European Court of Human Rights

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 50500/09
by Dariusz Krzysztof ŻWAWCZYK
against Poland

The European Court of Human Rights (Fourth Section), sitting on 18 October 2010 as a Committee composed of:

Ján Šikuta, President,
Lech Garlicki,
Vincent Anthony de Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having regard to the above application lodged on 31 August 2009,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Dariusz Krzysztof Żwawczyk, is a Polish national who was born in 1963 and lives in Piotrkow Trybunalski. The Polish Government (“the Government”) were represented by their Agent, Mr J.Wolasiewicz 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.

On 25 November 2005 the applicant was arrested by the police.

On 25 November 2005 the Łódź District Court decided to detain the applicant on remand in view of the reasonable suspicion that he had committed various offences related to extortions, attempted murders, kidnappings and robberies while acting in an organised criminal gang.

The applicant's pre-trial detention was extended on 17 February, 20 June, 1 August, 25 October, and 20 December 2006. The courts relied on the severity of the possible sentence, which created a risk of the applicant's going into hiding or interfering with the proper course of the proceedings, and the necessity of gathering evidence in this particularly complex case. The court relied heavily on the complexity of the proceedings which involved many co accused who had allegedly participated in an organised, armed gang.

On 25 April and 27 June 2007 the Łódź Court of Appeal further extended the pre-trial detention of the applicant and other co-accused. In the meantime additional charges were brought against the applicant.

On 6 September 2007 the applicant and 20 other co accused were indicted before the Łódź Regional Court.

Subsequently, the Łódź Regional Court began the trial. It held hearings and further extended the applicant's detention on 11 September 2007.

The applicant's pre-trial detention was extended by the Łódź Court of Appeal on 11 June, 17 December 2008 and 22 April, 23 September and 22 December 2009.

The applicant unsuccessfully complained about some of the decisions extending his pre-trial detention.

Between 8 December 2005 and 22 December 2005, 22 December 2005 and 10 July 2006, 10 July 2006 and 26 June 2009, 26 June 2009 and 10 August 2009, 10 August 2009 and 14 September 2009, and also from 14 September 2009 until 30 July 2010 the applicant was serving prison sentences imposed in different sets of criminal proceedings against him.

The applicant did not complain about the unreasonable length of the proceedings 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”).

The applicant remains in detention and the proceedings are pending before the first-instance court.

B.  Relevant domestic law and practice

1.  Pre-trial detention

The relevant domestic law and practice regarding the imposition of detention on remand (tymczasowe aresztowanie), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) at the material time 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.

2.  Length of proceedings

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court's decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII; and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.

COMPLAINTS

The applicant complained, inter alia, under Articles 5 and 6 of the Convention about the unreasonable length of the first set of criminal proceedings against him and about the length of his pre-trial detention.

THE LAW

“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 Court observes that the applicant's detention started on 25 November 2005, when he was arrested and detained on remand. However it appears from the documents submitted at a later stage that between 8 December 2005 and 30 July 2010 the applicant had been serving several terms of imprisonment imposed in different sets of criminal proceedings. Accordingly, the period of the applicant's detention amounts to one month and two weeks.

The Government submitted a preliminary objection that the applicant failed to exhaust the available domestic remedies since he had not appealed against some of the decisions extending his detention remand. They further maintained that the domestic authorities had shown special diligence. There was a strong likelihood that the applicant had committed the offences with which he was charged. In addition there was a serious risk of the applicant going into hiding since the authorities had had to search for the applicant for six months by means of a wanted notice. They also stressed that the proceedings had been very complex as they had concerned a large number of co-accused and numerous witnesses had been heard. Lastly, they were of the opinion that the length of the applicant's detention was closely connected with the proper conduct of the proceedings and the circumstances of the case.

The applicant maintained that his detention had been excessively long.

The Court does not find it necessary to examine the objection as to the exhaustion of domestic remedies raised by the Government, as this complaint is in any event inadmissible for the following reasons.

The Court firstly reiterates that the general principles regarding the right “to trial within a reasonable time or to release pending trial”, as guaranteed by Article 5 § 3 of the Convention, have been set out in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110 et seq., ECHR 2000-XI, and Bąk v. Poland, no. 7870/04, §§ 56-65, 16 January 2007).

Turning to the circumstances of the instant case, the Court notes that the grounds given by the judicial authorities to justify the applicant's continuous detention satisfied the requirement of being “relevant” and “sufficient”. It further notes that his detention was reviewed by the courts at regular intervals and that the case was very complex. In this connection the Court observes that the courts stressed the need to verify evidence from numerous suspects and witnesses, and that there was an extensive body of evidence to be considered. The Court also accepts that the reasonable suspicion that the applicant had committed serious offences, together with the likelihood of a severe sentence being imposed on him, warranted his initial detention.

Lastly, the Court observes that the applicant was charged with multiple offences committed while acting in an organised criminal gang. As to these charges, the Court reiterates that they constitute a factor to be considered when assessing compliance with Article 5 § 3 (see Bąk, cited above, §§ 57 and 60).

For these reasons, the Court also finds that the domestic authorities cannot be criticised of failure to observe “special diligence” in the handling of the applicant's case.

In view of the above considerations and in the light of the criteria established in its case-law in similar cases, the Court considers that the applicant's detention does not disclose any appearance of a breach of the “reasonable time” requirement of Article 5 § 3 of the Convention. This complaint is therefore manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

“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 the applicant failed to make proper use of the remedy under the 2004 Act.

It follows that this complaint 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 Aracı Ján Šikuta
Deputy Registrar President