PACHLA v. POLAND

FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 8812/02
by Zbigniew PACHLA
against Poland

The European Court of Human Rights (Fourth Section), sitting on 8 November 2005 as a Chamber composed of:

SirNicolas Bratza, President,
MrG. Bonello,
MrK. Traja,
MrS. Pavlovschi,
MrL. Garlicki,
MsL. Mijović,
MrJ. Šikuta, judges,
and Mrs F. Elens-Passos, Deputy Section Registrar,

Having regard to the above application lodged on 12 February 2002,

Having regard to the partial decision of 22 June 2004,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Zbigniew Pachla, is a Polish national who was born in 1953 and lives in Dobromierz. He is represented before the Court by Ms B. Słupska-Uczkiewicz, a lawyer practising in Wrocław. The respondent Government were represented by their Agent, Mr J. 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.

1. The criminal proceedings concerning extortion

On 26 August 1998 the applicant was arrested by the police.

On 27 August 1998 the Świdnica District Court remanded him in custody on a charge of attempted extortion. On 23 November 1998 the applicant was released from detention.

On 29 December 1998 the Świdnica District Prosecutor stayed the criminal proceedings against the applicant as his co-accused, a certain Mr J.J., had gone into hiding. On 11 June 1999 the prosecution service resumed the proceedings in order to prepare an extradition request in respect of J.J., who had been arrested in Belgium. On the same date the proceedings were stayed again.

In August 2003 the bill of indictment was submitted to the Świdnica District Court.

On 6 October 2003 the Świdnica District Court ordered that the applicant be remanded in custody for a period of three months. It found that the applicant had not collected the court’s summons and that he did not reside at the address indicated to the prosecution. In those circumstances a copy of the bill of indictment could not be served on the applicant and the hearing could not commence. Consequently, the District Court found that the applicant had obstructed the proceedings.

On 21 October 2003 the applicant was arrested and placed in detention. On 24 October 2003 the applicant’s lawyer appealed against the detention order of 6 October 2003. On 30 October 2003 the Świdnica Regional Court quashed the impugned detention order. The applicant was released on the same day.

It appears that the proceedings are pending before the Świdnica District Court.

2. The applicant’s conviction for defamation

In August 1999 the applicant published the first issue of the “Information Bulletin of the Citizens’ Anticorruption Association OSA”. In the article entitled “The prosecutor’s son breaks the law” the applicant alleged that a prosecutor S.S. influenced the outcome of the criminal proceedings against his son, who had been involved in a traffic accident.

On 9 August 1999 S.S. brought a private prosecution against the applicant, alleging that he had been defamed. He requested the Wałbrzych District Prosecutor to take over the prosecution, arguing that the public interest so required.

On 26 August 1999 the Ząbkowice Śląskie District Prosecutor opened the investigation into the case. On 14 December 1999 the prosecutor lodged a bill of indictment with the Wałbrzych District Court. The applicant was indicted on the charge of defamation under Article 212 § 1 of the Criminal Code. In particular, the prosecutor alleged that in the bulletin the applicant imputed to S.S. “unlawful behaviour in order to lower him in public opinion and undermine public confidence in his capacity to perform the duties of a prosecutor”.

On an unspecified date in 2000 the Wałbrzych District Court transmitted the case to the Świdnica District Court which had jurisdiction to hear it.

On 19 January 2001 the Świdnica District Court convicted the applicant under Article 212 § 2 of the Criminal Code of defamation committed through the mass media. It sentenced him to ten months’ imprisonment suspended for three years.

The applicant appealed against his conviction but his appeal was dismissed on 4 September 2001 by the Świdnica Regional Court.

B. Relevant domestic law and practice

1. Relevant constitutional provisions

(a) Provisions concerning freedom of expression

Article 14 provides as follows:

“The Republic of Poland shall ensure freedom of the press and other means of social communication.”

Article 31 § 3 of the Constitution, which lays down a general prohibition on disproportionate limitations on constitutional rights and freedoms (the principle of proportionality), provides:

“Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic State for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.”

Article 54 § 1 of the Constitution guarantees freedom of expression. It states, in so far as relevant:

“The freedom to express opinions, to acquire and to disseminate information shall be ensured to everyone.”

(b) Provisions concerning sources of law

Article 87 lists the sources of law. That provision reads, in so far as relevant, as follows:

“1. The sources of the universally binding law of the Republic of Poland shall be: the Constitution, statutes, ratified international agreements, and regulations. ...”

Article 91 of the Constitution, in its relevant part, states:

“1. After promulgation thereof in the Journal of Laws of the Republic of Poland (Dziennik Ustaw), a ratified international agreement shall constitute part of the domestic legal order and shall be applied directly, unless its application depends on the enactment of a statute.

