CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 26 mars 2020

.s800EAC49 { font-size:12pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s34DFC730 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s85016119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .s684237A1 { margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase; list-style-position:inside } .sE485344B { margin-top:14pt; margin-left:28.6pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .sC3C29E73 { margin-top:14pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase; list-style-position:inside } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sD0489F03 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sD11CFAB7 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .sFBC99493 { font-style:italic } .s51DFF5CF { margin-top:0pt; margin-left:34pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sE5BF05B1 { width:2.33pt; font:7pt 'Times New Roman'; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s3EC4E87E { width:175.93pt; display:inline-block } .s40964402 { width:201.63pt; display:inline-block }   FIRST SECTION CASE OF ZBOROWSKI v. POLAND (Application no. 72950/13)             JUDGMENT STRASBOURG   26 March 2020       This judgment is final but it may be subject to editorial revision. In the case of Zborowski v. Poland, The European Court of Human Rights (First Section), sitting as a Committee composed of:   Pere Pastor Vilanova, President,   Krzysztof Wojtyczek,   Pauliine Koskelo, judges, and Renata Degener, Deputy Section Registrar, Having deliberated in private on 3 March 2020, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 72950/13) 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 Mirosław Zborowski (“the applicant”), on 4 November 2013. 2.     The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs. 3.     On 7 July 2015 notice of the application was given to the Government. THE FACTS THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1958 and lives in Poznań. Criminal proceedings against the applicant 5 .     On 17 January 2001 the applicant was arrested by the police and remanded in custody. He was charged with several counts of fraud allegedly committed in the context of inheritance proceedings, falsification of wills, and perjury. He remained in pre-trial detention for a total of four years. 6.     On 5 November 2001 the applicant was indicted before the Poznań Regional Court. During the trial, the court obtained expert psychiatric evidence in respect of other defendants. On 23 April 2004 the Szamotuły District Court, to which the case had in the meantime been transferred gave judgment. On 14 January 2005 the Poznań Regional Court quashed the impugned judgment and remitted the case. 7.     On 26 June 2007 the Szamotuły District Court gave another judgment, which was upheld on appeal by the Poznań Regional Court on 12   February 2009. The applicant lodged a cassation appeal. 8.     On 14 January 2010 the Supreme Court quashed the Regional Court’s judgment and remitted the case. 9.     On 9 March 2011, following the re-trial, the Regional Court gave judgment in the case, partly amending its previous ruling. 10.     Following a second cassation appeal lodged by the applicant, on 17   May 2012 the Supreme Court partly quashed and partly upheld the Regional Court’s judgment. 11.     On 19 December 2012 the Poznań Regional Court gave its fourth judgment in the case against the applicant. The applicant received a reasoned copy of the judgment on 19 February 2013. In March 2013 the applicant, and later his lawyer, lodged cassation appeals. The cassation appeal prepared by the applicant was returned to him as it had not been signed by a lawyer; it was subsequently rejected. On 4 April and 6   May 2013 applications lodged by the applicant for a legal aid lawyer to be assigned to him were dismissed by the court. The cassation appeal lodged by the applicant’s lawyer was accepted and on 7 July 2013 it was forwarded to the Supreme Court. 12 .     On 12 December 2013 the Supreme Court dismissed the cassation appeal. Proceedings under the 2004 Act 13.     On 3 June 2013 the applicant lodged a complaint with the Gliwice Regional Court under the Law of 17 June 2004 on the right to have a case examined in judicial proceedings without undue delay ( ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki –   “the 2004 Act”). The applicant complained in particular that the Regional Court had delayed the transfer of his cassation appeal to the Supreme Court. He also complained of the excessive length of the criminal proceedings against him and sought 20,000   Polish zlotys (PLN) in compensation. 14.     By a decision of 22 August 2013 (file no.   IIs 19/13) the Poznań Court of Appeal left without examination the part of the complaint regarding the length of the criminal proceedings in the period up to 19   December 2012, the date of the second-instance judgment. The court referred to the interpretation which the Supreme Court had reaffirmed in a resolution (“the 2013 Resolution”) and held that a valid complaint under section 5 of the 2004 Act could be lodged only in the course of the relevant proceedings, namely before a judgment had been rendered by the second ‑ instance court. For such purposes the cassation stage should be considered as a separate set of proceedings. In the instant case, therefore, the complaint under the 2004 Act in respect of the main proceedings had been lodged too late and as such had been left without examination. The court further dismissed the complaint as regards the subsequent period, during which the case had been pending before the Supreme Court. It considered that the applicant had been responsible for the delay as he had lodged several applications for legal aid in spite of the fact that he was already being represented by a lawyer of his choice. RELEVANT DOMESTIC LAW AND PRACTICE 15.     