FOURTH SECTION

DECISION

Application no . 2891/12 Krzysztof CZERNUSZEWICZ against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 19 January 2016 as a Committee composed of:

Nona Tsotsoria , President, Krzysztof Wojtyczek , Gabriele Kucsko-Stadlmayer , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 6 December 2011 ,

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

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Krzysztof Czernuszewicz , is a Polish national, who was born in 1982. He is currently detained in Krzywaniec Prison.

2. 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

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

1. Criminal proceedings against the applicant

4. On 2 February 2004 the applicant was arrested by the police on suspicion of robbery. On 5 February 2004 the Krosno Odrzańskie District Court remanded the applicant in custody in view of a reasonable suspicion that he had committed a robbery. The applicant did not appeal.

5. On 25 March 2004 the district prosecutor filed a bill of indictment with the Krosno Odrzańskie District Court. The applicant was charged with a robbery which he had allegedly committed with two other defendants.

6. On 15 April 2004 the applicant started serving a sentence of the two years ’ imprisonment imposed on him by the Krosno Odrzańskie District Court in a separate case no. II K 382/02. He was serving this sentence until 28 November 2005.

7. On 19 April 2004 the applicant ’ s detention on remand was extended until 11 May 2004. On 11 May 2004 the Krosno Odrzańskie District Court lifted the applicant ’ s detention on remand and placed him under police supervision.

8. On 7 November 2004 the Krosno Odrzańskie District Court convicted the applicant as charged and sentenced him to two years ’ imprisonment. The applicant appealed. On 30 August 2006 the Zielona G ó ra Regional Court quashed the trial court ’ s judgment.

9. On 7 April 2009 the Krosno OdrzaÅ„skie District Court acquitted the applicant and his two co ‑ defendants.

2. Application for compensation on account of unjustified pre ‑ trial detention

10. On 8 February 2011 the applicant lodged an application for compensation for unjustified detention on the basis of Article 552 § 4 of the Code of Criminal Procedure. He sought 15,000 Polish zlotys (PLN) in respect of non ‑ pecuniary damage.

11. On 20 May 2011 the Krosno Odrzańskie District Court credited the period of the applicant ’ s detention on remand from 2 February 2004 to 15 April 2004 towards the term of imprisonment imposed on him in a separate set of criminal proceedings (case no. II K 307/06 in which the applicant had been sentenced on 5 October 2006 to one year of imprisonment).

12. On 23 September 2011 the Zielona Góra Regional Court dismissed the application. It held that the applicant ’ s pre ‑ trial detention between 2 February 2004 and 11 May 2004 had been “undoubtedly unjustified” within the meaning of Article 552 § 4 of the CCP. However, the damage sustained by the applicant had been already compensated for by crediting the period of his pre ‑ trial detention towards two terms of imprisonment imposed on him in two separate sets of criminal proceedings.

13. The applicant appealed. He argued that the crediting of a period of pre ‑ trial detention towards a term of imprisonment did not constitute an adequate compensation for damage because those two regimes of deprivation of liberty were different, the regime of detention on remand being more stringent.

14. On 29 December 2011 the PoznaÅ„ Court of Appeal dismissed the applicant ’ s appeal. It confirmed, having regard to the applicant ’ s acquittal, that his pre ‑ trial detention had been “undoubtedly unjustified”. The Court of Appeal also agreed with the lower court that the applicant ’ s claim for non ‑ pecuniary damage had been fully satisfied by crediting the period of his pre ‑ trial detention towards two sentences of imprisonment imposed on him. Such non ‑ pecuniary nature of compensating for damage caused by unjustified pre ‑ trial detention was appropriate and, moreover, corresponded to the dominant trend in the case ‑ law. The court noted that the applicant relied on a different interpretation expressed in the Krak ó w C ourt of Appeal ’ s judgment of 27 May 2009 (case no. II AKa 99/09). However, the PoznaÅ„ Court of Appeal considered this judgment to be an isolated example and did not share the approach adopted therein.

B. Re levant domestic law

15. Article 552 of the Code of Criminal Procedure provides:

“ 1. An accused who , as a result of the re opening of proceedings or a n appeal on points of law, has been acquitted or re ‑ sentenced under a more lenient provision , shall be entitled to receive from the State Treasury compensation for the pecuniary and non ‑ pecuniary damage which he has suffered as a result of having served all or part of the sentence unjustifiably imposed on him .

2. The provisions of paragraph 1 shall also be applicable if, after the sentencing judgment has been reversed or declar ed null and void, the proceedings have been discontinued by reason of material circumstances not duly considered in prior proceedings.