2. An international agreement ratified upon prior consent granted by statute shall have precedence over statutes if such an agreement cannot be reconciled with the provisions of such statutes.”

(c) Provisions relating to the constitutional complaint

Article 79 § 1 of the Constitution provides as follows:

“In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.”

Article 190 of the Constitution, insofar as relevant provides as follows:

“1. Judgments of the Constitutional Court shall be universally binding and final.

2. Judgments of the Constitutional Court, ... shall be published without delay.

3. A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such time-limit may not exceed 18 months in relation to a statute or 12 months in relation to any other normative act. ...

4. A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... was given, shall be a basis for re-opening of the proceedings, or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings.”

2. Relevant provisions of the Criminal Code

Article 212 §§ 1 and 2 of the Criminal Code 1997 provides as follows:

Ҥ 1. Anyone who imputes to another person, a group of persons, an institution, a legal person or an organisation without legal personality, such behaviour or characteristics, as may lower this person, group or entity in the public opinion or undermine public confidence in their capacity necessary for a certain position, occupation or type of activity, shall be liable to a fine, a restriction of liberty or imprisonment not exceeding 1 year.

§ 2. If the perpetrator commits the act described in paragraph 1 through a means of mass communication, he shall be liable to a fine, restriction of liberty or imprisonment not exceeding 2 years.”

In 2005 a constitutional complaint was lodged with the Constitutional Court against Articles 212 § 2 and 213 § 2 of the Criminal Code. A claimant in that case, who had been convicted on the basis of these provisions, alleged that they were incompatible with Article 54 of the Constitution read in conjunction with Article 31 § 3 and Article 14 of the Constitution. The case was registered under no. SK 43/05 and currently the proceedings on the merits of that complaint are pending.[1]

3. Relevant provisions of the Code of Criminal Procedure

Article 521 of the Code of Criminal Procedure provides as follows:

“The Prosecutor General or the Ombudsman may lodge a cassation appeal against any final and enforceable judicial decision.”

Article 523 § 2 of the Code of Criminal Procedure stipulates that a defendant may not lodge a cassation appeal in cases where a suspended prison sentence has been imposed.

Article 540 § 2 of the Code of Criminal Procedure 1997 provides for reopening of the proceedings following a judgment of the Constitutional Court. It provides as follows:

“The proceedings shall be reopened to the benefit of the accused when as a result of the Constitutional Court’s judgment a provision of law which served as the basis for conviction or conditional discontinuation [of the proceedings] was abolished or amended.”

4. Remedies against unreasonable length of the proceedings[2]

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.

A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under section 2 read in conjunction with section 5(1) of the 2004 Act.

Section 2, in so far as relevant, reads as follows:

“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 provides, in so far as relevant:

“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”

Section 16 refers to proceedings that have been terminated and that do not fall under the transitional provision of section 18 (see paragraph 46 below) in the following terms:

“A party who has not lodged a complaint about the unreasonable length of the proceedings under section 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 had occurred.”

Section 18 of the 2004 Act lays down the following transitional rules in relation to the applications already pending before the Court:

“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.

2. A complaint lodged under subsection 1 shall indicate the date on which the application was lodged with the Court.

3. The relevant court shall immediately inform the Minister of Foreign Affairs of any complaints lodged under subsection 1.”

On 18 January 2005 the 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

1. The applicant complained under Article 6 § 1 of the Convention about the unreasonable length of the criminal proceedings against him concerning the charge of extortion.

2. The applicant also complained under Article 10 of the Convention about his conviction for defamation.

3. In his letter of 26 June 2004 received by the Court’s Registry on 26 July 2004, the applicant complained that his detention from 21 October 2003 to 30 October 2003 had been unlawful. He invoked Article 5 § 1 of the Convention.

THE LAW

1. The applicant complained under Article 6 § 1 of the Convention about the unreasonable length of the criminal proceedings against him concerning the charge of extortion.

The Government argued that this complaint was inadmissible on the grounds of non-exhaustion. They submitted that the applicant was required to avail himself of the remedies provided by the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time.

The applicant declared that he would make use of those remedies.

The Court recalls that 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 criminal proceedings against the applicant concerning the charge of extortion are pending before the Świdnica District 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. Moreover, given that the proceedings complained of are still pending, nothing prevents the applicant from lodging such a complaint even after the expiry of the time-limit set by the transitional rule, in accordance with the general provisions of the 2004 Act.

