Communicated on 24 May 2019

FIRST SECTION

Application no. 57953/16 Adrian KORNAUS against Poland lodged on 29 September 2016

STATEMENT OF FACTS

The applicant, Mr Adrian Kornaus , is a Polish national, who was born in 1990 and lives in Tarnów .

A. The circumstances of the case

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

1. Criminal proceedings against the applicant

The applicant was convicted of various offences in several sets of criminal proceedings.

On 31 December 2007 (II K 806/07), 21 April 2008 (II K 168/98), 15 June 2009 (II K 153/09) and 9 August 2010 (II K 650/10) the Tarnów District Court sentenced the applicant to severe prison sentences ranging between one and two years.

On 6 October 2008 the Tarnów Regional Court (II K 41/08) sentenced the applicant to two years ’ imprisonment.

2. Cumulative sentence

On 31 March 2014 the applicant asked the Tarnów Regional Court to fix a cumulative sentence combining the convictions pronounced by that court in the case no. II K 41/08 and those imposed by the Tarnów District Court in cases no. II K 806/07 and II K 168/08.

On 26 June 2014 the Tarnów Regional Court gave a cumulative judgment ( wyrok łą czny ) and held that the applicant had to serve a cumulative sentence of three years ’ and eight months ’ which combined the convictions imposed in cases no. II K 806/07, II K 168/08 and II K 41/08. The court further discontinued the proceedings in so far as they concerned fixing a cumulative sentence relating to convictions given by the Tarnów District Court in cases no. II K 153/09 and II K 650/10. These sentences were to be executed separately.

The applicant ’ s lawyer appealed against this judgment on 31 July 2014. Subsequently, on 8 August 2014, he withdrew the appeal. At a sess ion held on 20 August 2014 the Cracow Court of Appeal decided not to entertain the appeal and the judgment of 26 June 2014 became final.

3. The applicant ’ s release

On 8, 11 and 21 August 2014 the applicant ’ s lawyer asked the Tarnów Regional Court to release the applicant from prison. He relied on the fact that the applicant had already served the cumulative sentence of three years and eight months.

On 20 August 2014 the Cracow Court of Appeal transferred the case file to the Tarnów Regional Court. On the same day, the Regional Court ordered the enforcement of the cumulative sentence and sent the relevant information to the D ę bica Detention Centre (“Detention Centre”) where the applicant was serving his sentence.

On 21 August 2014 the Detention Centre asked the Tarnów Regional Court to sum up the terms of imprisonment already served by the applicant. In reply, the Regional Court clarified that the applicant had served the sentence imposed in the case no. II K 153/0 9 between 6 April 2011 and 6 April 2012 and that he had finished serving the cumulative sentence on 3 May 2014. Consequently, as his detention had exceeded the term of imprisonment imposed on him, the applicant was released on the same day (21 August 2014).

4. Civil proceedings for compensation

On 11 September 2014 the applicant lodged a claim for payment with the Tarnów District Court for his allegedly unlawful detention between 26 June and 21 August 2014. He sought 40,000 Polish zlotys (PLN) [approximately 10,000 Euros] in respect of pecuniary and non-pecuniary damage.

On 13 June 2015 the Tarnów District Court awarded the applicant compensation in the amount of PLN 5,500 [approximately EUR 1,350]. The court noted that applicant ’ s prison sentences were summed up and the total term of imprisonment had been shortened by one year. Consequently, the applicant ’ s sentence had come to an end on 3 May 2014. For that reason the Tarnów Regional Court, in the proceedings concerning the cumulative sentence, should have had indicated the starting date of the term and also counted the periods of the applicant ’ s pre-trial detention towards that sentence.

The court further noted that the provisions of Article 576 § 2 of the Code of Criminal Procedure (“CCP”) were clear and the applicant should have been released on the day of delivery of the cumulative judgment and not when it had become final. The court concluded that the applicant ’ s detention between 26 June and 21 August 2014 had not had any legal basis. At the same time, the court found that the applicant had failed to demonstrate that he had suffered any pecuniary damage and awarded him compensation only in respect of non-pecuniary damage.

The applicant appealed complaining about the amount of compensation awarded.

On 25 February 2016 the Nowy SÄ…cz Regional Court amended the first ‑ instance judgment and dismissed the applicant ’ s claim. The court did not agree with the District Court that the applicant should have been released on 26 June 2014. It noted that under Article 576 § 2 of the CCP a convicted person should be released immediately if the cumulative sentence was equal or more lenient than the sentence already served. However, this provision did not specify clearly whether the release should be ordered on the day when the cumulative judgment was given or when it became final. While in the Regional Court ’ s view, the release should in principle be ordered on the day of delivery of the cumulative judgment, the circumstances of the present case were different. The court observed that at the time of delivery of the cumulative judgment the applicant still had to serve the prison sentence imposed in the case no. II K 153/09 to be enforced between 1 March 2015 and 1 March 2016. Only after the cumulative judgment had become final, it had been possible to sum up all the applicant ’ s prison sentences. As a consequence, the dates of the terms of imprisonment had changed and the sentence imposed in the case no. II K 153/09 had been noted as being served between 6 April 2011 and 6 April 2012. Subsequently, it had been established that the applicant had finished serving his sentences on 3 May 2014. However, these calculations could only have been done after the cumulative judgment had become final.

The Regional Court concluded that for all the above reasons the applicant ’ s detention between 26 June and 21 August 2014 was lawful.

B. Relevant domestic law and practice

1. Cumulative sentence

The following provisions of the Criminal Code, in so far as relevant, regulate the imposition of cumulative sentences.

Article 85

“If an offender committed two or more offences before the first sentence for any of these offences was pronounced ... for which offences penalties of the same type were imposed, the court fixes a cumulative penalty on the basis of penalties imposed for the concurrent offences.”

Article 86

“ § 1. The court imposes a cumulative penalty within the limit of the highest penalty imposed for individual offences and their sum, but not exceeding ... fifteen years ’ of imprisonment ...”

2. The Code of Criminal Procedure

Article 576 § 2 of the Code of Criminal Procedure Code (“CCP”) provides as follows:

“If a cumulative judgment imposes a penalty equal to, or more lenient than the accumulated sentences of deprivation of liberty already served, the presiding judge shall immediately order the release of the sentenced person, unless he/she is detained in another set of proceedings. The cumulative judgment shall be appended to the enforcement order.”

3. The Civil Code

Article 417 § 1 of the Civil Code, as applicable at the relevant time, provides as follows:

“The State Treasury or [,as the case may be,] a local self-government entity or other legal person responsible for exercising public authority, shall be liable for any damage ( szkoda ) caused by an unlawful act or omission [committed] in connection with the exercise of public authority.”

COMPLAINTS

The applicant complains under Articles 5 and 6 of the Convention about his allegedly unlawful and arbitrary detention between 26 June and 21 A ugust 2014. He submits that this detention beyond 26 June 2014 was unlawful as on that date he had already served the cumulative term of imprisonment of there years and eight months ’ . He further complains about the domestic courts ’ refusal to award him compensation.

QUESTIONS TO THE PARTIES

1. Has there been a violation of Article 5 § 1 of the Convention? In particular, was the applicant ’ s detention during the period between 26 June and 21 August 2014 in breach of Article 5 § 1 (a) of the Convention (compare Del Río Prada v. Spain [GC], no. 42750/09 , ECHR 2013 and Kereselidze v. Georgia , no. 39718/09, 28 March 2019) ?

2. Did the applicant have an effective and enforceable right to compensation for his detention in alleged contravention of Article 5 § 1, as required by Article 5 § 5 of the Convention?