the proceedings in question, noting that such a complaint should have been lodged in the course of the criminal proceedings.

B. Relevant domestic law

31. 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 – 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 in its judgments in the cases of Krasuski v. Poland (no. 61444/00, §§ 34-46, ECHR 2005-V) and, most recently, Rutkowski and Others v. Poland ( nos. 72287/10, 13927/11 and 46187/11 , §§ 75-107, 7 July 2015).

32. Article 46 § 1 of the Criminal Code allows a court, when convicting an accused, to grant compensation in part or in total, for pecuniary or non-pecuniary damage caused by the offence in question. A court may grant such compensation upon the request of a victim or another entitled person, and the provisions of the civil code shall apply in respect of the examination of any such claim.

COMPLAINT

33. The applicants complained under Article 6 § 1 of the Convention of the unreasonable length of the criminal proceedings in respect of the charges against I.P. and A.S.

THE LAW

34. The applicants complained of the unreasonable length of the proceedings against I.P., which ended on 12 March 2010, and against A.S., which, in May 2015, still remained stayed. They relied on Article 6 § 1 of the Convention, which provides, in so far as relevant:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

A. The parties ’ submissions

35. The applicants complained that the proceedings against I.P. were unreasonably lengthy. They argued that the first civil claim in the criminal proceedings had been lodged by them on 3 March 2004.

36. The Government submitted that the applicant in the second case had abused his right of individual application in that he had withheld important information from the Court. In particular he had failed to indicate in detail the course of the criminal proceedings complained of. The Government also objected that the applicant in the first case had had no legal interest in the proceedings against A.S. and the case in this respect should have been considered incompatible ratione personae . The Government were unable unequivocally to indicate the dates on which the applicants had brought their civil claims in the criminal proceedings against I.P. and A.S.

37. As regards the merits of the case the Government submitted that the domestic courts had been diligent and had made regular efforts to establish the whereabouts of I.P. and A.S. In particular they had issued arrest warrants and European arrest warrants and had systematically requested information from all authorities that could have had information on an individual. Once I.P. had been found, the court had finished the case within three months. There had been no delays attributable to the domestic courts and they should not be held responsible for the obstacle posed by two accused going into hiding in order to avoid their trials.

B. The Court ’ s assessment

38. The Court does not find it necessary to examine the Government ’ s objections of the incompatibility ratione personae for the first application and of abuse of the right of petition for the second application, the present cases being in any event manifestly ill-founded, for the following reasons.

The Court should first determine whether, and if so from which date, Article 6 § 1 applies to the present case. In this respect, it notes that the impugned proceedings originated in criminal charges being brought by a public prosecutor against third persons, and not against the applicants.

39. The Court has previously held in similar circumstances that Article 6 § 1 could be applicable to criminal proceedings, the decisive factor being that, from the moment the applicants were joined as civil parties until the conclusion of those proceedings, the civil limb of those proceedings remained closely linked to the criminal limb. In that connection, the applicants were entitled, according to the Court ’ s settled case-law, to rely on Article 6 § 1 (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 62, ECHR 2002-I, and Perez v. France [GC], no. 47287/99, §§ 57, 61, 65 and 70, ECHR 2004 I ).

1. The proceedings against I.P.

40. Turning to the present case the Court notes that the applicants invoke Article 6 of the Convention in respect of two sets of proceedings. As regards the set of proceedings against I.P., the facts of the case show that the proceedings were disjoined from the main case in 2001 (see paragraph 9 above). Since the accused could not be found, the proceedings were stayed on 8 May 2001 and resumed in January 2010, when I.P. was successfully brought before the trial court (see paragraphs 14 and 20 above). The applicants provided evidence that in this set of proceedings they brought their civil claims on 11 March 2010 (see paragraph 21 above). The proceedings terminated on 12 March 2010 with a judgment which apparently was not appealed against (see paragraph 22 above). It follows that the period since the applicants first joined as civil parties to the criminal proceedings lasted only one day and cannot be considered in breach of the “reasonable time” requirement. Accordingly, 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.

2. The proceedings against A.S.

41. As regards the second set of proceedings directed against A.S., the proceedings were at first conducted within the main set of proceedings. The applicants provided evidence that on 3 March 2004, within the main set of criminal proceedings, they lodged a civil claim for pecuniary damages (see paragraph 10 above). In May 2004 the charges against A.S. were severed from those proceedings, to be dealt with in a separate set of proceedings, which was, at the date of last information available to the Court (March 2015) still pending (see paragraphs 11 and 28 above). In the absence of any clear submissions by the Government in respect of that matter, the Court concludes that in the proceedings against A.S. the applicants first joined them as civil parties to the criminal proceedings on 3 March 2004. The period to be taken into consideration thus started on that date.

42. 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 (see, among other examples, Finger v. Bulgaria , no. 37346/05, § 94, 10 May 2011).

43. The Court notes that the proceedings against most of the accused, who had not sought to avoid justice, ended between 2006 and 2008 (see paragraphs 12 and 13 above). There is therefore no indication that those proceedings were particularly complex. However, in the proceedings under consideration A.S. absconded and could not be found. The trial court has regularly asked the police and other domestic authorities whether they have received any information as to the whereabouts of A.S. (see paragraph 24 above). Given the impossibility of finding him, on 2 December 2005 the court stayed the proceedings (see paragraph 25 above). On the basis of the material before it the Court considers that the trial court remained active and used all means at its disposal to look for the accused in order to try him. In particular, after it had received an indication that A.S. might be abroad, the trial court issued on 29 March 2009 a European arrest warrant (see paragraph 27 above). The applicants failed to provide any evidence showing that the domestic courts and authorities had been negligent in their efforts to locate and arrest A.S. In view of the above, the Court is not persuaded that the domestic authorities should be held responsible for the fact that the criminal case against A.S. (and consequently, the applicants ’ civil claim for compensation) has not been yet established. Consequently, the Court considers that the authorities acted with due diligence in their handling of the applicants ’ case, and that the overall duration of the proceedings was due to the objective fact of the accused going into hiding, for which the respondent State cannot be held responsible (see, mutatis mutandis , S.R. v. Italy , no. 33212/96 , Commission ’ s decision of 14 January 1998, where the Commission considered that the suspension of the criminal proceedings due to the objective fact of the mental illness of the accused could not be blamed on the national authorities).

44. Accordingly, the Court considers that there is no appearance of violation of the “reasonable time” requirement in respect of the proceedings against A.S. It follows that this part of the application is also manifestly ill ‑ founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 30 March 2017 .

Andrea Tamietti Nona Tsotsoria              Deputy Registrar President