A detailed description of the relevant domestic law and practice concerning remedies for excessive length of judicial proceedings – in particular the applicable provisions of the 2004 Act – are presented in the Court’s decisions in the cases of Charzyński v.   Poland ((dec.), no.   15212/03, §§   12-23, ECHR 2005-V), Ratajczyk v.   Poland ((dec.), no.   11215/02, ECHR 2005-VIII), and in its judgments in the cases of Krasuski v.   Poland (no.   61444/00, §§   34-46, ECHR 2005-V) and, most recently, Rutkowski and Others v. Poland (nos. 72287/10, 13927/11 and   46187/11, §§   75-107, 7 July 2015). THE LAW ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 16.     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 ...” 17.     The Government contested that argument. 18.     The period to be taken into consideration began on 17 January 2001 and ended on 12 December 2013 (see paragraphs 5 and 12 above). It thus lasted almost thirteen years at three levels of jurisdiction. Admissibility 19.     The Government raised a preliminary objection on non-exhaustion of domestic remedies. They maintained that he had not lodged a complaint about unreasonable length of proceedings under the 2004 Act while the proceedings had been pending before the first and second-instance courts. The Government observed that under domestic law a complaint could only be lodged “in the course of the proceedings”, whereas the applicant had lodged his complaint after the termination of the proceedings. Under Polish law criminal proceedings ended with the second-instance judgment, as the cassation phase constituted a separate set of proceedings. The applicant had therefore failed to comply with the formal requirements of domestic law. Secondly, it had been open to him to use another remedy after the termination of the proceedings, namely to lodge a civil claim under Article   417 of the Civil Code. 20.     The applicant contested the Government’s arguments. He claimed that the proceedings in his case had ended with the Supreme Court’s judgment and that that approach had been reaffirmed by the Court on several occasions. Although the Court had consistently opposed the fragmentation of proceedings, it remained a practice of the Polish courts, as shown by his case. The 2013 Resolution of the Supreme Court had failed to recognise the clear case-law of the Court, which indicated that the cassation stage should be considered as a part of the proceedings. As regards the possibility of bringing a claim before a civil court after the termination of the proceedings, the applicant considered that such a remedy would not have been effective in his case and would not have offered him any just satisfaction. 21.     In that context it is to be reiterated that in the Rutkowski pilot judgment the Court considered that the domestic practice known as “fragmentation of the proceedings” was one of the main elements of the systemic dysfunction of the remedy introduced by the 2004 Act. The fragmentation consisted of the courts not taking into account the proceedings in their entirety which had decisive consequences for the outcome of the applicants’ claims for compensation, which were either rejected in their entirety as being unjustified or granted only partly (see Rutkowski and Others , cited above, § 181). 22.     The Court considers that the present case mainly turns on the question whether, in the procedural context of the complaint under the 2004 Act lodged while the main proceedings were pending before the Supreme Court, the applicant should be considered as having exhausted domestic remedies. The question of the exhaustion of domestic remedies is therefore inextricably linked to the merits of the complaint about the unreasonable length of the criminal proceedings against the applicant. In order to avoid prejudging the latter, both questions should therefore be examined together. Accordingly, the Court holds that the question of exhaustion of domestic remedies should be joined to the merits. 23.     The Court notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. Merits 24.     The applicant argued that the length of the proceedings, which had lasted a total of thirteen years, had clearly been in breach of the “reasonable time” principle. Their total length had been a result of a lack of diligence on the part of the domestic courts, which had failed to properly organise hearings so that he could be transferred from the detention centres, and to ensure that the experts complied with the relevant deadlines. Moreover the courts had committed various procedural and legal errors, which had resulted in the judgment being quashed and the case remitted for reconsideration on three occasions (once by the second-instance court and twice by the Supreme Court). The applicant himself had not contributed in any way to the overall length of the proceedings; he had not been responsible for a single adjournment of a hearing, nor for any other delay, during those thirteen years. 25.     The Government refrained from commenting on the merits of the applicant’s complaint. 26.     The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and taking into account the criteria laid down in the Court’s case ‑ law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities. On the latter point, account must also be taken of what is at stake for the applicant (see Kudła v.   