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, it appears that the applicant has not availed himself of that remedy.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

2. The applicant also complained under Article 10 of the Convention about his conviction for defamation.

A. The Government’s plea on non-exhaustion of domestic remedies

1. The Government’s submissions

The Government submitted that the applicant had not exhausted all domestic remedies as required by Article 35 § 1 of the Convention. In particular, the applicant could avail himself of the possibility of lodging a cassation appeal with the Supreme Court or of lodging a constitutional complaint with the Constitutional Court.

In respect of the possibility of lodging a cassation appeal, the Government maintained that pursuant to Article 523 § 2 of the Code of Criminal Procedure the applicant could not file the cassation appeal himself as he had been sentenced to a suspended prison sentence. However, the Government argued that the applicant could request the Prosecutor General or the Ombudsman to lodge a cassation appeal in his case. They submitted that that remedy, even if it seemed weaker than the cassation appeal brought directly by the applicant was, nevertheless, available and could be successful. In that respect the Government referred to the judgment of the Supreme Court of 2 June 2003 which concerned the issue of freedom of expression, and more specifically the alleged violation of Article 10 of the Convention. In that case the Supreme Court ruled that the omission by a court of appeal to consider the complaint about an alleged violation of Article 10 of the Convention, which had been raised in an appeal against the judgment of a lower court, constituted a basis for the quashing of that judgment and the remittal of the case. The cassation appeal in the case referred to by the Government was lodged by the Ombudsman for the benefit of a journalist.

Furthermore, the Government emphasised that in the present case the applicant at no stage of the domestic proceedings had raised the issue of freedom of expression, but had confined himself to denying the charge of defamation that had been brought against him. Thus, the Government argued, he had not complained, either expressly or in substance, of a breach of Article 54 of the Constitution or of Article 10 of the Convention.

In respect of the possibility of lodging a constitutional complaint, the Government submitted that the applicant had not availed himself of that remedy which was available to him under Article 79 § 1 of the Constitution. They maintained that the Court had recognised that even if the Constitutional Court was not competent to quash individual decisions, as its role was to rule on the constitutionality of laws, its decision declaring a statutory or other provision unconstitutional, gave rise to a right to reopen the relevant proceedings in an individual case or to have a final decision quashed (cf. Szott-Medyńska v. Poland, no. 47414/99, 9 October 2003). Consequently, the Government argued that if the applicant had been of the opinion that Article 212 §§ 1 and 2 of the Criminal Code on which the judgment in his case had been based, violated his right to freedom of expression, he should have availed himself of the possibility of requesting the Constitutional Court to decide whether those provisions were compatible with the Constitution.

2. The applicant’s submissions

The applicant disagreed with the Government. He argued that he had had no possibility of filing a cassation appeal against the judgment of the Świdnica Regional Court. Pursuant to the Code of Criminal Procedure of 1997 a cassation appeal is a special remedy which may be employed only against the final and enforceable judgment of the second-instance court. In the circumstances of the present case, in particular given the fact that the applicant had been sentenced to a suspended period of imprisonment, a cassation appeal was inadmissible in law pursuant to Article 523 § 2 of the Code of Criminal Procedure. That provision excluded a possibility of lodging a cassation appeal in cases where the defendant had been sentenced to a suspended period of imprisonment.

The applicant further argued that a cassation appeal which might be lodged by the Prosecutor General or the Ombudsman (Article 521 of the Code of Criminal Procedure) against every final and enforceable judicial decision could not be considered an effective remedy within the meaning of Article 35 § 1 of the Convention. He maintained that the remedy provided for in Article 521 of the Code of Criminal Procedure was of an extraordinary character and was not generally accessible. In the light of the Court’s case-law, extraordinary remedies could not be considered effective. The applicant also submitted that a cassation appeal provided for in Article 521 of the Code of Criminal was not available to him as a matter of right.

The applicant maintained, contrary to the Government’s submissions, that in his appeal against the judgment of the Świdnica District Court he had raised arguments which in substance referred to an alleged violation of Article 10 of the Convention despite there being no explicit reliance on that provision. The applicant stated in his appeal that “the court of first-instance confined itself exclusively to the assessment of material contained in the bulletin, without examining in that respect the defendant’s convictions regarding the truthfulness and rightness of the statements contained therein”. The applicant maintained that in his appeal he had also referred to the fact that he had acted in the public interest and invoked the role of the media in providing information about corruption.

