FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 20204/02 by Dariusz KWIATEK 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 19 November 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Dariusz Kwiatek, is a Polish national  who was born in 1970 and lives in Dąbrowa Gόrnicza, Poland.

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

On 22 February 2000 the applicant was arrested by the police. On 23 February 2000 the Katowice District Court ( SÄ…d Rejonowy) ordered that he be detained in view of the reasonable suspicion that he had committed burglary.

The applicant's detention was subsequently prolonged on several occasions. The relevant courts held that there was a strong suspicion that he had committed the offences with which he had been charged and that keeping him in custody was necessary to secure the proper conduct of the proceedings. All the applicant's applications for release on bail or under police supervision, likewise his appeals against decisions prolonging his detention, were to no avail.

On 9 August 2000 the Katowice Court of Appeal ( Sąd Apelacyjny ) prolonged his detention pending the investigation on the grounds that there was a reasonable suspicion that he had committed the offence in question and that he was potentially liable to a severe penalty, which justified the fear that he would obstruct the proper conduct of the proceedings. That decision was upheld on appeal by the Supreme Court ( Sąd Najwyższy ) on 31 August 2000.

The investigation was terminated on 14 September 2000. On 15 September 2000 the applicant was indicted on 2 counts of burglary before the Katowice Regional Court ( Sąd Okręgowy ). The bill of indictment comprised 19 charges (nearly each of them consisted of several counts of burglary) brought against 11 accused, of which 6, including the applicant, were detained on remand. The prosecution asked the court to hear evidence from 34 witnesses and to read out records of evidence given by 95 witnesses. The case-file comprised some 30 volumes.

On a later, unspecified date the Regional Court ordered that the case be joined with that of a certain M.K.

The first hearing was set for an unspecified date in March 2001 but that hearing, as well as 12 further hearings, were cancelled. It appears that 10 hearings were cancelled either because the police had not brought the detained accused from prison or because some of the applicant's released co-defendants had not appeared before the court.

On 8 October 2001 the Regional Court prolonged the applicant's detention until 17 January 2002, holding that there was a strong likelihood that he had committed the offences with which he had been charged and that the grounds previously given for his detention were still valid. It stressed that since the principal defendants had not confessed, there was a fear that, once released, they might tamper with evidence.

On 22 November 2001 the trial began but the court was only able to hear evidence for 2 witnesses. The trial was adjourned until 24 January 2002 but on that day the court cancelled a hearing because the detained accused had not been brought to trial from prison.

In the meantime, on 28 December 2001, the Regional Court had made an application under Article 263 § 4 to the Katowice Court of Appeal, asking for the applicant's detention to be prolonged until 15 June 2002. It stressed that the grounds originally given for his detention still existed and that the trial had not yet begun on account of the circumstances that were beyond its control. That application was granted 9 January 2002.

On 29 May 2002 the Court of Appeal ordered that the applicant's detention be prolonged until 1 October 2002. The court held that the applicant was charged with armed robbery, a serious offence for the commission of which an offender was liable to a minimum sentence of 3 years' imprisonment; however, in reality the charges of armed robbery were brought against other defendants and the applicant had been, and still was, tried on the charge of 2 counts of burglary. The Court of Appeal considered that the serious nature of the offence, as well as the fact that the original grounds for keeping him in custody were still valid and that the trial had come to a halt because of the obstacles that the Regional Court could not overcome, justified a further prolongation of his detention.

At that time, the applicant repeatedly, but still unsuccessfully, asked for release, submitting that the charge against him had not been supported by any convincing evidence.

On 16 September 2002 the Regional Court made yet another application under Article 263 § 4 of the Code of Criminal Procedure ( Kodeks postępowania karnego) , asking the Court of Appeal to prolong the applicant's detention until 4 November 2002. It submitted that all the grounds earlier given for the applicant's detention remained unchanged and that the trial had not been terminated due to many circumstances for which it was not responsible, such as the parties' absence from hearings. The court stressed that it had already listed 26 hearings but most of them were adjourned and, as a result, it still needed to hear evidence from some witnesses, especially those called by the defence, as well as from psychiatrists. The Court of Appeal granted that application on 25 September 2002.

On 18 October 2002 the Regional Court, reiterating the previous grounds, asked the Court of Appeal to prolong the applicant's detention until 20 December 2002. The Court of Appeal granted the application.

On 3 December 2002 the Regional Court closed the trial. On 10 December 2002 it gave judgment. The applicant was convicted as charged and sentenced to 2 years' and 10 months' imprisonment, which was nearly (less 12 days) the period he had spent in detention on remand.

The applicant submitted that he intended to appeal. However, despite the fact that he was served with a notice for applicants that explained the six-month rule laid down in Article 35 § 1 of the Convention and indicated that each Convention claim had to be supported by adequate evidence and despite the fact that he was expressly instructed by the Registry to that effect, he has so far not submitted any relevant material showing whether he appealed against the first-instance conviction.

COMPLAINTS

1. The applicant complains under Article 5 of the Convention that his detention was unjustified and excessively lengthy.

2. He also alleges a breach of Article 6 §§ 1 and 2 and Article 13 in that the criminal proceedings against him were conducted unfairly. In particular, he complains that his applications for admitting evidence were rejected, whereas those made by the prosecution were always granted.

THE LAW

1. The applicant complains under Article 5 of the Convention that his detention was unjustified and excessively lengthy.

The Court notes that the complaint falls to be examined under paragraph 3 of that Article. It 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 and 2 and Article 13 in that the criminal proceedings against him were conducted unfairly. In particular, he complains that his applications for admitting evidence were rejected, in contrast to those made by the prosecution.

However, the Court notes that not only did the applicant formulate his arguments in vague terms, without giving any concrete, convincing factual basis for his grievance, but also that, despite the Court's instruction to that effect, he has not produced any documentary material in support of this complaint. Indeed, the applicant has not even informed the Court whether he did, as required under Article 35 § 1 of the Convention, put the substance of his Convention claim before the domestic authorities by means of an appeal against his first-instance conviction.

That being so, the Court, considering it unnecessary to establish whether the rule of exhaustion of domestic remedies was complied with in the present case, finds that the complaint fails for lack of substantiation.

It follows that the remainder of the application is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to paragraph 4 of that Article.

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