FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33444/02 by Piotr WAWRZELSKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 20 February 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 8 July 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 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 Piotr Wawrzelski , is a Polish national who was born in 1961 and lives in Siedlce. The Polish Government (“the Government”) were 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.

On 28 December 1999 the applicant was arrested and placed in police custody on suspicion of attempted homicide.

On 30 December 1999 the Warsaw District Court ordered that the applicant be detained on remand on suspicion of robbery.

The court based its detention order on a reasonable suspicion that the applicant had committed the offence and the severity of the likely penalty, which gave rise to a fear that the applicant would obstruct the proceedings.

The applicant appealed against the detention order, but his appeal was dismissed.

Between 28 December 1999 and 30 July 2001 the applicant was serving a prison sentence in respect of another conviction.

In March 2000 the police established the applicant ’ s true identity as at the time of arrest he had been using another person ’ s identity card. The applicant acknowledged that he had been sought pursuant to a wanted notice since in July 1999 he had failed to return to prison after two days ’ leave.

Subsequent decisions extending the applicant ’ s pre-trial detention were taken on 13 March 2000, 21 June 2000, 13 August 2000, 21 December 2000, 14 December 2002, 22 February 2002, 24 May 2002 and 28 June 2002.

In their decisions t he court s referred to the need to conduct further investigations, a reasonable suspicion that the appl icant had committed the offence and the risk of the applicant ’ s obstructing the proper course of the proceedings . The courts took into account new elements which emerged in the course of the proceedings and specified the actions which needed to be taken. In particular, new investigative measures appeared necessary in view of the fact that the applicant had used a forged identity card at the time of his arrest. Accordingly, the person whose identity the applicant had used had to be heard and the applicant ’ s true identity had to be established.

On 14 December 2000 a bill of indictment was filed with the Warsaw Regional Court against the applicant and two co-accused. The applicant was charged with several robberies, failure to return to prison from leave and forgery of identity documents. The prosecutor requested the court to hear nineteen witnesses.

The applicant appealed against several of the decisions extending his detention o n several occasions, namely the decisions of 14 December 2001, 22 February 2002, 24 May 2002 and 28 June 2002. All of his appeals were dismissed.

On many occasions the applicant requested that his detention pending trial be lifted. On each occasion h is requests were dismissed. His appeals against the dismissals were also dismissed.

Hearings were held on: 9 April 2001 (adjourned), 24 May 2001, 18 June 2001, 23 July 2001, 17 September 2001 (when the court decided to conduct the proceedings anew since the composition of the court had to be changed due to the prolonged illness of a lay judge), 4 October 2001, 6 November 2001, 29 November 2001, 22 February 2002, 4 March 2002, 3 April 2002, 6 May 2002, 29 May 2002, 20 June 2002, 25 July 2002 and 19 August 2002.

The applicant and the Government differed as to whether disciplinary measures were imposed on witnesses who had failed to appear at hearings.

On 19 August 2002 the applicant was released from detention. The court found that at this stage of the proceedings his release under police supervision would secure the proper conduct of the proceedings.

On an unknown date in the course of the proceedings the applicant gave the authorities a false address for his place of abode.

On 2 June 2003 the Warsaw Regional Court gave a judgment and sentenced the applicant to four years and six months ’ imprisonment. The applicant appealed.

On 14 December 2005 the Warsaw Court of Appeal upheld the judgment. The judgment is final.

B. Rele vant domestic law

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 of Gołek v. Poland , no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland , no. 17 584/04, §§ 22-23, 4 August 2006.

COMPLAINTS

The applicant complained under Article 5 § 3 of the Convention about the length of his pre-trial detention and under Article 6 § 1 about numerous procedural errors of the trial court.

THE LAW

1. 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 ”

A . Exhaustion of remedies

The Government submitted in the first place that the applicant had not exhausted the remedies provided for by Polish law as regards his complaint under Article 5 § 3 of the Convention, in that he had failed to appeal against the decision s on the extension of his detention of 13 March 2000, 21 June 2000, 13 August 2000 and 21 December 2000.

The C ourt reiterates that it is well- established in its case-law that an applicant must make normal use of those domestic remedies which are likely to be effective and sufficient. When a remedy has been attempted, use of another remedy which has essentially the same objective is not required (see Yaşa v. Turkey judgment of 2 September 1998, Reports of Judgments and Decisions 1998-VI, § 71).

In the present case the appli cant lodged appeals against half of the decisions prolonging his detention, including the decisions taken in the final stage of the proceedings when the length of the detention had reached its most critical point. He also lodged requests for the detention measure to be lifted or for a more lenient preventive measure to be imposed, and appealed against the relevant refusals. The Court considers that the purpose of the remedies used by the applicant was to obtain a review of his detention pending trial. In the circumstances of the case these remedies constituted adequate and effective remedies within the meaning of Article 35 of the Convention as their aim was to obtain his release.

The Court further notes that the arguments raised by the Government are similar to those already examined and rejected in a previous case against Poland (see Grzeszczuk v. Poland, no. 23029/93 , Commission decision of 10 September 1997 ) and that the Government have not submitted any new circumstances which would lead the Court to dep art from its previous findings.

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

B. Period to be taken into consideration

The Government agreed that the applicant had been detained on 28 December 1999 and had been released on 19 August 2002. However, the Government observed that between 28 December 1999 and 30 July 2001 the a pplicant had been serv ing a prison sentence imposed on him in ot her proceedings, which period did not constitute pre-trial detention within the meaning of Article 5 § 1 (c). Therefore, the applicant ’ s pre- trial detention in th e present proceedings had lasted from 31 July 2001 to 19 August 2002, which amounted to one year and twenty days.