Poland [GC], no. 30210/96, § 124, ECHR 2000‑XI; for further case-law references, see Rutkowski and Others v. Poland, nos. 72287/10, 13927/11 and 46187/11, §§ 126-28, 7 July 2015). 27.     The Court does not have before it enough information to find that the case was of more than an average complexity. It appears that some expert evidence was required in the course of the proceedings. In this connection, the Court would reiterate that experts work in the context of judicial proceedings under the supervision of a judge, who remains responsible for the preparation and speedy conduct of proceedings (see, for instance, Proszak v.   Poland , 16 December 1997, § 44, Reports of Judgments and Decisions 1997‑VIII, and Łukjaniuk v. Poland , no.   15072/02, §   28, 7   November 2006). 28.     Moreover, it is to be noted that following three remittals ordered by the Regional Court and the Supreme Court, the applicant’s case was re-examined twice by the trial court and four times at second instance (see paragraphs 6-10 above). Although the Court is not in a position to analyse the juridical quality of the case-law of the domestic courts, the remittal of cases for re-examination is usually ordered as a result of errors committed by lower courts. The repetition of such orders within one set of proceedings points to a deficiency in the judicial system. Moreover, this deficiency is imputable to the authorities and not the applicants (see, among many others, Wierciszewska v. Poland , no. 41431/98, § 46, 25 November 2003; Matica v.   Romania , no. 19567/02, §   24, 2 November 2006; and Vlad and Others v.   Romania , nos. 40756/06, 41508/07 and 50806/07, § 133, 6   November 2013). 29.     Lastly, the Court notes that it does not appear that the applicant contributed in any way to the overall length of the proceedings in his case. In the circumstances, the Court cannot find any justification for the overall length of the criminal proceedings against him. 30.     Turning to the question of whether the applicant has correctly used domestic legal avenues in the context of his complaint about the excessive length of the proceedings, the Court considers it necessary to repeat some of the conclusions of its pilot judgment in the case of Rutkowski (cited above, §§   176-86). In that judgment the Court examined the way in which the domestic courts’ had applied the 2004 Act, including its interpretation by the Supreme Court (ibid., §§ 93-106). 31.     In particular, the Court found that considerable delays occurring in the applicants’ cases, which were relevant to the assessment of the breach of Article 6 § 1 alleged by them, had not been taken into account by the courts dealing with their complaints. Contrary to the Court’s established case-law on the assessment of the reasonableness of length of proceedings, the courts had not examined the overall length of the proceedings but had only selected parts of them. In accordance with the Supreme Court’s interpretation of the term “in the course of the proceedings in a case” referred to in section 5(1) of the 2004 Act, assessment of a length complaint was to be limited to the period after the Act’s entry into force – unless the previous delay still continued on that date – and to the court instance at which the case was currently pending, notwithstanding the prior instances. 32.     The practice of “fragmentation of proceedings” applied by the national courts was perceived by the Court – and brought to the Polish State’s attention – as incompatible with Article 6 § 1 already at an early stage of the operation of the 2004 Act. In 2005 the Court reminded the Polish authorities that “as it ha[d] already indicated on a great number of occasions, the reasonableness of the length of the proceedings must be assessed in the light of the particular circumstances of the case taken as a whole. The Court’s approach consist[ed] in examining the overall length of proceedings and in covering all stages of the proceedings” (see Majewski v.   Poland , no. 52690/99, § 35, 11 October 2005). In the light of that judgment it was therefore evident for the domestic authorities that a court dealing with a complaint under the 2004 Act must consider the entirety of the proceedings and all their stages (see Rutkowski , cited above,§ 213). 33.     On 20 March 2013 the Supreme Court issued the 2013 Resolution, analysing critically its previous case-law on the matter and endorsing a new interpretation regarding “fragmentation of proceedings” in order to bring it in line with the Court’s case-law on the reasonableness of length of proceedings (ibid., § 181). In the same resolution, however, the Supreme Court referred to the meaning of “termination of proceedings” and reiterated that judicial proceedings ended on the date on which the second ‑ instance judgment had become final. It stressed that the Supreme Court could not be regarded as a “further instance” as it was situated outside the structure of the courts of law. In consequence, cassation proceedings before the Supreme Court were not, in its view, a continuation of the previous proceedings but constituted a new case for the purposes of a complaint under section 5(1) of the 2004 Act. “The course of the proceedings in the case” as referred to in that section could not, therefore, include proceedings before the Supreme Court, even in situations where the second-instance judgment had been quashed and the case remitted (see Rutkowski, cited above, §   107). 34.     