FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 5184/02 
by Artur BORDYCZEWSKI 
against Poland

The European Court of Human Rights (Fourth Section), sitting on 22 November 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 on 31 December 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Artur Bordyczewski, is a Polish national who was born in 1968 and lives in Gdynia.

A.  The circumstances of the case

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

On 7 November 1996 the applicant was arrested on suspicion of murder. On 9 November 1996 the Gdynia District Court remanded him in custody. Having relied on the existence of a reasonable suspicion that the applicant had committed the offence concerned, the Gdańsk Regional Court, the Gdańsk Court of Appeal and the Supreme Court kept prolonging the applicant’s detention by numerous subsequent decisions. On 6 November 1998 the Gdańsk Regional Court gave a judgment on the merits. The court convicted the applicant as indicted and sentenced him to eight years’ imprisonment. Both the public prosecutor and the applicant appealed. On 5 May 1999 the Gdańsk Court of Appeal quashed the judgment under appeal and remitted the case for re-examination. It pointed out that the judgment was based on circumstantial evidence and that certain facts required clarification. When the case was re-heard, the hearings were often adjourned for further collection of evidence. On 26 July 2001 the Gdańsk Regional Court gave judgment. It sentenced the applicant to eleven years’ imprisonment. The applicant appealed.

The Gdańsk Court of Appeal upheld the judgment on 23 May 2002. The applicant’s counsel lodged a cassation appeal with the Supreme Court. On 27 June 2003 the Supreme Court dismissed the applicant’s cassation appeal as ill-founded.

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. ...”

Article 16 refers to proceedings that have been terminated and that do not fall under the transitional provision of Article 18:

“A party which has not lodged a complaint about the unreasonable length of the proceedings under Article 5 (1) may claim – under Article 417 of the Civil Code ... – compensation for the damage which resulted from the unreasonable length of the proceedings after the proceedings concerning the merits of the case have ended.

Article 442 of the Civil Code sets out limitation periods in respect of various claims based on tort. That provision applies to situations covered by Article 417 of the Civil Code. Article 442, in so far as relevant, reads:

“1.  A claim for compensation for damage caused by a tort shall lapse 3 years following the date on which the claimant learned of the damage and the persons liable for it. However, the claim shall in any case lapse 10 years following the date on which the event causing the damage occurred.”

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 notes in respect of the proceedings that they came to an end on 27 June 2003, i.e. less than three years before 17 September 2004, the date on which the 2004 Act came into force.

It further observes that, pursuant to Article 16 of the 2004 Act, it was open to persons such as the applicant in the present case to seek compensation in tort from the State Treasury, relying on Article 417 of the Civil Code for damage caused by the allegedly excessive length of proceedings in which a judicial decision on the merits of the case had already been given.

The Court has already examined whether the civil action for damages brought under Article 16 of the 2004 Act read together with Article 417 of the Civil Code was an effective remedy in respect of the length of judicial proceedings. It held, having regard to the characteristics of these remedies and notwithstanding the absence of established judicial practice in respect of such claims, that these remedies were effective in respect of persons who on 17 September 2004, when the 2004 Law entered into force, could still lodge such an action with the competent domestic court (Krasuski v. Poland, judgment of 14 June 2005, §§ 69-72).

However, the applicant, despite having been informed by the Registry of the possibility of lodging a complaint about the length of the proceedings under Article 16 of the 2004 Act read together with Article 417 of the Civil Code, has chosen not to avail himself of this remedy with regard to all the impugned proceedings.

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 length of his pre-trial detention;

Declares the remainder of the application inadmissible.

Françoise Elens-Passos Nicolas Bratza 
 
Deputy Registrar President

BORDYCZEWSKI v. POLAND DECISION


BORDYCZEWSKI v. POLAND DECISION