FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33866/96 
by Józef BOGULAK 
against Poland

The European Court of Human Rights (Fourth Section), sitting on 28 June 2005 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr J. Casadevall
 Mr G. Bonello
 Mr R. Maruste
 Mr S. Pavlovschi
 Mr L. Garlicki, 
 Mr J. Borrego Borrego, judges
and  Mrs F. Elens-Passos, Deputy Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 30 July 1996,

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 partial decision of 11 December 2001,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the partial decision of 19 October 2004 declaring the applicant's complaints under Article 5 § 3 and 5 § 4 admissible;

Having deliberated, decides as follows:

THE FACTS

The applicant, Józef Bogulak, is a Polish national, born in 1946 and living in Wrocław, Poland. He is represented before the Court by Mr S. Waliduda, a lawyer practising in Wrocław. The respondent Government are represented by Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.

A.  The circumstances of the case

The facts of the case may be summarised as follows:

According to the applicant, in October 1995 he was apprehended by the police in front of his house, handcuffed and escorted to the Wrocław Regional Police Headquarters. He was released after a short time.

Several weeks later, on 24 October 1995, his flat was searched by the police and he himself was arrested. The applicant was detained by the public prosecutor on 24 October 1995 at 7.30 a.m. On the morning of the following day, the applicant was interrogated by the prosecutor. He was then released at about 14.05 a.m.

On 13 March 1996 after having searched the applicant's flat, the police arrested the applicant on suspicion of an attempt to swindle money in VAT refunds.

On 15 March 1996 the prosecutor issued an order of detention against the applicant on charges of tax fraud and obstructing the conduct of the criminal proceedings against A.S. by inciting witnesses to give false testimony.

On 1 April 1996 the applicant's lawyer's appeal against the decision of 15 March 1996 was dismissed by the Wrocław Regional Court. The court considered that the applicant's detention was justified by the existence of strong evidence of his guilt, the gravity of charges against him and in order to secure the proper course of the proceedings.

On 4 April 1996 the Wrocław Regional Prosecutor rejected the appeal against the decision of 15 March 1996 filed by the applicant himself, observing that it was submitted too late.

On 26 April 1996 the Wrocław Regional Prosecutor dismissed the applicant's motions of 28 March 1996 and of 19 April 1996 to be released, referring to the charges against him and considering that the applicant's case did not disclose any of the grounds for release provided by Article 218 of the Code of Criminal Procedure.

On 7 June 1996 the Wrocław Regional Court prolonged the applicant's detention on remand until 31 August 1996. The court relied on the strong probability of the applicant's guilt, the gravity of charges against him and the high risk of his hindering the proper conduct of the proceedings.

On 7 June 1996 the Wrocław Regional Court dismissed the applicant's appeal against the decisions of 4 April 1996 given by the Wrocław Regional Prosecutor. On 14 June 1996 the Wrocław Appellate Prosecutor dismissed the applicant's appeal against the decision of 26 April 1996, considering that the evidence strongly supported the charges against him and having regard to the Wrocław Regional Court's opinion expressed in the decision of 7 June 1996.

By a decision of 25 June 1996 the Wrocław Court of Appeal upheld the decision of 7 June 1996, pointing out that that the applicant's case disclosed the existence of grounds for detention provided under Section 209 and 217 § 1 of the Code of Criminal Procedure.

Apparently, on 5 July 1996 the Wrocław Court of Appeal dismissed the applicant's lawyer's appeal against the decision of 7 June 1996 given by the Wrocław Regional Court. The court recalled that the applicant's appeal against this decision had already been examined. The court referred to the reasoning of its decision of 25 June, observing that that no new circumstances in the case had come to light. On 16 July 1996 the Wrocław Appellate Prosecutor dismissed the applicant's and his lawyer's appeals against the decision of 7 June 1996 given by the Wrocław Regional Prosecutor relying on the grounds invoked in the previous decisions.

By a decision of 7 August 1996 the Wrocław Regional Prosecutor, in view of the fact that the investigation in the case had been almost completed, quashed the detention order and replaced it with a bail of 5000 PLN and a prohibition on leaving the country.

On 17 November 1997 the Wrocław Regional Prosecutor lodged a bill of indictment against the applicant and twenty six co-defendants with the Wrocław Regional Court. The applicant was charged with obstructing the conduct of criminal proceedings against A.S. and with tax frauds. The criminal proceedings against the applicant are still pending.

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.

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

“1.  Parties 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 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.

COMPLAINTS

The applicant complained under Article 6 § 1 about the length of the criminal proceedings against him.

THE LAW

1. The applicant complained under Article 6 § 1 (a) about the length of the criminal proceedings against him.

The Government considered that the complaint was manifestly ill-founded. They have not referred to the remedy introduced by the 2004 Act.

The applicant, for his part, has not shown that he availed himself of this remedy.

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.

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.

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 Michalak v. Poland (dec.), no. 24549/03, §§ 37-43).

However, the applicant, despite having been informed by the Registrar of the possibility of lodging a complaint about the length of the proceedings under the 2004 Act, has not shown that he has done so.

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

Declares inadmissible the applicant's complaint about the length of criminal proceedings.

Françoise Elens-Passos Nicolas Bratza 
 Deputy Registrar President

BOGULAK v. POLAND DECISION


BOGULAK v. POLAND DECISION