Furthermore, in Rutkowski the Court reiterated the standards for “appropriate and sufficient redress” for violations of the “reasonable time” requirement and its strong, although rebuttable, presumption in favour of non-pecuniary damage being normally occasioned by excessively lengthy proceedings (ibid ., § 182). In view of the above, the Court found in its pilot judgment that the 2004 Act had failed to provide the applicants with “appropriate and sufficient redress” in terms of adequate compensation for the excessive length of the proceedings in their cases (ibid.,§   183). 35.     The Court considers that its findings from Rutkowski pilot judgment as to the Polish courts’ deficient practice in respect of the application of the 2004 Act apply to the instant case, the more so as the facts of the case concern the same period of time. Moreover, the Court would reiterate that the domestic practice of fragmentation of the proceedings had direct consequences on the calculation of the total length of the proceedings in the applicant’s cases (see Rutkowski , cited above, § 181). 36.     The Court notes that the proceedings in respect of the determination of the criminal charge against the applicant started on 17 January 2001, when he was charged with a criminal offence. The trial and appellate proceedings lasted for thirteen years before various courts, including on three occasions before the Supreme Court. The applicant’s cassation appeals before the Supreme Court resulted in the second-instance judgments being quashed twice and the case being remitted for reconsideration. The final determination of the charges against the applicant also took place before the Supreme Court, on 12 December 2013. To exclude the periods when the case was examined by the highest domestic jurisdiction from the overall period to be taken into account by the Court would run counter to the manner in which the Court has so far approached this issue (see, among many other authorities, Gossa v. Poland , no. 47986/99, §§ 68 and   71, 9   January 2007; Metzger v. Germany , no. 37591/97, § 34, 31 May 2001; and Zielinski and Pradal & Gonzalez and Others v.   France [GC], nos.   24846/94 and 34165/96 to 34173/96, §   64, ECHR 1999 ‑ VII). 37.     The applicant lodged his complaint under the 2004 Act on 22 August 2013, during the cassation stage of the proceedings. However, the domestic court left previous stages of the proceedings, which had lasted some twelve years, without examination. 38.     Regard being had to the above considerations on the domestic practice of fragmentation of the proceedings and its case-law on the calculation of the overall period to be taken into consideration for the purposes of Article 6 § 1 of the Convention, the Court concludes that the applicant lodged his complaint under the 2004 Law in the course of the proceedings. In these circumstances, to ask him to attempt another, ex post facto remedy by lodging a civil claim after the termination of the proceedings would overstretch his duties under Article 35 § 1 of the Convention. 39.     In conclusion, the Court dismisses the Government’s objection as to the exhaustion of domestic remedies and finds that there has been a breach of Article 6 § 1 of the Convention in the present case. ARTICLE 13 OF THE CONVENTION 40.     The applicant originally raised a complaint under Article 13 of the Convention, claiming that he had had no effective domestic remedy in   respect of the protracted length of the proceedings in his case. However, in his written observations on the admissibility and merits he no longer maintained that claim. 41.     The Government did not comment on the issue either. 42.     Given that the applicant no longer wished to pursue his complaint under Article 13, the Court sees no reason to consider it of its own motion (see, for example, the Steel and others v. the United Kingdom judgment of 23   September 1998, Reports 1998-VI, 2733, § 43; and H.B. v.   Switzerland , no.   26899/95, § 67, 5 April 2001). APPLICATION OF ARTICLE   41 OF THE CONVENTION 43.     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.” Damage 44.     The applicant claimed 86,000 euros (EUR) in respect of pecuniary damage to cover loss of income since 2006. Moreover, the applicant claimed EUR 15,000 in respect of non-pecuniary damage. 45.     The Government contested those claims. 46.     The Court considers, on the evidence before it, that the applicant has failed to demonstrate that the pecuniary damage pleaded was actually caused by the violation of the Convention in his case. Consequently, there is no justification for making any award to her under that head (see,   mutatis mutandis , Kudła v. Poland [GC], no. 30210/96, § 164, ECHR 2000-XI). On the other hand, the Court awards the applicant EUR 9,000 in respect of non ‑ pecuniary damage. Costs and expenses 47.     The applicant made no claim in respect of costs and expenses incurred before the domestic courts or the Court. Default interest 48.     The Court considers it appropriate that the default interest rate 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, Joins to the merits the Government’s preliminary objection concerning the applicant’s failure to exhaust domestic remedies and dismisses it; Declares the complaint under Article 6 § 1 of the Convention admissible; Holds that there has been a violation of Article 6 § 1 of the Convention; Holds that it is not necessary to examine the applicant’s complaint under Article 13 of the Convention; Holds (a)   that the respondent State is to pay the applicant, within three months, EUR 9,000 (nine thousand euros), in respect of non ‑ pecuniary damage, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of 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; Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 26 March 2020, pursuant to Rule   77 §§ 2 and 3 of the Rules of Court. Renata Degener   Pere Pastor Vilanova Deputy Registrar   President