FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 10273/02 by Jacek MARCHOWSKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 30 May 2006 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr M. Pellonpää , Mr K. Traja , Mr L. Garlicki , Ms L. Mijović , Mr J. Šikuta , judges ,

and Mr T.L. Early, Section Registrar ,

Having regard to the above application lodged on 26 February 2001 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Jacek Marchowski , is a Polish national who was born in 1965 and lives in Cracow , Poland .

A . The circumstances of the case

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

1 . Criminal pr oceedings against the applicant

On 15 January 1997 the a p p licant was arrested on sus p icion of homicide.

On 16 January 1997 the applicant was brought before the Cracow District Court ( S Ä…d Rejonowy ). The court ordered his detention on remand on charges of assault occasioning death. The court held that there was a reasonable suspicion that the applicant had committed the offences with which he had been charged. In addition, the detention was necessary to ensure the proper course of the proceedings. The court also referred to the likelihood that a severe sentence could be imposed on the applicant.

During the investigation the applicant ’ s detention was prolonged twice. The last of the relevant decisions was given on 9 July 1997 by the Cracow Court of Appeal ( Sąd Apelacyjny ) and extended the applicant ’ s detention until 31 August 1997 . The courts considered that the grounds originally given for his detention were still valid.

Between January 1997 and August 1997 the applicant made several applications for release. In particular, he asked to be released on bail. All those applications were dismissed, both at first instance and on appeal. The applicant stressed that in view of the witness testimonies his detention lacked any reasonable basis. In addition , his son had just started school and it was necessary for him to have regular contact with his father.

It a p p ears that neither the applicant nor his lawyer p artici p ated in any of the sessions in connection with his a p p lications for release.

On 28 August 1997 the Cracow Regional Prosecutor lodged a bill of indictment with the Cracow Regional Court ( Sąd Wojewódzki ). The a p p licant was indicted on charges of p artici p ation in a fight resulting in a homicide and using false documents. The bill of indictment included four other p ersons.

At a session held on 18 November 1997 the Cracow Regional Court p rolonged the a p p licant ’ s detention until 30 A p ril 1998 . The court relied on the gravity of charges against the a p p licant. It further stressed that the charges concerned 5 p ersons. In addition, extradition p roceedings were p ending against one of the accused. The court still needed to obtain evidence from 61 witnesses including 3 anonymous witnesses. Neither the a p p licant nor his lawyer was p resent at this session.

The a p p licant ’ s a p p eal against this decision was dismissed on 18 December 1997 by the Cracow Court of A p p eal. The court referred to the gravity of charges against the a p p licant and the need to secure the p ro p er conduct of the p roceedings. In addition, the a p p licant ’ s arguments that he needed to take care of his family had been groundless since before his arrest he had not lived with them.

At hearings held on 14 April 1998 and 25 June 1998 the Cracow Regional Court prolonged the applicant ’ s detention until 30 June 1998 and 13 July 1998 , respectively.

Between 23 March 1998 and 13 July 1998 the Cracow Regional Court held 13 hearings.

On 13 July 1998 the Cracow Regional Court gave judgment and sentenced the a p p licant to seven years ’ im p risonment. It also p rolonged the a p p licant ’ s detention until 31 December 1998 . It p ointed out, that in view of the a p p licant ’ s and the other co- accused ’ s behaviour, it had been necessary to secure the p ro p er conduct of the p roceedings.

On 1 October 1998 the a p p licant a p p ealed against this judgment.

On 28 December 1998 the Cracow Court of A p p eal gave a decision and p rolonged the a p p licant ’ s detention until 15 February 1999 .

On 14 January 1999 the Cracow Court of A p p eal quashed the first ‑ instance judgment and remitted the case.

On 10 February 1999 the Cracow Regional Court again prolonged the applicant ’ s detention, this time until 30 June 1999 .

On 28 June 1999 the Cracow Regional Court extended the detention of the applicant and 3 other co-defendants until 30 Se p tember 1999 . The court held that given the evidence collected so far by the courts there was a high degree of likelihood that the a p p licant had committed the offence with which he had been charged. In addition, there was a high risk of his absconding or going into hiding.

On 9 Se p tember 1999 the Cracow Regional Court gave a decision and remitted the case to the p rosecution authorities in order to com p lete the investigation. The p rosecutor a p p ealed. On 13 October 1999 the Court of A p p eal quashed the first-instance decision and ordered the Regional Court to p roceed with the case.

Meanwhile, on 22 Se p tember 1999 the Cracow Regional Court again extended the detention of the applicant and the other co-defendants, this time until 30 December 1999 . The court referred to the reasons given p reviously and held that they were still valid. In particular , there were good grounds for believing that if released the defendants might commit another serious crime.

