FOURTH SECTION

DECISION

Application no . 7063/10 Krzysztof CHUDY-STERNIK against Poland and Spain

The European Court of Human Rights (Fourth Section) , sitting on 1 5 Jan uary 2013 as a Committee composed of:

David Thór Björgvinsson , President , Vincent A. D e Gaetano , Krzysztof Wojtyczek , judges ,

and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 26 January 2010 ,

Having regard to the declaration submitted by the respondent Government on 16 November 2011 requesting the Court to strike the application out of the list of cases and the applicant ’ s reply to that declaration ,

Having deliberated , decides as follows:

THE FACTS

The applicant , Mr Krzysztof Chudy-Sternik , is a Polish national , who was born in 1977 and lives in Mostoles , Spain .

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

A. The circumstances of the case

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

On 9 June 1997 the Lublin District Court ( Sąd Rejonowy ) ordered the applicant ’ s detention on remand in connection with charges of a gang rape of a fourteen-year-old girl. On 17 June 1997 an arrest warrant was issued against the applicant. The investigation against him and another person was stayed as they went into hiding. In 1998 two other perpetrators were found guilty of the gang rape and another two were tried by a juvenile court due to their age.

When the authorities learned that the applicant and another alleged perpetrator may live in Spain , on 30 May 2006 a new detention order was issued. On 22 August 2006 the previous arrest warrant was replaced by the European Arrest Warrant issued by the Lublin Regional Court ( Sąd Okręgowy ).

On 18 January 2007 the applicant was apprehended in Spain . He was handed over to the Polish authorities on 19 March 2007.

On 29 March 2007 the Lublin District Court detained the applicant on remand. In its decision , the court relied on the high probability that the applicant had committed the offence with which he had been charged. It moreover stressed the risk that t he applicant , who was facing a severe sentence of imprisonment , would attempt to obstruct the proceedings. In the district court ’ s view , detention on remand constituted the only preventive measure capable of guaranteeing the correct conduct of the proceedings , all the more so because prior to his apprehension , the applicant had been living abroad and avoiding justice for many years. The court found no special circumstances , family-related or otherwise , militating against the applicant ’ s detention.

On 22 May 2007 the bill of indictment was lodged with the Lublin Regional Court against the applicant and one co-accused.

The applicant ’ s detention on remand was subsequently extended by the Lublin Regional Court ’ s decisions of 29 May , 29 August , and 12 December 2007 , 18 February , 15 April , 17 June , 7 July , 8 September and of 3 November 2008. The court generally repeated the initial reasons for the applicant ’ s detention , holding that they still continued to apply. Moreover , in the last three invoked decisions it noted that almost all of the evidence in the case had been collected and that the applicant ’ s detention should soon come to an end.

The applicant filed numerous requests for release , all of which were dismissed by the Lublin Regional Court .

On 8 December 2008 the Lublin Regional Court decided to release the applicant. On 10 December 2008 it placed him under police supervision and seized his passport. The court considered that the evidence in the case had been for the most part collected and there was no longer a risk that the applicant would attempt to tamper with it.

On 10 December 2008 the applicant was released.

Following the prosecutor ’ s appeal against the applicant ’ s release , on 23 December 2008 the Lublin Court of Appeal ( Sąd Apelacyjny ) quashed that decision and remitted the case to the Regional Court . The Court of Appeal drew the Regional Court ’ s attention to the fact that the likely severe penalty which the applicant was facing constituted in itself a sufficient basis for his detention. It moreover invited the Regional Court to re-assess the risk of the applicant ’ s absconding.

On 6 January 2009 the Lublin Regional Court once more ordered the applicant ’ s detention , finding that the risk of his absconding was particularly high and could not be obviated by the seizure of his passport. The applicant was arrested again on 18 January 2009. His appeal against the Regional Court ’ s decision was dismissed by the Lublin Court of Appeal on 21 January 2009.

On 15 April 2009 the Lublin Court of Appeal extended the applicant ’ s detention. Moreover , it decided that the applicant may be released on bail of PLN 50 , 000 (approx. EUR 12 , 000). The applicant did not avail himself of that opportunity.

