FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 17732/03 by Janusz KRAWCZAK against Poland

The European Court of Human Rights (Fourth Section), sitting on 4 May 2004 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mrs V. Strážnická , 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 16 May 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Janusz Krawczak, is a Polish national, who was born in 1950 and lives in Gdańsk, Poland.

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

On 17 June 1999 the Gdańsk District Court ( Sąd Rejonowy ) remanded the applicant in custody in view of the reasonable suspicion that he had committed 3 counts of armed robbery. The court added that that measure was also justified by the serious nature of the offences in question and the severity of the anticipated penalty.

During the investigation, the applicant's detention was prolonged several times.

On 19 August 1999 the Gdańsk Regional Court ( Sąd Okręgowy ) prolonged his detention until 16 December 1999, in order to secure the proper conduct of the investigation, especially the process of obtaining evidence from experts.

On 8 December 1999 the Gdańsk Court of Appeal ( Sąd Apelacyjny ) prolonged his detention until 16 June 2000, finding that it was highly probable that he had committed the offences with which he had been charged. It further relied on the need to obtain and secure further evidence, in particular evidence from experts in ballistics, biology and fingerprints. It stressed that it was also necessary to hold a view of the scene of crime and to confront the suspects with each other.

On 24 May 2000 the Supreme Court ( Sąd Najwyższy ) extended the applicant's detention until 15 December 2000, considering that the strong suspicion against him of having committed the serious offences with which he had been charged, the severity of the anticipated sentence and the risk of his tampering with evidence justified holding him in custody.

On 13 December 2000 the Gdańsk Court of Appeal prolonged the applicant's and his 8 co-suspects' detention pending investigation until 31 March 2001. On 7 March 2001 it ordered that the applicant be held in custody until 31 May 2001. It repeated the grounds stated in the previous detention decisions.

Meanwhile, between 22 January and 16 February 2001, the applicant had been granted access to the case-file. Since on 25 January and 15 February 2001 the case-file was not made available to him, he complained to the Regional Prosecutor that his defence rights had been breached. He maintained that he had so far only been able to read 50 volumes (out of more than 100) of the case-file and that it was impossible for him to read all the materials within the time allowed. He further stated that part of hand-written records was completely illegible or hardly legible and that he was unable to submit any motions for further evidence to be admitted.

On 15 May 2001 the applicant was indicted before the Gdańsk Regional Court. The bill of indictment listed 120 charges of attempted homicide and armed robbery, brought against 19 accused, who all were detained on remand. The case-file comprised 120 volumes. The prosecution asked the court to hear evidence from 386 witnesses. The principal witness was a certain A.Ł., who was indicted together with all the defendants but gave evidence against them.

On 7 May 2001 the Regional Court prolonged the applicant's detention until 16 June 2001, reiterating the grounds that had been stated in the previous decisions and stressing that there was a strong risk that he might tamper with witnesses.

Since on 16 June 2001 the applicant's detention reached the statutory time-limit of 2 years laid down in Article 263 § 3 of the Code of Criminal Procedure ( Kodeks postępowania karnego ), further prolongation of the applicant's detention was ordered by the Gdańsk Court of Appeal. The relevant decisions were given on 23 May and 24 October 2001, on 13 March, 11 September and 18 December 2002 and on 5 February, 25 June and 17 December 2003. On the last of those dates, the Court of Appeal prolonged the applicant's detention until 30 June 2004. That decision was upheld on appeal on 29 January 2004.

In all those decisions the Court of Appeal stated that the grounds originally given for the applicant's detention were still valid. It especially relied on the need to secure the proper conduct of the proceedings against any attempt by the applicant to obstruct the process of obtaining evidence. It stressed the exceptionally complex nature of the case and the fact that several hundred witnesses were to be heard.

During the trial the applicant filed numerous but unsuccessful applications for release and appealed, likewise unsuccessfully, against the decisions prolonging his detention. He maintained that the length of his detention was excessive and unreasonable and that the charges against him lacked a sufficiently strong basis since they were founded on unreliable evidence from A.Ł.

In the meantime, on 28 December 2001, the trial had opened but as of March 2002 the reading out of the bill of indictment by the prosecution had still continued.

The applicant is still in detention pending trial.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that his detention was inordinately lengthy.

2. He further alleges a breach of Article 6 § 1 read in conjunction with Article 6 § 3 (b) of the Convention in that, upon the termination of the investigation, he was not given sufficient access to the case-file, which affected his defence rights in the trial.

THE LAW

1. The applicant complains that his pre-trial detention was excessive and invokes Article 6 § 1 of the Convention.

The Court, noting that the complaint falls to be examined under Article 5 § 3 of the Convention, 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 further complains that, upon the termination of the investigation, he was not given sufficient access to the case-file, which affected his defence rights in the trial, in breach of Article 6 § 1 read in conjunction with Article 6 § 3 (b) of the Convention.

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 notes that the criminal proceedings against the applicant are still pending. Accordingly, the applicant still can, and should, put the substance of the complaint before the domestic authorities and ask for appropriate relief.

It follows that the remainder of the application is inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant's complaint concerning the length of his pre-trial detention;

Declares the remainder of the application inadmissible.

Michael O'Boyle Nicolas Bratza Registrar President