The Court notes that th e applicant was detained on 28 December 1999 and released on 19 August 2002 and that between 28 December 1999 and 30 July 2001 the a pplicant was serv ing a prison sentence imposed on him in ot her proceedings.

The Court reiterates that the fact that the applicant was serving a prison sentence in respect of another conviction cannot be considered on the same footing as 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 Wemhoff v. Germany , judgment of 27 June 1968 , Series A no. 7, p p . 23-24, § 9 ). Accordingly, the Court cannot take into account the period between 28 December 1999 and 30 July 2001 for the purpose of assessing the reasonableness of the length of the detention under Article 5 § 3 of the Convention, as during those periods the applicant ’ s detention on remand coincided with his detention after conviction in separate criminal proceedings. The Court consequently finds that the period to be taken into consideration amount s to one year and twenty days (from 31 July 2001 to 19 August 2002).

C. Reasonableness of the length o f proceedings

The Government were of the opinion that the whole period of the applicant ’ s detention had been justified. They stressed that the domestic courts dealing with the applicant ’ s case had found his detention to be compatible with the provisions of Article 258 of the Code of Criminal Procedure and that no grounds warranting the applicant ’ s release from detention as provided for by Article 259 of the Code had been established. They observed that the evidence obtained in the proceedings had indicated that there had been a reasonable suspicion that the applicant had committed the offences and that these offences had been serious. The Government drew the Court ’ s attention to the fact that the applicant had relapsed into crime.

T he Government also argued that the applicant ’ s detention had been aimed at securing the proper conduct of the investigation , as there had been a risk that , if released, he would obstruct the proceedings and influence witnesses and his co-accused. They underlined that the applicant had been previously sought pursuant to a wanted notice (since he had failed to return to prison following a period of leave) and had lied as to his identity and place of residence.

They observed that each decision concerning the applicant ’ s detention had been reasoned in a relevant and sufficient manner.

T he Government pointed out that the applicant ’ s detention had been review ed at regular intervals (on thirteen occasions) .

With regard to the proceedings on the merits, the Government submitted that hearings had been held at regular and brief intervals. They also submitted that the court had encountered some difficulties linked to its composition, which had required the proceedings to be conducted anew, and to the failure of witnesses, in particular victims, to appear at hearings. They stressed that appropriate measures had been taken, such as the imposition of fines and ordering that witnesses who had repeatedly failed to comply with summonses be escorted by the police to hearings.

The applicant stated at the outset that his previous criminal record could not be taken into account when assessing the reasonableness of the length of his pre-trial detention.

He was of the opinion that the only obstacle encountered by the authorities in the course of the proceedings had been the failure of a victim to appear at hearings and that the courts had not taken the necessary disciplinary measures to deal with that obstacle. He also underlined that many witnesses, including a victim, had been heard after his release from detention, which put into question the Government ’ s argument that his release would give rise to a risk that he would influence witnesses. He drew the Court ’ s attention to the fact that after his release from detention he had complied with all summonses.

The Court takes note of the seriousness of the charges, which included several robberies, the applicant ’ s collusion with other persons and the fact that he was a recidivist offender. There was a strong suspicion that the applicant had committed the offences.

It should be stressed that the applicant was also charged with failure to comply with an order to report back to the detention centre at the end of his period of leave as well as with forgery of an identity card. Because of his failure to report back to the detention centre a wanted notice had had to be issued for him. Thus there was a reasonable suspicion that he would fail to comply with summonses, if released.

The Court observes that the applicant ’ s detention was subject to regular reviews, at which any new elements which emerged in the course of the proceedings were taken into account. In particular, the fact that the applicant had concealed his true identity required further investigatory measures to be taken. This resulted in new charges being brought against the applicant, namely forgery of an identity card and failure to return to the detention centre. The Court observes that the applicant was released from detention and placed under police supervision as soon as the authorities were persuaded that such a preventive measure would suffice.

The Court considers that the case was rather complex and hearings were held at regular and brief intervals. Irrespective of whether or not sufficient disciplinary measures were taken in respect of the victim who repeatedly failed to appear at hearings, the latter ’ s absences did not constitute a decisive factor for the extension of the applicant ’ s detention.

Similarly, the fact that many witnesses, including a victim, were examined after the applicant had been released is not itself significant for the assessment of the reasonableness of the length of the applicant ’ s detention.

The Court observes that the applicant ’ s criminal record has never been treated by domestic courts as a sole, or even decisive, factor for his detention. However, the fact that he was a recidivist offender understandingly had some bearing on the assessment of the seriousness of the offences, and thus the decision to keep him in detention.

Finally, the fact that the applicant complied with summonses after his release cannot call into question the justification for the previous court decisions on the applicant ’ s continued detention.

The Court concludes that the grounds given by the judicial authorities for the applicant ’ s pre-trial detention satisfied the requirement of be ing “relevant” and “sufficient”. I t further considers that the domestic authorities cannot be criticised for a failure to observe “special diligence” in the h andling of the applicant ’ s case.

In view of the above considerations, the applicant ’ s prolonged detention was not in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention.

It follows that this part of the application is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4 thereof.

2. The applicant also complained about the alleged numerous procedural errors committed by the court, inter alia that the applicant ’ s requests for the exclusion of the victim ’ s lawyer from the proceedings, the examination of an additional witness, the taking of additional investigation measures and a change of the order of hearing witnesses had been dismissed. He relied on Article 6 § 1 of the Convention, which provides as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

As the applicant did not lodge a cassation appeal against the judgment of 2 June 2003, this complaint 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 of the Convention.

3. In the light of the above conclusions, Article 29 § 3 of the Convention should therefore be discontinued and the application as a whole declared inadmissible.

For these reasons, the Court unanimously

Declares the a pplication inadmissible.

T. L . Early Nicolas Bratza Registrar President