In respect of the constitutional complaint, the applicant submitted that the constitutional complaint was not an effective remedy within the meaning of Article 35 § 1 of the Convention. Pursuant to Article 79 of the Constitution, the constitutional complaint was a means of eliminating laws which were unconstitutional. He argued that the Polish model of the constitutional complaint was characterised by certain limitations; in particular it did not provide for the constitutional complaint against individual decision in a specific case. The applicant submitted that the Government’s submissions in that respect were not supported by the case-law of the Constitutional Court. Further, he stated that the Government’s reliance in the present case on the Court’s decision in the case of Szott-Medyńska v. Poland was misplaced because that case concerned a complaint against the provision of the domestic law which was incompatible with the Convention. He also submitted that the Court’s decision in the case of Szott-Medyńska v. Poland raised doubts as to the finding that a constitutional complaint was to be considered an effective remedy, given the limitations of the Polish model of constitutional complaint. The applicant contended that the constitutional complaint could not be considered an effective remedy within the meaning of Article 35 § 1 of the Convention.

3. The Court’s assessment

The Court recalls that while in the context of machinery for the protection of human rights the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism, it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of remedies designed to challenge impugned decisions which allegedly violate a Convention right (see Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004‑...). It normally requires also that the complaints intended to be made subsequently at the international level should have been aired before those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among many other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999-I).

The object of the rule on exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities) to address the allegation made of violation of a Convention right and, where appropriate, to afford redress before that allegation is submitted to the Court (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI). In so far as there exists at national level a remedy enabling the national courts to address, at least in substance, the argument of violation of the Convention right, it is that remedy which should be used. If the complaint presented before the Court (for example, unjustified interference with the freedom of expression) has not been put, either explicitly or in substance, to the national courts when it could have been raised in the exercise of a remedy available to the applicant, the national legal order has been denied the opportunity to address the Convention issue which the rule on exhaustion of domestic remedies is intended to give it. It is not sufficient that the applicant may have, unsuccessfully, exercised another remedy which could have overturned the impugned measure on other grounds not connected with the complaint of violation of a Convention right. It is the Convention complaint which must have been aired at national level for there to have been exhaustion of “effective remedies”. It would be contrary to the subsidiary character of the Convention machinery if an applicant, ignoring a possible Convention argument, could rely on some other ground before the national authorities for challenging an impugned measure, but then lodge an application before the Court on the basis of the Convention argument (see Van Oosterwijck v. Belgium, judgment of 6 November 1980, A Series no. 40, pp. 16-17, §§ 33-34).

However, the only remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 75, ECHR 1999‑V).

The Court notes that the Government’s plea on non-exhaustion of domestic remedies is based alternatively on two principal arguments. Firstly, the Government submitted that the applicant had not lodged a cassation appeal with the Supreme Court against the judgment of the Świdnica Regional Court of 4 September 2001. Secondly, the Government argued that the applicant had failed to avail himself of a possibility to lodge a constitutional complaint with the Constitutional Court.

In respect of the applicant’s alleged failure to file a cassation appeal with the Supreme Court, the Court observes that pursuant to Article 523 § 2 of the Code of Criminal Procedure such an appeal may not be lodged in cases where a suspended prison sentence is imposed on the defendant. The Court notes that the Government nevertheless argued that the applicant could have requested the Prosecutor General or the Ombudsman to file a cassation appeal with the Supreme Court on his behalf, pursuant to Article 521 of the Code of Criminal Procedure.

The Court recalls its established case-law to the effect that the applicant’s request to the Prosecutor General or the Ombudsman for leave to file a cassation appeal cannot be regarded as an effective remedy for the purposes of Article 35 § 1 of the Convention, since their decision is of a discretionary character and an individual has no right to lodge such an appeal himself (see, among many other authorities, Hajnrich v. Poland, (dec.) no. 44181/98, 31 May 2001). It is worth noting in this context that in accordance with the case-law of the Polish Constitutional Court a person wishing to lodge a constitutional complaint is also not required to use the remedy relied on by the Government. It follows that the Government’s objection in respect of the applicant’s failure to lodge a cassation appeal in the present case must be rejected.

In respect of the Government’s objection concerning the applicant’s failure to lodge a constitutional complaint, the Court recalls that it has already dealt with the question of the effectiveness of that remedy (see, Szott-Medyńska v. Poland, no. 47414/99, 9 October 2003). In the Szott-Medyńska decision the Court considered in particular two important limitations of the Polish model of constitutional complaint, namely its scope and the form of redress it provides.

Having analysed the above-mentioned limitations of the Polish procedure of constitutional complaint, the Court observed that the constitutional complaint could be recognised as an effective remedy, within the meaning of the Convention, only where: 1) the individual decision, which allegedly violated the Convention, had been adopted in direct application of an unconstitutional provision of national legislation; and 2) procedural regulations applicable to the revision of such type of individual decisions provided for the reopening of the case or the quashing of the final decision in consequence of the judgment of the Constitutional Court in which unconstitutionality had been found. Consequently, the Court found that the exhaustion of the procedure of the constitutional complaint should be required under Article 35 § 1 of the Convention in situations in which both above-mentioned requirements had been met.

