by Jacek GÓRAL
The European Court of Human Rights (Fourth Section), sitting on 29 September 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 28 June 2007,
Having regard to the declaration submitted by the respondent Government on 9 April 2009 requesting the Court to strike the application out of the list of cases and to the applicant’s response thereto,
Having deliberated, decides as follows:
The applicant, Mr Jacek Góral, is a Polish national who was born in 1972 and lives in Warszawa. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was remanded in custody on 20 February 2004 by the Warsaw District Court on suspicion of leadership of a criminal gang and robbery. When ordering his detention, the court held that there was a risk that the applicant might obstruct the proceedings, given that he had acted in conspiracy with others. The decision was upheld by the Warsaw Regional Court on 8 April 2004.
The applicant’s detention was subsequently extended on 10 May, 28 July and 28 December 2004 by the Warsaw District Court. The court repeatedly relied on the reasonable suspicion that the applicant had committed the offence in question and on the gravity of the charges. The court considered that the applicant had been charged with the commission of crimes for which he was liable to a sentence of imprisonment of up to 15 years. In the court’s opinion, the circumstances of the case indicated that there was a reasonable risk that he might obstruct the proceedings. The court also based its decisions on the fear of collusion, deriving from the fact that the applicant had acted in conspiracy with other persons. Regard was had to the number of suspects and the need to obtain further evidence.
On 15 February, 29 July and 30 December 2005 and 25 July and 28 December 2006 the Warsaw Court of Appeal allowed the requests of the Warsaw Appellate Prosecutor to prolong the applicant’s detention. It referred to the organised character of the crime with which the applicant had been charged and the need to ensure that the process of obtaining evidence would be completed successfully. Lastly, the court relied on the likelihood that a severe prison sentence would be imposed on the applicant and on the risk of collusion.
On 23 February and 19 June 2007 the Warsaw Court of Appeal again extended the applicant’s detention, essentially relying on the same grounds. The decisions were upheld by the same court on 20 April and 18 July 2007, respectively.
On 24 July 2007 the Warsaw District Court refused to release the applicant, having found no grounds to do so. The applicant’s appeal was dismissed on 14 August 2007.
By a ruling of 25 July 2007 the Warsaw District Court found that it was not competent to deal with the case and transferred it to the Warsaw Regional Court.
On 14 November 2007 the Warsaw Regional Court remitted the case back to the District Court as the competent court to hear the case.
The proceedings are pending.
The applicant alleged, invoking Article 5 § 3 of the Convention, that the length of his detention pending trial in the criminal proceedings was unreasonable.
The applicant complained about the length of the 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 letter dated 9 April 2009 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by 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:
“(...) 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 of the Convention.
In these circumstances, and having regard to the particular facts of the case, the Government declare that they offer to pay the applicant the amount of PLN 6,500.
The sum referred to above, which is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses, will be free of 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 on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to 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.
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.
The applicant expressed the view that the sum mentioned by the Government was too 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 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 trial within a reasonable time (see, for example, Bąk v. Poland, no. 7870/04, ECHR 2007 ... (extracts), Gołek v. Poland, no. 31330/02, 25 April 2006, Celejewski v. Poland, no. 17584/04, 4 August 2006 and Kauczor v. Poland, no. 45219/06, 3 February 2009).
Having regard to the nature of the admissions contained in the Government’s declaration and to the fact that the applicant was alleged to be an active leader of a criminal gang, as well as to 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 . Poland, no. 37274/06, § 43, 27 January 2009) – the Court considers that it is no longer justified to continue the examination 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 the application (Article 37 § 1 in fine).
Accordingly, it should be struck out of the list.
Since the proceedings concerned are still pending before the domestic courts, the Court’s strike-out decision is without prejudice to the use by the applicant of other remedies before the domestic courts to obtain redress for any delay in the proceedings which may occur after the date of this decision.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration 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 accordance with Article 37 § 1 (c) of the Convention.
Lawrence Early Nicolas Bratza