Communicated on 13 October 2014

FOURTH SECTION

Application no. 73643/10 Piotr PAWELEC against Poland lodged on 1 December 2010

STATEMENT OF FACTS

The applicant, Mr Piotr Pawelec , is a P olish national, who was born in 1961 and lives in Gdynia.

A. The circumstances of the case

1. Criminal proceedings against the applicant and his pre ‑ trial detention

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

On 2 January 2007 the applicant w as arrested by the police. On 5 January 2007 the Gdynia District Court ( SÄ…d Rejonowy ) remanded him in custody, relying on the reasonable suspicion that he had committed murder together with other persons. The court stressed the need to ensure the proper conduct of the proceedings given that extensive evidence had still to be obtained in the case and that the proceedings in question concerned several alleged accomplices. The court furth er established that there was a risk that the applicant might abscond as he did not have a permanent place of residence. It also relied on the likelihood that a severe penalty would be imposed on the applicant.

During the investigation the courts continually imposed the pre ‑ trial detention on the applicant.

On an unspecified date in late 2007 a bill of indictment was lodged with the GdaÅ„sk Regional Court. The applicant was charged with aggravated murder committed together with two other co ‑ accused.

The first hearing was held by the Gdańsk Regional Court ( Sąd Okr ę gowy ) on 22 February 2008. Subsequently, the court held four hearings: on 15 May, 19 June, 25 July and 18 September 2008.

On 25 September 2008 the GdaÅ„sk Regional Court gave judgment [ case no. IV K 457/07 ]. The applicant was convicted as charged and sentenced to twenty ‑ five years of imprisonment.

The applicant lodged an appeal. On 13 May 2009 the GdaÅ„sk Court of Appeal ( SÄ…d Apelacyjny ) quashed the impugned judgment and remitted the case to the first ‑ instance court [case no. II AKa 45/09 ].

In the course of the ongoing proceedings the applicant ’ s detention was continuously prolonged by the domestic courts, irrespective of the fact that in the period between 6 November 2007 and 19 August 2009 he served prison sentences imposed in separate sets of criminal proceedings against him.

The trial began anew on 30 October 2009. The trial court held seven hearings in total.

Meanwhile, the applicant ’ s detention on remand was further prolonged by the courts. In the period from 24 October 2009 until 16 December 2009 the applicant ’ s detention coincided with a prison sentence imposed in separate criminal proceedings.

On 16 March 2010 the Gdańsk Regional Court gave judgment [case no. XIV K 48/09 ]. The applicant was convicted as charged and sentenced to fifteen years ’ imprisonment.

The applicant lodged an appeal. On 10 November 2010 the GdaÅ„sk Court of Appeal quashed the first ‑ instance judgment and remitted the case [case no. II AKa 277/10 ].

The retrial started on 15 March 2011. In the course of the proceedings the Gdańsk Regional Court held in total fifteen hearings.

During the retrial the applicant ’ s detention was extended by the decisions of the Gdańsk Regional Court of 22 September 2010 and 14 January 2011. His appeals against those decisions were dismissed by the Gdańsk Court of Appeal on 4 November 2010 and on 15 February 2011, respectively.

The courts relied on the same grounds for detention as had been given in the initial phase of the proceedings: the reasonable suspicion that the applicant committed the offences with which he had been charged and the severity of the anticipated penalty. They also emphasised the risk of the applicant absconding due to the fact that he did not have a permanent place of residence.

On 20 June 2011 the applicant requested to be released arguing that at that stage of the proceedings the key witnesses had already been heard before the court. On 28 June 2011 the Gdańsk Regional Court dismissed his request.

The applicant ’ s detention was further prolonged by the decisions of the Gdańsk Regional Court of 29 June, 13 September and 16 December 2011 and of 23 March 2012. The courts repeated the grounds previously given for the applicant ’ s detention. As regards the need to secure the proper conduct of the proceedings, it was further pointed out that a witness requested by the applicant, a person with whom he was to be acquainted, was still to be heard before the court. The applicant ap pealed against the decisions of 29 June 2011 and of 23 March 2012, but to no avail.

In the period from 7 June 2012 until 23 October 2013 the applicant was serving an imprisonment sentence imposed in another set of criminal proceedings.

