AS TO THE ADMISSIBILITY OF
Application no. 39586/03
by Dominik KORZEB and Marcin KORZEB
The European Court of Human Rights (Fourth Section), sitting on 19 September 2006 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr M. Pellonpää,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović,
Mr J. Šikuta, judges,
and Mr T.L. Early, Section Registrar,
Having regard to the above application lodged on 20 December 2003,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having deliberated, decides as follows:
The applicants, Mr Dominik Korzeb and Mr Marcin Korzeb, are brothers. They are Polish nationals, who were born in 1979 and 1981 respectively. They live in Ostrów Mazowiecka, Poland.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The first applicant, Dominik Korzeb was arrested on 17 July 2001 on suspicion of committing rape, criminal damage to State property and burglary. On 23 July 2001 the Ostrowia Mazowiecka District Court (Sąd Rejonowy) detained him on remand. That decision was justified by a reasonable risk that he would abscond, especially since he had already gone into hiding and had been sought under a “wanted” notice. The court also relied on a serious risk that the applicant would attempt to induce witnesses into giving false testimony or obstruct the proper conduct of the proceedings.
The other applicant, Marcin Korzeb, was arrested on 20 July 2001 on suspicion of being an accomplice to the offences allegedly committed by his brother and two other persons. On 22 July 2001 the Ostrów Mazowiecka District Court detained him on remand.
Subsequently, both applicants’ detention was extended by virtue of the Ostrołęka Regional Court’s (Sąd Okręgowy) decisions of 9 August 2001, 22 October 2001, 23 January 2002, 24 April 2002, 23 July 2002, a further decision of an unspecified date, 19 December 2002, another decision of an unspecified date, and lastly, its decision of 29 May 2003. In the latter decision the court extended Dominik Korzeb’s detention until 16 July 2003 and Marcin Korzeb’s detention until 19 June 2003. The court relied on the reasons already invoked in the initial decisions. In addition, the court justified the measure by the need to obtain a report from an expert in psychiatry on Marcin Korzeb and to apprehend one further suspect who still remained at large.
In the meantime, on 4 April 2002 the applicants and two other persons were indicted on charges of raping a minor, causing criminal damage to State property and burglary.
On 5 December 2002, 16 January 2003 and 3 April 2003 the Ostrołęka Regional Court refused to lift the preventive measure in question as requested by the first applicant, Dominik Korzeb. It was stressed that the applicant had been charged with a serious offence for which a heavy penalty was likely to be imposed and that there were no circumstances justifying his release.
On 17 and 20 July 2003, respectively, the length of the applicants’ detention reached the statutory 2 years’ time-limit laid down in Article 263 § 3 of the Code of Criminal Procedure (Kodeks postępowania karnego). From that time on, the detention of Dominik Korzeb was extended by the Warsaw Court of Appeal’s decisions of 1 August 2003 (upheld by the same court on 16 September 2003) and of 3 October 2003 (upheld on 12 November 2003). Likewise, the detention of Marcin Korzeb was extended by virtue of the Warsaw Court of Appeal’s decisions of 13 June 2003 (upheld by the same court on 29 July 2003) and of 16 September 2003 (upheld on 24 October 2003).
Subsequently, as a result of certain amendments to the Code of Criminal Procedure and the death of a judge sitting in the case, the Ostrołęka Regional Court became no longer competent to deal with the applicants’ case. Consequently, on 20 November 2003 the case was referred to the Ostrowia Mazowiecka District Court and the trial commenced de novo.
On 16 December 2003 the Warsaw Court of Appeal delivered a decision prolonging the measure in respect of both applicants. Their detention was considered to be justified by the fact that the reasons initially invoked continued to be valid and that the proceedings were pending before a newly composed court. This decision was upheld by the same court on 26 January 2004.
On 4 March 2004 the applicants were convicted as charged and each of them was sentenced to 6 years’ imprisonment.
Pending the appeal, the applicants’ detention was extended by the decision of the Ostrowia Mazowiecka District Court of 25 March 2004 (upheld by the Ostrołęka Regional Court on 8 April 2004). On 5 May 2004 the Ostrołęka Regional Court refused to lift the measure in question as requested by Dominik Korzeb.
On 3 June 2004 the Ostrołęka Regional Court upheld the first-instance judgment. The applicants’ conviction became final as they failed to lodge a cassation appeal. Later, the applicants asked the Ombudsman (Rzecznik Praw Obywatelskich) and the Minister of Justice to lodge an extraordinary cassation appeal against the second-instance judgment.
By a letter of 26 February 2006 Dominik Korzeb informed the Registry on his and his brother’s behalf, that the applicants had not availed themselves of the remedy against the unreasonable length of the proceedings provided by section 18 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time, which entered into force on 17 September 2004.
B. Relevant domestic law and practice
1. 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) surety given by a responsible person (poręczenie osoby godnej zaufania) surety given by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition on leaving the country (zakaz opuszczania kraju).
Article 249 § 1 sets out the general grounds for imposition of 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] into giving 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.”
2. 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 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.
Without invoking any provision of the Convention, the applicants complain about the excessive length of their pre-trial detention. Furthermore, they invoke Article 6 §§ 1 and 2 of the Convention, complaining that they were not guilty and that they did not have their case heard within a “reasonable time”.
1. The applicants complain under Article 5 § 3 of the Convention about the length of their detention on remand.
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. Furthermore, the applicants complain about the outcome of the impugned criminal proceedings. 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 fair ... hearing 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 applicants did not lodge a cassation appeal against the Ostrołęka Regional Court’s judgment of 3 June 2004. Their subsequent requests for an extraordinary cassation appeal cannot be considered an “effective remedy” for the purposes of Article 35 § 1 of the Convention since the lodging of such an appeal lay within the discretion of the Ombudsman and the Minister of Justice. Consequently, the applicants did not exhaust the domestic remedy within the meaning of this provision and this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
3. Lastly, the applicants complain about the allegedly unreasonable length of the proceedings. This complaint is 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, as with the previous complaint, the Court finds that the applicants have not exhausted domestic remedies as required by Article 35 § 1 of the Convention.
In this connection, the Court observes that the present application was lodged with the Court when the relevant proceedings were still pending before the domestic court. Pursuant to section 18 of the 2004 Act, it was open to persons such as the applicants 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, the Court considered that the remedy 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 recalls that the applicants had not lodged the relevant complaint under the 2004 Act, thus failing to avail themselves of the available domestic remedy.
It follows that the remainder 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 applicants’ complaint under Article 5 § 3 concerning the length of their detention on remand;
Declares the remainder of the application inadmissible.
T.L. Early Nicolas Bratza
KORZEB v. POLAND DECISION
KORZEB v. POLAND DECISION