AS TO THE ADMISSIBILITY OF
Application no. 68756/01
by Jan BARTOSIEWICZ
The European Court of Human Rights (Fourth Section), sitting on 29 November 2005 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr G. Bonello,
Mr M. Pellonpää,
Mr K. Traja,
Mr L. Garlicki,
Mr J. Borrego Borrego,
Ms L. Mijović, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 2 January 2001,
Having deliberated, decides as follows:
The applicant, Mr Jan Bartosiewicz, is a Polish national who was born in 1969 and lives in Warszawa.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The first set of criminal proceedings
The first set of criminal proceedings against the applicant began on 7 September 1992, when the applicant was detained.
On 3 April 1997 the first hearing was held before the Warsaw Regional Court. Subsequent hearings were held in 1997 (15 October), in 1998 (12 January, 4 March, 6 May, 21 December), in 1999 (11 January, 18 March, 21 April, 9 June, 17 August, 2 September, 27 September, 22 October, 25 November, 28 December) and in 2000 (16 February, 14 March, 17 April, 11 May, 29 May, 20 June, 5 July, 22 August, 26 September, 30 October).
On 3 November 2000 the Warsaw Regional Court gave a judgment by which it found the applicant guilty of committing the offence inter alia of aggravated assault and sentenced him to three and a half years’ imprisonment.
The second set of criminal proceedings
The second set of criminal proceedings against the applicant began on 11 June 1994, when the applicant was detained.
On 29 June 2001 the Warsaw District Court gave a judgment by which it found the applicant guilty of committing the offence of aggravated assault and sentenced him to five years’ imprisonment. The applicant appealed.
On 8 April 2002 the Warsaw Regional Court gave a judgment by which it upheld the first-instance judgment.
On an unknown later date the applicant lodged a complaint about a breach of the right to a trial within a reasonable time under the 2004 Act (see below).
On 26 November 2004 the Warsaw Regional Court rejected the complaint for non-compliance with the prescribed time limit in that the applicant had not lodged the complaint while the proceedings were still pending.
The applicant complains under Article 6 of the Convention about the excessive length of the two sets of the criminal proceedings instituted against him.
1. The applicant complains under Article 6 § 1 of the Convention about the excessive length of two sets of criminal proceedings. Article 6 § 1, insofar as relevant reads:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a... hearing within a reasonable time ...”
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 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 (“the 2004 Act”) entered into force. The Court recalls that it had held that this remedy provided by Polish law was effective in respect of excessive length of judicial proceedings as 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).
Pursuant to Article 5, the complaint should be lodged while the proceedings are still pending.
Under Article 18 of the 2004 Act, within six months after the entry into force of the Act, that is, from 17 September 2004, anyone who had lodged an application with the European Court of Human Rights in due time complaining of a violation of the “reasonable-time” requirement contained in Article 6 § 1 of the Convention was entitled to lodge a length complaint provided for by the Act, if the application to the Court had been lodged when the proceedings were still pending and if it had not yet been declared admissible by the European Court.
2. Regarding the first set of the proceedings complained of, the Court considers that the applicant did not have any effective remedy as to the excessive length of the proceedings at his disposal (Ratajczyk v. Poland (dec.), no. 11215/02). This was because the 2004 Act was not applicable to these proceedings as they ended on 3 November 2000 (so before the 2004 Act came into force) and the application was lodged with the Court after the proceedings had ended (so Article 18 of the 2004 Act is not applicable).
The Court further 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.
3. The Court notes in respect of the second set of the proceedings that the applicant lodged a complaint with the Warsaw Regional Court about the excessive length of these proceedings under the provisions of the 2004 Act. On 26 November 2004 the Warsaw Regional Court rejected the applicant’s complaint for non-compliance with the requirements stipulated by that Act, the complaint having been lodged after the proceedings complained of had come to end.
The Court observes that the applicant failed to inform the domestic court that he had lodged the application with the Strasbourg Court on 2 January 2001 and that a decision on the admissibility of the case had not been taken. Hence, the domestic court was not aware that the applicant’s case met the requirements Article 18 of the 2004 Act read together with Article 5 of that Act.
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 complaints concerning the length of proceedings which commenced on 7 September 1992;
Declares the remainder of the application inadmissible.
Michael O’Boyle Nicolas Bratza
BARTOSIEWICZ v. POLAND DECISION
BARTOSIEWICZ v. POLAND DECISION