FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 20315/04 by S Å‚ awomir WIERZBA against Poland

The European Court of Human Rights (Fourth Section), sitting on 4 May 2006 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr G. Bonello , Mr M. Pellonpää , Mr K. Traja , Mr L. Garlicki , Ms L. Mijović , Mr J. Šikuta , judges , and Mr M. O ’ Boyle , Section Registrar ,

Having regard to the above application lodged on 6 August 2004 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr SÅ‚awomir Wierzba , is a Polish national who was born in 1980 and lives in Malbork , Poland .

A. The circumstances of the case

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

1 . Criminal proceedings for robbery and assault committed in May 1998

On 25 June 1998 the applicant was detain ed on remand on suspicion of committing robbery and assault. On 1 September 2000, after taking evidence from numerous (at least 16) witnesses in the case and considering the psychiatric expert opinions, the Gda ńsk District Court found the applicant guilty as charged and imposed a sentence of 4 years and 6 months ’ imprisonment. The judgment was upheld by the Gdańsk Regional Court on 28 February 2003 . On 21 July 2004 the Supreme Court dismissed the cassation lodged by the applicant, finding it manifestly ill-founded.

2 . Criminal proceedings for robbery committed in April 2002

On 17 April 2002 the Gdańsk District Court detain ed the applicant on remand in view of a reasonable suspicion of his having committed robbery and attempted escape, the court finding the detention to be the only measure guaranteeing that the applicant would not collude with other co-accused and thus interfere with the course of justice.

Subsequently, the applicant ’ s pre-trial detention was prolonged on several occasions (on 15 July and 15 October 2002 , on 15 January, 10 April and 9 October 2003 , on 15 January, 11 and 23 March and 29 June 2004 and on 25 January 2005 ) . The subsequent decisions were based on the persistence of th e reasonable suspicion that the applicant had committed the crime and on the existence of a real danger of absconding since the applicant had already attempted to escape . Moreover, the court found it probable that, given the charges against him; the applicant would interfere with the course of justice and hence his detention was necessary to ensure the proper conduct of the investigation .

T he applicant filed numerous but unsuccessful applications for release and appealed, likewise unsuccessfully, against the decisions prolonging his detention.

The decision of the first-instance court was given on 28 July 2004 . It transpires from the case-file that the applicant has lodged an appeal against it and that the proceedings are currently pending before the Gdańsk Regional Court .

On 11 February 2005 the Gdańsk Regional Court dismissed the applicant ’ s complaint under 2004 Act about the breach of the right to a trial within a reasonable time. Since the first-instance judgment in the case had been given before the 2004 Act came into force, the Gdańsk Regional Court examined only the conduct of the appellate proceedings and found no delays for which the relevant court could be held responsible.

B. Rele vant domestic law and practice

1. Remedies against unreasonable length of the 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.

Section 2 of the 2004 Act reads, in so far as relevant:

“1. A party 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 reads, in so far as relevant:

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

Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant:

“ 1. The c ourt shall dismiss a complaint which is unjustified.

2. If the court considers that the complaint is justified , it shall find that there was an unreasonable delay in the impugned proceedings.

3. At the request of the complainant , the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case.

4. If the complaint is justified the court may, at the request of the complainant , grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.”

Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant:

“ 1. Within six months after the date of entry into force of this law persons who, before that da te , had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reason able 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.

...”

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.

2. Preventive measures, including detention on remand

(a) The Code of Criminal Procedure 1997

The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998 , defines detention on remand as one of the so ‑ called “preventive measures” ( Å›rodki zapobiegawcze ). The other measures are bail ( porÄ™czenie majÄ…tkowe ), police supervision ( dozór policji ), guarantee by a responsible person ( porÄ™czenie osoby godnej zaufania ), guarantee by a social entity ( porÄ™czenie spoÅ‚eczne ), temporary ban on engaging in a given activity ( zawieszenie oskarżonego w okreÅ›lonej dziaÅ‚alnoÅ›ci ) and prohibition to leave the country ( zakaz opuszczania kraju ).

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

“1. Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused ’ s committing another, serious offence; they may be imposed only if the 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 risk 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 it 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 the 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 application made by the court before which the case is pending or, at the investigation stage, on 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 with the court of appeal within whose jurisdiction the offence in question has been committed. In addition, new paragraph 5 was added. It provides:

“ A decision of the Court of Appeal taken pursuant to paragraph 4 may be appealed against to the Court of Appeal sitting in a panel of three judges.”

COMPLAINTS

1. The applicant complains about the excessive length of his pre-trial detention in the criminal proceedings for robbery committed in April 2002 .

2. He also complains under Article 6 § 1 of the Convention that in both sets of criminal proceedings his right to a “fair hearing” has been breached and that the length of those proceedings was excessive.

3. He further complains, invoking Article 13 of the Convention and without additional specification, that his right to an effective remedy has been breached .

THE LAW

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

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 applicant further complains about the unfairness of both sets of the criminal proceedings against him and refers to their unfavourable outcome.

The Court observes that in this complaint the applicant does not allege any particular failure to respect his right to a fair hearing but objects to the unfavourable outcome of the proceedings.

a) Insofar the complaint relates to the criminal proceedings for robbery and beating committed in May 1998, the Court recalls that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the States Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court, unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], n o 30544/96, ECHR 1999-I, § 28).

The Court does not consider that the unfavourable outcome of the proceedings had in itself any bearing on the applicant ’ s right to a fair trial.

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

b) As regards the criminal proceedings against the applicant for robbery committed in April 2002, it must be noted that this set of proceedings is currently pending before the Regional Court and therefore the complaint about its outcome has to be considered as premature.

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.

3. Further the applicant alleges that the length of both sets of the criminal proceedings against him: for robbery and assault committed in 1998 and robbery committed in 2002, was unreasonable. He relies on Article 6 § 1 of the Convention, which provides, in so far as relevant:

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

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...”

a) As regards the criminal proceedings for robbery committed in 1998, the Court observes that the proceedings in question were terminated on 21 July 2004 , which is less than 3 years after the entry into force of the Law of 17 June 2004 (“the 2004 Act”). It follows that the applicant was and still is entitled to lodge a claim under Article 417 in conjunction with Article 442 of the Civil Code for damages in respect of the protracted length of judicial proceedings (see Krasuski v. Poland , no. 61444/00, §§ 67 – 72).

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

b) Insofar the complaint concerns the length of the criminal proceedings for robbery committed in 2002, the Court considers that it cannot on the basis of the case file, determine the admissibility of this complaint. 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 finally complains without further specification that his right to an effective remedy under Article 13 of the Convention has been breached.

Article 13 of the Convention provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Taking into account the nature of this complaint, it appears that the applicant has merely restated under this Article his complaints about the procedure followed and the outcome of his case. Therefore the Court finds that there is no separate issue under Article 13.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaint concerning the length of the applicant ’ s pre-trial detention and the length of the criminal proceedings for robbery committed in 2002;

Declares the remainder of the application inadmissible.

Michael O ’ Boyle Nicolas Bratza Registrar President