FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 1427/03 by Zbigniew PROKOPYSZYN against Poland

The European Court of Human Rights (Fourth Section), sitting on 23 January 2007 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr G. Bonello , Mr K. Traja , Mr S. Pavlovschi , Mr L. Garlicki , Ms L. Mijović, judges , and Mr T.L. Early , Section Registrar ,

Having regard to the above application lodged on 28 August 2000,

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 3 November 2005 ,

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 Zbigniew Prokopyszyn , is a Polish national who was born in 1964 and lives in Głogó w. The applicant informed the Court that on 1 February 2005 he had changed his surname to “Prokopyszyn” and he submitted an official document to that effect. 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.

The applicant was born in 1964 and lives in Głogó w.

On 20 March 2001 the applicant was suspected of having committed aggravated burglary and fraud as a result of which a third person ’ s property had been disposed of to the detriment of its owner.

On 29 May 2001 the applicant was arrested and placed in police custody.

On 31 May 2001 the Radomsko District Court ordered that the applicant be detained. The court based its detention order on a reasonable suspicion that the applicant had committed the offences, the severity of the likely penalty, the risk of the applicant ’ s “avoiding the administration of justice” and his relapse into crime.

Subsequent decisions extending the applicant ’ s pre-trial detention were taken by the Radomsko Regional Court on 16 August 2001, 25 October 2001, 21 December 2001, an unknown subsequent date, 31 May 2002, 27 June 2002, 13 September 2002 and 28 October 2002 and on an unknown subsequent date.

The court referred to the need to conduct further investigations, the reasonable suspicion that the applicant had committed the offences, the risk of the applicant ’ s obstructing the proper course of the proceedings (especially, in view of the fact that he had previously gone into hiding).

The applicant appealed against the decisions extending his detention on several occasions. 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. The decisions to that effect were given by the Piotrków Trybunalski District Court (a decision of 20 June 2001) and the Radomsko Regional Court (decisions of 27 June 2001, 24 October 2001, 21 December 2001, 27 February 2002, 16 April 2002, 9 May 2002, 21 May 2002 and 8 July 2002). These decisions relied on the fact that the reasons for which the applicant had been initially detained were still valid. Neither the applicant ’ s family situation nor his state of health had been found as such to justify lifting his pre-trial detention.

The applicant appealed unsuccessfully against some of the decisions dismissing his requests for release.

On 16 October 2001 a bill of indictment was lodged with the Radomsko Regional Court . The applicant was charged with aggravated burglary and fraud as a result of which a third party ’ s property had been disposed of to the detriment of its owner.

Hearings were held on: 23 November 2001, 9 January 2002, 30 January 2002, 20 February 2002, 20 March 2002, 2 9 March 2002, 16 April 2002, 24 April 2002, 29 April 2002, 14 June 2002, 17 July 2002, 14 August 2002, 6 September 2002, 11 October 2002, 6 November 2002, 11 December 2002, 15 January 2003, 12 February 2003, 7 March 2003 and 12 March 2003.

From 11 June 2001 to 7 February 2002 and from 5 July 2002 to 15 October 2004 the applicant was serving prison sentences in respect of his other convictions. Therefore, for one year and four months of the period of his pre-trial detention, which lasted one year and nine months, the applicant was serving his prison sentences.

On 12 March 2003 the Radomsko District Court found the applicant guilty of the offences he had been charged with and sentenced him to four and a half years ’ imprisonment. The applicant appealed.

On 22 August 2003 the Piotrków Trybunalski Regional Court upheld the judgment. As the applicant did not lodge a cassation appeal, the judgment became 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.

COMPLAINT

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

THE LAW

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 ”

1. Period to be taken into consideration

The Government submitted that the applicant ’ s pre- trial detention in th e present proceedings had lasted from 29 May 2001 to 12 March 2003, wh en the first-instance judgment had been given . Meanwhile, the a pplicant was serv ing several prison sente nces imposed on him in ot her proceedings. H e had been imprisoned from 11 June 2001 to 7 February 2002 and from 5 July 2002 to 15 October 2004. Therefore, the Government were of the opinion that the applicant had effectively been detained from 29 May 2001 to 11 June 2001 and from 7 February 2002 to 5 July 2002, which amounted to 162 days in all.

