by Sebastian DAAB
The European Court of Human Rights (Fourth Section), sitting on 29 September 2009 as a Chamber composed of:
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 5 September 2006,
Having regard to the declaration submitted by the respondent Government on 5 August 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 Sebastian Daab, is a Polish national who was born in 1981 and lives in Warsaw. 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 11 October 2004 the applicant was arrested by the police.
On 13 October 2004 the Zamość District Court (Sąd Rejonowy) decided to detain him on remand in view of the reasonable suspicion that he had committed an armed robbery with the help of accomplices.
The applicant’s detention was extended on 29 December 2004 by the Zamość Regional Court (Sąd Okręgowy). The court relied on the reasonable suspicion against the applicant and on the severity of the penalty that might be imposed.
On 31 March 2005 the applicant and 8 co-accused were indicted before the Zamość Regional Court.
Subsequently, the applicant’s detention was extended on several occasions.
The trial court held the first hearing on 17 May 2005. In 2005 it held in total 5 hearings.
On 31 January 2006 another hearing was held and on 7 February 2006 the Zamość Regional Court gave a judgment in the case. The applicant was convicted as charged and sentenced to 6 years’ imprisonment. The applicant and the prosecutor each lodged an appeal.
On 11 July 2006 the Lublin Court of Appeal (Sąd Apelacyjny) held a hearing. On 18 July 2006 it quashed the first-instance court’s judgment as regards the applicant’s conviction and remitted the case.
On 26 July 2006 the applicant’s detention on remand was further extended by the Court of Appeal. The court justified it by the probability that a severe sentence might be imposed on the applicant, which made it likely that he would obstruct the proceedings.
At the hearings held on 5 December 2006 and 6 February 2007 the detention of the applicant and other co-accused was extended. The trial court reiterated the grounds given previously and found that the accused had not proved that there were circumstances justifying their release.
On 3 April 2007 the Zamość Regional Court extended the applicant’s detention. In addition to the grounds given on previous occasions the trial court referred to the advanced stage of the proceedings.
On 25 April 2007 the Zamość Regional Court gave a judgment. The applicant was convicted as charged and sentenced to 5 years’ imprisonment. The prosecutor lodged an appeal against the judgment and the proceedings are pending before the Lublin Court of Appeal. The applicant was released from detention on 21 September 2007.
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 the rules governing other “preventive measures” (środki zapobiegawcze) 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.
The applicant complained under Article 5 § 3 of the Convention about the unreasonable length of his pre-trial detention. He further complained that his trial had been unfair.
A. Length of pre-trial detention
The applicant complained about the length of his pre-trial detention. He relied on Article 5 § 3 of the Convention which, in so far as relevant, provides as follows:
Article 5 § 3
“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 a letter dated 5 August 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 as follows:
“...1. The Government hereby wish to express – by way of a unilateral declaration – their acknowledgement of the fact that the applicant’s pre-trail detention was not compatible with a ‘reasonable time’ requirement within the meaning of Article 5 § 3 of the Convention.
2. In these 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 9,000 (nine thousand Polish zlotys), which they consider to be reasonable in the light of the Court’s case-law. 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.
(...) as transpires from the Government’s unilateral declaration, the Government accepted paying to the applicant the sum of PLN 9,000 in the event of the Court’s striking the case out of its list. ...”
In a letter of 24 August 2009 the applicant expressed the view that the sum mentioned in the Government’s declaration was unacceptably low and invited the Court to examine his application on the merits.
The Court notes 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”.
In certain circumstances, the Court 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 of a violation of the 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; and Wende and Kukówka v. Poland, no. 56026/00, 10 May 2007). It has also addressed in numerous cases against Poland under Article 5 § 3 of the Convention the length of pre-trial detention (Kauczor v. Poland, no. 45219/06, 3 February 2009 with further references).
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 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. Complaint under Article 6 § 1 of the Convention
The applicant further complained under Article 6 § 1 of the Convention that the criminal proceedings against him had been unfair.
However, the Court observes that the proceedings against the applicant are pending before the Lublin Court of Appeal following the appeal lodged by the prosecutor. It will thus be open to the applicant to lodge a cassation appeal with the Supreme Court. Accordingly, the applicant still can, and should, put the substance of the complaint before the domestic authorities and ask for appropriate relief.
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
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 Registrar President