The a p p licant appealed, submitting that as the case had been transferred to the p rosecution authorities, it would indicate that there was no “high p robability that he had committed the crime with which he had been charged” since the p rosecution needed to collect more evidence. On 13 October 1999 the Cracow Court of A p p eal u p held the first-instance decision.

On 22 December 1999 the Cracow Regional Court gave a decision and p rolonged the detention of the app licant and 4 other co-defendants until 29 February 2000 . The court held that the grounds for kee p ing them in detention were still valid. In p articular, there was a need to hear evidence from additional witnesses.

At a hearing held on 25 February 2000 the court extended the a p p licant ’ s detention until 30 A p ril 2000 . The court re p eated the reasons given p reviously.

On 25 A p ril 2000 the Regional Court again p rolonged the a p p licant ’ s detention, this time until 30 June 2000 . On 17 May 2000 the Cracow Court of A p p eal dismissed the a p p licant ’ s a p p eal against this decision. The court stressed that there was a likelihood that the charges against the a p p licant and his co-defendants would be proven and that the interests of the proper administration of justice justified the continuation of the detention.

On 30 May 2000 the Cracow Regional Court gave judgment and sentenced the a p p licant to five years ’ im p risonment. After p ronouncement of the judgment, the court p rolonged the a p p licant ’ s detention until the sentence became final. On 1 June 2000 the a p p licant filed an a p p eal against the decision to p rolong his detention on remand. He also lodged an a p p eal against his conviction.

On 21 June 2000 the Court of A p p eal dismissed the a p p licant ’ s a p p eal and u p held the decision to p rolong his detention on remand until the conviction became final.

On 10 October 2000 the Cracow Regional Court extended the a p p licant ’ s detention until 10 January 2001 . This decision was served on the a p p licant on 18 October 2000 .

On 4 January 2001 the Court of A p p eal p rolonged the a p p licant ’ s detention until 4 A p ril 2001 . At a session held on 8 February 2001 the Court of A p p eal dismissed the a p p licant ’ s motion for release. The a p p licant ’ s lawyer was p resent at both sessions.

On 1 March 2001 the Cracow Court of A p p eal gave judgment and acquitted the a p p licant. The court also ordered that the a p p licant be released from detention.

On 11 May 2001 the prosecutor filed a cassation appeal against this judgment.

On 10 December 2001 the Su p reme Court quashed the first– and second ‑ instance judgments and remitted the case to the Cracow Regional Court .

On 12 August 2002 the Małopolska Governor refused to issue a p ass p ort to the a p p licant on the ground that the criminal p roceedings against him were p ending.

Between 17 October 2002 and 28 June 2005 the Regional Court held 33 hearings.

On 29 June 2005 the Cracow Regional Court gave judgment and sentenced the applicant to four years ’ imprisonment.

On 1 July 2005 the a p p licant asked to be served with a co p y of the judgment together with the reasoning. It was served on him on 14 October 2005 . The Regional Court informed the a p p licant that the delay in serving the judgment was caused by the com p lexity of the case, and the number of defendants involved.

On 15 September 2005 the Cracow Regional Court gave a decision and ordered that the period of detention on remand between 15 January 1997 and 30 May 2000 and 13 November 1993 and 5 May 1994 (imposed in relation to another set of criminal proceedings) be deducted from the term of imprisonment imposed on the applicant. The applicant appealed against this decision.

On 11 October 2005 the Court of Appeal gave a decision and amended the decision of 15 September 2005 . The court considered that the period to be deducted from the prison sentence was the period between 15 January 1997 and 15 January 2001 .

The a p p licant a p p ealed against the judgment of 29 June 2005 .

At a hearing held on 25 January 2006 the Court of Appeal gave judgment. It quashed the Regional Court ’ s judgment and remitted the case.

The proceedings are pending before the Cracow Regional Court .

2. Conditions of the applicant ’ s detention

According to the applicant, during the whole period of his detention on remand he had been held in solitary confinement. He claimed that he had spent 1 , 550 days in solitary confinement (between 15 January 1997 and 1 March 2001 ). The applicant stressed that the conditions of his detention had amounted to “mental torture”. In addition, he considered that it had been a clearly repressive measure of an inhuman and degrading character. The applicant made numerous applications for release from detention. In his applications he asked to be released on bail or under police supervision. He also referred to the severity of the measure imposed on him.

B. Relevant domestic law and practice

1. Amendments to criminal legislation

During the time covered by the facts of the present case, Polish criminal legislation was amended on several occasions.

The applicant was detained on remand under the provisions of the 1969 Code. That Code is no longer in force as it was repealed and replaced by the 1997 Code, which entered into force on 1 September 1998 .