On 14 October 2009 the Lublin Court of Appeal did not grant the Lublin Regional Court ’ s request for further extension of the applicant ’ s detention , finding the request to be inadequately justified.

On 20 October 2009 the applicant was released.

On 4 March 2010 the Lublin Regional Court convicted the applicant as charged and sentenced him and his co-accused to four years and six months ’ imprisonment. The court established that on 22 October 1996 Ms J.B. , at that time a fourteen-year-old pupil of a local primary school , left the premises of the school during a break to buy a pen. She was then apprehended by a few young men who took her by force to a flat in a nearby apartment block. Afterwards , she was taken to a cellar of the block where she was gang raped by in total six perpetrators. Some of them , like the applicant , forced her to perform oral sex; others performed vaginal and anal intercourse with the victim. The victim was threatened and hit by some of the perpetrators who drank alcohol and smoked cigarettes. They were changing places repeatedly raping J.B. , who at times was raped by two perpetrators at the same time. When they finished , they again threatened to kill her if she decided to talk , and then let her go. Ms J.B. went upstairs to the flat of one of her girlfriends , who lived in the same apartment block , and told her and her sister what had happened. On the same day the victim underwent a gynaecological examination which confirmed rupture of the hymen and presence of semen in her vagina. Furthermore bruises and hematomas were found on her buttocks and back. The next day Ms J.B. underwent expert medical examination which confirmed previous findings. During the investigation further evidence was gathered including a cigarette butt and the victim ’ s tee-shirt with traces of semen on it.

The trial court noted that the attempts to summon Ms J.B. to the hearing were unsuccessful as she had been living in the United Kingdom with her husband and a child. She also failed to appear before the Polish Consul in London . However , the court considered as satisfactory the victim ’ s testimonies made before the prosecuting authorities and the trial court in another set of proceedings against two other perpetrators , which had all been read out at the hearing. The court relied on testimonies of many witnesses who saw the victim before the events in question and after them. The trial court further relied on an expert psychological opinion which considered the victim ’ s statements as truthful and authentic and her personality as well-developed , without tendencies to fantasise or confabulate. The court also relied on a medical forensic opinion issued by the Lublin Medical University Forensic Institute on the basis of the medical examination of the victim of 23 October 1996.

The applicant lodged an appeal against the judgment in particular complaining that he had been prevented from directly putting questions to the main witness against him , the victim J.B.

On 8 September 2010 the Lublin Court of Appeal amended the impugned judgment in that it lowered the sentence against the applicant to three years ’ imprisonment. The totality of the applicant ’ s detention , since 18 January 2007 , had been calculated towards the sentence. The court at length examined the applicant ’ s complaints that the failure to directly hear the victim amount to a breach of his right to a fair trial. It firstly noted that there had been numerous attempts to summon the victim , who moved abroad , to appear before the court or the local Consulate of Poland. She had already made statements before the police at two long interviews , the second in the presence of a psychologist who subsequently prepared an expert opinion which had not contested the veracity of her depositions. Afterwards Ms J.B. made statements before a trial court in another case originating from the same facts (charges against two co-accused had been examined in 1998 in another set of proceedings). The appellate court also underlined that the victim ’ s statements had been corroborated by evidence from other witnesses. Four of those witnesses , outside her family , testified not only on what the victim had told them about the course of events and the identity of the perpetrators , but also on their perception of her state and external appearance directly after the rape (Ms J.B. was in shock , crying and wearing dirty clothes). The court further considered as correct the trial court ’ s assessment of the medical expert evidence. This medical evidence confirmed the presence of semen and blood as well as different bruises and haematomas on Ms J.B. forehead , buttocks and back. Some further biological evidence , linked to another co-accused , was found on the victim and her tee-shirt. The court also referred to other witnesses who had provided valuable evidence against the applicant and his co-accused.

On 27 September 2011 the Supreme Court decided to dismiss the applicant ’ s cassation appeal as manifestly ill-founded.

