by Tomasz NOWOSAD
The European Court of Human Rights (Fourth Section), sitting on 7 July 2009 as a Chamber composed of:
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 27 February 2007,
Having regard to the declaration submitted by the respondent Government on 3 March 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 Tomasz Nowosad, is a Polish national who was born in 1973 and lives in Gdańsk. He was represented before the Court by Mr M. Zabłotny, a lawyer practising 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 14 September 1998 the applicant was arrested on suspicion of homicide and robbery.
In July 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 trial began on 14 December 2000.
The applicant’s appeals and applications for release and applications to vary the preventive measure were unsuccessful. In their decisions, the courts relied principally 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 18 April 2001 and 18 October 2001 the applicant served a prison sentence imposed in another set of criminal proceedings against him.
On 28 November 2001 he began serving yet another eight years’ prison sentence.
On 29 July 2003 the Gdańsk Regional Court convicted the applicant as charged and sentenced him to 15 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 2005, 26 May 2006 and 17 October 2006. In all their detention decisions the authorities repeatedly relied on the original grounds given for the applicant’s detention.
On 25 August 2005 the Gdańsk Regional Court severed the proceedings and assigned some of the charges against the applicant to a separate set of proceedings (IV K 257/05).
On 24 August 2007 the Gdańsk Regional Court gave judgment in the first set of criminal proceedings against the applicant. It convicted the applicant as charged and sentenced him to 15 years’ imprisonment. The applicant appealed.
The applicant subsequently lodged several complaints under the 2004 Act about both sets of criminal proceedings. They were all dismissed by the Gdańsk Court of Appeal or Regional Court, inter alia on 12 October 2006, 27 June 2007, 25 July 2007 and 17 June 2008. The courts stressed that the proceedings were very complicated and there was a need to obtain evidence from numerous witnesses.
On 24 August 2008 the Gdańsk Regional Court gave judgment in the second set of criminal proceedings against the applicant (IV K 275/05).
The applicant’s detention was extended in both sets of criminal proceedings against him. His appeals against these detention orders were unsuccessful and were dismissed by the Gdańsk Court of Appeal.
It would appear that following the applicant’s appeals, the first and the second set of proceedings are pending before the Gdańsk Court of Appeal and that the applicant is still detained.
B. Relevant domestic law and practice
The relevant domestic law and practice concerning the imposition of pre trial detention (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are set out 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.
The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings 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 judgment in the case of Krasuski v. Poland (no. 61444/00, §§ 34-46, ECHR 2005-V).
A. Length of proceedings
The applicant complained about the length of the proceedings. He relied on Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
By letter dated 3 March 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, as follows:
“(...) The Government hereby wish to express — by way of unilateral declaration —its acknowledgement of the unreasonable duration of the domestic proceedings in which the applicant was involved. Consequently, the Government are prepared to accept the applicant’s claims for non-pecuniary damage as well as costs and expenses to a maximum of PLN 20.000 (...).
Bearing in mind the above, the Government would suggest that the above declaration might 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 (...)”
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.
The Court has established in a number of cases, including those brought against Poland, its practice concerning complaints about the violation of one’s right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006 ....; Majewski v. Poland, no. 52690/99, 11 October 2005; Wende and Kukówka v. Poland, no. 56026/00, 10 May 2007; Kudła v. Poland [GC], no. 30210/96, ECHR 2000-IX).
The Court notes 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. It understands that PLN 20,000, the sum proposed by the Government covers pecuniary and non-pecuniary damage, as well as costs and expenses, and will be free from any taxes that may be applicable. It should be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. It further understands that in the event of failure to pay this sum within the said three-month period, the Government should pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default periods plus three percentage points.
Accordingly, and on that understanding, 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).
The Court’s strike-out decision is without prejudice to use by the applicant of other remedies to obtain redress for the alleged length of the proceedings.
Accordingly, this part of the application should be struck out of the list.
B. Remaining complaints
The applicant further complained under Article 5 § 3 of the Convention about excessive length of detention on remand.
The applicant’s detention started on 14 September 1998, when he was arrested on suspicion of homicide and robbery. However on 18 April 2001 the applicant started serving a sentence imposed in another set of criminal proceedings. As of that date, with the exception of a period between 18 October and 28 November 2001, his detention on remand has been covered by Article 5 § 1 (a) of the Convention. Therefore the total period of the applicant’s pre-trial detention to be taken into account for the purposes of Article 5 § 3 amounted to about two years and eight months.
The Court 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 McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006-..., with further references).
Turning to the circumstances of the instant case the Court notes that in their detention decisions, the authorities relied principally on the reasonable suspicion against the applicant and the serious nature of the offences with which he had been charged. The applicant was charged together with eight other accused of homicide and numerous counts of robbery. The Court accepts that the reasonable suspicion against the applicant of having committed serious offences warranted his initial detention. Also, the need to obtain a large volume of evidence and to determine the degree of the alleged responsibility of each of the defendants, although they were not charged with acting in an organised criminal gang, constituted valid grounds for the applicant’s detention (see, mutatis mutandis, Chruściński v. Poland, no. 22755/04, § 39, 6 November 2007). The Court observes that a substantial amount of evidence had to be examined in the course of the proceedings. The complexity of the case undoubtedly prolonged its examination and contributed to the length of the applicant’s detention on remand (see Buta v. Poland, no. 18368/02, § 45, 28 November 2006 and Nowak v. Poland, no. 18390/02, § 38, 18 September 2007).
Taking into account the particular circumstances of the instant case, the Court considers that the severity of the likely penalty taken in conjunction with the fact that the applicant was a recidivist offender were “sufficient” and “relevant” to justify holding the applicant in detention for the entire pertinent period (see Kusyk v. Poland, no. 7347/02, § 38, 24 October 2006).
In the particular circumstances of the case involving several co-accused against whom numerous charges of serious offences had been laid and in view of its above findings as to the total length of the applicant’s detention to be taken into consideration, the Court finds that the applicant’s pre-trial detention was in conformity with the “reasonable time” requirement of Article 5 § 3 of the Convention.
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.
Lastly, the applicant complained about the censorship of his correspondence and restrictions on family visits.
However, the Court considers that these complaints lack substantiation. It follows that the remainder of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration in respect of the complaint under Article 6 § 1 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