CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 9 janvier 2007

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sFEE8C148 { width:13.68pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sA36B60A1 { font-family:Arial; font-style:italic } .sB9D5CABB { width:28.35pt; display:inline-block } .s61ED8A2B { width:14.36pt; display:inline-block } .s3CA6E042 { width:12.35pt; display:inline-block } .s84D0D60A { width:8.36pt; display:inline-block } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s988562EE { width:30.55pt; display:inline-block } .s9D5ED0F7 { width:218.78pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } FOURTH SECTION PARTIAL DECISION AS TO THE ADMISSIBILITY OF Application no. 30516/02 by Mariusz KOWALEWSKI against Poland The European Court of Human Rights (Fourth Section), sitting on 9   January 2007 as a Chamber composed of: Sir   Nicolas Bratza , President ,   Mr   J. Casadevall ,   Mr   S. Pavlovschi ,   Mr   L. Garlicki ,   Ms   L. Mijović ,   Mr   J. Šikuta ,   Mrs   P. Hirvelä, judges , and Mr T.L. Early , Section Registrar , Having regard to the above application lodged on 7 August 2002, Having deliberated, decides as follows: THE FACTS The applicant, Mr Mariusz Kowalewski, is a Polish national who was born in 1973 and lives in Łomża, Poland. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 24 March 2000 the applicant was arrested on suspicion of robbery. On 26 March 2000 the Ostrołęka District Court ( Sąd Rejonowy ) ordered that the applicant be detained on remand. The court considered that the applicant’s detention was justified by the existence of strong evidence against him and the gravity of the charges. The court further found that the attitude of the applicant, who had denied that he had committed any offence, gave reason to believe that, if released, he might obstruct the proceedings or induce witnesses to give false testimony. On 13 April 2000 the court prolonged the applicant’s detention. It repeated the reasons previously given and found that keeping the applicant in custody was necessary to ensure the proper course of the investigation. On 29 May 2000 the Ostrołęka District Prosecutor ( Prokurator Rejonowy ) lodged a bill of indictment against the applicant with the Ostrołęka District Court. The applicant was charged with assault and attempted robbery. The applicant’s detention was further prolonged on 31 May, 21 August and 26 September 2000. On each occasion the court repeated the reasons previously given for keeping the applicant in custody. On 30 October 2000 the District Court returned the case to the prosecutor for further investigation. The applicant remained in custody, which was prolonged on 27   November 2000 and 9 March 2001, for the same reasons as before. The applicant’s appeals against those decisions and his applications for release were dismissed. On 22 March 2001 the Ostrołęka District Prosecutor again indicted the applicant for assault and robbery. On 28 March 2001 the District Court ordered that the applicant remain in custody until 30 June 2001. The court found that the reasons for keeping him in detention were still valid; there was also the possibility that, if released, he might go into hiding. During the subsequent proceedings the District Court held 6 hearings at regular intervals. The applicant’s detention was prolonged on 27 September and 19   December 2001. On 14 March 2002 the Ostrołęka District Court convicted the applicant as charged and sentenced him to 7 years’ imprisonment. The Ostrołęka Regional Court (Sąd Okręgowy) upheld the first-instance judgment on 19   September 2002. On 3 June 2003 the Supreme Court (Sąd Najwyższy) dismissed the applicant’s cassation appeal. B.     Relevant domestic law and practice 1.     Preventive measures, including detention on remand The relevant provisions of the domestic law relating to preventive measures are summarised in several judgments concerning similar cases (see, among others, Jaworski v. Poland , no. 25715/02, §§ 20-27, 28 March 2006). 2. Length of proceedings The relevant domestic law provisions are set out in the Court’s judgment Krasuski v. Poland , no. 61444/00, §§ 34-46, ECHR 2005–V (extracts) and in its decision in Charzyński v. Poland (dec.), no.   15212/03, §§12-23, ECHR 2005-V. COMPLAINTS 1. The applicant complains under Article 5 § 3 of the Convention about the excessive length of his detention on remand. 2. Relying on Article 6 § 1 he complains about the length of the criminal proceedings against him. 3. He further complains under Article 6 § 1 about the unfairness of the proceedings and objects to their outcome. 4. He also invokes Article 13 of the Convention and complains that his appeal against the first-instance judgment and his cassation appeal were dismissed. 5. Lastly, he complains that his right to appeal against his conviction was infringed. He relies on Article 2 of the Protocol No. 7 to the Convention. THE LAW 1. The applicant complains under Article 5 § 3 of the Convention that his detention on remand exceeded a “reasonable time”. The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of the complaint to the respondent Government.   2. The applicant further complains under Article 6 § 1 of the Convention that his trial exceeded a “reasonable time” within the meaning of that provision. The Court recalls that 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. The applicant has not informed the Court whether, as required by Article 35 § 1 of the Convention, he took advantage of the new remedies introduced. However, the Court considers it unnecessary to establish whether the applicant has complied with the rule of exhaustion of domestic remedies since the complaint is in any event manifestly ill-founded. The proceedings complained of lasted approximately 3 years and 2   months and the case was examined by courts at three instances. As regards the conduct of the authorities, the Court notes that the proceedings in all instances progressed at an acceptable pace. Hearings were scheduled at regular intervals. There were no substantial periods of inactivity for which the domestic authorities could be held responsible. In view of the foregoing, the Court concludes that the proceedings complained of do not disclose an unreasonable delay within the meaning of Article   6 §   1. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.   3. Relying on Articles 6 § 1 of the Convention the applicant complains about the unfairness of the proceedings. He alleges that the courts committed errors of fact and law when dealing with his case and that their judgments were unjust. The Court reiterates that it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see García Ruiz v. Spain [GC], no.   30544/96, ECHR   1999-I, §   28). The Court observes that the applicant does not allege any particular failure to comply with the procedural guarantees of Article 6 and in the light of the material in its possession, it finds no indication that the impugned proceedings were unfairly conducted. It follows that this part of the application is manifestly ill-founded within the meaning of Article   35 §   3 of the Convention and must be rejected pursuant to Article 35 § 4.   4. The applicant complains under Article 13 of the Convention that he was deprived of an effective remedy in respect of the alleged violation of his right to a fair trial. The Court reiterates that, according to its case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see the Boyle and Rice v.   the   United   Kingdom judgment of 27 April 1988, Series A no. 131, § 52). In view of its conclusions above, the Court considers that the applicant has no arguable claim of a violation of his rights under Article 6 in so far as it concerns the fairness of the proceedings, which would have required a remedy within the meaning of Article 13. It follows that this complaint is also manifestly ill-founded within the meaning of Article   35   §   3 of the Convention and must be rejected pursuant to Article   35   § 4.   5. The applicant further complains that he was deprived of his right to an appellate review of his conviction, contrary to Article 2 of Protocol No. 7 to the Convention. The Court observes that the criminal case against the applicant was examined by the District Court and the Court of Appeal and, afterwards, by the Supreme Court in cassation proceedings. During the appellate proceedings the domestic court examined both the substance of the case and the alleged procedural errors committed by the lower court. Therefore, the applicant had his case reviewed by a higher tribunal, as required by Article 2 of Protocol No. 7 to the Convention (see, mutatis mutandis , Lantto v. Finland (dec.), no. 27665/95, 12 July 1999). It follows that this part of the application is manifestly ill-founded within the meaning of Article   35 §   3 of the Convention and must be rejected pursuant to Article 35 § 4. For these reasons, the Court unanimously Decides to adjourn the examination of the applicant’s complaint concerning the excessive length of his detention on remand; Declares the remainder of the application inadmissible.   T.L. Early   Nicolas Bratza   Registrar   President