3360/09

FOURTH SECTION             CASE OF ANTCZAK v. POLAND   (Application no. 3360/09)                       JUDGMENT     STRASBOURG   9 November 2010     This judgment is final but it may be subject to editorial revision. In the case of Antczak v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:  Ján Šikuta, President,  Lech Garlicki,  Vincent Anthony de Gaetano, judges, and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 18 October 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.  The case originated in an application (no. 3360/09) 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 national, Mr Sebastian Antczak (“the applicant”), on 5 December 2008. 2.  The Polish Government (“the Government”) were represented by their Agent, Mr J. Wolasiewicz of the Ministry of Foreign Affairs. 3.  On 23 November 2009 the Court decided to give notice of the application to the Government. In accordance with Protocol no. 14, the application was allocated to a Committee of three Judges. THE FACTS I.  THE CIRCUMSTANCES OF THE CASE 4.  The applicant was born in 1978 and lives in Piotrków Trybunalski. 5.  On 4 November 2005 the applicant was arrested by the police. 6.  On 5 November 2005 the Zgierz District Court decided to detain the applicant on remand in view of the reasonable suspicion that he had committed an offence of illegal possession of weapons and ammunition. 7.  The applicant's pre-trial detention was extended on 22 November 2005 and on 31 January, 21 March, 20 June, 1 August, 25 October and 20 December 2006. The courts relied on the severity of the possible sentence, which created a risk of the applicant's going into hiding or interfering with the proper course of the proceedings, and the necessity of gathering evidence in this particularly complex case. The court relied heavily on the complexity of the proceedings which involved many co‑accused who had allegedly participated in an organised, armed gang. 8.  On 25 April and 27 June 2007 the Łódź Court of Appeal further extended the pre-trial detention of the applicant and other co-accused. In the meantime additional charges were brought against the applicant. 9.  On 6 September 2007 the applicant and 21 other co‑accused were indicted before the Łódź Regional Court. The applicant was charged with illegal possession of weapons and ammunition, abetting to murder and robbery committed while acting in an organised criminal gang. The prosecutor requested the court to hear evidence from 24 witnesses. 10.  On account of the complexity of the case the first hearing was scheduled for 8 April 2008. 11.  Between 11 April 2008 and 8 January 2010 the court held thirty three hearings. No hearing was held between 10 June and 10 November 2009 due to the absence of either the accused or the defence lawyers. 12.  The applicant's detention was further extended on 11 September 2007, 23 May and 17 December 2008, 22 April, 23 September and 22 December 2009. 13.  During this detention the applicant served several sentences of imprisonment imposed in different sets of criminal proceedings. In particular between 13 December 2005 and 13 December 2007 he served a sentence of imprisonment imposed by the Zgierz District Court on 10 May 2005. Between 13 December 2007 and 16 April 2009 he served a sentence of imprisonment imposed by the Zgierz District Court on 25 July 2001. Since 16 April 2009 he has been serving a prison sentence imposed on 6 February 2003. The release date is planned for 11 December 2011. A.  The other set of criminal proceedings - bill of indictment of 10 March 2009 14.  The applicant is also involved in a second set of criminal proceedings. 15.  On 10 March 2009 the applicant and 27 co-accused were indicted before the Łódź Regional Court on multiple charges related to burglaries, thefts, extortions, kidnappings, robberies, drug dealing and stolen cars, committed while acting in an organised, armed criminal gang. This set of proceedings is pending before the first-instance court. B.  Proceedings under the 2004 Act 16.  On 28 January 2010 the applicant lodged a complaint under section 5 of 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 postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). He complained about the length of the investigation and the length of the court proceedings. 17.  On 10 March 2010 the Lódź Court of Appeal considered the length of the proceedings to be reasonable and dismissed the applicant's complaint. II.  RELEVANT DOMESTIC LAW AND PRACTICE 18.  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 stated in the Court's decisions in cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V. THE LAW I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE PROCEEDINGS 19.  The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in 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 ...”reasonable time by [a] ... tribunal...” 20.  The Government contested that argument. 21.  The period to be taken into consideration began on 4 November 2005 and has not yet ended. It has thus lasted nearly five years for one level of jurisdiction. A.  Admissibility 22.  