FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36576/03 by Andrzej LESZCZAK against Poland

The European Court of Human Rights (Fourth Section), sitting on 19 May 2005 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr G. Bonello , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , Mr J. Borrego Borrego , judges , and Mr M. O ' Boyle , Section Registrar ,

Having regard to the above application lodged on 2 November 2003 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Andrzej Leszczak , is a Polish national who was born in 1982 and lives in Siecie , Poland .

A. The circumstances of the case

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

On 15 April 2000 the applicant was detained on remand on suspicion of having committed homicide. On 11 July 2000 he was released due to lack of evidence supporting that suspicion.

Subsequently the prosecution obtained a report by the smell recognition expert ( opinia osmologiczna ). On the basis of that report, the applicant was re-detained on 10 August 2000 .

On an unspecified later date the bill of indictment against the applicant and three of his co-accused was submitted to the Słupsk Regional Court ( Sąd Okręgowy ) . The trial court held hearings on 22, 23 and 24 November and 8 December 2000 .

On 15 December 2000 the SÅ‚upsk Regional Court convicted the applicant of aggravated homicide and attempted burglar y and sentenced him to 15 years ' imprisonment. The applicant appealed against that judgment .

On 22 March 2001 the Gdańsk Court of Appeal ( Sąd Apelacyjny ) quashed the judgment of the Regional Court and remitted the case for retrial . It found that the trial court had exceeded its discretion as to the assessment of relevant evidence, in particular in respect of that given by his principal accomplice and the findings of the smell recognition expert. On the same date the Court of Appeal prolonged the applicant ' s detention on remand until 30 June 2001 . It noted that there was a strong likelihood that the applicant had committed the offences in question and that in view of the gravity of the applicable sentence there was a risk that the applicant would tamper with evidence. Subsequently, the applicant ' s detention was prolonged by the Słupsk Regional Court until 30 October 2001 .

On 29 October 2001 the Regional Court ordered that the applicant be held in custody until 30 January 2002 . It reiterated the grounds given in the Court of Appeal ' s decision of 22 March 2001 . It appears that the applicant ' s detention was subsequently prolonged on further unspecified dates.

On 10 July 2002 the SÅ‚upsk Regional Court again convicted the applicant of aggravated homicide and attempted burg lary and sentenced him to 15 years ' imprisonment. The applicant appealed against the judgment of the Regional Court to the Court of Appeal.

Subsequently, the Court of Appeal ordered the further prolongation of the applicant ' s detention on 16 October 2002 (until 30 J anuary 2003 ) and on 15 January 2003 (until 30 April 2003 ).

On 30 January 2003 the Court of Appeal again quashed the first-instance court judgment in respect of the applicant on the same ground s as previously and remitted the case.

Subsequently, the applicant ' s detention was extended by the Regional Court on five occasions: on an unspecified date in April 2003 (until 30 July 2003 ), on 17 June 2003 (until 30 October 2003 ), on 10 October 2003 (until 30 December 2003 ), on an unspecified date in Dece mber 2003 (until 31 January 2004 ) and on 15 January 2004 (for an unknown period). The Regional Court reiterated the grounds previously given for his detention . I n the decision of 17 June 2003 the Regional Court noted that the prolongation was necessary in order to obtain another report by the smell recognition expert.

The applicant ' s numerous appeals against the prolongation of his detention and requests to be released were to no avail.

On an unspecified date in August 2003 the applicant requested the trial court that his case be referred to a different court. He argued that the SÅ‚upsk Regional Court had wrongly convicted him on two occasions. On 27 August 2003 he was informed by the trial court that the applicable provisions of the Code of Criminal Procedure did not provide for the referral of a case to a different court at the accused ' s request.

In September 2003 a report of the smell recognition expert was submitted to the trial court. On 27 February 2004 the trial court gave judgment and acquitted the applicant. He was released on the same day. On 8 July 2004 the Gdańsk Court of Appeal upheld the judgment of the Regional Court . The prosecution filed a notice of cassation appeal. The applicant has not provided information as to whether the proceedings against him are still pending.

