FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 63905/00 
by Adam WASILEWSKI 
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 26 July 1998,

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 23 September 2003,

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 28 September 2004 declaring the applicant's complaint under Article 8 of the Convention admissible,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Adam Wasilewski, is a Polish national who was born in 1974 and lives in Brwinów. He is represented before the Court by Mr Marek Wasilewski, his father and legal guardian.

The respondent Government are represented by Mr Jakub Wołąsiewicz, of the Ministry of Foreign Affairs.

A.  The circumstances of the case

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

The applicant is physically handicapped and suffers from various mental disorders which originated from prenatal damage caused by his mother's car accident.

On 15 April 1998 the applicant was arrested and charged with attempted extortion of money by threats.

On 16 April 1998 the Pruszków District Court dismissed his appeal, finding that the arrest was justified and that his medical records did not indicate that his detention would be incompatible with his condition. On 17 April 1998 the Pruszków District Court decided to detain the applicant on remand until 14 July 1998.

On 28 April 1998 the Warsaw Regional Court instructed the administration of the detention centre to set up a medical commission to examine the applicant, to assess whether the state of his health allowed him to remain in custody.

The medical examination was eventually carried out on 1 July 1998. The commission concluded that the applicant could remain in a detention centre equipped with a psychiatric and neurological unit.

On an unspecified date after 2 July 1998 the applicant was transferred to the detention centre Warszawa-Mokotów, which had a psychiatric clinic.

On an unspecified date the applicant filed an appeal against the detention order, which was dismissed on 9 July 1998 by the Warsaw Regional Court. The court shared the arguments of the first instance court and found that the applicant was receiving specialist medical care.

On 13 July 1998 the Pruszków District Court prolonged the applicant's detention until 14 October 1998. The applicant appealed. He also contended that, should the detention order be upheld, he should remain in a regular hospital and not in a detention centre.

On 4 August 1998 the Warsaw Regional Court found that the detention was necessary as, in particular, a psychiatric report had been requested to establish whether the applicant could be held criminally responsible. It decided, however, that the extension given by the District Court was excessively long and ruled that the applicant should be detained until 14 September 1998.

On 27 August 1998 the prosecutor conducting the investigation decided to place the applicant under psychiatric observation. This decision was upheld by a court upon the applicant's appeal.

On 8 September 1998 the Pruszków District Court prolonged the applicant's detention until 14 October 1998. The applicant appealed. The Warsaw Regional Court dismissed his appeal on 8 October 1998. On the same date, the same court examined a fresh motion by the prosecutor and again prolonged the applicant's detention, until 31 December 1998.

The bill of indictment in the applicant's case was lodged with the Pruszków District Court on 21 December 1998. The trial was set to commence on 26 January 1999.

On 15 April 1999 the court decided that the applicant should be again examined by a team of three psychiatrists who would establish his condition tempore criminis. Their report was submitted on 20 October 1999. At the next hearing held on 3 December 1999 the court decided to conduct the trial ab initio, the composition of the court having changed. The court also ordered, upon the applicant's request, a new medical opinion as to whether his condition prevented him from participating in the proceedings. This opinion was submitted to the court on 17 April 2000. Apparently, no further hearings were held in 2000. On 6 December 2000 the court decided that it lacked jurisdiction to deal with the applicant's case. This decision was quashed, following the applicant's appeal, on 1 February 2001.

The next hearings were held on 22 June, 4 September, 1 October and 14 November 2001. On 4 September 2001 the Pruszków District Court refused to transmit the case back to the prosecuting authorities for the investigations to be completed. The applicant appealed. On 11 December 2001 the Warsaw Regional Court quashed the decision of 4 September 2001 and ordered that the request to transmit the case for further investigations be re-examined. On 14 December 2001 the Pruszków District Court again turned this request down.

By a judgment of 28 June 2002 the Pruszków District Court found the applicant guilty of an attempt to extort money by threats in collusion with other persons whose identity had not been established. The court sentenced the applicant to two years' imprisonment and stayed the execution of the sentence. The applicant appealed. On 3 November 2004 the Warsaw Regional Court quashed the first-instance judgment and ordered that the case be reconsidered. The case is currently 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 complains under Article 6 of the Convention about the allegedly excessive length of the criminal proceedings against him.

THE LAW

1. The applicant complains under Article 6 of the Convention about the allegedly excessive 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 stated explicitly that he had no wish to lodge a complaint about a breach of the right to a trial within a reasonable time under the provisions of the Act.

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 chosen not to avail himself of this remedy.

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

WASILEWSKI v. POLAND DECISION


WASILEWSKI v. POLAND DECISION