Meanwhile, on 12 July 2012 the court gave judgment [ case no. XIV K 210/10 ]. The applicant was again convicted and sentenced to fifteen years ’ imprisonment. The applicant lodged an appeal against that judgment.

The applicant ’ s detention on remand was extended pending his appeal by the decisions of the Gdańsk Regional Court of 12 July, 26 October and 27 December 2012 and of 14 May 2013. The applicant appealed against all of these decisions. He relied in particular on the fact that he was serving a prison sentence ordered in another set of criminal proceedings and that he was in any event deprived of his liberty on this basis.

His appeals were dismissed by the Gdańsk Court of Appeal on 11 November 2012, 23 January and 4 June 2013, respectively. The court considered that the applicant ’ s detention on remand was necessary to secure the proper conduct of the proceedings due the severity of the penalty.

On 1 January 2013 the applicant requested the Gdańsk Regional Court to grant him permission to attend vocational courses. On 14 January 2013 the court refused his request. It was found that, due to the pending criminal proceedings, he could not be transported to a penitentiary facility where the vocational courses were organised.

On 6 June 2013 the GdaÅ„sk Court of Appeal partly allowed the applicant ’ s appeal against the first ‑ instance judgment [ case no. II Aka 84/13 ]. The appellate court upheld the conviction but reclassified the offence as battery and involuntary manslaughter ( nieumy Å› l ne spowodowanie Å› mierci ). The applicant ’ s sentence was reduced to five years ’ imprisonment. Three years and six months of the applicant ’ s detention on remand were credited towards this penalty.

On 13 August 2013 the Gdańsk Court of Appeal prolonged the applicant ’ s detention on remand until 30 November 2013. The court noted that detention on remand could be imposed until the execution of the sentence commenced. It considered that detention on remand was necessary to secure the execution of the applicant ’ s penalty.

The applicant appealed. He argued that, although he had been sentenced to five years ’ imprisonment, only one year and six months ’ imprisonment remained for him to serve. He emphasised that by virtue of the impugned decision he was restricted in his rights as a convicted prisoner, he could not be granted short leaves or conditional release, he could not be held in a semi ‑ open facility ( zak Å‚ ad karny typu pó Å‚ otwartego ). He stressed that he had already been a remand prisoner for over six years. He further pleaded for the authorities to start execution of his penalty instead of continuing to impose detention on remand on him.

On 27 August 2013 the Gdańsk Court of Appeal upheld the impugned decision. The court considered that the applicant ’ s detention on remand and the restrictions of his rights resulting from it were necessary to secure the proper conduct of the proceedings.

In December 2013 the applicant was released from prison.

2. Proceedings under the 2004 Act [case no. II S 27/10]

On an unspecified date in 2010 the applicant lodged a complaint with the GdaÅ„sk Court of Appeal under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time ( ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postÄ™powaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postÄ™powaniu sÄ…dow ym bez nieuzasadnionej zwÅ‚oki ‑ “the 2004 Act”). The complaint was dated 9 March 2010 and referred to the relevant case number before the GdaÅ„sk Regional Court. The applicant sought a finding that the length of the criminal proceedings against him had been excessive and 20,000 Polish zlotys (PLN) in compensation. He submitted that the impugned proceedings had lasted from 2 January 2007, when he had been arrested, and that he had been continuously detained in the course of the proceedings. He also argued that he himself had not contributed in any way to the length of the proceedings as he had filed requests for evidence in due time. He alleged that the length of the proceedings was attributable to the relevant authorities and was due to their “errors”. They had proceeded deficiently in that they had not allowed his motions at the earlier stages of the proceedings.

On 22 June 2010 the Gdańsk Court of Appeal rejected the applicant ’ s complaint. The appellate court found that the applicant had failed to indicate circumstances that would justify his request, as required by section 6 of the 2004 Act. The court considered that to satisfy this requirement it did not suffice to rely on the fact that the proceedings had lasted since 2007, as did the applicant. The domestic court stressed that the applicant should have indicated a concrete inactivity or deficient activity on the part of the domestic authorities resulting in the allegedly excessive length of proceedings.

3. Proceedings for compensation for unjustified detention [case no. XI Ko 962/09]

On 18 November 2009 the applicant lodged an application for compensation for unjustified detention with the Gdańsk Regional Court. He relied on Article 552 § 4 of the Code of Criminal Procedure.

