FOURTH SECTION

DECISION

Application no . 968/05 Wiesław KRAIŃSKI against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 14 January 2014 as a Chamber composed of:

Ineta Ziemele, President, Päivi Hirvelä, George Nicolaou, Ledi Bianku, Zdravka Kalaydjieva, Krzysztof Wojtyczek, Faris Vehabović, judges , and Françoise Elens-Passos , Section Registrar ,

Having regard to the above application lodged on 15 December 2004 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Wiesław Kraiński , is a Polish national, who was born in 1962 and lives in Nysa .

2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz , succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs.

A. The circumstances of the case

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

1 . Criminal proceedings agains t the applicant II K 47/05/II K 313/05/II K 12/08

4 . On 15 April 1998 the Nysa District Prosecutor ( Prokurator Rejonowy ) opened an investigation into the allegations that the applicant had committed the offences of illegal border crossing and inciting prostitution for gain. The case was registered under no. 1 DS 518/98.

5 . It appears that the investigation was formally stayed from 14 November 1998 to 12 January 2005.

6 . On 31 January 2005 the Nysa District Prosecutor lodged with the Nysa District Court ( SÄ…d Rejonowy) a bill of indictment, charging the applicant with the offence of trafficking of women and inciting prostitution for gain. The case was registered under no. II K 47/05.

7 . On 24 March 2005 the Nysa District Court remitted the case to the prosecutor for further investigation. The new investigation file was registered under no. 1 Ds. 149/05.

8 . On 18 June 2005 the Nysa District Prosecutor lodged with the Nysa District Court an extended bill of indictment, this time, charging the applicant, together with three alleged accomplices, of membership in an organised criminal gang, trafficking of women and inciting and profiting from prostitution. The case was registered under no. II K 313/05.

9 . On 17 July 2007 the trial court relinquished its jurisdiction to the Opole Regional Court ( Sąd Okręgowy ).

10 . On 5 October 2007 the Opole Regional Court renounced its jurisdiction and the case was remitted back to the Nysa District Court. The case was registered under no. II K 503/07.

11 . The first hearing was held on 9 January 2008. On the same day the trial court decided to sever the charge of profiting from prostitution and to deal with it separately.

12 . The severed case was registered under no. II K 12/08.

13 . The subsequent hearings in the severed case no. II K 12/08 were held on 13 February, 5 March and 9 April 2008. The trial court examined twenty witnesses.

14 . On 9 April 2008 the Nysa District Cou rt discontinued the case no. II K 12/08 on the ground of negative prescription.

15 . On an unspecified date, prior to August 2008, the pr oceedings in the main case, no. II K 313/05, were discontinued on the ground of negative prescription.

2. Proceedings under the 2004 Act

16 . On 1 April 2005 the applicant lodged a complaint about the unreasonable length of the proceedings 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 postępowaniu sądowym bez nieuzasadnionej zwłoki ) (“the 2004 Act”). He alleged that the pre-trial proceedings in the case no. II K 47/05 had been unreasonably lengthy as they had lasted seven years.

17 . On 15 April 2005 the Opole Regional Court dismissed the complaint. The court held that the 2004 Act was not applicable in the applicant ’ s case since the impugned proceedings were in their pre ‑ trial and not judicial phase.

B. R elevant 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.

19 . Moreover, on 1 May 2009 the Law of 20 February 2009 on amendments to the Law on complaints about a breach of the right to a trial within a reasonable time ( Ustawa o zmianie ustawy o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) (“the 2009 Amendment ”) entered into force.

20 . Pursuant to section 1 of the 2009 Amendment , the amended name of the 2004 Act reads as follows:

“[the Act ] on complaints about a breach of the right to an investigation conducted and supervised by a Prosecutor and to a trial within a reasonable time.”

21 . Following the 2009 Amendment , section 1 of the 2004 Act, in so far as relevant, reads as follows:

“1. The Act stipulates the principles of and the procedure for the lodging and the examination of a complaint by a party whose right to a trial within a reasonable time has been breached as a result of an action or the inaction of a court or of the prosecutor conducting or supervising the investigation.”

Pursuant to section 4 of the amended 2004 Act, in so far as relevant:

“5. If a complaint concerns the unreasonable length of an investigation, it will be examined by the court immediately above the court competent to deal with the case.”

