FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37700/03 by Ireneusz KOŁODZIEJCZYK against Poland

The European Court of Human Rights (Fourth Section), sitting on 22 April 2008 as a Chamber composed of:

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

Having regard to the above application lodged on 18 November 2003,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together ,

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 Ireneusz Kołodziejczyk, is a Polish national who was born in 1954 and lives in Gdańsk . The Polish Government (“the Government”) were represented by their Agent, Mr J. Wo łą siewicz 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.

Between 22 October 2000 and 22 February 2003 the applicant served two terms of imprisonment imposed on him in separate sets of criminal proceedings.

On 17 January 2001 the Gdańsk Regional Prosecutor charged the applicant with 2 counts of unlawful possession of firearms, unlawful possession of explosives and theft of a driving licence. On the same day the Gdańsk District Court ordered his detention pending trial in view of the reasonable suspicion that the applicant had committed the offences with which he had been charged. It further held that the applicant might obstruct the proceedings and had regard to the severity of the penalty likely to be imposed. The court found that imposition of detention pending trial at the time when the applicant was serving a prison term would enable the prosecution to effectively control his contact with the outside world.

On 26 February 2001 the Gdańsk Regional Court dismissed an appeal by the applicant against the detention order. It held that keeping him in custody was justified by the severity of the likely penalty and the risk that he might tamper with evidence, given the substantial number of suspects in the case.

The applicant ’ s appeal against the detention order, likewise his further appeals against decisions extending his detention and all his subsequent, numerous applications for release and appeals against refusals to release him, were unsuccessful. In his applications and appeals, he argued in particular that his detention had been automatically extended by the courts.

In the course of the investigation, the applicant ’ s detention was extended on two occasions , namely, on 14 March and 3 April 2001.

On an unknown date in 2001 the Gdań sk Regional Prosecutor refused to allow the applicant a visit from his common-law wife. The applicant filed a complaint. On 26 April 2001 the Słupsk Regional Prosecutor refused to institute criminal proceedings in respect of the applicant ’ s complaint.

On 15 May 2001 the Gdansk Regional Prosecutor lodged a bill of indictment with the Gdań sk Regional Court . The applicant was charged with 2 counts of unlawful possession of firearms, unlawful possession of explosives and theft of a driving licence . The bill of indictment comprised 120 charges brought against 19 defendants. Other defendants were charged with numerous counts of robbery and armed robbery committed in an organised criminal group. However, the applicant was not charged with acting in such a group.

On 17 May 2001 the Gdańsk Regional Court extended the applicant ’ s detention until 31 October 2001, finding that it was necessary in order to prevent him – and his other 12 detained co-defendants – from evading justice or tampering with evidence.

On 16 October 2001 the Gdańsk Regional Court again extended the detention of the applicant and that of 9 of his co-defendants, considering that the grounds originally given for remanding him in custody were still valid.

The trial began on 28 December 2001. However, as of April 2002 the prosecution had still not completed the reading-out of the bill of indictment.

During the court proceedings the authorities extended the applicant ’ s detention on 26 September and 18 December 2002, 25 June and 17 December 2003, and 10 February 2004. The courts repeated the grounds previously given for the applicant ’ s continued detention. In particular, they referred to the complexity of the case, the volume of evidence and the severity of the likely penalty.

Between 30 December 2003 and 16 September 2004 the applicant was serving a prison sentence imposed in another set of criminal proceedings against him.

On June 2004 the trial court ordered the applicant ’ s release. It noted the charges against the applicant and the fact that the period of his detention had exceeded 3 years. The court held that the detention should be lifted.

By June 2005 the trial court had held over 150 hearings and heard evidence from more than 400 witnesses. However, all the hearings listed after 17 June 2005 had to be cancelled due to the long-term illness of one of the trial court judges. Subsequently, a new panel of judges had to be assigned to the case and the trial had to be restarted.

On 24 November 2005 the Regional Court considered that the case concerning the charges against the applicant and some of the charges against 4 of his co-accused should be examined separately. The case was subsequently examined by the Gdansk District Court.

On 20 July 2007 the District Court transferred the applicant ’ s case to the Gdansk Regional Court , which had meanwhile become competent to try the case.

It appears that the proceedings against the applicant are pending.

B. Relevant domestic law and practice

The relevant domestic law and practice concerning the imposition of detention during the judicial proceedings ( 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 , n o. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland , n o. 17584/04, §§ 22-23, 4 August 2006.

COMPLAINTS

1. The applicant claimed under Article 5 § 3 that the length of his detention during the judicial proceedings had been excessive.

2. He further complain ed under Article 5 §§ 1, 3, 4 and 5 of the Convention about the unlawfulness of his detention. In a letter of 28 February 2006 he added that he had been unlawfully deprived of his liberty between 11 December 2003 and 20 January 2004.

3. The applicant also alleged a violation of Article 6 §§ 1 and 3 (a), (b) and (c) of the Convention, claiming that the bill of indictment had not contained reasons for his charges. He stressed that he had been afforded only 2 days to consult the case file of the investigation and thus had not had adequate time to prepare his defence.

4. The applicant, invoking Article 13 of the Convention, submitted that his various complaints alleging breaches of criminal procedure in the course of the investigation and the trial had been ignored.

5. He also complained that for 2 years (without specifying the exact period) he had been refused contact with his common-law wife.

6. In his letter of 28 February 2006 the applicant complained that he had contracted diabetes and hepatitis while in detention.

THE LAW

1. The applicant alleged that the length of his detention during the judicial proceedings had been excessive. He r elied on Article 5 § 3 of the Convention, which reads 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.”

The Government argued that the applicant had failed to exhaust the available domestic remedies, since he had not appealed against the decisions extending his detention of 14 March 2001 and 27 March 2002.

