CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 septembre 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                      AS TO THE ADMISSIBILITY OF                       Application No. 25792/94                     by Andrzej TRZASKA                     against Poland        The European Commission of Human Rights (Second Chamber) sitting in private on 6 September 1995, the following members being present:             Mr.   H. DANELIUS, President           Mrs. G.H. THUNE           MM.   G. JÖRUNDSSON                J.-C. SOYER                H.G. SCHERMERS                F. MARTINEZ                L. LOUCAIDES                J.-C. GEUS                M.A. NOWICKI                I. CABRAL BARRETO                J. MUCHA                D. SVÁBY                P. LORENZEN             Ms.   M.-T. SCHOEPFER, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 11 April 1994 by Andrzej Trzaska against Poland and registered on 28 November 1994 under file No. 25792/94;        Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission;        Having considered that the Government have not submitted any observations;        Having deliberated;        Decides as follows:   THE FACTS        The facts of the case, as submitted by the applicant, may be summarised as follows:        The applicant is a Polish citizen born in 1970.   He is currently detained on remand in Katowice prison.        On 27 June 1991 the Jastrz*bie Zdrój District Prosecutor issued a warrant of arrest against the applicant who was suspected of attempted manslaughter, robbery and rape.   He was arrested on the same day.        On 23 September 1991 the Katowice Regional Court (S*d Wojewódzki) prolonged the detention on remand until 30 November 1991 finding a reasonable suspicion that the applicant had committed the crimes in question.   The Court considered that certain witnesses had to be heard and that expert opinions should be taken.        On 29 November 1991 the Katowice Regional Prosecutor transmitted the bill of indictment to the Katowice Regional Court.        Apparently in February 1992 the applicant complained to the Katowice Court of Appeal (S*d Apelacyjny) about the length of the proceedings in his case.        On 4 March 1992 the first hearing was held before the Katowice Regional Court.        On 16 April 1993 the applicant complained to the Minister of Justice about the length of the proceedings.        On 3 November 1993 the applicant complained to the Ombudsman (Rzecznik Praw Obywatelskich) about the length of the proceedings in his case and on 18 November 1993 to the Minister of Justice.        On 15 December 1993 the President of the Katowice Regional Court requested the President of the Criminal Division of that Court to follow closely the progress in the case and to prepare each month a progress report, with a first date set for 7 January 1994.        On 21 February 1994 the Katowice Regional Court refused to grant the applicant's request to have his officially appointed counsel changed.   The Court observed that the first officially appointed counsel had fallen ill; subsequently the applicant had withdrawn a power of attorney of the second counsel; and the third counsel had retired.        On 14 March 1994 the President of the Katowice Regional Court reiterated his request to the President of the Criminal Division to supervise the proceedings and to present a first report on the progress by 10 May 1994.        On 30 March 1994 the Ombudsman requested the President of the Katowice Regional Court to inform him about the progress in the case.        On 23 May 1994 the Katowice Regional Court refused to release the applicant.   On 1 June 1994 the Katowice Court of Appeal upheld this decision.   The Court observed that the applicant was suspected of serious crimes and that there was a risk of collusion.   The Court noted that there was progress in the case as hearings were being held.        On 7 June 1994 the Ombudsman again requested the President to inform him about the progress in the case and to indicate whether there were still grounds for detention on remand.        On 4 July 1994 the Katowice Regional Court refused to release the applicant.   The Court noted that the applicant was suspected of dangerous crimes.   It also considered that there was a risk of collusion and that, if released, the applicant would jeopardise the criminal proceedings.        On 16 July 1994 the applicant complained to the Minister of Justice about the length of the proceedings.        Until the date when the application was filed, the Katowice Regional Court had set dates for twenty-two hearings and two thirds of them had actually taken place.   The remaining hearings have been cancelled.   COMPLAINTS        The applicant complains under Article 4 para. 1 of the Convention that Article 60 of the Polish Criminal Code obliges judges to impose increased penalties on an accused with a significant criminal record.        The applicant complains under Article 5 para. 3 of the Convention that his detention on remand has been unreasonably long.        He further complains under Article 5 para. 4 of the Convention that he was never brought before a judge to present his arguments with respect to the continuation of his detention on remand.        The applicant also complains under Article 6 para. 1 of the Convention of the length of the proceedings.   He alleges that on one occasion five months elapsed between hearings and on another occasion six months.        He complains under Article 6 para. 3 (c) of the Convention that he was not allowed to present his arguments to the Court.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 11 April 1994 and registered on 28 November 1994.        On 17 January 1995 the Commission decided to communicate the application to the Polish Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.   They were invited to submit their observations on its admissibility and merits before 24 March 1995.   At the Government's requests, dated 21 March, 13 April and 9 May 1995, the time-limit for the submission of the observations was subsequently extended three times, until 15 April, 10 May and 30 May 1995, respectively.        The Government did not request an extension of the last time- limit and did not submit any observations.   By letter of 17 July 1995 the Government were informed that the application was being considered for inclusion in the list of cases for examination by the Commission at its session beginning on 4 September 1995.   THE LAW   1.    The applicant complains under Article 5 para. 3 (Art. 5-3) of the Convention that his detention on remand has been unreasonably long.        He further complains under Article 5 para. 4 (Art. 5-4) of the Convention that he was never brought before a judge to present his arguments with respect to the continuation of his detention on remand.        The applicant also complains under Article 6 para. 1 (Art. 6-1) of the Convention of the length of the criminal proceedings.   He alleges that on one occasion five months elapsed between hearings and on another six months.        Article 5 paras. 3 and 4 (Art. 5-3, 5-4) provide:        "3.   Everyone arrested or detained in accordance with the      provisions of paragraph 1 (c) of this Article (Art. 5-1-c) shall      be brought promptly before a judge or other officer authorised      by law to exercise judicial power and shall be entitled to trial      within a reasonable time or to release pending trial. ..."        "4.   Everyone who is deprived of his liberty by arrest or      detention shall be entitled to take proceedings by which the      lawfulness of his detention shall be decided speedily by a court      and his release ordered if the detention is not lawful."        Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, reads:        "1.   In the determination of ... any criminal charge against      him, everyone is entitled to a fair and public hearing within a      reasonable time by a ... tribunal..."   a)    The Commission recalls that Poland recognised the competence of the Commission to receive individual applications "from any person, non-governmental organisation or group of individuals claiming to be a victim of a violation of the rights recognised in the Convention through any act, decision or event occurring after 30 April 1993".   It follows that the Commission is not competent to examine complaints relating to alleged violations of the Convention by acts, decisions or events that have occurred prior to this date.        However, the Commission further recalls the Convention organs' case-law, according to which where, by reason of its competence ratione temporis, the Commission can only examine part of the proceedings, it can take into account, in order to assess the length, the stage reached in the proceedings at the beginning of the period under consideration (No. 7984/77, Dec. 11.7.79, D.R. 16 p. 92).   Likewise, in examining the length of detention undergone subsequent to the date of the recognition of the right of individual petition, the Commission takes account of the stage which the proceedings had reached.   To that extent, therefore, it has regard to the previous detention (see No. 7438/76, Dec. 9.3.79, D.R. 12 p. 38).        It follows that the Commission is competent ratione temporis to examine the applicant's complaints insofar as they relate to the proceedings after 30 April 1993.   However, the Commission can take into account the stage reached at this date.   b)    Under Article 26 (Art. 26) of the Convention, the Commission may only deal with a matter after all domestic remedies have been exhausted.        The Commission recalls that the application was communicated to the Polish Government who were invited to submit observations on the admissibility and merits of the applicant's above complaints.    The time-limit for the submission of such observations was extended, at the Government's request, three times, the last time until 30 May 1995. No observations have been submitted within the time-limit.        It is the normal practice of the Commission, where a case has been communicated to the respondent Government, not to declare the application inadmissible for failure to exhaust domestic remedies, unless this matter has been raised by the Government in their observations.   The Commission considers that the same principle should be applied where, as in the present case, the respondent Government have not submitted any observations at all (see No. 22947/93, Dec. 11.10.1994, D.R. 79-A).        It follows that the application cannot be rejected under Article 26 (Art. 26) of the Convention for non-exhaustion of domestic remedies.   c)    The Commission further recalls the Convention organs' case-law, according to which the parties must be invited to participate in the examination of the facts by the Commission, though such an examination cannot be hindered by the manner in which the parties in fact participate (see No. 8007/77, Dec. 10.07.1978, D.R. 13   p. 85).        In the present case, in the examination of the complaints about the length of the applicant's detention and about the length of the proceedings, regard must be had to the Commission's competence ratione temporis.   The proceedings started at the latest on 27 June 1991, i.e. at the date at which the applicant was arrested.   They are still pending and the applicant remains in custody.   The Commission observes that the period to be considered began only on 1 May 1993, i.e. the date on which the recognition of the right of individual petition against Poland took effect.   The period to be considered is therefore two years and four months.   However, in the examination of the reasonableness of the length of his detention and the length of the proceedings after 30 April 1993, the stage reached in the proceedings at this date can be taken into account (see No. 7984, loc.cit.).   The case is being considered by the Katowice Regional Court, acting as a first instance court.        As regards the complaint under Article 5 para. 4 (Art. 5-4) of the Convention, the Commission observes that after 30 April 1993 the lawfulness of the applicant's detention was examined at least twice by the Katowice Regional Court and, upon appeal, by the Katowice Court of Appeal.   In accordance with the relevant proceedings of the Polish Code of Criminal Procedure, the courts did not hear either the applicant or his counsel.   The courts decided on the basis of the case- file in the presence of the Public Prosecutor, without having summoned either the applicant or his counsel.        Having examined these complaints, the Commission finds that they raise serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. This part of the application cannot, therefore, be regarded as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no other ground for declaring the complaint inadmissible has been established.   2.    The applicant further complains under Article 4 para. 1 (Art. 4-1) of the Convention that Article 60 of the Polish Criminal Code obliges judges to impose increased penalties on an accused with a significant criminal record.   He complains under Article 6 para. 3 (c) (Art. 6-3-c) of the Convention that he was not allowed to present his arguments to the Court.        In the present case, however, the applicant has not yet been convicted as the proceedings are still pending.   The applicant, therefore, cannot claim to be a victim within the meaning of Article 25 (Art. 25) of the Convention of the alleged violation of Article 4 para. 1 (Art. 4-1) as regards his sentence as no sentence has yet been imposed.        As regards the complaint under Article 6 para. 3 (c) (Art. 6-3-c) of the Convention, the Commission recalls that it can only assess the fairness of criminal proceedings when it is able to consider them in their entirety (see No. 16156/90, Dec. 7.6.90, unpublished). Until the proceedings have finished, it is not possible to determine whether Article 6 (Art. 6) has been complied with.   In the present case the criminal proceedings are still pending.   This complaint is therefore premature.        It follows that the remainder of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES ADMISSIBLE, without prejudging the merits of the case,      the complaints about the length of the criminal proceedings      against the applicant, about the length of his detention on      remand and about the proceedings in which the lawfulness of the      applicant's detention of remand was examined, insofar as they      relate to a period after 30 April 1993;        DECLARES INADMISSIBLE the remainder of the application.   Secretary to the Second Chamber        President of the Second Chamber          (M.-T. SCHOEPFER)                    (H. DANELIUS)