FOURTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 35367/05
by Igors DROZDOVS
against Poland
The European Court of Human Rights (Fourth Section), sitting on 16 January 2007 as a Chamber composed of:
SirNicolas Bratza, President,
MrJ. Casadevall,
MrG. Bonello,
MrK. Traja,
MrS. Pavlovschi,
MrL. Garlicki,
MsL. Mijović, judges,
and Mr T.L. Early, Section Registrar,
Having regard to the above application lodged on 14 September 2005,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Igors Drozdovs, is a Latvian national who was born in 1965 and is presently detained in Gdańsk, Poland.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 28 May 2001 the applicant was arrested by the police while crossing the Latvian-Polish border. On 29 May 2001 he was questioned by the police. On 30 May 2001 the applicant was heard by a prosecutor and was charged with robbery committed while acting in an organised criminal group. Apparently, the applicant was served with a Russian translation of the charges.
On 30 May 2001 the Gdańsk District Court decided to detain the applicant on remand in view of the reasonable suspicion that the applicant, acting in an organised criminal group, had committed an armed robbery.
On 17 August 2001 the Gdańsk Regional Court further prolonged the detention relying, in addition to the grounds originally given, on the risk that the applicant would interfere with the course of proceedings since the leader of the organised criminal group had not yet been arrested.
On 13 November and 18 December 2001 the applicant’s detention was prolonged by the same court. The court based its decision on the risk that a heavy sentence would be imposed, which made it probable that the applicant would interfere with the course of the proceedings. Moreover, it relied on the complexity of the case as it concerned organised crime.
Subsequently, the applicant’s detention on remand was prolonged inter alia on 21 March 2002 and 19 March 2003. The Regional Court reiterated the original grounds given for detention and held that keeping the applicant in custody was necessary for securing the obtaining of evidence. In the latter decision the court considered that although the investigation had been lengthy, it had been justified by the complexity of the case.
Afterwards, as the length of the applicant’s detention had reached the statutory time‑limit of 2 years laid down in Article 263 § 3 of the Code of Criminal Procedure (Kodeks postępowania karnego), the Regional Court applied to the Gdańsk Court of Appeal (Sąd Apelacyjny) asking for the applicant’s detention to be prolonged beyond that term. On 19 March, 27 June and 17 December 2003 the Gdańsk Court of Appeal allowed the application and prolonged his pre‑trial detention. The Court of Appeal based its decisions on the reasonable suspicion that the applicant had committed serious offences and on the risk that he might interfere with the course of justice. The court further considered that the complexity of the case constituted an extraordinary circumstance justifying his remaining in detention. The court also referred to the fact that the applicant did not have a permanent place of residence in Poland.
In the meantime, on 16 June 2003, the applicant and 14 other co‑accused were indicted before the Gdańsk Regional Court.
In 2004 the applicant’s detention was prolonged by the decisions of the Gdansk Court of Appeal given on 16 June and 28 December. The court reiterated the grounds given previously.
On 14 June and 22 November 2005 the applicant’s detention was further prolonged. The court observed that the period of detention had been excessive given the complexity of the case and the need to secure the proper course of the final stages of the trial.
On 22 February 2006 the applicant’s detention was further prolonged. The applicant’s numerous applications for release and appeals against the decisions prolonging his detention were to no avail.
On 30 May 2006 the Gdańsk Regional Court gave judgment. The court convicted the applicant and sentenced him to 7 years’ imprisonment. It appears that the applicant requested that the reasoned judgment be served on him with a view to lodging an appeal.
COMPLAINTS
1. The applicant complained under Article 5 § 2 that he had not been informed promptly in Latvian about the charges against him and that at the hearing held on 30 May 2001, when his detention had been imposed, neither a lawyer nor an interpreter were present.
2. He alleged a violation of Article 5 § 3 in that the length of his detention on remand had been excessive.
3. The applicant raised several complaints under Articles 6 and 7 of the Convention about the unreasonable length and unfairness of the proceedings. In particular he complained about the process of taking evidence by the trial court, that the court had not been impartial and that he had not had proper time to prepare his defence.
THE LAW
1. The applicant complained that he had not had the assistance of a lawyer and interpreter when his pre-trial detention was ordered and when he was charged. He alleged a violation of Article 5 § 2 of the Convention.
However, the Court notes that the applicant was arrested on 28 May 2001 and that his detention on remand was ordered on 30 May 2001 and thus more than six months before the date on which the applicant submitted his application to the Court.
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 complained 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.
3. He further complained under Article 6 § 1 of the Convention that the length of the criminal proceedings in his case had exceeded a “reasonable time” within the meaning of this provision and that he had not had a “fair trial”.
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...”
With regard to the complaint concerning the alleged unfairness of the proceedings, the Court notes that the judgment of the Gdańsk Regional Court of 30 May 2006 is not final and that the applicant intends to lodge an appeal with the Court of Appeal. Accordingly, the applicant still can, and should, put the substance of the complaint before the domestic authorities and ask for appropriate relief.
As regards the complaint about the unreasonable length of the proceedings, the Court observes that the present application was lodged with the Court when the relevant proceedings were pending before the domestic court and that they are apparently still pending as the applicant intends to lodge an appeal.
It further observes that it is open to the applicant to lodge a complaint about the unreasonable length of the proceedings with the relevant domestic court in accordance with the general provisions of 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 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 Charzyński v. Poland (dec.), no. 15212/03, §§ 36-42).
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
Decides to adjourn the examination of the applicant’s complaint concerning the length of his pre-trial detention;
Declares the remainder of the application inadmissible.
T.L. EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy