FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 10268/03 by Adam KANKOWSKI 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 20 March 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Adam Kankowski, is a Polish national, who was born in 1974 and lives in Gdańsk, Poland.

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

On 27 January 1999 the applicant was arrested by the police on suspicion of having committed armed robbery. On 29 January 1999 the Tczew District Court ( SÄ…d Rejonowy ) ordered that he be detained on remand in view of the reasonable suspicion that he had committed the offence in question, the severity of the anticipated penalty and the fear that he might tamper with evidence. The court also observed that other measures designed to secure the proper conduct of the proceedings would be insufficient, given the fact that at the time of the commission of the offence the applicant had already been released under police supervision in another case. That, in the court's opinion, convincingly showed that only detention could prevent him from committing another offence.

In the course of the investigation, the applicant's detention was several times prolonged by the Gdańsk Court of Appeal ( Sąd Apelacyjny ). The court reiterated the grounds originally given for his detention and stressed that keeping him in custody was necessary to secure the process of obtaining evidence. The relevant decisions were given on 21 July 1999 (prolonging the applicant's detention until 31 December 1999) and 8 December 1999 (prolonging his detention until 27 January 2000). The applicant's appeals against those decisions – in which he contested the reasonableness of the charge against him – were rejected by the Supreme Court ( Sąd Najwyższy ).

On 21 January 2000 the Supreme Court prolonged the applicant's detention – which had meanwhile exceeded the 1 year's time-limit set for detention pending the investigation under Article 263 § 2 of the Code of Criminal Procedure ( Kodeks postępowania karnego ) – until 30 April 2000. On 24 May 2000 the Supreme Court ordered that that term should further be prolonged until 15 December 2000. The court reiterated the previous grounds given for the applicant's detention and added that the case was very complex, given that 6 further suspects had in the meantime been charged and detained in the case and that several other potential suspects were still being searched for.

From 9 March 2000 to 15 April 2002 and from 21 June to 21 July 2002 (i.e. for 2 years, 2 months and 17 days) the applicant served a sentence of imprisonment imposed in other criminal proceedings and fine by default. He was, however, simultaneously remanded in custody in the present case.

Meanwhile, further prolongation of the applicant's detention pending the investigation were ordered by the Gdańsk Court of Appeal on 13 December 2000 (up to 31 March 2001) and on 7 March 2001 (up to 31 May 2001). The court repeated the grounds originally given for the applicant's detention.

On 15 May 2001 the Gdańsk Regional Prosecutor ( Prokurator Okręgowy ) indicted the applicant on the charges comprising, among other things, several counts of armed robbery before the Gdańsk Regional Court ( Sąd Okręgowy ). The bill of indictment listed 120 charges brought against 19 accused, who all were remanded in custody. The case-file comprised 120 volumes. The prosecution asked the court to hear evidence from 386 witnesses. It appears that the principal witness was a certain A.Ł., who had been indicted together with all the defendants but gave evidence against them.

The trial began on 28 December 2001.

During the trial, the Court of Appeal prolonged the applicant's detention several times. The relevant decisions were given on 23 May 2001 (extending his detention up to 31 October 2001), on 24 October 2001 (ordering his continued detention until 31 March 2002), on 13 March 2002 (prolonging that period until 30 September 2002), 11 September 2002 (extending his detention until 31 December 2002), on 18 December 2002 (prolonging his detention until 30 June 2003), on 25 June 2003 (prolonging his detention until 31 December 2003), on 17 December 2003 (extending that term until 30 June 2004). The court considered that the original grounds given for the applicant's detention were still valid. It stressed that keeping him in custody was necessary in order to prevent him – and his co-defendants – from evading justice or tampering with evidence.

The applicant repeatedly, but unsuccessfully, asked for release and appealed against the decisions prolonging his detention. He maintained that the length of his detention was unreasonable and contested the charges against him, stressing that they were based on unreliable evidence from A.Ł.

In the meantime, the Regional Court had proceeded with the trial. Up to 11 December 2003 it listed 100 hearings; however, some 40 hearings were adjourned or cancelled for various reasons.

The applicant is still in detention pending trial.

COMPLAINTS

1. The applicant complains under Article 5 § 3 of the Convention that his detention exceeded a “reasonable time.”

2. The applicant also submits, in general terms, that his defence rights were not respected in the proceedings against him and alleges a breach of Article 6 § 1 read in conjunction with Article 6 § 3 (b) of the Convention.

THE LAW

1. The applicant complains under Article 5 § 3 of the Convention that his pre-trial detention was unreasonably long.

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 alleges a breach of Article 6 § 1 read in conjunction with Article 6 § 3(c) of the Convention in that his defence rights were not respected.

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 before the court of first instance. 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 this part 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