FOURTH SECTION

DECISION

Application no. 38810/97 by Jerzy DŁUGOSZEK against Poland

The European Court of Human Rights (Fourth Section), sitting on 10 September 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mrs E. Palm , Mrs V. Strážnická , Mr M. Fischbach , Mr J. Casadevall , Mr R. Maruste ,

Mr L. Garlicki , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 13 June 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

The applicant, Jerzy DÅ‚ugoszek , is a Polish national, who was born in 1962 and lives in Otwock , Poland. In the proceedings before the Court he was not legally represented. The respondent Government were represented by their Agent, Mr K. Drzewicki , of the Ministry of Foreign Affairs.

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

A. Criminal proceedings against the applicant and his detention on remand

On 15 April 1995 the applicant was arrested by the police. On 16 April 1995 the Otwock District Prosecutor ( Prokurator Rejonowy ) charged him with aggravated robbery and detained on remand.

The bill of indictment was lodged with the Warsaw Regional Court ( Sąd Wojewódzki ) on 11 July 1995.

On 22 August 1995 the applicant began to serve a sentence of imprisonment which had been imposed on him in other criminal proceedings.

On 8 March 1996 the applicant asked for release. The Warsaw Regional Court rejected his application on 18 March 1996. It held that the applicant should be held in custody in view of the reasonable suspicion that he had committed the offence with which he had been charged and the need to secure the proper conduct of the proceedings.

The trial was listed for 31 January 1997 but it was eventually adjourned because a witness had failed to appear before the court.

Further hearings, listed for 17 March and 19 May 1997, were cancelled.

On 17 March 1997 the Warsaw Regional Court made an application to the Supreme Court ( Sąd Najwyższy ), asking it to prolong the applicant’s detention until 15 July 1997, i.e. beyond the statutory time-limit of two years applicable in such cases.

On 20 May 1997 a panel of three judges, sitting in camera as the Criminal Chamber of the Supreme Court, granted the application.

On 25 June 1997 the Warsaw Regional Court held a hearing. On the same day it gave judgment. The applicant was convicted as charged and sentenced to five years’ imprisonment and deprivation of his civic rights for three years. On 2 December 1998 the Warsaw Court of Appeal ( Sąd Apelacyjny ), on the applicant’s appeal, reduced the sentence to three and a half years’ imprisonment.

The applicant was released from prison on 9 April 1998.

B. Events that took place after the case was communicated

On 29 April 1999 the Registrar sent a letter to the applicant, informing him that the Court (former Fourth Section) had decided to give notice of his application to the Polish Government. He also informed the applicant of the possibility of obtaining free legal aid from the Council of Europe. The applicant did not reply.

On 16 August 1999 the Government submitted their written observations on the admissibility and merits of the application. On 19 August 1999 the applicant was invited to file his pleading in reply by 30 September 1999.

The applicant did not comply with the time-limit fixed for the submission of his observations. Nor did he ask the Court for any extension.

On 24 July 2002 the Registrar sent, by registered mail with acknowledgement of receipt, letters at two different addresses previously indicated by the applicant. He asked the applicant to explain his failure to observe the procedure fixed in his case and informed him of the terms of Article 37 § 1 of the Convention. The applicant was further warned that if he failed to respond to that letter within 3 weeks, the Court might conclude that he no longer intended to pursue his application.

However, both letters were returned undelivered, together with notes that read: “the addressee unknown” and “the matter to be clarified”.

COMPLAINTS

The applicant complained that the Supreme Court had unlawfully prolonged his detention. He also alleged that he had been kept in custody for an unreasonably long time.

The applicant did not invoke any specific provision of the Convention in support of his complaints.

THE LAW

The applicant alleged that his detention was unlawful and that it exceeded a reasonable time.

The respondent Government made an alternative plea. They invited the Court to reject the application either for non-compliance with the rule of exhaustion of domestic remedies, laid down in Article 35 § 1 of the Convention, or as being manifestly ill-founded within the meaning of Article 35 § 3.

However, the Court, having regard to the events that occurred after the Government had submitted their observations on the admissibility and merits of the case, considers that Article 37 § 1 of the Convention should be applied.

That provision, in its relevant part, reads:

“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application;  ....

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

In that context, the Court notes that the applicant failed to observe the procedure fixed in his case. In particular, he did not comply with the time-limit set for the submission of his observations and has not submitted them up to the present day, which is some three years after the original deadline. Nor was it possible to deliver to the applicant the Registrar’s letter of 24 July 2002, informing him of the terms of Article 37 § 1 of the Convention and warning that the Court might apply that provision in his case, since he had not notified the Court of his whereabouts.

In the circumstances, the Court concludes that the applicant does not intend to pursue his application and that it is no longer justified to continue the examination of his case. Furthermore, the Court finds no reasons of a general character, as defined in Article 37 § 1 in fine , that would require it to continue the proceedings by virtue of that provision.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Michael O’Boyle Nicolas Bratza Registrar President