B. Relevant domestic law and practice

The relevant domestic law and practice concerning the imposition of detention on remand ( aresztowanie tymczasowe ) , the grounds for its extension , release from detention and rules governing other , so-called “preventive measures” ( ś rodki 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 May 2006.

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 CharzyÅ„ski 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 in the case of Krasuski v. Poland , no. 61444/00 , §§ 34-46 , ECHR 2005-V.

COMPLAINTS

The applicant complained under Article 5 § 3 of the Convention about the unreasonable length of his pre-trial detention.

The applicant further complained , against both Poland and Spain , that his detention from 1 February 2007 to 29 March 2007 had been unlawful in breach of Article 5 § 1 of the Convention.

Furthermore , he complained under Article 6 of the Convention that the length of the criminal proceedings has been excessive and that the trial had been unfair in that the victim J.B. had not been heard by the court in his presence.

Lastly , the applicant complained that the prison authorities obstructed and censored his correspondence with his wife in breach of Article 8 of the Convention.

THE LAW

A. Length of detention

The applicant complained about the length of his pre-trial detention. He relied on Article 5 § 3 of the Convention which , in so far as relevant , provides 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.”

By a letter dated 16 November 2011 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“The Government hereby wish to express – by way of the unilateral declaration – their acknowledgement that the length of the applicant ’ s pre-trial detention violated Article 5 § 3 of the Convention.

Consequently , the Government are prepared to pay to the applicant the sum of PLN 4 , 000 , which they consider to be reasonable in the light of the Court ’ s case law. The sum referred to above , which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses , will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period , the Government undertake 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.

The Government would respectfully suggest that the above declaration might be accepted by the Court as ‘ any other reason ’ justifying the striking out of the case of the Court ’ s list of cases , as referred to in Article 37 § 1 (c) of the Convention.

(...) As transpires from the Government ’ s unilateral declaration , the Government accepted paying to the applicant as just satisfaction the sum of PLN 4 , 000 in the event of the Court ’ s striking the case out of its list.”

The applicant generally contested the unilateral declaration submitted by the Government.

The Court recalls 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 (a) , (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular 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”.

It also recalls that in certain circumstances , it may strike out an application , or part thereof , under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

To this end , the Court will examine carefully the declaration in the light of the principles emerging from its case-law , in particular the Tahsin Acar judgment ( Tahsin Acar v. Turkey , [GC] , no. 26307/95 , §§ 75-77 , ECHR 2003-VI); WAZA Spółka z o.o . v. Poland ( dec .) , no. 11602/02 , 26 June 2007; and Sulwińska v. Poland ( dec .) , no. 28953/03).

The Court has established in a number of cases , including those brought against Poland , its practice concerning complaints of a violation of Article 5 § 3 of the Convention as regards the unreasonable length of pre ‑ trial detention ( Kauczor v. Poland , no. 45219/06 , 3 February 2009 with further references).

Having regard to the nature of the admissions contained in the Government ’ s declaration , as well as the compensation proposed in the amount of PLN 4 , 000 – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1 (c)).

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 this part of the application (Article 37 § 1 in fine).

Accordingly , this part of the application should be struck out of the list.

B. Remaining complaints

The applicant complained under Article 5 § 1 of the Convention that his detention from 1 February 2007 to 29 March 2007 had been unlawful. He directed his complaints against both Poland and Spain . However , the Court notes that he lodged his application with the Court on 26 January 2010. It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

As to the complaint under Article 6 § 1 of the Convention concerning the excessive length of criminal proceedings , the Court notes that the applicant failed to lodge a complaint about the breach of the right to a trial within a reasonable time under the Law of 17 June 2004 on complaints about a breach of the right to an investigation conducted and supervised by a Prosecutor and to a trial within a reasonable time ( Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postÄ™powaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postÄ™powaniu sÄ…dowym bez nieuzasadnionej zwÅ‚oki ) (see CharzyÅ„ski v. Poland ( dec .) no. 15212/03 , 1 March 2005). It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non ‑ exhaustion of domestic remedies.