On 7 December 2019 the Regional Court suspended the proceedings to await the final decision in the criminal proceedings against the applicant.

On 17 June 2013 the Gdańsk Regional Court resumed the proceedings.

It appears that the proceedings are still pending.

B. Relevant domestic law and practice

1. Length of pre-trial detention

The relevant domestic law and practice concerning the imposition of pre ‑ trial detention ( tymczasowe aresztowanie ), the grounds for its extension, release from detention and rules governing other, so ‑ called “preventive measures” ( Å›rodki zapobiegawcze ) are stated in the Court ’ s judgments in the cases of GoÅ‚ek v. Poland, no. 31330/02, §§ 27 ‑ 33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22 ‑ 23, 4 May 2006 .

Article 249 § 4 of the Code of Criminal Procedure reads:

“Preventive measures may be imposed until the moment when execution of penalty has started. The present provision is applicable to detention on remand only in the event when sentence of imprisonment has been ordered.”

2. Length of proceedings

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are set out in the Court ’ s decisions in the cases of Charzy Å„ ski v. Poland ( dec. ), no. 15212/03, §§ 12 ‑ 23, ECHR 2005 ‑ V and Ratajczyk v. Poland ( dec. ), no. 11215/02, ECHR 2005 ‑ VIII, and judgments in the cases of Krasuski v. Poland , no. 61444/00, §§ 34 ‑ 46, ECHR 2005 ‑ V, Wende and Kukowka v. Poland , no. 56026/00, §§ 38 ‑ 42, 10 May 2007 and Krzysztofiak v. Poland , no. 38018/07, §§ 23 ‑ 30, 20 April 2010 .

3. Limitations of rights of remand detainees simultaneously serving prison sentences imposed in other sets of criminal proceedings

Under Article 223a of the Code of Execution of Criminal Sentences (“the Code”) a remand detainee who is serving a prison sentence imposed in separate criminal proceedings, has the same rights as a convicted prisoner, excluding, in particular: visits, correspondence, use of phone and other means of communication and possession of private objects in his cell – as regards which the provisions related to remand detainees are to be applied.

Under paragraph 2 of this provision, such detainee cannot enjoy short leaves which may be granted to convicted prisoners under other provisions of the Code.

Pursuant to Article 216 § 1 of the Code, a detainee cannot possess any means of communication or technical appliances used for registering or reproduction of information or computers.

Pursuant to Article 217 § 1 of the Code, a detainee is allowed to receive visitors, provided that he obtains a visit permission (“ zezwolenie na widzenie ”) from the authority at whose disposal he remains, i.e. an investigating prosecutor (at the investigative stage) or the trial court (once the trial had begun) or the appellate court (in appeal proceedings). A detainee is entitled to at least one family visit per month. Subparagraphs 1a ‑ 1f of this provision indicate specific conditions for refusing a family visit to a detainee and provide an appeal procedure against such a refusal.

Article 217a § 1 of the Code provides that detainee ’ s correspondence shall be censored by the authority at whose disposal he remains, unless the authority decides otherwise.

Pursuant to Article 217c a detainee must not use telephone or other means of wired or wireless communication.

COMPLAINTS

1. The applicant complains under Article 5 § 3 of the Convention that the length of his pre ‑ trial detention was excessive.

2. He further complains under Article 6 § 1 of the Convention about the unreasonable length of the criminal proceedings against him.

3. In his letters of 3 February, 20 June and 3 November 2013 the applicant complains, without invoking any provision of the Convention, about the fact that detention on remand was imposed on him simultaneously with a prison sentence ordered in a separate set of criminal proceedings. He alleges that the restrictions of his rights resulting from Article 223a of the Code of Execution of Criminal Sentences were not necessary in the particular circumstance of his case.

QUESTIONS TO THE PARTIES

1. Did the length of the applicant ’ s pre ‑ trial detention exceed a “reasonable time” within the meaning of Article 5 § 3 of the Convention?

2. 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?

3. Has there been an interference with the applicant ’ s right to respect for his private and family life, within the meaning of Article 8 § 1 of the Convention on account of the imposition of detention on remand on him simultaneously with prison sentence ordered in another set of criminal proceedings against him?

If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?