3. A right to compensation for pecuniary and non ‑ pecuniary damage shall also arise if a preventive measure has been applied un der the conditions specified in paragraphs 1 and 2.

4 . A right to compensation for pecuniary and non ‑ pecuniary damage shall also arise in the event of undoubtedly unjustifi ed ( niewÄ…tpliwie niesÅ‚uszne ) pre ‑ trial detention or arrest. ”

COMPLAINT

16. The applicant complain ed under Article s 5 and 7 of the Convention about the refusal to award him compensation for his unjustified detention on remand. He claimed to have sustained non ‑ pecuniary damage on account of his unjustified detention. This damage could not have been sufficiently compensated for by crediting the period of his pre ‑ trial detention towards a sentence imposed on him in another set of proceedings. The applicant argued that the regimes of pre ‑ trial detention and of serving a sentence had been significantly different in terms of limitations applicable.

THE LAW

17. The applicant complained under Articles 5 and 7 of the Convention about the refusal to award him compensation for his unjustified detention on remand.

18. The Court considers that it is appropriate to examine the applicant ’ s grievance under Article 5 § 5 of the Convention alone.

A. The Government ’ s submissions

19. The Government firstly argued that the applicant had not exhausted domestic remedies since he had failed to lodge a cassation appeal against the Poznań Court of Appeal ’ s judgment of 29 December 2011 . They submitted that the applicant had been properly instructed by the Court of Appeal about the procedure for lodging a cassation appeal.

20. Secondly, the Government submitted that the applica nt could no longer claim to be a victim of the violation of his Convention rights. In their view, the domestic courts acknowledged that there had been a breach of the applicant ’ s Convention rights. Furthermore, the domestic courts found that the damage sustained by the applicant had been already compensated by crediting the period of his detention on remand towards two sentences of imprisonment that had been imposed on him. The Government asserted that the applicant had been adequately compensated for the damage sustained.

21. Thirdly, the Government averred that the complaint under Article 5 § 5 was inadmissible as being manifestly ill-founded. Referring to the findings of the domestic courts, they submitted that the applicant ’ s detention on remand had been ordered in accordance with the domestic law. The applicant ’ s detention on remand was found “undoubtedly unjustified” as a result of his acquittal. This finding did not imply that the applicant ’ s detention on remand had been imposed in breach of Article 5 of the Convention. Moreover, the period of the applicant ’ s detention on remand had been credited towards another imposed on him and there could be no question of compensation where there was no longer any damage to compensate.

B. The applicant ’ s submissions

22. The applicant did not respond to the Government ’ s observations, but expressed his wish to pursue the application.

C. The Court ’ s assessment

23. The Government raised a number of objections to the admissibility of the application (see paragraphs 19-21 above). However, the Court finds it unnecessary to rule on each of the Government ’ s above objections since, in any event, it considers that the applicant ’ s complaint is inadmissible for non ‑ exhaustion of domestic remedies.

24. The Court reiterates that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. Th e Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It cannot, and must not, usurp the role of Contracting States whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is therefore an indispensable part of the functioning of this system of protection. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national le gal system (see Akdivar and Others v. Turkey , 16 September 1996, § 65, Reports 1996 ‑ IV; and Demopoulos and Others v. Turkey ( dec. ) [GC], nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04, § 69, ECHR 2010).

25. In the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non ‑ exhaustion to satisfy the Court that the remedy was an effective one available in theory and practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success. However, once this burden has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement. The mere doubts regarding the effectiveness of the relevant remedy, if not supported by material evidence, in particular examples from the established domestic practice, are not sufficient to absolve an applicant from his duty under Article 35 § 1 ( ibid .; see also Pikielny and Others v. Poland ( dec. ), no. 3524/05, 18 September 2012, § 57).

26. In the present case, the applicant had the possibility of filing a cassation appeal with the Supreme Court against the judgment of the Court of Appeal of 29 December 2011 on the basis of the Code of Criminal Procedure. However, he did not avail himself of this possibility. The Government maintained that a cassation appeal constituted an effective remedy in the instant case and the applicant submitted no arguments to the contrary. The Court further notes that in a similar case under Article 5 § 5 of the Convention concerning a claim under Article 552 § 4 of the Code of Criminal Procedure an applicant filed a cassation appeal with the Supreme Court which was examined on the merits (see Włoch v. Poland (no. 2) , no. 33475/08 , § § 14-17 , 10 May 2011 ).

27. Having regard to the above, the Court finds that the applicant failed to exhaust the remedy provided for by Polish law. Thus, the Government ’ s objection on the grounds of non-exhaustion is well ‑ founded.

28. It follows that the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 11 February 2016 .

FatoÅŸ Aracı Nona Tsotsoria              Deputy Registrar President