The applicant further raised other complain t s under Article 6 of the Convention relating to the unfairness of the proceedings. In particular he complained that he could not directly put questions to the main witness against him , the victim of the rape , Ms J.B. The Court firstly notes that the relevant case-law relating to safeguards under Article 6 §§ 1 and 3 (d) of the Convention has been recently reiterated in the judgment Al- Khawaja and Tahery v. the United Kingdom ([GC] , nos. 26766/05 and 22228/06 , §§ 118 and 119 , ECHR 2011 ). The Court also reiterates its case-law regarding rape cases in that there exist requirements inherent in the States ’ positive obligations to establish and apply effectively a criminal-law system punishing all forms of rape and sexual abuse ( M.C. v. Bulgaria , no. 39272/98 , § 185 , ECHR 2003 ‑ XII) . The Court acknowledges that the special features of criminal proceedings concerning rape might require balancing the needs of the defence against those of witnesses or victims called upon to testify. Such proceedings are often conceived of as an ordeal by the victim , in particular as they entail being confronted again with the defendant.

Turning to the facts of the present case the Court firstly notes that the applicant ’ s trial took place over twelve years after the events in question because the applicant and his co-accused had been avoiding justice. After this lapse of time the authorities attempted to contact the victim and summoned her to appear before the trial court (compare and contrast Demski v. Poland , no. 22695/03 , § 44 , 4 November 2008) . When they established that the victim lived abroad they summoned her to appear at the Polish Consulate in London . All those attempts failed due to the victim ’ s refusal to appear and repeat her testimonies which she had already made before the prosecutor during the investigation and the trial court during in the first criminal case originating from the gang rape in 1996. The domestic courts at the appellate and cassation stage found that her reluctance to testify again after over ten years , on such intimate matters of her life , had been justified.

The Court further considers that the testimonies of Ms J.B. were not the only evidence in the case against the applicant. The domestic courts relied on the testimonies of four witnesses who had contact with the victim directly after the events in question and who had described her poor mental and physical state. Moreover , the courts had at their disposal medical expert evidence which established that the victim had had recent sexual intercourse and had different bruises and minor injuries which had corresponded to the course of events presented by her. There was biological evidence found on her body and clothes pointing to some of the co-accused , although it appears not clearly to the applicant. In those circumstances the Court considers that the applicant ’ s conviction was not based solely or to a decisive extent on the statements of Ms J.B. (see Jakubczyk v. Poland , no. 17354/04 , § 49 , 10 May 2011).

The Court finally notes that the applicant had access to all the statements used by the court , as they had been read out at the hearing. Although it had not been possible for the applicant to put questions directly to the witness in question , he nevertheless questioned her reliability at the hearings before the trial court , and in his written pleadings , appeal and cassation appeal.

In addition , the Court is satisfied that the domestic courts assessed the statements of Ms J.B. with the particular care required. They took into consideration various factors which were of relevance when it came to assessing her credibility , in particular in the light of the expert psychological opinion , and the veracity and the weight to be given to her statements ( see Gossa v. Poland , no. 47986/99 , § 62 , 9 January 2007 , and Biełaj v. Poland , no. 43643/04 , § 61 , 27 April 2010).

In the light of the above , the Court is satisfied that the criminal proceedings against the applicant concerning sexual offences , taken as a whole , was fair , as his conviction was not solely based on the statements of the victim which had been read out at the hearing (see Dankovsky v. Germany , ( dec ) no. 36686/97 , 12 January 1999 , Verdam v. the Netherlands , ( dec ) no. 35253/97 , 31 August 1999; and P.S. v. Germany , no. 33900/96 , § 30 , 20 December 2001 ). It follows that this complaint is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

The applicant finally complained about the alleged censorship of his letters with his family. However , having regard to all the material in its possession , and in so far as the matters complained of are within its competence , the Court finds that the applicant has failed to substantiate his complaint. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons , the Court unanimously

Takes note of the terms of the respondent Government ’ s declaration in respect of the complaint under Article 5 § 3 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Fatoş Aracı David Thór Björgvinsson Deputy Registrar President