The Court observes that it is true that the applicant did not appeal against the decisions referred to by the Government. However, he lodged appeals against all or most of the other numerous decisions extending his detention. He also requested on several occasions that his detention be replaced by a more lenient preventive measure. The Court has already considered that those remedies, namely, an appeal against a detention order and/or a request for release, whether submitted to the prosecutor or to the court, depending on the stage of the proceedings, and also an appeal against a decision to extend detention serve the same purpose under Polish law. Their objective is to secure a review of the lawfulness of detention at any given time of the proceedings, both in their pre-trial and trial stage, and to obtain release if the circumstances of the case no longer justify continued detention (see Iwańczuk v. Poland (dec.), no. 25196/94, 9 November 2000 , and Wolf v. Poland , nos. 15667/03 and 2929/04, § 78, 16 January 2007) . It follows from the Court ’ s case-law that the applicant is not required to appeal against each and every decision extending his detention (see, a contrario , Bronk v. Poland (dec.), no. 30848/ 03, 11 September 2007). Furthermore, the Court considers that the applicant was not required to appeal against all refusals to release him in order to comply with the requirement of exhaustion of domestic remedies.

It follows that this complaint cannot be rejected for non-exhaustion of domestic remedies.

The applicant ’ s detention started on 17 January 2001. He was released on 14 June 2004. However, between 22 October 2000 and 22 February 2003 and also between 30 December 2003 and 16 September 2004, the applicant was serv ing prison sentence s which had been imposed on him in other sets of criminal proceedings. Accordingly, the period to be taken into consideration amounted to 10 months and 8 days.

The Government submitted that there had been valid reasons for holding the applicant in detention for the entire period in question. They stressed that the applicant ’ s detention had been justified by the persistence of a reasonable suspicion that he had committed the numerous offences at issue and by the gravity of the charges against him, which attracted a heavy sentence. They also referred to the fact that the proceedings in question concerned an organised criminal group. Lastly, they maintained that the authorities had displayed adequate diligence in dealing with the applicant ’ s case, having regard to its complexity and the need to obtain voluminous evidence.

The applicant argued that the length of his detention had been unreasonable.

Having regard to the length of the applicant ’ s pre-trial detention the Court finds that the grounds given by the judicial authorities for the applicant ’ s pre-trial detention satisfied the requirement of being “relevant” and “sufficient” . It further notes that his detention was reviewed by the courts at regular intervals , that the case was very complex and that hearings were held regularly and at short intervals. For these reasons, it considers that the domestic authorities cannot be criticised either for a failure to observe “special diligence” in the handling of the applicant ’ s case.

In view of the above considerations, the Court considers that the length of the applicant ’ s detention does not disclose any appearance of a breach of the “reasonable time” requirement of Article 5 § 3 of the Convention. The complaint is therefore manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

2. The applicant complain ed under Article 5 §§ 1, 3, 4 and 5 of the Convention that his detention during the judicial proceedings had been unlawful.

The Court firstly considers that this complaint falls to be examined under Article 5 § 1 (c) of the Convention.

The Court further observes that in the present case the applicant was detained on the reasonable suspicion of unlawful possession of firearms, unlawful possession of explosives and theft of a driving licence. In the light of the material in its possession, the Court does not find any indication that the applicant ’ s detention was unlawful or ordered otherwise than “in accordance with a procedure prescribed by law”, within the meaning of Article 5 § 1. Moreover, it fell within the ambit of Article 5 § 1(c) of the Convention, as having been effected for the purpose of bringing him before the competent legal authority on suspicion of having committed an offence. The Court also observes that the lawfulness of his detention was examined and upheld on a number of occasions by the competent courts. Thus, the Court finds no indication that in the present case the applicant ’ s detention was unlawful or effected in an arbitrary way. It follows that this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

In so far as the applicant refers to the period between 11 December 2003 and 20 January 2004, the Court observes that under Article 35 § 1 of the Convention, the Court may only deal with the matter within a period of six months from the date on which the final decision was taken. It follows that this part of the complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

3. The applicant further alleged a violation of Article 6 §§ 1 and 3 (a), (b) and (c) of the Convention, claiming a limitation of his defence rights.

The Court notes that the criminal proceedings against the applicant are pending and he still has an opportunity to raise these complaints before the national courts. It follows that those complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

4. The applicant submitted under Article 13 that his complaints about breaches of criminal procedure had been ignored.

The Court reiterates that, according to its case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000-XI) . In view of its conclusions above, the Court considers that the applicant has no arguable claim of a violation of his rights under other provisions of the Convention which would have required a remedy within the meaning of Article 13.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

5. The applicant also complained that he had been refused contact with his common-law wife.

Under Article 35 § 1 of the Convention, the Court may only deal with the matter within a period of six months from the date on which the final decision was taken. The applicant was refused contact with his common-law wife in 2001, which is more than six months before the date on which he submitted this complaint to the Court. It follows that the complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

6. Lastly, the applicant submitted that he had contracted diabetes and hepatitis while in detention.

The Court reiterates that under Article 35 § 1 of the Convention the Court may only deal with the matter after all domestic remedies have been exhausted.

The Court notes that it has not been shown that the applicant lodged a civil action with the domestic courts to claim damages for allegedly contracting hepatitis in detention. It follows that this part of the application must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

The Court ’ s conclusion

Having regard to the above considerations, the Court con cludes that the application as a whole is inadmissible. It is accordin gly appropriate to discontinue the application of Article 29 § 3 of the Conventio n.

For these reasons, the Court unanimously

Declares the application inadmissible.

Lawrence Early Nicolas Bratza Registrar              President