FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 54476/00 by Bogusł aw PYRAK against Poland

The European Court of Human Rights ( Fourth Section), sitting on 20 Februrary 2007 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr G. Bonello , Mr K. Traja , Mr L. Garlicki , Ms L. Mijović , Mr J. Šikuta , Mrs P. Hirvelä, judges , and Mr T.L. Early , Section Registrar ,

Having regard to the above application lodged on 7 April 1999,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Bogusł aw Pyrak, is a P olish national who was born in 1940 and lives in Iłów , Poland .

A. The circumstances of the case

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

The applicant was a president of the Agricultural Co ‑ operative in Troszyn Nowy.

On 11 July 1995 the Gostynin District Prosecutor ( Prokurator Rejonowy ) lodged a bill of indictment with the PÅ‚ock Regional Court ( SÄ…d OkrÄ™gowy ). The applicant was indicted on a charge of embezzlement of the Co ‑ operative ’ s property.

On an unspecified date the applicant was subjected to police supervision and bail.

On 10 February 1997 the court ordered that the applicant be detained on remand. The court found that the applicant ’ s detention was necessary in order to ensure his appearance in court, as he had failed to appear at the hearings scheduled for 9, 17, 22 and 27 January 1997. The decision did not specify the period of the applicant ’ s detention.

The applicant appealed. He maintained that he had informed the court that he would not be able to attend hearings and that his absence had been caused by an operation which he had had to undergo.

On 4 March 1997 the Warsaw Court of Appeal ( Sąd Apelacyjny ) quashed the decision of the Regional Court and remitted the case for reconsideration. The court observed that the applicant had been hospitalised between 10 and 17 February 1997 and that he had undergone heart surgery. It further held that in view of the applicant ’ s state of health, the Regional Court should reconsider its decision to place him in detention.

On 5 June 1997 the PÅ‚ock Regional Court ordered that the applicant be remanded in custody.

The Court of Appeal quashed that decision on 5 June 1997 . It found that keeping the applicant in custody was not necessary to ensure the proper course of the proceedings.

At a hearing on 6 January 1998 the applicant informed the court that he did not feel well. He was subsequently examined by a doctor, who ordered that he undergo a further medical examination in a hospital.

On 7 January 1998 the Płock Regional Court ordered the applicant ’ s detention. He was to be held in a prison hospital in Łódź and medically examined. The Warsaw Court of Appeal upheld that decision on 27 January 1998.

The applicant ’ s detention was prolonged on 29 January, 27 February, 29 April and 29 July 1998. The applicant ’ s appeals against those decisions were dismissed. The decision of the Warsaw Court of Appeal of 13 February 1998 did not contain any reasons.

The Regional Court refused the applicant ’ s requests for release upon a personal guarantee. The applicant submitted guarantees signed by J.K., a member of the Polish Parliament, W.B, the former Minister of Foreign Affairs, and M.E., a medical doctor and the commander of the Warsaw Ghetto Uprising of 1943.

On 30 October 1998 the Regional Court prolonged the applicant ’ s detention.

On 3 November 1998 the applicant appealed against that decision.

On 28 December 1998 the court again prolonged the applicant ’ s detention. On 15 January 1999 the Court of Appeal upheld the last decision. It also decided not to take cognisance of the merits of the applicant ’ s appeal against the prolongation of 30 October 1999 as it would not have served any purpose.

On 22 January 1999 the Regional Court convicted the applicant as charged and sentenced him to 2 years and 8 months ’ imprisonment. It also ordered his release from detention.

On 19 April 2000 the Court of Appeal quashed that judgment and remitted the case to the District Prosecutor for a further investigation.

On an unspecified date the Gostynin District Prosecutor lodged a new bill of indictment with the PÅ‚ock Regional Court .

On 17 September 2004 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”) entered into force.

The applicant informed the Court that he had not lodged a complaint under the 2004 Act.

B. Relevant domestic law and practice

1. Preventive measures, including detention on remand

The relevant provisions of the domestic law relating to preventive measures are summarised in several judgments concerning similar cases (see, among others, KudÅ‚a v. Poland [GC], no. 30210/96, § § 75 ‑ 81 , ECHR 2000 ‑ XI ; Jaworski v. Poland , no. 25715/02, § § 20 ‑ 27, 28 March 2006 ) .

2. Length of proceedings

The relevant domestic law provisions are set out in the Court ’ s judgment Krasuski v. Poland , no. 61444/00, §§ 34 ‑ 46 , ECHR 2005– V (extracts) and in CharzyÅ„ski v. Poland (dec.), no. 15212/03, §§ 12 ‑ 23, ECHR 2005 ‑ V.

