FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29284/06 by Marek JARANOWSKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 10 June 2008 as a Chamber composed of:

Nicolas Bratza , President, Lech Garlicki , Ljiljana Mijović , David Thór Björgvinsson , Ján Šikuta , Päivi Hirvelä , Mihai Poalelungi , judges, and Lawrence Early, Section Registrar ,

Having regard to the above application lodged on 13 July 2006,

Having regard to the Court ’ s decision to examine jointly the admissibility and merits of the case (Article 29 § 3 of the Convention),

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

The applicant, Mr Marek Jaranowski , is a Polish national who was born in 1967 and lives in Bydgoszcz-Fordon. The Polish Government (“the Government”) are r epresented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs .

A. The circumstances of the case

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

The applicant was born in 1967 and lives in Bydgoszcz-Fordon.

On 15 December 2000 the applicant was arrested by the police on suspicion of homicide. On 17 December 2000 the Toru Å„ District Co u rt ( SÄ…d Rejonowy ) remanded him in custody. It relied on a reasonable suspicion that the applicant had committed the offence. The court referred to the likelihood of a severe sentence of imprisonment being imposed on him. Furthermore, the court noted that the likelihood of a severe sentence being imposed on the applicant created a presumption that the applicant would obstruct the proceedings. Further, the court considered that the applicant had not confessed and that his evidence contradicted the material obtained by the prosecution, in particular the evidence from witnesses.

In the course of the investigation, the applicant ’ s detention was extended by the Toruń Regional Court ( Sąd Okręgowy ) on 14 March 2001, 6 June 2001 and 10 August 2001.

In its decisions extending the applicant ’ s detention the court referred to the reasons previously given and the high likelihood that the applicant had committed homicide. It stressed that the detention was justified by the need to obtain further evidence.

The applicant did not appeal against those decisions.

On 14 September 2001 the applicant was indicted before the Toruń Regional Court on charges of homicide.

The applicant ’ s detention was subsequently extended by the Toruń Regional Court on 19 September 2001, 19 December 2001 and 14 March 2002. The court relied on the above-mentioned grounds.

On 24 May 2002 the applicant was convicted as charged and sentenced to twenty-five years ’ imprisonment. He appealed. The applicant ’ s detention was subsequently extended on three occasions.

On 15 January 2003 the Gdańsk Court of Appeal ( Sąd Apelacyjny) quashed the first-instance judgment and remitted the case to the Toruń Regional Court . On 12 February 2003 it extended the applicant ’ s detention until 24 May 2003. The court considered that the reasons for keeping him in detention were still valid.

Subsequent decisions in that respect were given by the Toruń Regional Court on 21 May, 20 August and 3 November 2003 and 23 February and 19 May 2004. The courts relied on similar grounds.

On 1 June 2004 the Toruń Regional Court convicted the applicant and sentenced him to twenty-five years ’ imprisonment. On the same date the court extended the applicant ’ s detention until 1 December 2004.

On 16 November 2004 the GdaÅ„sk Court of Appeal quashed the first ‑ instance judgment and remitted the case to the ToruÅ„ Regional Court . It also extended the applicant ’ s detention. The court partly repeated the reasons given in previous decisions and stressed that they were still valid, despite the fact that the first-instance judgment had been quashed.

Subsequent detention orders were given by the Toruń Regional Court on four occasions, on 25 February, 31 August and 23 November 2005 and 1 February 2006. The court underlined that further evidence had to be taken and that the reasons previously given were still valid.

On 6 February 2006 the Toruń Regional Court gave judgment, sentenced the applicant to twenty-five years ’ imprisonment and extended his detention until 8 May 2006. The applicant appealed.

On 26 April 2006 and 4 August 2006 the Toruń Regional Court made further detention orders. The applicant appealed against the last decision extending his pre-trial detention. On 30 August 2006 the appeal was dismissed by the Toruń Court of Appeal.

On 29 December 2006 the GdaÅ„sk Court of Appeal upheld the first ‑ instance judgment. It appears that the applicant failed to lodge a cassation appeal.