The Court observes that in the instant case the applicant was convicted on the basis of Article 212 § 2 of the Criminal Code, which criminalised defamation committed through the mass media. The said provision of the Criminal Code constituted the direct legal basis of the individual decision in respect of which the violation is alleged. The Court notes that the applicant had the possibility to lodge a constitutional complaint with the Constitutional Court, following the judgment of the Świdnica Regional Court of 4 September 2001. It was open for him to question the constitutionality of Article 212 § 2 of the Criminal Code and to argue that this provision was in breach of Article 54 § 1, the provision guaranteeing freedom of expression and Article 31 § 3 of the Constitution, establishing the principle of proportionality.

The Court notes that Article 54 read in conjunction with Article 31 § 3 of the Constitution is comparable in scope to Article 10 of the Convention. In addition, it is worth mentioning that the Constitutional Court frequently refers to the Court’s case-law when construing the relevant provisions of the Polish Constitution[3].

Furthermore, the Court attaches considerable importance to the fact that a constitutional complaint against Article 212 § 2 of the Criminal Code has been recently lodged with the Constitutional Court (case no. SK 43/05). That complaint was not declared inadmissible and the proceedings on the merits are currently pending.

Had the applicant brought a constitutional complaint, and had he been successful, he could have requested a competent court, pursuant to Article 540 § 2 of the Code of Criminal Procedure, to reopen the criminal proceedings against him. In the renewed examination of the case the courts would have to disregard Article 212 § 2 of the Criminal Code which was declared unconstitutional. Thus, as a result of the reopening of the criminal proceedings the alleged violation of Article 10 of the Convention could have been suitably redressed.

Having regard to the foregoing, the Court finds that the applicant’s case falls within the category of cases where the constitutional complaint is in principle a remedy to be exhausted under Article 35 § 1 of the Convention.

In conclusion, the Court finds that in the present case, by failing to lodge a constitutional complaint against Article 212 § 2 of the Criminal Code, the applicant failed to exhaust the remedy provided for by Polish law. Thus, the Government’s objection that the constitutional complaint was not employed by the applicant in the instant case is well-founded.

In view of this conclusion, it is not necessary for the Court to examine the Government’s plea on non-exhaustion of domestic remedies in respect of the applicant’s failure to rely in the domestic proceedings before the ordinary courts, at least in substance, on Article 54 of the Constitution or on Article 10 of the Convention.

Consequently, the complaint under Article 10 of the Convention must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

3. In his letter of 26 June 2004 received by the Court’s Registry on 26 July 2004, the applicant complained that his detention from 21 October 2003 to 30 October 2003 had been unlawful. He invoked Article 5 § 1 of the Convention.

The Court notes that on 21 October 2003 the applicant was arrested and remanded in custody on the basis of the detention order given by the Świdnica District Court on 6 October 2003. That detention order was quashed by the Świdnica Regional Court on 30 October 2003 and the applicant was released on the same day.

The Court considers that the six-month time-limit set down by Article 35 § 1 of the Convention began to run on 30 October 2003, being the end of the situation of which the applicant complains. Since this complaint was introduced on 26 June 2004, it has been presented more than six months after the date on which the applicant’s detention came to an end.

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.

For these reasons, the Court unanimously

Declares the application inadmissible.

Françoise Elens-PassosNicolas Bratza
Deputy RegistrarPresident

[1]. See the website of the Constitutional Court under pending cases (Sprawy rozpatrywane przez TK).

[2]. For a more detailed rendition of the relevant domestic legal provisions see Charzyński v. Poland (dec.) no. 15212/03, §§ 12-23; and Michalak v. Poland (dec.) no. 24549/03, §§ 12-23, to be published in ECHR 2005-…; also available on the Court’s Internet site: .

[3]. See, for instance, judgment of 5 May 2004, case no. P 2/03, published in OTK ZU no. 5, p. 39, in which the Constitutional Court reviewed compatibility of certain provisions of the 1984 Press Act with Article 54 of the Constitution and Article 10 of the Convention. See, also, judgment of 10 November 2004, case no. Kp 1/04, published in OTK ZU no. 10, p. 105, in which the Constitutional Court examined constitutionality of the amendments to the 1990 Assembly Act. In that judgment, the Constitutional Court referred to case-law of the Convention’s organs under Article 11.

Full & Egal Universal Law Academy