Communicated on 17 December 2014

FOURTH SECTION

Application no. 2891/12 Krzysztof CZERNUSZEWICZ against Poland lodged on 6 December 2011

STATEMENT OF FACTS

The applicant, Mr Krzysztof Czernuszewicz , is a Polish national, who was born in 1982 and lives in Krosno Odrza Å„ skie .

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 2 February 2004 the Krosno Odrza Å„ skie District Court remanded the applicant in custody in view of a reasonable suspicion that he had committed a robbery. He remained in pre ‑ trial detention until 11 May 2004.

On an unspecified date the district prosecutor filed a bill of indictment with the Krosno Odrza Å„ skie District Court. T he applicant was charged with a robbery which he had allegedly committed with two other defendants.

On 7 April 2009 the Krosno OdrzaÅ„skie District Court acquitted the applicant and his two co ‑ defendants.

2. Application for compensation on account of unjustified pre ‑ trial detention

On an unspecified date in 2011 the applicant lodged an application for compensation for unjustified detention on the basis of Article 552 § 4 of the Code of Criminal Procedure. He sought 15,000 Polish zlotys (PLN) in respect of non ‑ pecuniary damage.

On 23 September 2011 the Zielona G ó ra Regional Court dismissed the application. It held that the applicant ’ s pre ‑ trial detention between 2 February 2004 and 11 May 2004 had been “undoubtedly unjustified” within the meaning of Article 552 § 4 of the CCP. However, the 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 criminal proceedings.

The applicant appealed. He argued that the crediting of a period of pre ‑ trial detention towards a term of imprisonment did not constitute an adequate compensation for damage because those two regimes of deprivation of liberty were different, the regime of detention on remand being more stringent.

On 29 December 2011 the Pozna Å„ Court of Appeal dismissed the applicant ’ s appeal. It confirmed, having regard to the applicant ’ s acquittal, that his pre ‑ trial detention had been “undoubtedly unjustified”. The Court of Appeal also agreed with the lower court that the applicant ’ s claim for non ‑ pecuniary damage had been fully satisfied by crediting the period of his pre ‑ trial detention towards two sentences of imprisonment imposed on him. Such non ‑ pecuniary nature of compensating for damage caused by unjustified pre ‑ trial detention was appropriate and, moreover, corresponded to the dominant trend in the case ‑ law. The court noted that the applicant relied on a different interpretation expressed in the Krak ó w Court of Appeal ’ s judgment of 27 May 2009 (case no. II AKa 99/09). However, the PoznaÅ„ Court of Appeal considered this judgment to be an isolated example and did not share the approach adopted therein.

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 re opening of proceedings or a n 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 declar ed 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 un der 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 unjustifi ed ( 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 ‑ tr i al 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 .

COMPLAINT

The applicant complains under Article s 5 and 7 of the Convention about the refusal to award him compensation for his unjustified detention on remand. He claimed to have sustained non ‑ pecuniary damage on account of his unjustified detention. This damage could not be sufficiently compensated for by crediting the period of his pre ‑ trial detention towards a sentence imposed on him in another set of proceedings. The applicant argued that the regimes of pre ‑ trial detention and of serving a sentence were significantly different in terms of limitations applicable.

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 . Did the applicant have an effective and enforceable right to compensation for his detention in a lleged 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 ) ?

4. Can the applicant still claim to be a victim of a violation of the Convention, within the meaning o f 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.