The Government also noted that in similar circumstances either no violation of Article 5 § 3 was found ( W.B. v. Poland , no. 34090/96 , judgment of 10 January 2006 , where the applicant ’ s pre-trial detention had lasted fifteen months) or the case was rejected as being manifestly ill-founded ( Salapa v. Poland , no. 35489/97, decision of 30 April 2002, where pre-trial detention had lasted three years and three months).

The applicant did not comment on this issue.

The Court notes that th e applicant was detained on 29 May 2001, the first-instance judgment was given on 12 March 2003 and the second–instance judgment, upholding the first-instance judgment, was given on 22 August 2003. Between 11 June 2001 and 7 February 2002 and between 5 July 2002 and 15 October 2004 he was serving prison sentences ordered in other sets of criminal proceedings.

Hence, the Court considers that the applicant ’ s detention can be divided into the following periods:

(a) the first period, lasting from 29 May 2001 until 10 June 2001;

(b) the second period, lasting from 11 June 2001 to 7 February 2002, during which the applicant ’ s detention coincided with the prison sentence imposed in separate criminal proceedings against him;

(c) the third period, lasting from 8 February 2002 to 4 July 2002;

(d) the fourth period, lasting from 5 July 2002 to 12 March 2003 (the date of the first-instance judgment), during which the applicant ’ s detention coincided with the prison sentence imposed in separate criminal proceedings against him;

(e) the fifth period, lasting from 13 March 2003 to 22 August 2003 (the date of the second-instance judgment, upholding the first-instance judgment), during which the applicant ’ s detention coincided with the prison sentence imposed in separate criminal proceedings against him

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, B. v. Austria , judgment of 28 March 1990, Series A no. 175, pp. 14- 16, §§ 36-39).

Moreover, the fact that the applicant was serving prison sentences 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 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 second, the fourth and the fifth period 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 and/or he had been already convicted by the first-instance court in the present set of proceedings. The Court consequently finds that the period to be taken into consideration consist s of two separate terms, lasting from 29 May 2001 to 10 June 2001 and from 8 February 2002 to 4 July 2002. The period therefore amount s to five months.

2. Reasonableness of the length o f pre-trial detention

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 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 he would obstruct the proceedings (for example by going into hiding) and influence witnesses and other suspects (co-accused).

The Government drew the Court ’ s attention to the applicant ’ s criminal record (his various prison sentences totalled eighteen years).

T he Government pointed out that the applicant ’ s detention had been review ed at regular intervals. On each occasion the decisions had been reasoned in a relevant and sufficient manner.

With regard to the proceedings on the merits, the Government argued that th ese had been very complex . They submitted that two co-accused had been involved in the proceedings, about twenty witnesses had been examined and an on-site inspection and expert opinions had been required. They also submitted that the court had encountered some difficulties owing to changes in witnesses ’ addresses . Nonetheless, hearings had been held at regular and brief intervals.

As to the period of the applicant ’ s pre-trial detention – five months -, t he Court ’ s case-law shows that even longer periods were found reasonable in the circumstances of the certain cases and thus the complaints were rejected as being manifestly ill-founded (see, Salapa v. Poland, no. 35489/97, cited above).

The Court notes that there are no new elements in the present case which would lead the Court to depart from its previous case-law, the more so since the grounds given by the judicial authorities for the applicant ’ s pre-trial detention satisfied the requirement of be ing “relevant” and “sufficient”, that t he applicant ’ s detentio n was reviewed by the courts at regular intervals; that the case was rather complex and th at hearings were held regularly and at short intervals. For these reasons, it considers that the domestic authorities cannot be criticised 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 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 of the Convention. The application of Article 29 § 3 of the Convention should therefore be discontinued.

For these reasons, the Court unanimously

Declares the remainder of the application inadmissible.

T.L. Early Nicolas Bratza Registrar President