FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 13794/02 by Grażyna KOŁACZYK against Poland

The European Court of Human Rights (Fourth Section), sitting on 9 January 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 24 July 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 observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Grażyna Kołaczyk, is a Polish national who was born in 1946 and lives in Warsaw . She was rep resented before the Court by Mr Adam Włoch, a lawyer practising in Cracow , Poland .

THE FACTS

A. The circumstances of the case

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

On 29 January 1994 the a p p licant was arrested on charges of trafficking in children within the meaning of Article IX of the Transitional Provisions of the Criminal Code of 1969, then in force.

On 3 February 1994 the Zamość District Prosecutor ordered her detention on remand. On 27 May 1994 the applicant was released under police supervision.

On 30 June 1994 the Zamość District Prosecutor lodged a bill of indictment against the applicant and four other persons . The applicant was charged with tra fficking in children and perjury.

On 13 June 1995 the Warsaw Regional Court discontinued p art of the charges against the a p p licant. On 3 November 1999 the Warsaw Regional Court gave a decision and discontinued the criminal proceedings against the applicant and against h er co ‑ accused in so far as they concerned charges under Article IX.

The prosecutor and the applicant appealed.

On 4 February 2000 the Warsaw Court of Appeal, partly amended the contested decision. On 20 October 2003 the Warsaw District Court acquitted the applicant of the remaining charges of perjury. The prosecutor appealed.

The proceedings were terminated on 23 September 2004 by the Warsaw Regional Court . On 24 July 2000 , the date on which the application was lodged with the Court, they were pending before the Warsaw District Court.

B. Relevant domestic law and practice

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court ’ s decisions in the cases of CharzyÅ„ski v. Poland no. 15212/03 (dec.), §§ 12 ‑ 23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland , no. 61444/00, §§ 34 ‑ 46, ECHR 2005-V.

COMPLAINTS

1. The applicant complained under Articles 3 and 8 of the Convention that she had been publicly branded a child trafficker in press articles and official statements.

2. The applicant further alleged under Article 5 § 1 that her detention on remand had been unlawful. She also maintained under Article 5 § 4 that neither she nor her lawyer had been entitled to participate in the proceedings relating to the lawfulness of her detention on remand.

3. In addition, she submitted that she could not have received com p ensation for her arrest in contravention of Article 5, as required under Article 5 § 5.

4. The applicant complained, invoking Article 5 § 3, that the length of the criminal p roceedings against her had exceeded a reasonable time.

5. Lastly, the applicant claimed under Article 7 that she had been charged with acts which could not have been reasonably construed as criminal offences.

THE LAW

1. The applicant complained under Articles 3 and 8 of the Convention that she had been publicly branded a child trafficker in press articles and official statements.

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 an infringement of her or her family ’ s personal rights. 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.

2. The applicant complained under Article 5 § 1 that her detention on remand had been unlawful. She further claimed under Article 5 § 4 that neither she nor her lawyer had been entitled to participate in the proceedings relating to the lawfulness of her detention on remand.

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 released from custody on 27 May 1994, which is more than six months before the date on which she submitted her application. 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.

3. The applicant also alleged that she could not obtain com p ensation for her arrest in contravention of Article 5, as required under Article 5 § 5.

The Court notes that it has not been shown that the applicant lodged an action with the court claiming compensation for her unjustified detention. Such an action was available to her under Polish law. 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.

4. The applicant further complained invoking Article 5 § 3 that the length of the criminal p roceedings against her had exceeded a “reasonable time”. The complaint falls to be examined under Article 6 § 1.

The Government pleaded non ‑ exhaustion of domestic remedies in that the applicant had not made use of the re medies provided for by the 2004 Act.

The applicant did not address that issue.

Pursuant to Article 35 § 1 of the Convention the Court may only deal with the matter after all domestic remedies have been exhausted.

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, pursuant 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 lodge, within six months f rom 17 September 200 4 , 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.

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 CharzyÅ„ski v. Poland, cited above , §§ 36 ‑ 42).

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

5. The applicant also complained under Article 7 that she had been charged with acts which could not have been reasonably construed as criminal offences and that this had been done for political motives.

The Court recalls that a defendant who has been acquitted cannot claim to be a victim of violations of the Convention concerning the proceedings against him (Eur. Comm. HR, No. 13156/87, Dec. 1.07.1992, D.R. 73, p. 5). In the present case the domestic court discontinued the proceedings in part concerning the charges of alleged child trafficking, finding that the acts with which the applicant had been charged did not amount to a criminal offence. Such a decision, by which the judicial authority finds that no criminal offence had been committed by the accused, is similar to an acquittal. Consequently, the applicant cannot claim to be a victim of a violation of the Convention, as required by Article 34 of the Convention. Accordingly, this part of the application is incompatible ratione personae with the provisions of the Convention, within the meaning of Article 35 § 3.

6. Having regard to the above conclusions, the application of A rticle 29 § 3 of the Convention to the case should be discontinued.

For these reasons, the Court unanimously

Declares the application inadmissible.

T.L. Early Nicolas Bratza Registrar President