FIRST SECTION

CASE OF LEWANDOWSKI v. POLAND

( Application no. 29848/17 )

JUDGMENT

STRASBOURG

18 March 2021

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

In the case of Lewandowski v. Poland ,

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

Linos-Alexandre Sicilianos, President, Krzysztof Wojtyczek, Erik Wennerström , judges, and Attila Tepl án , Acting Deputy Section Registrar ,

Having regard to:

the application (no. 29848/17) 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 Jacek Piotr Lewandowski (“the applicant”), on 7 April 2017;

the decision to give notice to the Polish Government (“the Government”) of the complaints concerning unreasonable length of the criminal proceedings and right to effective remedy;

the parties ’ observations;

Having deliberated in private on 16 February 2021 ,

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

INTRODUCTION

1 . The case concerns the unreasonable length of the criminal proceedings against the applicant and lack of an effective remedy to complain thereof.

THE FACTS

2 . The applicant was born in 1975 and lives in Hamburg. The applicant was represented by Ms Daniszewska-Dek , a lawyer practising in Białystok .

3 . 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.

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

5 . On 25 May 2008 the applicant was arrested by the police and remanded in custody. He was charged with several counts of offences related to drug trafficking. On 28 December 2009 his pre-trial detention was lifted and a measure of police supervision was imposed on the applicant.

6 . In May 2009 the applicant was indicted before the Białystok Regional Court. The trial court held twenty-five hearings. On 1 July 2011 it gave a judgment in which the applicant was convicted and sentenced. Following his appeal, the Białystok Court of Appeal quashed the judgment and remitted the case on 5 April 2012.

7 . The Białystok Regional Court scheduled the first hearing for 26 September 2012; however, it was cancelled due to the absence of some of the co-accused. During the following period of eighteen months the trial court made unsuccessful attempts to summon all of the accused for a hearing. Only afterwards did the court decide to separate the charges against the applicant from those against six other defendants and attach them to a separate set of proceedings. On 5 March 2014 the court held the first hearing. It total it held thirteen hearings and gave a judgment on 23 February 2015. The applicant appealed.

8 . On 24 September 2015 the Białystok Court of Appeal gave a judgment.

9 . The applicant lodged a cassation appeal.

10 . On 11 October 2016 the Supreme Court dismissed the cassation appeal as manifestly ill-founded.

11 . On 26 September 2016 the applicant lodged a complaint under the Law of 17 June 2004 on the right to have a case examined in judicial proceedings without undue delay ( ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2004 Act”). The applicant complained in particular that the Bialystok Regional Court and the Court of Appeal had been responsible for many delays which had resulted in the overall excessive length of the criminal proceedings against him. He sought 20,000 Polish zlotys (PLN) in compensation.

12 . By a decision of 9 December 2016 (file no. IIs 20/16) the Bialystok Court of Appeal left the complaint without examination. The court considered that the complaint had not been lodged in the course of the relevant proceedings, namely before a judgment had been rendered by the second ‑ instance court.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

13 . 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).

THE LAW

14 . The applicant complained that the length of the 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 ... any criminal charge against him everyone is entitled to a ... hearing within a reasonable time by a ... tribunal...”

15 . The Government contested that argument.

16 . The period to be taken into consideration began on 25 May 2008 and ended on11 October 2016. It thus lasted eight years and almost five months and three instances.

17 . The Government raised a preliminary objection to the non-exhaustion of domestic remedies. They maintained that the applicant had not lodged a complaint about the unreasonable length of the proceedings under the 2004 Act while the proceedings had been pending before the first and second-instance courts. The Government observed that under domestic law a complaint could only be lodged “in the course of the proceedings”, whereas the applicant had lodged his complaint after the termination of the proceedings, at the cassation phase. The applicant had therefore failed to comply with the formal requirements of domestic law. Secondly, it had been open to him to use another remedy after the termination of the proceedings, namely to lodge a civil claim under Article 417 of the Civil Code.

18 . The applicant contested the Government ’ s arguments. He claimed that the proceedings in his case had ended with the Supreme Court ’ s judgment and that that approach had been reaffirmed by the Court on several occasions. The applicant argued that Polish courts had not been using the 2004 Act remedy in accordance with the Court ’ s standards. As regards the possibility of bringing a claim before a civil court after the termination of the proceedings, the applicant considered that such a remedy would not have been effective in his case and would not have offered him any just satisfaction.

19 . In that context it is to be reiterated that in the Rutkowski pilot judgment the Court considered that the domestic practice known as “fragmentation of the proceedings” was one of the main elements of the systemic dysfunction of the remedy introduced by the 2004 Act. The fragmentation consisted of the courts not taking into account the proceedings in their entirety which had decisive consequences for the outcome of the applicant ’ s claims for compensation, which were either rejected in their entirety as being unjustified or granted only partly (see Rutkowski and Others , cited above, § 181).

20 . The Court considers that the present case mainly turns on the question whether, in the procedural context of the complaint under the 2004 Act lodged while the main proceedings were pending before the Supreme Court, the applicant should be considered as having exhausted domestic remedies. An identical question has been already answered by the Court in a recent case against Poland (see Zborowski v. Poland , no. 72950/13, 26 March 2020). The Court concluded that the applicant ’ s complaint under the 2004 Law, made while the main proceedings were pending before the Supreme Court, should be considered as lodged in the course of the proceedings (ibid. § 38). Moreover, to ask the applicant to attempt another, ex post facto remedy by lodging a civil claim after the termination of the proceedings would overstretch his duties under Article 35 § 1 of the Convention.

