FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31330/02 by Antoni GOŁEK 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 3 August 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Antoni Gołek, is a Polish national, who was born in 1972 and lives in Bielsko-Biała, Poland.

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

On 15 March 2000 the applicant was arrested by the police on suspicion of having committed homicide. On 16 March 2000 the Żywiec District Court ( Sąd Rejonowy ) ordered that he be detained on remand in view of the reasonable suspicion that he had committed the offence in question, the serious nature of that offence, the severity of the anticipated penalty and the need to secure the proper conduct of the investigation, in particular the process of obtaining evidence.

During the investigation the applicant's detention was prolonged on several occasions. On 7 June 2000 the Bielsko-Biała Regional Court ( Sąd Okręgowy ) prolonged his detention until 15 September 2000. On 8 September 2000 it ordered that he be kept in custody until 15 December 2000. On 16 December 2000 it extended that period until 15 March 2001. The court reiterated the grounds originally given for the applicant's detention. It also considered that the need to take further evidence from experts justified the continuation of that measure.

The applicant, for his part, made repeated but unsuccessful applications for release on personal grounds, submitting that he had to secure the care and well-being of his 3 year old son. He also contested the reasonableness of the charge against him, maintaining that it was solely based on evidence from his common-law wife who was his alleged accomplice.

On 1 March 2001 the applicant, together with his common-law wife, was indicted on charges of homicide, attempted homicide, assault occasioning actual bodily harm, uttering threats, theft, burglary, fraud and illegally possessing explosives and dangerous substances before the Bielsko-Biała Regional Court. In all, 24 charges were brought against the applicant. The prosecution asked the court to hear evidence from 95 witnesses.

In the course of the trial, the Regional Court listed 38 hearings, of which 17 were cancelled for various reasons. As of April 2003 the court had heard evidence from 85 witnesses.

The Regional Court continually prolonged the applicant's detention pending trial. The relevant decisions were given on 25 June and 30 November 2001. The court held that the grounds originally given for the applicant's detention were still valid. It stressed the strong likelihood that the applicant had committed the offences in question.

Subsequently, as the length of 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 ), the Regional Court made 4 applications to the Katowice Court of Appeal ( Sąd Apelacyjny ), asking for the applicant's detention to be prolonged beyond that term. The Court of Appeal granted those applications on 13 March 2002 (extending the applicant's detention until 5 October 2002), on 2 October 2002 (extending his detention until 5 March 2003), on 26 February 2003 (prolonging that term until 31 May 2003) and on 21 May 2003 (ordering his continued detention until 31 August 2003).

The applicant's numerous applications for release and his appeals against the detention decisions were to no avail.

On 12 June 2003 the Regional Court convicted the applicant as charged and sentenced him to life imprisonment.

Shortly afterwards, the applicant lodged a notice of appeal with the Regional Court. On 21 January 2004 the applicant was served with a copy of the judgment and its written reasoning. He filed his appeal on an unspecified date in February 2004.

In the meantime, by decisions of 28 August and 28 November 2003 the Regional Court had ordered that the applicant be kept in custody pending his appeal against the first-instance conviction.

On 28 November 2003 the Katowice Regional Court prolonged the applicant's detention pending his appeal against the first-instance conviction until 31 March 2004. The applicant unsuccessfully appealed against that decision.

The appellate proceedings are pending.

COMPLAINTS

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

2. He also alleges a breach of Article 6 § 1 read in conjunction with Article 6 § 3(c) of the Convention in that his trial was conducted unfairly and his defence rights were not respected.

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 trial was conducted unfairly and 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, following his appeal against the first-instance conviction. 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