FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 14943/07
by Wojciech PIECHOWICZ
against Poland
The European Court of Human Rights (Fourth Section), sitting on 12 January 2010 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 19 March 2007,
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Wojciech Piechowicz, is a Polish national who was born in 1978 and is currently detained in Włodawa Prison. The Polish Government (“the 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. Criminal proceedings against the applicant and his detention
On 9 February 2005 the applicant was arrested by the police on suspicion of robbery of a jewellery store together with three other persons.
On 10 February 2005 the Lublin District Court remanded him in custody. It relied on the reasonable suspicion that he had committed the offence in question and the need to secure the proper conduct of the investigation. It referred to the likelihood of a severe prison sentence being imposed on him.
On 5 May 2005 the Lublin Regional Court extended the applicant’s detention until 9 August 2005 relying on the original grounds given. It further made references to the actions already taken in the investigation and indicated the evidence that still had to be taken. The court also found that there were no special grounds, as specified in Article 259 § 1 of the Code of Criminal Procedure, that would justify lifting the detention and imposing a less severe measure.
The applicant’s detention was subsequently extended on 2 August and 2 November 2005 and 13 February, 19 April, 29 June, 8 September and 21 November 2006. The court referred to the grounds for detention listed in the previous decisions. The applicant did not appeal against any of the decisions.
On 25 November 2005 a bill of indictment was filed with the Lublin Regional Court against the applicant and three accomplices. It comprised of charges of six offences. The prosecutor requested that twenty-two witnesses be heard and statements from 432 witnesses read out. Further, he stressed that an extensive body of evidence consisting, inter alia, of seventy-nine documents, had to be considered.
On 7 February 2007 the Lublin Court of Appeal, on an application from the trial court, extended the applicant’s detention until 30 April 2007. The court relied on a strong suspicion that the applicant had committed the offences in question, which was supported by evidence from witnesses and expert reports. It considered that the severity of the anticipated penalty could by itself be a sufficient ground for continuing the detention in order to secure the proper course of the proceedings.
Upon an appeal by the applicant, filed on an unspecified date, the Lublin Court of Appeal upheld that decision on 28 February 2007.
On 10 March 2007 the Lublin Regional Court convicted the applicant as charged and sentenced him to ten years’ imprisonment. The applicant appealed. His detention was subsequently further extended on 9 March, 29 August, 3 October and 6 December 2007 and 27 February 2008.
On 15 May 2008 the Lublin Court of Appeal upheld the first-instance judgment. It appears that the applicant failed to lodge a cassation appeal, despite its availability.
2. Proceedings under the 2004 Act
On 15 January 2007 the applicant lodged a written complaint concerning the proceedings in question. The court treated it as a complaint under 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”).
At a hearing of 26 January 2007 the applicant declared that he did not wish to lodge a complaint about a breach of the right to a trial within a reasonable time but a complaint about alleged shortcomings of the pending proceedings. Hence his complaint was not examined under the 2004 Act.
B. Relevant domestic law and practice
The relevant domestic law and practice concerning the imposition of detention during judicial proceedings (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006, and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
COMPLAINTS
The applicant complained invoking Article 5 §§ 3 and 5 of the Convention that his pre-trial detention was excessively long.
He further complained in substance under Article 6 § 1 of the Convention of the excessive length and unfairness of the criminal proceedings pending against him.
THE LAW
The applicant first complained that the length of his detention during judicial proceedings had been excessive. He relied in substance on Article 5 § 3 of the Convention, which, in so far as relevant, reads as follows:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
The Government submitted that the applicant had not exhausted all the remedies provided for by Polish law in that he had failed to appeal against the decisions extending his detention. The applicant did not comment.
The Court reiterates that it is well established in its case-law that an applicant must make normal use of those domestic remedies which are likely to be effective and sufficient. The Court has already considered that the remedies in question, namely an appeal against a detention order or a decision extending detention or a request for release are effective and serve the same purpose under Polish law. Their objective is to secure the review of the lawfulness of detention at any given time in the proceedings, and to obtain release if the circumstances of the case no longer justify continued detention (see Iwańczuk v. Poland (dec.), no. 25196/94, 9 November 2000, and Wolf v. Poland, nos. 15667/03 and 2929/04, § 78, 16 January 2007).
In the case of Bronk v. Poland (dec.) (no. 30848/03, 11 September 2007) the Court declared the applicant prisoner’s complaint concerning the length of his pre-trial detention inadmissible on account of his failure to appeal against any of the decisions prolonging his pre-trial detention or to make a request that a more lenient preventive measure be imposed.
That being said, the Court has accepted that an applicant prisoner is not required to contest each and every decision to prolong his detention (see also Kacprzyk v. Poland, no. 50020/06, § 29, 21 July 2009).
What is important for the Court is whether the prisoner lodged appeals against at least some of the decisions prolonging his detention, in particular at the time when the length of detention had reached its most critical point (see, in this connection, Duda v. Poland, no. 67016/01, §§ 28-29, 19 December 2006).
The Court observes that in the present case the applicant on one occasion appealed against a decision prolonging his detention.
However, it has not been explained to the Court why he waited almost two years before filing an appeal contesting his extended detention. The Court can but note that the applicant’s sole challenge was introduced barely a month before his conviction, following which his detention become governed by Article 5 § 1(a) of the Convention.
For the reasons set out above the Court considers that the applicant failed to exhaust available domestic remedies as required by Article 35 § 1 of the Convention. Any other conclusion would undermine the Court’s established view of the system of remedies in respect of Article 5 § 3 complaints.
Lastly, the applicant complained that the proceedings in question were unfair and excessively long. He relied on Article 6 § 1 of the Convention, which, in so far as relevant reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...”
The Court reiterates that pursuant to Article 35 § 1 of the Convention it may only deal with the matter after all domestic remedies have been exhausted. In this connection, the Court observes that as regards the alleged unfairness of the proceedings, since the applicant failed to lodge a cassation appeal, despite the availability of the measure, it cannot be said that he exhausted all the domestic remedies in this respect. As to his second plea, the Court notes that the applicant failed to make proper use of the remedy under the 2004 Act, therefore this complaint must likewise be declared inadmissible.
It follows that the present 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 the application inadmissible.
Fatoş AracıNicolas Bratza
Deputy RegistrarPresident
Full & Egal Universal Law Academy