FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 30516/02 by Mariusz KOWALEWSKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 18 March 2008 as a Chamber composed of:

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

Having regard to the above application lodged on 7 August 2002,

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 partial decision of 9 January 2007 ,

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 Mariusz Kowalewski, is a Polish national who was born in Saint Petersburg and lives in Kamińsk. The Polish Government (“the Government”) were represented 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 .

On 24 March 2000 the applicant was arrested on suspicion of robbery.

On 26 March 2000 the Ostrołęka District Court ( Sąd Rejonowy ) ordered that the applicant be detained on remand.

The applicant ’ s pre-trial detention was extended throughout the trial on numerous occasions.

On 29 May 2000 the OstroÅ‚Ä™ka District Prosecutor ( Prokurator Rejonowy ) lodged with the OstroÅ‚Ä™ka District Court a bill of indictment against the applicant and his co ‑ accused. The applicant was charged with attempted robbery and assault.

On 30 October 2000 the District Court remitted the case to the prosecutor for further investigation.

The applicant remained in detention, which was prolonged on 27 November 2000 and 9 March 2001.

On 22 March 2001 the Ostrołęka District Prosecutor again indicted the applicant for assault and attempted robbery.

The applicant ’ s detention was further extended.

On 14 March 2002 the Ostrołęka District Court convicted the applicant as charged and sentenced him to 7 years ’ imprisonment.

The Ostrołęka Regional Court (Sąd Okręgowy) upheld the first-instance judgment on 19 September 2002.

On 3 June 2003 the Supreme Court (Sąd Najwyższy) dismissed the applicant ’ s cassation appeal.

From 5 July 1999 to 10 May 2004 the applicant was serving a prison sentence imposed on him by the Łomża Regional Court in respect of other convictions.

B. Relevant domestic law and practice

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

COMPLAINT

The applicant complained under Article 5 § 3 of the Convention about the length of his pre-trial detention.

THE L AW

The applicant complained about the length of his pre-trial detention. 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 brought promptly before a judge or other officer authorised by law to exercise judicial power and 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 ’ s pre- trial detention in th e present proceedings had lasted from 24 March 2000 to 14 March 2002, wh en the first-instance judgment was given . In the meantime, between 5 July 1999 and 10 May 2004, the a pplicant had been serv ing a prison sentence imposed on him in other criminal proceedings. Accordingly, during the whole of the period complained of the applicant was in detention “after conviction by a competent court”.

The applicant acknowledged that during the above-mentioned period he had been serving a prison sentence imposed in the context of other criminal proceedings.

The 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, Kudła v. Poland [GC], no. 30210/96, § 104 ).

The fact that the applicant was serving a prison sentence in respect of other convictions cannot be considered on the same footing as a detention under Article 5 § 1 (c), with which Article 5 § 3 is solely concerned, as it applies only to persons in custody awaiting their trial (see Prokopyszyn v. Poland (dec.), no. 1427/03, 23 J anuary 2007).

Accordingly, the Court cannot take into account the period between 24 March 2000 and 14 March 2002 for the purposes of assessing the reasonableness of the length of the detention under Article 5 § 3 of the Convention, as during this period the applicant ’ s detention on remand coincided with his detention after conviction in separate criminal proceedings. The Co urt finds that the entire period to be taken into consideration falls outside the scope of Article 5 § 3.

It follows that the remainder of the application is manifestly ill-founded and must be declared inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention. The application of Article 29 § 3 of the Convention should therefore be discontinued.

For these reasons, the Court unanimously

Declares inadmissible the remainder of the application.

Lawrence Early Nicolas Bratza Registrar President