FOURTH SECTION

CASE OF ZIRAJEWSKI v. POLAND

( Application no. 32501/09 )

JUDGMENT

STRASBOURG

9 July 2013

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

In the case of Zirajewski v. Poland ,

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

Päivi Hirvelä , President, Ledi Bianku , Paul Mahoney , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having deliberated in private on 18 June 2013 ,

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

PROCEDURE

1 . The case originated in an application (no. 32501/09) 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 nati onal, Mr Artur Zirajewski (“the applicant”), on 12 May 2009 .

2 . In accordance with the wish of the applicant , who died on 3 January 2010, his ex-wife and the mother of his two children decided to pursue the application in his stead.

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

4 . The applicant alleged that his detention on remand exceeded a “reasonable time” within the meaning of Article 5 § 3 of the Convention and that the length of the criminal proceedings against him had been excessive. The applicant further complained under Article 13 of the Convention that he had had no ‘ effective remedy ’ against the excessive length of the proceedings.

5 . On 25 October 2011 the application was communicated to the Government.

THE FACTS

I . THE CIRCUMSTANCES OF THE CASE

6 . The applicant , Mr Artur Zirajewski, was a Polish national who was born in 1971 and who died in 2010. His ex-wife, Ms Elżbieta Zirajewska, decided to pursue the application in his stead .

A . Criminal proceedings against the applicant and his pre-trial detention

7 . On 29 April 1998 the applicant was arrested on suspicion of homicide and robbery .

8 . On 30 April 1998 the Gdańsk District Court ( Sąd Rejonowy ) ordered the applicant ’ s detention on remand. In its decision, the court relied on the reasonable suspicion that the applicant had committed the offences wi th which he had been charged, t he gravity of the charges and the severity of the anticipated sentence. It also pointed to the existence of a high risk that the applicant, if released, would attempt to tamper with the evidence or to intimidate witnesses, or to abscond. At the same time, the court found no special grounds, related to the applicant ’ s health or to his family life, militating against his detention.

9 . In the course of the proceedings , the applicant ’ s detention was prolonged on numerous occasions. In their decisions , the courts repeatedly relied on the original grounds given for the applicant ’ s detention, invoked in the initial detention order.

10 . On 31 July 2000 the bill of indictment was filed with the Gdańsk Regional Court ( Sąd Okręgowy ). The applicant and eight other persons were indicted with homicide, several counts of robbery and various other offences committed in an organised criminal group.

11 . The trial began on 14 December 2000.

12 . On 29 July 2003 the Gdańsk Regional Court convicted the applicant as charged and sentenced him to 15 years ’ imprisonment. The applicant appealed.

13 . On 16 December 2004 the GdaÅ„sk Court of Appeal ( SÄ…d Apelacyjny ) quashed the first ‑ instance judgment and remitted the case.

14 . Between 16 and 26 August 2005 the applicant served a prison sentence which had been imposed on him in other criminal proceedings.

15 . On 24 August 2007 the Gdańsk Regional Court once more convicted the applicant as charged and again sentenced him to 15 years ’ imprisonment. The applicant appealed.

16 . On 7 January 2008 the applicant file d a request for release from detention.

17 . On 8 January 2008 the Gdańsk Regional Court dismissed his request. It considered that the applicant ’ s involvement in the offences with which he had been charged had been supported by the non-final judgment of 24 August 2007, in which he had been convicted and received a severe sentence. The court also held that further detention on remand was the only preventive measure capable of securing the proper course of the proceedings until the delivery of a final judgment. In particular, the court pointed to the high risk of the applicant ’ s absconding, resulting from the severity of the imposed penalty. Lastly, the court considered that the applicant ’ s intention to apply for an early release from prison, which he had expressed in his request, had been irrelevant to the issue of extending his detention.

18 . The applicant appealed against the above decision. On 15 January 2008 the Gdańsk Regional Court, in a different composition, dismissed the applicant ’ s appeal, essentially restating the reasons invoked in its decision of 8 January 2008 .

19 . On 19 February 2008 the Gdańsk Regional Court again extended the applicant ’ s detention until 24 August 2008.

20 . As a result of the applicant ’ s appeal, the Gdańsk Court of Appeal varied the Regional Court ’ s decision and extended the applicant ’ s detention only until 31 May 2008. The court first of all made clear that lifting the detention order or commuting it to another, less rigorous preventive measure, would be unacceptable in the circumstances of the case. Further, it restated the grounds invoked in the previous decisions which had extended the applicant ’ s detention and confirmed that these grounds remained valid. Lastly, the Court of Appeal concluded that, given the nature and the gravity of the applicant ’ s charges, the period of his detention on remand had not been excessive. It nevertheless acknowledged that the overall duration of the applicant ’ s detention had been relatively long, and considered it appropriate to shorten the period for which it would be further extended.

21 . On 19 November 2008 the Gdańsk Court of Appeal upheld the judgment given by the court of first instance.

