FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 18157/04 
by Paweł KURCZEWSKI 
against Poland

The European Court of Human Rights (Fourth Section), sitting on 4 May 2006 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr G. Bonello
 Mr M. Pellonpää
 Mr K. Traja
 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 7 May 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Paweł Kurczewski, is a Polish national who was born in 1979 and lives in Gdańsk, Poland.

A.  The circumstances of the case

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

1.  The applicant’s pre-trial detention and the criminal proceedings against him

On 16 April 2002 the applicant was arrested. On 17 April 2002 the Gdańsk District Court (Sad Rejonowy) ordered that he be detained on remand until 16 July 2002. It relied on the reasonable suspicion that he had committed robbery. It considered that, given the risk that the applicant might tamper with evidence, keeping him in detention was necessary to secure the proper conduct of the investigation. It also stressed the severity of the anticipated sentence.

All the applicant’s requests for release, likewise his appeals against decisions prolonging his detention, were to no avail.

In the course of investigation the applicant’s detention was prolonged on several occasions.

On 15 July 2002 the Gdańsk District Court prolonged his detention until 16 October 2002. On 15 October 2002 the court prolonged his detention until 16 January 2003. On 15 January 2003 it extended his detention until 16 April 2003. On 10 April 2003 the District Court prolonged the applicant’s detention until 10 October 2003. The court reiterated the grounds originally given for the applicant’s detention. It also stressed the need to obtain and secure further evidence.

Later, on an unspecified date, the applicant and his 4 co-suspects were indicted before the Gdansk District Court. The trial began on 22 July 2003. Subsequently, the court held a hearing on 14 August 2003.

During the proceedings the applicant’s detention was extended on several occasions.

On 9 October 2003 the District Court prolonged his detention until 15 January 2004. Subsequently, on 11 March 2004 it extended his detention until 15 April 2004. Since on 16 April 2004 the applicant’s detention reached the statutory time-limit of two years laid down in Article 263§ 3 of the Code of Criminal Procedure (Kodeks postepowania karnego), further prolongation of his detention was ordered by the Gdansk Court of Appeal (Sad Apelacyjny). On 23 March 2004 it prolonged the applicant’s detention until 30 June 2004. On 29 June 2004 the Court of Appeal prolonged his detention until 15 August 2004. In all those decisions the courts stated that the grounds originally given for the applicant’s detention were still valid.

In 2004 the trial court listed 13 hearings, out of which 2 were cancelled.

During the trial the applicant filed numerous but unsuccessful applications for release and appealed, likewise unsuccessfully, against the decisions prolonging his detention.

On 28 July 2004 the Gdansk District Court convicted the applicant as charged and sentenced him to 4 years’ imprisonment. He appealed. The applicant’s detention was subsequently prolonged on several occasions.

The applicant was released on 3 February 2006.

It appears that the appellate proceedings are still pending before the Gdańsk Regional Court (Sad Okregowy).

2.  The proceedings concerning a breach of the right to a trial within a reasonable time

On 12 May 2005 the applicant lodged with the Gdańsk Regional Court a complaint alleging that his right to have his case examined by the appellate court within the reasonable time had been violated. On 1 June 2005 the Regional Court dismissed his complaint. The court examined the course of the appellate stage of the proceedings and held that there were no delays for which the relevant court could be held responsible.

In a letter of 31 May 2005 the applicant informed the Registry that he did not wish to lodge a complaint under the 2004 Act with respect to the overall length of the criminal proceedings.

B.  Relevant domestic law and practice

1.  Remedies against unreasonable length of the proceedings

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.

Section 2 of the 2004 Act reads, in so far as relevant:

“1.  A party to proceedings may lodge a complaint that their right to a trial within a reasonable time has been breached [in the proceedings] if the proceedings in the case last longer than is necessary to examine the factual and legal circumstances of the case ... or longer than is necessary to conclude enforcement proceedings or other proceedings concerning the execution of a court decision (unreasonable length of proceedings).”

Section 5 reads, in so far as relevant:

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

Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant:

“1.  The court shall dismiss a complaint which is unjustified.

2.  If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings.

3.  At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case.

4.  If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.”

Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant:

“1.  Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.