21 . The Court sees no reason to depart from the above approach in the case under consideration. The applicant lodged a complaint under the 2004 Act at the cassation stage of the proceedings but it was left without examination by the Bialystok Court of Appeal on 9 December 2016 (see paragraph 12 above). Regard being had to the above considerations on the domestic practice of fragmentation of the proceedings and its case-law on the calculation of the overall period to be taken into consideration for the purposes of Article 6 § 1 of the Convention, the Court concludes that the applicant lodged his complaint under the 2004 Law in the course of the proceedings. Therefore, the Court dismisses the Government ’ s objection as to the exhaustion of domestic remedies.

22 . 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.

23 . The applicant argued that the length of the proceedings, which had lasted a total of eight years, had been clearly in breach of the “reasonable time” principle. Their length had been a result of a lack of diligence on the part of the domestic courts, which had failed to properly organise hearings and to promptly separate the charges against him from the more serious charges against some of the co-accused. The charges against the applicant were of minor character and his case had not been complicated. Moreover the trial court had committed a serious procedural error which had resulted in the judgment being quashed and the case being remitted for reconsideration. The applicant himself had not contributed in any way to the overall length of the proceedings. During two trials before the Białystok Regional Court the applicant had to attend some thirty hearings, travelling each time from his home in Torun and, later, from Hamburg, in Germany.

24 . The Government refrained from commenting on the merits of the applicant ’ s complaint.

25 . The Court reiterates that the reasonableness of the length of the proceedings must be assessed in the light of the particular circumstances of the case and taking into account the criteria laid down in the Court ’ s case law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities. On the latter point, account must also be taken of what is at stake for the applicant (see Kudła v. Poland [GC], no. 30210/96, § 124, ECHR 2000 ‑ XI; for further case-law references, see Rutkowski and Others v. Poland , nos. 72287/10, 13927/11 and 46187/11, §§ 126-28, 7 July 2015).

26 . The Court does not have before it enough information to find that the case was of more than an average complexity. While the trial court held many hearings it is impossible to establish to what extent they considered the examination of the charges against the applicant and not his co-accused. In this context the Court notes that during the re-trial the Bialystok Regional Court had, for a period of eighteen months, unsuccessfully attempted to schedule a hearing against all of the co-accused (see paragraph 7 above) . Only afterwards did the court decide to separate the charges against those co-accused who had been avoiding the trial to a separate set of proceedings.

27 . Moreover, it is to be noted that following one remittal ordered by the Bialystok Court of Appeal, the applicant ’ s case was re-examined by the trial court (see paragraphs 6 above). Although the Court is not in a position to analyse the juridical quality of the case-law of the domestic courts, the remittal of cases for re-examination is usually ordered as a result of errors committed by lower courts and points to a deficiency in the judicial system. Moreover, this deficiency is imputable to the authorities and not the applicants (see, among many others, Wierciszewska v. Poland , no. 41431/98, § 46, 25 November 2003; Matica v. Romania , no. 19567/02, § 24, 2 November 2006; and Vlad and Others v. Romania , nos. 40756/06, 41508/07 and 50806/07, § 133, 6 November 2013).

28 . Lastly, the Court notes that it does not appear that the applicant contributed in any way to the overall length of the proceedings in his case.

29 . In the circumstances, the Court cannot find any justification for the overall length of the criminal proceedings against him. There has accordingly been a breach of Article 6 § 1.

30 . The applicant further submitted that he had no effective domestic remedy in respect of the protracted length of proceedings in his case. He relied on Article 13 of the Convention, which reads:

“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.”

31 . The Government failed to comment on the applicant ’ s complaint.

32 . The Court notes that this complaint is linked to the one examined above; likewise, it must therefore be declared admissible.

33 . 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 (see KudÅ‚a , cited above, §§ 146-56 ). The relevant principles, as established in KudÅ‚a and the Court ’ s subsequent judgments, has been set out in Rutkowski pilot judgment ( Rutkowski and Others , cited above, §§ 126 ‑ 128)

34 . The Court has already found that that the applicant ’ s right to a hearing within a reasonable time guaranteed by Article 6 § 1 of the Convention has not been respected (see paragraph 29 above). There is, therefore, no doubt that his complaint is “arguable” for the purposes of Article 13 and that he was entitled to a remedy whereby he could obtain appropriate relief for the Convention breach before the domestic authority, including compensation for non-pecuniary damage suffered on account of delays that had occurred in his case (see Kudła , cited above, § 157).

35 . However, on 9 December 2016 the Bialystok Court of Appeal left the applicant ’ s complaint without examination under the 2004 Act. The impugned decision fully reflected the domestic practice of fragmentation of the proceedings criticised by the Court on multiple occasions (see paragraph 19 above).

36 . In view of the foregoing, the Court finds that a complaint under the 2004 Act failed to provide the applicant with “appropriate and sufficient redress” in terms of adequate compensation for the excessive length of the proceedings in his case (see Scordino (no. 1) , § 181 and Rutkowski and Others , cited above, § 183).

37 . There has accordingly been a violation of Article 13 of the Convention.

38 . 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.”

39 . The applicant claimed 20,000 Polish Zlotys (PLN) in respect of pecuniary damage.

40 . The Government left the matter to the Court ’ s discretion.

41 . The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards award him 2,600 euros (EUR) under that head.

42 . The applicant also claimed the equivalent of EUR 4,000 for the costs and expenses incurred before the domestic courts. The applicant, represented by a lawyer of his choice, made no claim in respect of expenses incurred before the Court.

43 . The Government contested the claim and considered it irrelevant.

44 . 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.

45 . The Court considers it appropriate that the default interest rate 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,

(a) that the respondent State is to pay the applicant, within three months, EUR 2,600 (two thousand six hundred euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant ’ s claim for just satisfaction.

Done in English, and notified in writing on 18 March 2021 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Attila Teplán Linos-Alexandre Sicilianos Acting Deputy Registrar President