B . Proceedings under the 2004 Act

22 . On 16 November 2008 the applicant filed a complaint under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time ( u stawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2004 Act”). He sought a finding that the length of the proceedings had been excessive and claimed compensation.

23 . On 27 October 2010 the Gdańsk Court of Appeal dismissed the applicant ’ s complaint . It pointed to the complexity of the impugned proceedings and to the considerable number of witnesses and procedural motions filed by the parties. It further noted that the lower court had conducted 64 hearings in the period from 14 December 2000 to 22 July 2003 and 22 hearings from 21 December 2005 to 17 August 2007. The Court of Appeal noted that, out of the total number of hearings , only 10 had been adjourned – four times due to the judges ’ sick leave, twice because of the lack of possibility to transport the accu sed to the court building, and four times due to the non-appearance of defence counsel. The Court of Appeal considered that the Regional Court had adequately organised the conduct of the impugned proceedings and noted that it had often had recourse to disciplinary measures aimed at enforcing the appearance of witnesses who had failed to attend. It concluded that the length of the impugned proceedings had not been excessive and that there had been no periods of significant inactivity on the part of the lower court. Consequently, it refused to award the applicant any compensation.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A . Preventive measures, including detention during the judicial proceedings

24 . 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 stated in the Court ’ s judgments in the cases of Kudła v. Poland [GC], no. 30210/96, §§ 75-79, ECHR 2000-XI; Bagiński v. Poland , no. 37444/97, §§ 42-46, 11 October 2005; and Celejewski v. Poland , no. 17584/04, §§ 22-23, 4 August 2006.

B . Remedies against unreasonable length of proceedings

25 . The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are set out 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 judgment in the case of Krasuski v. Poland , no. 61444/00, §§ 34-46, ECHR 2005-V .

THE LAW

I. THE GOVERNMENT ’ S REQUEST TO STRIKE OUT THE APPLICATION UNDER ARTICLE 37 OF THE CONVENTION

26 . On 23 April 2012 the Government submitted a unilateral declaration requesting the Court to strike out the application in so far as it relates to the applicant ’ s complaints under Article s 5 § 3 and 6 § 1 of the Convention .

The applicant objected to the proposal.

27 . Having studied the terms of the Government ’ s unilateral declaratio n, the Court considers, in the circumstances of the applicant ’ s case, that it does not provide a sufficient basis for concluding that respect for human rights as defined in the Convention and its Protocols does not require it to continue its examination of the case (see Choumakov v Poland (no. 2) , no. 55777/08, § 40, 1 February 2011, and Ruprecht v. Poland , no. 39912/06, § 27 , 21 February 2012 ).

28 . This being so, the Court rejects the Government ’ s request to strike this part of the application out under Article 37 of the Convention and will accordingly pursue its examination of the admissibility and merits of the case.

I I . ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

29 . The applicant complained that the length of his detention on remand 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. Admissibility

30 . The Cou rt notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Period to be taken into consideration

31 . The applicant ’ s detention started on 2 9 April 1998 , when he was arr ested on suspicion of homicide and robbery. On 29 July 2003 the Gdańsk Regional Court convicted him as charged and sentenced him to 15 years imprisonment .

As from that date he was detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a) and, consequently, that period of his detention falls outside the scope of Article 5 § 3 (cf. Kudła , cited above, § 10 4 ).

On 16 December 2004 the Gdańsk Court of Appeal quashed the applicant ’ s conviction. Following that date his detention was again covered by Article 5 § 3. It continued until 24 August 2007 when the applicant was again convicted .

32 . However, between 16 and 26 August 2005 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.

Accordingly, the period to be taken into consideration amounts to seven years and eleven months.

2 . The Court ’ s assessment

(a) General principles

33 . The Court recalls that the general principles regarding the right “to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention were stated in a number of its previous judg ments (see, among many other authorities, Kudła , cited above , § 110 ; and McKay v. the United Kingdom [ GC], no. 543/03, §§ 41-44, ECHR 2006- ... , with further references).

(b) Application of the above principles in the present case

34 . In their detention decisions, the authorities, in addition to the reasonable suspicion against the applicant , relied principally on four grounds, namely (1) the gravity of the charges, (2) the severity of the penalty to which he was liable, (3) the risk that the applicant might tamper with evidence and intimidate witnesses and (4) the risk that the applicant might go into hiding. As regards the latter, they did not, however, specify any concrete gr ounds justifying their opinion (see paragraphs 8, 17 and 20 above).

35 . The Court accepts that the reasonable suspicion against the applicant o f having committed serious offences could initially warrant his detention. Also, the need to secure the proper conduct of the proceedings, in particular the process of obtaining evidence from witnesses , constituted valid grounds for the applicant ’ s initial detention.

36 . However, with the passage of time, those grounds became less and less relevant. The Court must then establish whether the other grounds a dduced by the courts – namely, the sever ity of the anticipated sentence, the risk of the applicant ’ s going into hiding, the risk that the applicant would tamper with evidence – were “ sufficient” and “relevant” (see Kudła , cited above, § 111).

37 . According to the authorities, the gravity of the charges against the applicant and , consequently, the likelihood of a severe sentence being imposed on him, created a presumption that the applicant would abscond . However, the Court would reiterate that, while the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or re-offending, the gravity of the charges cannot by itself justify long periods of detention on remand (see Michta v. Poland , no. 13425/02, §§ 49, 4 May 2006) .

38 . As regards the risk that the app licant would temper with evidence or otherwise obstruct the proceedings, the Court is not persuaded that it constituted a valid ground for the entire length of his pre-trial detention. Firstly, it notes that the Gda Å„sk D istrict Court, when initially remanding the applicant in custody, made only a general reference to the risk that the applicant would attempt to induce witness to give false testimony. Secondly, the Court notes t h at the relevant decisions did not contain any argument capable of showing that these fears were well-founded. Such a generally formulated risk, flowing from the nature of the offences with which the applicant had been charged, might possibly be accepted as the basis for his detention at the initial stages of the proceedings. Nevertheless, in the absence of any other factor capable of showing that the risk of his influencing witnesses actually existed, the Court cannot accept that ground as a justification for holding the applicant in custody for the entire period in question .

39 . Having regard to the foregoing, even taking into account the fact that the courts were faced with a difficult task of trying the case involving an organised criminal group, the Court concludes that the grounds given by the domestic authorities could not justify the overall period of the applicant ’ s detention. In these circumstances it is not necessary to examine whether the proceedings were conducted with special diligence.

There has accordingly been a violation of Article 5 § 3 of the Convention.

II I . ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE PROCEEDINGS

40 . The applicant further complained that the length of the criminal proceedings against him had been incompatible with the “reasonable time” requirement. He relied on 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...”

41 . The Government confined themselves to the statements set out in their unilateral declaration.

42 . The period to be taken into consideration began on 29 April 1998 and ended on 19 November 2008 . It thus lasted ten years and six months in two levels of jurisdiction .             

A . Admissibility

43 . The Cou rt notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B . Merits

44 . 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).

45 . The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to t he one in the present case (see Frydlender , cited above).

46 . 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. 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.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

47 . The applicant complained under Article 13 of the Convention that he had had no ‘ effective remedy ’ against the excessive length of the proceedings. Article 13 provides:

“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.”

48 . 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. However, the “effectiveness” of a “remedy” within the meaning of that provision does not depend on the certainty of a favourable outcome for the applicant (see Kudła , cited above , § 154 , § § 156-157 ; Figiel v. Poland (no. 2) , no. 38206/05, § 31 , 16 September 2008 ).

49 . The fact that in the present case the applicant ’ s claim for just satisfaction failed and that the redress obtained from the domestic court was not sufficient for Convention purposes does not in itself render the remedy under the 2004 Act incompatible with Article 13, albeit that it has consequences for the Court ’ s assessment of his victim status in respect of the alleged breach of the reasonable-time requirement (see Zarb v. Malta , no. 16631/04, §§ 49-52, 4 July 2006 , and Figiel (no. 2) , cited above, § 33 ).

As stated above, the expression “effective remedy” used in Article 13 cannot be interpreted as a remedy bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint (see Šidlová v. Slovakia , no. 50224/99, § 77, 26 September 2006 ; Figiel (no. 2) , cited above, § 33 ).

50 . In the light of the foregoing, the Court considers that in the circumstances of the present case it cannot be said that the applicant ’ s right to an effective remedy under Article 13 of the Convention has not been respected.

It follows that 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.

V . APPLICATION OF ARTICLE 41 OF THE CONVENTION

51 . 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

52 . The applicant claimed 75,000 euros (EUR) in respect of non ‑ pecuniary damage.

53 . The Government did not comment on the applicant ’ s claim.

54 . The Court considers that the applicant has suffered non-pecuniary damage on account of the unreasonable length of criminal proceedings. The Court further finds that the applicant has suffered non-pecuniary damage by reason of the length of his detention, which is not sufficiently compensated by finding of a violation of the Convention. Considering the circumstances of the case and making its assessment on an equitable basis, the Court awards the applicant EUR 9,3 00 under this head.

B. Costs and expenses

55 . The applicant did not make any claim s for costs and expenses involved in the proceedings.

C. Default interest

56 . 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. Rejects the Government ’ s request to strike the application out of its list of cases;

2 . Declares the complaint s concerning the length of the applicant ’ s pre-trial detention and the length of criminal proceedings against him admissible and the remainder of the application inadmissible;

3 . Holds that there has been a violation of Article 5 § 3 and Article 6 § 1 of the Convention;

4 . Holds

(a) that the respondent State is to pay the applicant , within three months, EUR 9,3 00 ( nine thousand three hundred euros) in respect of non-pecuniar y damage , 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 b e 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 9 July 2013 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Päivi Hirvelä Deputy Registrar President