2. Detention on remand and other “preventive measures”

Both Codes define detention as one of the so-called “preventive measures” ( środki zapobiegawcze ). Those measures are, in addition to detention on remand, bail ( poręczenie majątkowe ), police supervision ( dozór policji ), guarantee by a responsible person ( poręczenie osoby godnej zaufania ), guarantee by a social entity ( poręczenie społeczne ), temporary ban on engaging in a given activity ( zawieszenie oskarżonego w określonej działalności ) and prohibition on leav ing the country ( zakaz opuszczania kraju ).

(a) 1969 Code

Article 209 provided:

“Preventive measures may be imposed in order to ensure the proper conduct of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.”

Article 217 defined grounds for detention on remand. That provision, provided, in so far as relevant:

“1. Detention on remand may be imposed if:

“(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent abode [in Poland ]; or

(2) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper conduct of proceedings by any other unlawful means;

2. If an accused has been charged with a serious offence or an intentional offence [for the commission of which he may be] liable to a sentence of a statutory maximum of at least 8 years ’ imprisonment, or if a court of first instance has sentenced him to at least 3 years ’ imprisonment, the need to continue detention in order to secure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed.”

Article 222 of the 1969 Code set out statutory time-limits for detention on remand. It provided, in so far as relevant:

“3. The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed 1 year and 6 months in cases concerning offences. In cases concerning serious offences [offences for the commission of which a person was liable to a sentence of a statutory minimum of at least 3 years ’ imprisonment] this period may not exceed two years.

4. In particularly justified cases the Supreme Court may, on an application made by the court competent to deal with the case, ... prolong detention on remand for a further fixed period exceeding the time-limits set in paragraphs 2 and 3, when it is necessary in connection with a suspension of the proceedings, a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in paragraph 3.”

On 28 December 1996 , by virtue of the Law of 6 December 1996 , paragraph 4 of that Article was amended and the grounds for prolonging detention beyond the statutory time-limits included also:

“... other significant obstacles, which could not be overcome by the authorities conducting the proceedings...”

(b) 1997 Code

Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads:

“Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused from committing another, serious offence; they may be imposed only if evidence gathered shows a significant probability that an accused has committed an offence.”

Article 258 lists grounds for detention on remand. It provides, in so far as relevant:

“1. Detention on remand may be imposed if:

(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland ];

(2) there is a reasonable fear that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means;

2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years ’ imprisonment, or if a court of first instance has sentenced him to at least 3 years ’ imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.”

The Code sets out the margin of discretion as to the continuation of a specific preventive measure. Article 257 reads, in so far as relevant:

“1. Detention on remand shall not be imposed if another preventive measure is sufficient.”

Article 259, in its relevant part, reads:

“1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would:

(1) seriously jeopardise his life or health; or

(2) entail excessively harsh consequences for the accused or his family.”

The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue.

Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 provided:

“1. Imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months;

2. If, due to the particular circumstances of the case, an investigation cannot be terminated within the term referred to in paragraph 1, the court of first instance competent to deal with the case may – if need be and on an application made by the [relevant] prosecutor – prolong detention for a period [or periods] which as a whole may not exceed 12 months;

3 . The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed 2 years;

4. Only the Supreme Court may, on an application made by the court before which the case is pending or, at the investigation stage, on an application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, a prolonged psychiatric observation of the accused, a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad, when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.”

On 20 July 2000 paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs 2 and 3 has been vested in the court of appeal within whose jurisdiction the offence in question has been committed.

3 . Length of proceedings

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. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.

A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under section 2 read in conjunction with section 5(1) of the 2004 Act .

Section 2, in so far as relevant, reads as follows:

“ 1. Parties to proceedings may lodge a complaint that their right to a trial within a reasonable time has been breached [in the proceedings] if the proceedings in the case last longer than is necessary to examine the factual and legal circumstances of the case ... or longer than is necessary to conclude enforcement proceedings or other proceedings concerning the execution of a court decision (unreasonable length of proceedings).”

Section 5 provides, in so far as relevant:

“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”

Section 16 refers to proceedings that have been terminated and that do not fall under the transitional provision of section 18 (see paragraph 46 below) in the following terms:

“A party who has not lodged a complaint about the unreasonable length of the proceedings under section 5 (1) may claim – under Article 417 of the Civil Code ... – compensation for the damage which resulted from the unreasonable length of the proceedings after the proceedings concerning the merits of the case have ended.

Article 442 of the Civil Code sets out limitation periods in respect of various claims based on tort. That provision applies to situations covered by Article 417 of the Civil Code. Article 442, in so far as relevant, reads:

“ 1. A claim for compensation for damage caused by a tort shall lapse 3 years following the date on which the claimant learned of the damage and the persons liable for it. However, the claim shall in any case lapse 10 years following the date on which the event causing the damage had occurred.”

Section 18 of the 2004 Act lays down the following transitional rules in relation to the applications already pending before the Court:

“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case;

2. A complaint lodged under subsection 1 shall indicate the date on which the applic ation was lodged with the Court;

3. The relevant court shall immediately inform the Minister of Foreign Affairs of any complaints lodged under subsection 1.”