Section 6 of the amended 2004 Act provides, in so far as relevant:

“3. The complaint may contain a request for the court conducting the proceedings or the prosecutor conducting or supervising the investigation, to take actions in a specific time-limit or to pay suitable amount of money as specified in section 12 subsection 4.”

Section 10 of the amended 2004 Act reads, in so far as relevant:

“2a. If the complaint concerns unreasonable length of the investigation, the competent court informs the State Treasury – the prosecutor immediately above the prosecutor conducting or supervising the investigation – and serves him with a copy of the complaint.”

Section 12 of the amended 2004 Act provides, in so far as relevant:

“4. If the complaint is justified, the court may, at the request of the complainant, award ... a sum of between 2,000 and 20,000 Polish zlotys to be paid by the State Treasury or by a bailiff, if the proceedings have been conducted by a bailiff.”

Pursuant to section 14 of the amended 2004 Act:

“A party may lodge a new complaint in respect of the same set of proceedings twelve months after the court has decided on the previous complaint or six months after where the complainant has been remanded in custody during the investigation, or where these are enforcement proceedings or any other proceedings concerning execution of a court ’ s ruling.”

22 . Section 2 of the 2009 Amendment lays down the following transitional rules in relation to applications which are already pending before the Court:

“1. Within six months of the date of entry into force of this Act , persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to an investigation within a reasonable time as guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may, if their complaint to the Court was lodged in the course of the impugned investigation and if the Court has not adopted a decision concerning the admissibility of their case, lodge a complaint, on the basis of the provisions of this law, that the length of the proceedings was unreasonable .

2. A complaint lodged under subsection 1 shall indicate the date on which the application was lodged with the Court.

3. The relevant cour t shall immediately inform the m inister with a foreign affairs mandate of any complaints lodged under subsection 1.”

COMPLAINT

23. The applicant complained under Article 6 § 1 of the Convention about the unreasonable length of investigation and judicial proceedings in the case no. II K 47/05/II K 313/05/II K 12/08 .

THE LAW

24 . 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 ...”

25 . The Government contested that argument.

26 . The period to be taken into consideration began on 15 April 1998 (see paragraph 4 above) and ended, in respect o f the case no. II K 12/08, on 9 April 2008 and, in respect of the case no. II K 313/05, on an unspecified date before August 2008 (see paragraphs 14 and 15 above). It thus lasted approximately 10 years in one level of court jurisdiction.

27. The Government submitted that the applicant had not exhausted the remedies available to him under Polish law. In this connection they maintained that, since 1 May 2009, the date on which the amendment to the 2004 Act entered into force, it had been possible for the applicant to seek compensation for t he damage resulting from the excessive length of the investigation. The Government further submitted that the applicant had not lodged a claim with the civil courts under section 16 of the 2004 Act in conjunction with Article 417 of the Civil Code, seeking compensation for damage suffered as a result of the excessive length of the proceedings.

28 . The applicant did not comment on the Government ’ s preliminary objection.

29 . The Court notes that in April 2005 the applicant lodged a complaint concerning the length of the pre-tr i al phase of the proceedings with the Opole Regional Court under the 2004 Act. That remedy, however, was clearly not applicable in the applicant ’ s situation prior to the 2009 amendment and his action was indeed dismissed by the domestic court on this ground (see paragraphs 16 and 1 7 above).

30 . In view of the facts that the applicant lodged his application with the Court on 15 December 2004 when the investigation in his case was still pending and that the Court had not ruled on the admissibility of this application, the transitional provision of section 2 of the 2009 Amendment was applicable to the applicant ’ s situation and should have been used by him (see Ga ł v. Poland no 43485/07 (dec.), 6 September 2011 ; Pardus v. Poland , no. 13401/03 , §§ 27-29, 15 June 2010 and a contrario , Krzysztofiak v. Poland , no. 38018/07 , § 60, 20 April 2010) .

31 . It follows that the application is inadmissible for non-exhaustion of domestic remedies and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention

For these reasons, the Court unanimously

Declares the application inadmissible.

Françoise Elens-Passos Ineta Ziemele Registrar President