FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 26918/02 
by Grzegorz TRZCIAŁKOWSKI 
against Poland

The European Court of Human Rights (Fourth Section), sitting on 8 November 2005 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr G. Bonello
 Mr M. Pellonpää
 Mr K. Traja
 Mr L. Garlicki
 Mr J. Borrego Borrego, 
 Ms L. Mijović, judges
and Mrs F. Elens-Passos, Deputy Section Registrar,

Having regard to the above application lodged on 6 August 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Grzegorz Trzciałkowski, is a Polish national who was born in 1975 and lives in Warsaw.

A. The circumstances of the case

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

On 7 January 2000 the applicant was arrested on suspicion of obtaining under false pretences an estate valued at PLN 362 840. He remained in detention until 13 February 2003. The court based its successive decisions on his detention on the reasonable suspicion that the applicant had committed the offences with which he had been charged, on the severity of the anticipated penalty and on the fear of his collusion.

The Wołomin District Court heard about 150 witnesses in the case. On 22 May 2001 the Wołomin Regional Prosecutor dismissed the applicant’s request to hear witnesses on his behalf, finding that this evidence would not be relevant to the outcome of the case and that two of the proposed witnesses had been already heard by the court on the circumstances of the case.

On 13 February 2003 the District Court changed the preventive measure imposed on him to one of police supervision and ordered the applicant’s release.

On 30 January 2004 the Wołomin District Court sentenced the applicant to 6 years’ imprisonment. The applicant appealed against the judgment. On 29 September 2004 the Warsaw Regional Court remitted the case back to the court of first instance for re-examination.

The proceedings are apparently pending before the Wołomin District Court.

B.  Relevant domestic law and practice

On 17 June 2004 Polish Parliament adopted a new law “on a complaint about a breach of a right to have one’s case heard within a reasonable time”. The Act entered into force on 17 September 2004.

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 the 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 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 concerned are still pending.

Article 5 of the Act reads, in so far as relevant:

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

Pursuant to Article 12, 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 the amount not exceeding PLN 10,000.

Under Article 18, within six months after the entry into force of this 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 been declared admissible by the European Court yet.

COMPLAINTS

The applicant complains under Article 5 § 3 of the Convention that the length of his detention was excessive.

He also complains under Article 6 § 1 that the length of the proceedings in his case exceeded a “reasonable time” within the meaning of this provision.

The applicant further complains about the unfairness of the criminal proceedings against him in that he was not allowed to obtain the examination of witnesses on his behalf and that the presumption of his innocence was infringed. He invokes Articles 6 §§ 1, 2 and 3 (d) of the Convention.

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 complained also that the length of the proceedings in his case was unreasonable. He relied on Article 6 § 1 of the Convention, which provides, in so far as relevant:

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

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.

On 1 March 2005 the Court gave decisions in two leading cases: Charzyński v. Poland no. 15212/03 (criminal proceedings) and Michalak v. Poland no. 24549/03 (civil proceedings), holding that persons complaining about the length of proceedings before the Polish courts were required by Article 35 § 1 of the Convention to lodge a complaint about the breach of the right to a trial within a reasonable time under the 2004 Act.

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 Section 5 of that Act with a competent domestic court, provided that their application to the 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 their case.

In the light of the foregoing, the Court considers that the applicant was required by Article 35 § 1 of the Convention to lodge a complaint about a breach of the right to a trial within a reasonable time with the domestic court under the 2004 Act. However, he did not avail himself of this remedy.

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

3.      The applicant further complained under Article 6 §§ 1, 2 and 3 (d) of the Convention about the lack of a fair hearing as he was not allowed to obtain the examination of witnesses on his behalf and about the infringement of the presumption of his innocence.

Pursuant to Article 35 § 1 of the Convention, the Court may only deal with the matter after all domestic remedies have been exhausted.

The Court observes that the proceedings in this case are still pending before the court of first-instance and that these complaints are premature at this stage.

It follows that this complaint is premature and 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 the applicant’s pre-trial detention;

Declares the remainder of the application inadmissible.

Françoise Elens-Passos Nicolas Bratza 
 Deputy Registrar President

TRZCIAŁKOWSKI v. POLAND DECISION


TRZCIAŁKOWSKI v. POLAND DECISION