COMPLAINTS

1. The applicant complains that his detention was in breach of Article 5 § 1 of the Convention .

2. The applicant complains under Article 5 § 3 about the length of his detention.

3. Relying on Article 5 § 4 , the applicant complains that the proceedings relating to the lawfulness of his detention on remand had not been adversarial, as required under that provision. In particular, neither he nor his counsel could attend the sessions at which his detention was prolonged. Sessions before the Court of Appeal, where his appeals against prolongations were examined, were likewise held in his absence.

4. The applicant complains under Article 5 § 4 that his appeal against the decision of the Płock Regional Court of 29 January 1998 was not examined “speedily” within the meaning of this provision.

5. The applicant raises a further complaint under Article 5 § 4. He complains that his appeal against the prolongation of his arrest of 30 October 1998 was not examined by the Warsaw Court of Appeal until 15 January 1999 He stressed that, in the meantime, his detention was prolonged again and, as a result, any examination of his appeal became pointless.

6. The applicant complains under Article 6 § 1 of the Convention that the length of the proceedings in his case had exceeded a “reasonable time” within the meaning of this provision.

THE LAW

1. The applicant complains that his detention was in breach of Article 5 § 1 of the Convention .

However, the Court notes that the applicant ’ s detention was based on Article 209 of the 1969 Code and, subsequently, on Article 249 § 1 of the 1997 Code. Furthermore , the Court observes that in the present case the applicant was detained on reasonable suspicion of having committed a criminal offence. The Court acco rdingly finds that the decision to place the applicant in custody had a legal basis and was issued by the appropriate judicial authority. There is nothing to suggest that the legal basis for his detention was not clearly defined or lacked the necessary foresee ability required under the Convention. The Court is therefore satisfied that the applicant ’ s detention complied with the requirements of Article 5 § 1 . Moreover, t he Court does not see any appearance of arbitrariness on the part of the relevant judicial authorities when deciding on the applicant ’ s detention.

T he Court therefore concludes that the applicant ’ s detention was “lawful ” within the meaning of Article 5 § 1 of the Convention.

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

2. The applicant complains under Article 5 § 3 about the length of his detention.

The Court considers that it cannot, on the basis of the file, determine the admissibility of these complaints and that it is therefore nec essary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of these complaints to the respondent Government.

3. Relying on Article 5 § 4 , the applicant complains that the proceedings relating to the lawfulness of his detention on remand had not been adversarial, as required under that provision. In particular, neither he nor his counsel could attend the sessions at which his detention was prolonged. Sessions before the Court of Appeal, where his appeals against prolongations were examined, were likewise held in his absence.

The Court notes that the last of the decisions complained of was given by the Warsaw Court of Appeal on 14 August 1998. The applicant lodged his complaint on 4 April 1999, which is more than six months after the events he complains of.

It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

4. The applicant complains under Article 5 § 4 that his appeal against the decision of the Płock Regional Court of 29 January 1998 was not examined “speedily” within the meaning of this provision.

However, the Court notes that the decision of the Court of Appeal was given on 13 February 1998, namely more that six months before the applicant ’ s application to the Court.

It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

5. The applicant makes a further complaint under Article 5 § 4. He complains that his appeal against the prolongation of his arrest of 30 October 1998 was not examined by the Warsaw Court of Appeal until 15 January 1999. He stressed that, in the meantime, his detention had been prolonged again and, as a result, any examination of his appeal became pointless.

The Court considers that it cannot, on the basis of the file, determine the admissibility of th is complaint and that it is therefore necessary, in acc ordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of th is complaint to the respondent Government.

6. The applicant complains under Article 6 § 1 of the Convention that the length of the proceedings in his case had exceeded a “reasonable time” within the meaning of this provision.

Pursuant to Article 35 § 1 of the Convention:

“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law...”

The Court observes that the present application was lodged with the Court when the relevant proceedings were pending before the domestic court.

It further observes that, pur suant to section 18 of the 2004 Act, it was open to persons such as the applicant in the present case whose case was pending before the Court to l odge, within six months from 17 September 2004, a complaint about the unreasonable length of the proceedings with the relevant domestic court, provided that their application to the Court had been lodged in the course of the impugned proceedings and that it had not yet been declared admissible. Moreover, given that the proceedings complained of are still pending, nothing prevents the applicant from lodging such a complaint ev en after the expiry of the time ‑ limit set by the transitional rule, in accordance with the general provisions of the 2004 Act.

The Court has already examined that remedy f or the purposes of Article 35 § 1 of the Convention and found it effective in respect of complaints about the excessive length of judicial proceedings in Poland . In particular, it considered that it was capable both of preventing the alleged violation of the right to a hearing within a reasonable time or its continuation, and of providing adequate redress for any violation that has already occurred (see Charzyński , cited above ).

However, the applicant, despite having been informed by the Registrar of the possibility of lodging a complaint about the length of the proceedings under the 2004 Act, has chosen not to avail himself of this remedy.

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

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaint s under Article 5 §§ 3 and 4 of the Convention ;

Declares the remainder of the application inadmissible.

T.L. Early Nicolas Bratza Registrar President