by Mariusz NAWROCKI
The European Court of Human Rights (Fourth Section), sitting on 16 June 2009 as a Chamber composed of:
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 28 September 2006,
Having regard to the declaration submitted by the respondent Government on 3 April 2009 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
The applicant, Mr Mariusz Nawrocki, is a Polish national who was born in 1955 and lives in Gdańsk. 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.
On 28 December 1998 the applicant was arrested on suspicion of homicide and robbery.
On 14 December 2000 an act of indictment was filed with the Gdańsk Regional Court. The applicant was charged together with 8 other accused of homicide and numerous counts of robbery.
The applicant’s appeals and applications for release and applications to vary the preventive measure were unsuccessful. In their decisions, the courts relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged and on the serious nature of the offences.
Between 21 February 2001 and 21 August 2001 the applicant served a prison sentence imposed in another set of criminal proceedings against him.
On 29 July 2003 the Gdańsk Regional Court convicted the applicant as charged and sentenced him to 25 years’ imprisonment. The applicant appealed.
On 16 December 2004 the Gdańsk Court of Appeal quashed the first instance judgment and remitted the case for reconsideration.
In the course of subsequent proceedings, the applicant’s detention was prolonged on several occasions, inter alia on 23 June and 22 December 2005 and on 19 April and 26 October 2006.
In all their detention decisions the authorities repeatedly relied on the original grounds given for the applicant’s detention. They also considered that keeping him in detention was necessary to secure the proper conduct of the proceedings, given the risk that he might tamper with evidence and induce witnesses to give false testimony. Further, they stressed the extensive body of evidence that had to be considered.
On 19 April, 5 July and 18 October 2007 and then 22 January 2008 the applicant’s detention was further extended. The authorities again relied on the original grounds given for the applicant’s detention. His appeals against these detention orders were unsuccessful and were dismissed by the Gdańsk Court of Appeal.
On 15 April 2008 the Gdańsk Regional Court gave judgment and convicted the applicant as charged.
It would appear that the appeal proceedings are pending.
A. Length of detention
“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.”
By letter dated 3 April 2009 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided in so far as relevant:
“(...) the Government hereby wish to express – by way of unilateral declaration – its acknowledgement of the fact that the applicant’s pre-trial detention was not compatible with a “reasonable time” requirement with the meaning of Article 5 § 3 unreasonable duration of the domestic proceedings in which the applicant was involved.
In this circumstances and having regard to the particular facts of the case, the Government declare that they offer to pay to the applicant the amount of PLN 11,000.
The sum referred to above, which is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses, will be free from any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention for the Protection of Human Rights. In the event of failure to pay this sum within the three-month period, the Government undertake to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
The Government would respectfully suggest that the above declaration be accepted by the Court as ‘any other reason’ justifying the striking out of the case of the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention.”
In a letter of 23 April 2009 the applicant expressed the view that the sum mentioned in the Government’s declaration was unacceptably low.
The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
It also recalls that in certain circumstances, it may strike out an application or part thereof under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03).
Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed
– which is consistent with the amounts awarded in similar cases involving alleged membership of an organised criminal gang (see Sandowycz v. Poland, no. 37274/06, § 43, 27 January 2009) – the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1(c).
Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).
Accordingly, it should be struck out of the list.
B. Remaining complaints
The applicant further complained that for several months he had not been allowed to maintain personal contact with his family.
The Court has examined the complaints as submitted by the applicant. However, having regard to all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the applicant has failed to substantiate his complaint.
It follows that this part of the application must be rejected as being manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention.
The applicant further complained about the unfairness and excessive length of the criminal proceedings against him.
However, in the light of the material submitted by the applicant, it seems that the proceedings are still pending. The complaint about unfairness is therefore premature. In addition he did not make use of the remedies provided for by the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time.
It follows that the complaints under Article 6 § 1 must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration in respect of the complaint under Article 5 § 3 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Lawrence Early Nicolas Bratza