AS TO THE ADMISSIBILITY OF
Application no. 57385/00
by Bogusław RÓŻAŃSKI
The European Court of Human Rights (Third Section), sitting on 3 October 2002 as a Chamber composed of
Mr I. Cabral
Mr L. Caflisch,
Mr P. Kūris,
Mr R. Türmen,
Mr J. Hedigan,
Mrs M. Tsatsa-Nikolovska,
Mr L. Garlicki, judges,
and Mr M. Villiger, Deputy Registrar,
Having regard to the above application introduced on 23 March 2000 and registered on 18 May 2000,
Having deliberated, decides as follows:
The applicant, Bogusław Różański, is a Polish national, who was born in 1942 and lives in Włocławek. He is represented before the Court by Mr Radke, a lawyer practising in Włocławek.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 5 October 1993 the applicant was arrested by the police and from 6 October 1998 he was detained for three months on suspicion of trading in children. On 11 October 1993 the prosecutor charged the applicant with the offence of trading in children within the meaning of Article IX § 2 of the Transitional Provisions of the Criminal Code of 1969 then in force (see Relevant domestic law).
On 13 October 1993 the applicant appealed against the decision concerning his detention. On 19 October 1993 the Zamość Regional Court dismissed his appeal, finding that his detention was necessary to ensure the proper course of the proceedings.
On 12 November 1993 the applicant requested the prosecuting authorities to release him from detention and to apply other preventive measures, such as a police surveillance be applied. On 16 November 1993 the Zamość District Prosecutor granted his release on bail. On 17 November 1993 the applicant was released. On 23 November 1993 he lodged a complaint against the decision of 16 November 1993 in which he unsuccessfully requested the application of other preventive measures, such as the personal guarantee by a third party.
On 30 December 1993 the Zamość District Prosecutor Office suspended the criminal proceedings against the applicant and his co-acused insofar as they concerned charges under Article IX, as time-consuming international investigations had been instituted and there was no progress in the case in this respect in view of the slowness of the investigations conducted by the authorities of other states.
The applicant then unsuccessfully filed several applications with the prosecuting authorities requesting other preventive measure.
The criminal proceedings were resumed on 27 May 1994.
On 30 June 1994 the Zamość District Prosecutor lodged a bill of indictment against the applicant and other persons with the Lublin Court of Appeal. The applicant was charged with the offences of trading in children and of inciting third parties to giving false testimony. On 16 September 1994 the Lublin Court of Appeal transferred the case to the Warsaw Regional Court. Subsequently, the proceedings were conducted before that court.
During the investigations numerous press articles were published in the national and local press, informing the public about the applicant’s case and the charges proffered against him and against his co-accused.
A number of hearings were held before the first-instance court.
From June 1995 to February 2000 the applicant repeatedly requested the authorities to be allowed to use his passport. This was refused by the courts as the applicant had been accused of serious offences and might be brought before the competent legal authority anytime when it was necessary to ensure the proper conduct of proceedings; if allowed to use his passport, there was a risk of absconding. The applicant appealed, to no avail.
On 1 September 1998 a new Criminal Code entered into force. Article IX of the Transitional Provisions of the Criminal Code of 1969 was thereby abolished. As a result, the prosecution authorities amended the charges by qualifying the acts with the commission of which the applicants had been charged as an offence punishable under Article 253 § 2 of the new Code
On 3 November 1999 the Warsaw Regional Court discontinued criminal proceedings against the applicant and against his co-accused insofar as they concerned the charges under Article IX. The court considered that the new qualification could not be upheld, in particular as the notion of “trading in children” was not covered by the offence of organising illicit adoptions, punishable under the new Criminal Code.
Upon the appeal of the prosecuting authorities the Warsaw Court of Appeal on 4 February 2000 amended the contested decision in part, considering that the proceedings against the applicant should have been discontinued on the ground that the acts with which they had been charged had not amounted to a criminal offence punishable at the time of their commission.
By virtue of the same decision of 4 February 2000, the Warsaw Court of Appeal transferred the case insofar as it concerned the charges of giving false testimony, to the Zamość District Court. On 21 February 2000 the case was further transferred to the Warsaw Regional Court. Apparently, the proceedings are still pending.
B. Relevant domestic law and practice
Article IX of the Transitory Provisions of the Criminal Code of 1969 provided that a person who delivered, enticed or abducted other persons for prostitution purposes, even with this person’s consent, committed an offence of punishable by a prison sentence of not less than three years. Under § 2 of this provision the same sentence could be imposed on a person who practised trading in women or children.
Under Article 2 of the Transitory Provisions of the new Criminal Code, the Transitory Provisions to the 1969 Code were repealed.
Under Article 253 § 1 of the new Code, a person who trades in human beings, even with their consent, commits an offence punishable by a prison sentence of not less than three years. Pursuant to § 2 of the same Article, a person who, with a view of obtaining profit, organises adoptions of children in a manner contrary to the law, commits an offence punishable by prison sentence from three months to five years.
The applicant complains under Article 5 that that his detention on remand was unlawful as there could not have been a reasonable suspicion of his having committed the crime of child trafficking as his acts amounted only to assisting in foreign adoptions, which was perfectly legal.
He also complains under Article 6 § 1 that the criminal proceedings against him exceed a reasonable time.
1. The applicant complains under Article 5 that that his detention on remand was unlawful as there was no reasonable suspicion of his having committed the crime of child trafficking.
Even assuming that the applicant has complied with the requirement under Article 35 § 1 of the Convention as to the exhaustion of domestic remedies, under this provision the Court may only deal with the matter within a period of six months from the date on which the final decision was taken. The Court notes that the applicant was remanded in custody on 5 October 1993 and released on 16 November 1993, which was more than six months before the date on which he submitted his application. It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
2. The applicant further complains under Article 6 § 1 that the criminal proceedings against him exceeded a reasonable time.
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 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints concerning the length of criminal proceedings against him;
Declares the remainder of the application inadmissible.
Mark Villiger Ireneu Cabral
Deputy Registrar President
RÓŹAŃSKI v. POLAND DECISION
RÓŻAŃSKI v. POLAND DECISION