FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 14382/04 
by Ryszard TONDERYS 
against Poland

The European Court of Human Rights (Fourth Section), sitting on 7 February 2006 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr G. Bonello
 Mr K. Traja
 Mr S. Pavlovschi
 Mr L. Garlicki
 Ms L. Mijović, 
 Mr J. Šikuta, judges 
and  Mr M. O’Boyle, Section Registrar,

Having regard to the above application lodged on 5 April 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ryszard Tonderys, is a Polish national who was born in 1958 and lives in Rzeszów.

A.  The circumstances of the case

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

On 14 June 1999 the applicant was arrested on suspicion of murder and attempted murder and remanded in custody. The applicant’s detention was prolonged by numerous subsequent court decisions. When maintaining the applicant’s detention, the courts had regard to the reasonable suspicion that he had committed the offence concerned.

On 6 September 2000 the Tarnobrzeg District Court gave a judgment on the merits, convicting the applicant as indicted, and imposed concurrent sentences of 25 years’ imprisonment.

On 15 February 2001 the Court of Appeal quashed the judgment and remitted the case for re-examination, finding the grounds for the judgment inadequate in a way which made it impossible to follow and assess the reasoning of the lower court.

On 12 February 2002 the Regional Court convicted the applicant again and sentenced him to 15 years’ imprisonment. Both the applicant and the Prosecutor appealed.

On 27 June 2002 the Court of Appeal quashed the judgment, considering that the lower court had applied the wrong legal qualification to the facts under examination.

On 25 March 2003 the Regional Court convicted the applicant and sentenced him to 25 years’ imprisonment. The applicant appealed.

On 4 March 2004 the Court of Appeal amended the legal qualification of the offence and upheld the judgment in its remainder. The applicant lodged a cassation appeal.

On 9 November 2004 the Supreme Court quashed the judgment of the Court of Appeal and remitted the case to that court for re-examination of the appeal.

On 7 April 2005 the Court of Appeal quashed the judgment of the Regional Court of 25 March 2003 and remitted the case for re-examination.

On 5 May 2005 the Regional Court prolonged the applicant’s detention until 31 October 2005.

Apparently the case is still pending before the first instance court and the applicant remains in detention.

B.  Relevant domestic law and practice

On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.

Article 2 of the Act provides for a special action by which a party can seek a declaration that his or her right to have a case heard within a reasonable time has been breached. The court shall take into consideration the following criteria: the conduct of the court before which the case is pending; the character of the case and the complexity of the legal and factual issues involved therein; what was at stake for the complainant, and the conduct of the parties. The length complaint must be lodged when the proceedings are still pending.

Pursuant to Article 2, if the court finds that the length complaint is well-founded, it shall give a ruling to this effect. If the complainant so requests, the court can also recommend that the court before which the case is pending takes certain procedural measures in the impugned proceedings. The court may also, award an appropriate amount of money to the complainant, in an amount not exceeding PLN 10,000.

Article 5 provides, in so far as relevant:

“1.  A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”

Under Article 18, within six months after the entry into force of the Act, that is, from 17 September 2004, anyone who had lodged an application with the European Court of Human Rights in due time complaining of a violation of the ‘reasonable-time’ requirement contained in Article 6 § 1 of the Convention was entitled to lodge a length complaint provided for by the Act, if the application to the Court had been lodged when the proceedings were still pending and if it had not yet been declared admissible by the European Court.

COMPLAINTS

1.  The applicant complains under Article 5 § 3 about the length of his detention on remand.

2.  The applicant further complains under Article 6 § 1 of the Convention about the unreasonable length of the criminal proceedings.

THE LAW

1.  The applicant complains under Article 5 § 3 of the Convention about the length of his pre-trial detention.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2.  The applicant complains that the criminal proceedings in his case were not conducted within a reasonable time, in breach of Article 6 § 1 of the Convention.

The Court observes that the present application was lodged with the Court when the relevant proceedings were pending before the domestic courts and that they are still pending.

It further observes that on 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (“the 2004 Act”) entered into force.

Under Article 18 of this Act, it was open to persons who had brought a complaint about length of proceedings to the Court to lodge, within six months from 17 September 2004, a complaint provided for by Article 5 of that Act with a competent domestic court, provided that their application to Strasbourg Court had been lodged in the course of the proceedings concerned and that the Court has not yet adopted a decision on the admissibility of the case. Under Article 5 of the Act such a complaint may be lodged while the proceedings are pending.

The Court recalls that it held that this remedy provided by Polish law was effective in respect of the excessive length of judicial proceedings as it was capable both of preventing the alleged violation of the right to a hearing within a reasonable time or its continuation, and of providing adequate redress for any violation that had already occurred (see Michalak v. Poland (dec.), no. 24549/03, §§ 37-43; Charzyński v. Poland (dec.), no. 15212/03).

The Court observes that the applicant, having been duly informed about the possibility of lodging a complaint about the length of judicial proceedings with competent domestic courts, has not submitted any information as to whether he has availed himself of this remedy.

It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

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

TONDERYS v. POLAND DECISION


TONDERYS v. POLAND DECISION