On 18 January 2005 the Supreme Court ( Sąd Najwyższy ) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.

COMPLAINTS

1. The a p p licant com p lains under Article 3 that during 1,505 days of his detention on remand he was ke p t in solitary confinement.

2. The a p p licant maintains under Article 5 § 1 that he was unlawfully deprived of his liberty and in particular that there was no judicial decision authorising his detention between 1 July 2000 and 18 October 2000 .

3. He also submits under Article 5 § 3 that his detention on remand was inordinately lengthy.

4. He further alleges that he had not been allowed to p artici p ate in the p roceedings relating to the lawfulness of his detention.

5. In this respect he claims under Article 5 § 5 that he would not be able to receive compensation for his unlawful detention in view of the manner in which the judgment of acquittal has been drafted.

6. The applicant complains under Article 6 § 1 that the criminal p roceedings against him lasted an unreasonably long time.

7. He further alleges under Articles 8 and 10 that the fact that he was p ublicly branded by the p re ss and by official statements a “ruthless criminal” was a breach of these p rovisions.

8. Lastly, the applicant claims that as a result of the alleged unlawful detention he sustained material loss in the amount of 40,000 USD.

THE LAW

1. The app licant complain ed under Article 3 that during 1,505 days of his detention on remand he was ke p t in solitary confinement.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The a p p licant maintained under Article 5 § 1 that he had been unlawfully deprived of his liberty and that there had been no judicial decision authorising his detention between 1 July 2000 and 18 October 2000 .

The Court firstly considers that this com p laint falls to be examined under Article 5 § 1 (c) of the Convention .

The Court further observes that in the p resent case the a p p licant was detained on the reasonable sus p icion of having committed a homicide . In the light of the material in its p ossession, the Court does not find any indication that the a p p licant ’ s detention was unlawfu l or otherwise ordered than "in accordance with a p rocedure p rescribed by law", within the meaning of Article 5 § 1 . It considers that it was ordered in accordance with domestic law and fell within the ambit of Article 5 § 1 (c) of the Convention, as having been effected for the p ur p ose of bringing h im before the com p etent legal authority on sus p icion of having committed an offence. The Court also observes that the lawfulness of h is detention was examined a nd u p held on a number of occasions by the com p etent courts.

As regards the period between 1 July 2000 and 18 October 2000, the Court does not find it established that the decision s given by the Cracow Regional Court on 30 May 2000, subsequently upheld by the Cracow Court of Appeal, to prolong the applicant ’ s detention until the sentence had become final, were invalid, and thus that the detention which resulted from them was unlawful under national law. Nor does the Court find that the detention was arbitrary (see Benham v. the United Kingdom , judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III, §§ 46 and 47).

Thus, the Court finds no indication that in the present case the applicant ’ s detention was unlawful or effected in an arbitrary way .

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

3. The applicant further submitted under Article 5 § 3 that his detention on remand had been inordinately lengthy.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

4. The applicant alleged that he could not participate in the p roceedings relating to the lawfulness of his detention. The Court observes that this compla int falls to be examined under A rticle 5 § 4.

The Court further considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

5. In this respect the applicant also claimed under 5 § 5 that he would not be able to receive compensation for his unlawful detention in view of the manner in which the judgment of acquittal had been drafted.

In this res p ect the Court observes, that u nder Article 35 § 1 of the Convention it may only deal with the matter after all domestic remedies have been exhausted.

The Court notes that is has not been shown that the app licant lodged any complaints or attempted to obtain compensation at the national level.

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 .

6. The applicant complain ed under Article 6 § 1 of the Convention that his case was not heard within a “reasonable time”.

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

T he Court observes that the present application was lodged with it when the relevant proceedings were pending before the domestic court and that they are still pending following the applicant ’ s appeal.

It further observes that, pursuant to section 18 of the 2004 Act, it was open to persons such as the applicant whose case was pending before the Court to lodge, with in 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 even 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 for 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 had already occurred (see Charzyński v. Poland (dec .), no. 15212/03, §§ 36-42).

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

7. The applicant also claimed under Article s 8 and 10 that he had been publicly branded in articles in the press and in official statements a “ruthless criminal”.

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 i t has not been shown that the app licant lodged any complaints or sought legal recourse against any of the measures complained of.

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 .

8. Lastly, the applicant complained that as a result of the alleged unlawful detention he sustained material loss in the amount of 40,000 USD.

In thi s connection the Court observes that the a p p licant failed to s ubmit any evidence to substantiate t his com p laint .

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

For these r easons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaints under Articles 3, 5 § 3 and 5 § 4 ;

Declares the remainder of the application inadmissible.

T.L. Early Nicolas Bratza Registrar President