Communicated on 31 January 2015

FOURTH SECTION

Application no. 32461/09 Rafa Å‚ SZALKIEWICZ against Poland lodged on 2 June 2009

STATEMENT OF FACTS

The applicant, Mr Rafa Å‚ Szalkiewicz , is a Polish national, who was born in 1977 and lives in Gda Å„ sk .

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

On 6 October 2003 the applicant was arrested on suspicion of robbery. He was remanded in custody on the same day. On 31 March 2004 the prosecution filed a bill of indictment with the Gda Å„ sk District Court. The applicant was charged with robbery and extortion.

On 28 January 2005 the applicant was released on bail and placed under police supervision.

On 28 June 2007 the Gdańsk-Południe District Court acquitted the applicant. The prosecutor appealed. On 25 April 2008 the Gdańsk Regional Court quashed the acquittal and remitted the case.

On 28 August 2009 the Gdańsk-Południe District Court again acquitted the applicant. The prosecutor appealed. On 28 April 2010 the Gda ń sk Regional Court upheld the acquittal.

On 30 August 2010 the Gdańsk-Południe District Court revoked the police supervision.

2. Complaint against the excessive length of the proceedings

On 1 December 2009 the applicant lodged a complaint with the Gdansk Regional Court under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (“the 2004 Act”). He sought a ruling declaring that the length of the proceedings had been excessive and just satisfaction in the amount of PLN 40,000.

On 11 December 2009 the Gdańsk Regional Court refused to entertain the applicant ’ s complaint (case no. V S 50/09). It found that the proceedings before the Gdańsk-Południe District Court had been terminated while in accordance with section 5 of the 2004 Act a complaint should have been lodged while the proceedings had been pending.

3. Compensation for unjustified detention

On 12 August 2010 the applicant lodged an application for compensation for unjustified detention on the basis of Article 552 § 4 of the Code of Criminal Procedure (“the CCP”). He sought 200,000 Polish zlotys (PLN) in respect of non-pecuniary damage and later in respect of pecuniary damage.

On 14 February 2011 the Gdańsk Regional Court dismissed the application. It held that the applicant ’ s pre-trial detention between 6 October 2003 and 28 January 2005 had been “undoubtedly unjustified” within the meaning of Article 552 § 4 of the CCP. However, the pecuniary and non-pecuniary 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 proceedings.

The applicant appealed. On 28 April 2011 the Gdańsk Court of Appeal dismissed the applicant ’ s appeal.

B. Relevant domestic law and practice

1. Code of Criminal Procedure

Article 552 of the Code of Criminal Procedure provides:

“1. An accused who, as a result of the reopening of proceedings or an 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 declared 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 under 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 unjustified ( niewÄ…tpliwie niesÅ‚uszne ) pre ‑ trial detention or arrest.”

2. Case-law of the Supreme Court

In accordance with the Supreme Court ’ s Resolution of 15 September 1999 (no. I KZP 27/99), “undoubtedly unjustified” pre ‑ trial detention was a detention effected in breach of provisions of Chapter 28 of the Code of Criminal Procedure and which caused a hardship which the defendant should not have suffered in the light of the totality of the circumstances established in the case and, in particular, of those established in a final ruling.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention about the excessive length of the criminal proceedings against him.

2. In his letters dated 7 April and 4 May 2011 the applicant complains about the refusal to award him compensation for his unjustified detention on remand.

QUESTIONS TO THE PARTIES

1. Was Article 5 § 5 of the Convention applicable to the present case? Reference is made to the fact that the domestic courts found that the applicant ’ s pre ‑ trial detention had been “undoubtedly unjustified” within the meaning of Article 552 of the Code of Criminal Procedure which in turn indicated that the pre ‑ trial detention had been effected in breach of Chapter 28 of the Code of Criminal Procedure (cf. the Supreme Court ’ s Resolution of 15 September 1999 (no. I KZP 27/99); and N.C. v. Italy [GC], no. 24952/94, § 57, ECHR 2002 ‑ X).

2. Does the finding of “ undoubtedly unjustified” pre ‑ trial detention amount to a finding of a breach of Article 5 § 1 or 5 § 3 of the Convention?

3. Was the applicant ’ s enforceable right to compensation for his detention in alleged contravention of Article 5 § 1 or 5 § 3, as required by Article 5 § 5 of the Convention (cf. Włoch v. Poland (no. 2) , no. 33475/08, 10 May 2011), respected ?

4. Can the applicant still claim to be a victim of a violation of the Convention, within the meaning of Article 34? Reference is made to the fact that the period of his pre-trial detention was credited towards two terms of imprisonment imposed on him in two separate sets of proceedings.

5. Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?