B. Relevant 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

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” ( środki zapobiegawcze ). The other measures are 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 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 249 § 5 of the 1997 Code, in the version applicable at the relevant time, provides:

“The court shall inform the detainee ' s lawyer of the time of a court session at which a decision is to be taken on the prolongation of detention on remand or at which an appeal against a decision imposing or prolonging detention on remand is to be examined.”

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.”

3. Censorship of correspondence

Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in the Code of Execution of Criminal Sentences ( Kodeks karny wykonawczy ) of 1 September 1998 .

Article 103 of that Code, which is contained in Chapter IV entitled “Rights and duties of convicted persons”, provides as follows:

“Convicted persons, their counsel, representatives and the relevant non-governmental organisations have a right to lodge complaints with institutions set up by international treaties ratified by the Republic of Poland concerning the protection of human rights. In those cases, correspondence of persons deprived of their liberty shall be sent to the addressee without delay and shall not be censored.”

Provisions relating to the execution of detention on remand (Articles 207-223) are contained in Chapter XV entitled “Detention on remand”.

Article 217 § 1 reads, in so far as relevant:

“... a detainee ' s correspondence shall be censored by [the authority at whose disposal he remains], unless the authority decides otherwise.”

Pursuant to Article 214 § 1:

“Unless exceptions are provided for in the present Chapter, a detainee shall enjoy at least the same rights as are secured to a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison. No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings, to maintain order and security in a remand centre and to prevent demoralisation of detainees.”

Article 242 § 5, which is contained in Chapter XXI entitled “Definitions”, provides:

“The prohibition of censorship shall also mean the prohibition of acquainting oneself with the contents of a letter.”

COMPLAINTS

1. The applicant complains under Article 5 § 3 of the Convention that his detention on re mand was excessively lengthy.

2. H e further complains under Article 6 § 1 of the Convention about unreasonable length of the criminal proceedings .

3. Invoking Article 6 § 1 of the Convention, he alleges that the criminal proceedings against him were unfair.

4. The applicant also complains under Article 13 of the Convention about the Regional Court ' s refusal to refer his case to a different trial c ourt. He submits that his request oblig ed the trial court to make an application to the Supreme Court under Article 37 of the Code of Criminal Procedure with a view to referring the case to a different trial court.

THE LAW

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

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary to give notice of this part of the application to the respondent Government.

2. The applicant also complains under Article 6 § 1 of the Convention that his right to have his case heard within a “reasonable time” was not respected. This provision, in so far as relevant, provides:

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

However, 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 ... ”

The Court observes that the present application was lodged with the Court when the relevant proceedings were pending before the domestic court and that, on the basis of available information, it is not possible to determine whether those proceedings are still pending following the prosecution ' s notice of cassation appeal.

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 from 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. Moreover, assuming 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 h as 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 has already occurred ( see Charzyński v. Poland ( dec .), no. 15212/03 , §§ 36-42 ).

However, t he 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, ha s failed to provide information as to whether he availed himself of this remedy.

It follows that this complaint must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

3. He further complains under Article 6 § 1 of the Convention that the proceedings against him were unfair.

That provision, in its relevant part, provides:

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

T he Court notes that the applicant was eventually acquitted of all the charges against him . It recalls that an accused ' s acquittal, in general, excludes that person from claiming to be a victim of a violation of the procedural guarantees of Article 6 (see , Heaney and McGuinness v. Ireland , no. 34720/97, ECHR 2000-XII, § 43).

It follows that this complaint is incompatible ratione personae and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4. The applicant also complains under Article 13 of the Convention about the Regional Court ' s refusal of 27 August 2003 to refer his case to a different trial c ourt.

Article 13 of the Convention reads:

“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.”

The Court recalls that Article 13 of the Convention requires the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see, among many other authorities, KudÅ‚ a v. Poland [GC], no. 30210/96, §§ 157, ECHR 2000 ‑ X). However, the Court finds no indication that the applicant had an “arguable complaint” under Article 6 § 1 or any other provision of the Convention.

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

F or these reasons, the Court unanimously

Decides to adjourn the examinati on of the applicant ' s complaint under Article 5 § 3 concerning the length of his detention on remand;

Declares the remainder of the application inadmissible.

Michael O ' Boyle Nicolas Bratza Registrar President