B. Relevant domestic law and practice

The relevant domestic law and practice concerning the imposition of detention ( aresztowanie tymczasowe ), the grounds for its extension , release from detention and rules governing other “preventive measures” ( środki zapobiegawcze ) are stated in the Court ’ s judgments in the cases of Gołek v. Poland , no. 31330/02, §§ 27-33, 25 April 2006 , and Celejewski v. Poland , no. 17584/04, §§ 22-23, 4 August 2006.

COMPLAINTS

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

2. The applicant, without invoking any provisions of the Convention, complained in essence about the poor conditions of his detention, in particular that he was detained in crowded cells.

3. He further complained in general that the proceedings were unfair. He did not rely on any specific provision of the Convention.

4. Lastly, without invoking any provisions of the Convention, he complained in essence about the excessive length of the criminal proceedings.

THE LAW

1. The applicant complained under Article 5 § 3 of the Convention that the length of his detention was excessively lengthy.

The Article provides in so far as relevant :

“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.”

The Government submitted that the applicant had not exhausted all the remedies provided for by Polish law in that he had failed to appeal against almost all the dec isions imposing or extending his detention. The applicant did not comment.

The Court observes that, indeed, the applicant lodged only one appeal against the decision of 4 August 2006 extending his detention, which was given after he had been convicted for the third time by the Toruń Regional Court - the court of first instance. At no stage did he challenge any of the decisions extending his pre-trial detention prior to his conviction.

As to the applicant ’ s appeal against the decision of 4 August 2006, t he Court reiterates that, in view of the essential link between Article 5 § 3 of the Convention and paragraph 1 (c) of that Article, a person convicted at first instance cannot be regarded as being detained “for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence”, as specified in the latter provision, but is in the position provided for by Article 5 § 1 (a), which authorises deprivation of liberty “after conviction by a competent court” (see, for example, B. v. Austria , judgment of 28 March 1990, Series A no. 175, pp. 14-16, §§ 36-39 and KudÅ‚a v. Poland [GC], no. 30210/96, § 104, ECHR 2000 ‑ XI ). Accordingly, the applicant ’ s appeal against the decision of the ToruÅ„ Regional Court of 4 August 2006 cannot be regarded as an effective remedy as his detention no longer fell within the scope of Article 5 § 1 (c).

It follows that this part of the applica tion must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies .

2. T he applicant alleged a violation of the Convention in that the conditions of his detention were poor, in particular since he was detained in a crowded cell. The Court notes that the complaint falls to be examined under Article 3 of the Convention.

However, the applicant ’ s complaint has not been supported by any material evidence. Nor has the applicant stated any factual basis for his Convention claims.

It follows that this complaint is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. Without invoking any articles of the Convention, the applicant further submitted that the proceedings against him were conducted in an unfair manner. This complaint falls to be examined under Article 6 § 1 of the Convention.

However, the Court notes that the applicant did not file a cassation appeal with the Supreme Court. Therefore, he has not exhausted the remedies available under Polish law.

It follows that this part of the application is inadmissible for non ‑ exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.

4 . The applicant further complained about the unreasonable length of the criminal proceedings against him. This complaint falls to be examined under Article 6 § 1 of the Convention.

The Court notes that the applicant failed to lodge a complaint about a breach of his 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”), which the Court has found to be effective in respect of the length of judicial proceedings introduced remedies, of both a remedial and compensatory character, concerning specifically the right to have one’s case examined within a reasonable time within the meaning of Article 6 § 1 of the Convention. It has been held that these remedies are effective in respect of the excessive length of pending judicial proceedings (see Michalak v. Poland (dec.), no. 24549/03, 1 March 2005, and Charzyński v. Poland (dec.), no. 15212/03, 1 March 2005). It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

5. Having regard to the above considerations, it is appropriate to discontinue the application of Article 29 § 3 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Lawrence Early Nicolas Bratza Registrar President