...”

On 18 January 2005 the Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.

2.  Preventive measures, including detention on remand

A.  The Code of Criminal Procedure 1997

The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the so-called “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition to leave the country (zakaz opuszczania kraju).

Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads:

“1. Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused’s committing another, serious offence; they may be imposed only if the evidence gathered shows a significant probability that an accused has committed an offence.

Article 258 lists grounds for detention on remand. It provides, in so far as relevant:

“1.  Detention on remand may be imposed if:

(1)  there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland];

(2)  there is a reasonable risk that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means;

2.  If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years’ imprisonment, or if a court of first instance has sentenced him to at least 3 years’ imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.”

The Code sets out the margin of discretion as to the continuation of a specific preventive measure. Article 257 reads, in so far as relevant:

“1.  Detention on remand shall not be imposed if another preventive measure is sufficient.”

Article 259, in its relevant part, reads:

“1.  If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would:

(1)  seriously jeopardise his life or health; or

(2)  entail excessively harsh consequences for the accused or his family.”

The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue.

Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided:

“1.  Imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months.

2.  If, due to the particular circumstances of the case, an investigation cannot be terminated within the term referred to in paragraph 1, the court of first instance competent to deal with the case may – if need be and on the application made by the [relevant] prosecutor – prolong detention for a period [or periods] which as a whole may not exceed 12 months.

3.  The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed 2 years.

4.  Only the Supreme Court may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, a prolonged psychiatric observation of the accused, a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad, when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.”

On 20 July 2000 paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs 2 and 3 has been vested with the court of appeal within whose jurisdiction the offence in question has been committed. In addition, new paragraph 5 was added. It provides:

“ A decision of the Court of Appeal taken pursuant to paragraph 4 may be appealed against to the Court of Appeal sitting in a panel of three judges.”

COMPLAINTS

1.  Without invoking any provision of the Convention, the applicant complains about the excessive length of his pre-trial detention.

2.  The applicant also complains that he did not have his case heard within a “reasonable time”.

THE LAW

1.  The applicant complains about the length of his detention on remand.

This complaint falls to be examined under Article 5 § 3. 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.  He also complains about the overall length of criminal proceedings.

The Court finds that this complaint falls to be examined under Article 6 § 1 of the Convention which, in its relevant part, provides:

  “In the determination ... of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

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 observes that the present application was lodged with the Court when the relevant proceedings were pending before the domestic court and that they are still pending following the applicant’s appeal.

It further observes that, pursuant to section 18 of the 2004 Act, it was open to persons such as the applicant in the present case whose case was pending before the Court to lodge, within six months from 17 September 2004, a complaint about the unreasonable length of the proceedings with the relevant domestic court, provided that their application to the Court had been lodged in the course of the impugned proceedings and that it had not yet been declared admissible. Moreover, given that the proceedings complained of are still pending, nothing prevents the applicant from lodging such a complaint even after the expiry of the time-limit set by the transitional rule, in accordance with the general provisions of the 2004 Act.

The Court has already examined that remedy for the purposes of Article 35 § 1 of the Convention and found it effective in respect of complaints about the excessive length of judicial proceedings in Poland. In particular, it considered that 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 has already occurred (see Charzyński v. Poland (dec.), no. 15212/03, §§ 36-42).

The Court notes that on 12 May 2005 the applicant lodged a complaint about the unreasonable length of the appellate proceedings. On 1 June 2005 the Regional Court dismissed his complaint. However, the applicant’s complaint was limited to the length of the appellate stage of the proceedings. Accordingly, the relevant court examined only a part of the proceedings in question.

In a letter of 31 May 2005 the applicant informed the Registry that he did not wish to lodge a complaint under the 2004 Act with respect to the overall length of the criminal proceedings.

In consequence, the Court considers that the applicant should have lodged a further complaint about the total length of the proceedings in order to fulfil his obligation under Article 35 § 1 of the Convention.

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 under Article 5 § 3 concerning the length of his detention on remand;

Declares the remainder of the application inadmissible.

Michael O’Boyle Nicolas Bratza 
 Registrar President

KURCZEWSKI v. POLAND DECISION


KURCZEWSKI v. POLAND DECISION