The Government submitted that the applicant exhausted the domestic remedies only one year after he had lodged his application with the Court. For this reason they were of the opinion that he had failed to exhaust the available domestic remedies before bringing his case to the Court. 23.  The Court notes that the applicant made use of the remedy provided for by the 2004 Act and lodged a complaint about the unreasonable length of the proceedings. The Lódz Court of Appeal dismissed his complaint. 24.  The Court has already examined that remedy for the purposes of Article 35 § 1 of the Convention and found it effective in respect of the complaints about the excessive length of judicial proceedings in Poland. Accordingly, the Court finds that the applicant exhausted domestic remedies in respect of his complaint under Article 6 § 1 of the Convention (see, Majewski v. Poland, no. 52690/99, §§ 31, 32; 11 October 2005. 25.  The Court 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.  The Government 26.  The Government submitted that the case had been extremely complex. It concerned an organised criminal gang. The applicant was charged with several offences. In addition, the prosecution asked the court to hear evidence from a great number of witnesses. Hearings had been scheduled without any delay, at regular intervals. There were sometimes even five or six hearings in one month. In view of the severity of charges against the applicant and the conduct of the authorities the Government were of the opinion that the length of the proceedings was compatible with the standards laid down in Article 6 § 1 of the Convention. 2.  The applicant 27.  The applicant disagreed and argued that the proceedings in his case have lasted exceptionally long. 3.  The Court's assessment. 28.  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). 29.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above). 30.  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. In particular, the Court notes that the first hearing was held seven months after the bill of indictment had been lodged with the trial court (see, paragraphs 9 and10 above). 31.  Having regard to its case-law on the subject and the fact that the proceedings are still pending before the court of first-instance, the Court considers that in the instant case the overall length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 32.  There has accordingly been a breach of Article 6 § 1. II.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 33.  The applicant complained that the length of his pre-trial detention had been excessive. He relied on Article 5 § 3 of the Convention, which provides 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.” 34.  The Government disputed this argument with reference to the facts of the case. 35.  The Court observes that the applicant's detention started on 4 November 2005, when he was arrested on suspicion of illegal possession of weapons and ammunition and is still pending. However, it appears from the documents submitted at a later stage that since 13 December 2005 the applicant has been continuously serving three terms of imprisonment imposed in different sets of criminal proceedings. Consequently, the Court considers that after 13 December 2005 the applicant was deprived of his liberty “after conviction by a competent court” and that this period of his detention is covered by Article 5 § 1 (a) of the Convention and falls outside the scope of Article 5 § 3 of the Convention. Accordingly, the period of the applicant's detention to be considered under Article 5 § 3, amounts to one month and nine days. 36.  The Court observes that the applicant was charged with multiple offences committed while acting in an organised criminal gang. In view of the above considerations and in the light of the criteria established in its case-law in similar cases, the Court considers that the applicant's detention does not disclose any appearance of a breach of the “reasonable time” requirement of Article 5 § 3 of the Convention. This complaint is therefore manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION 37.  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 38.  The applicant claimed 10,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. 39.   The Government contested these claims. 40.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 2,500 in respect of non‑pecuniary damage. B.  Costs and expenses 41.  The applicant did not make any claim for costs and expenses involved in the proceedings. C.  Default interest 42.  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.  Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;   2.  Holds that there has been a violation of Article 6 § 1 of the Convention;   3.  Holds (a)  that the respondent State is to pay the applicant, within three months, EUR 2,500 (two thousand five hundred euros) in respect of non‑pecuniary damage, plus any tax that may be chargeable, to be converted into Polish zlotys at the rate applicable at the date of the settlement; (b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be 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;   4.  Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 9 November 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.  Fatoş Aracı Ján Šikuta Deputy Registrar President