by Dariusz CYWIŃSKI
The European Court of Human Rights (Fourth Section), sitting on 13 October 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 21 February 2008,
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 Dariusz Cywiński, is a Polish national who was born in 1963 and lives in Bełchatów. 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 16 November 2005 the applicant, who is a lawyer, was arrested by the police.
On 17 November 2005 the Łódź District Court (Sąd Rejonowy) ordered that the applicant be detained on remand in view of a reasonable suspicion that he, acting as a public prosecutor, had accepted bribes. The court relied on the risk that the applicant would interfere with the course of the proceedings and on the probability that a severe sentence might be imposed on him.
The applicant’s appeal against this decision was dismissed on 14 December 2005 by the Łódź Regional Court.
Subsequently, the Łódź District Court extended the applicant’s detention on 7 February, 8 May and 4 August 2006. In almost identically reasoned decisions the court relied on the grounds given previously and on the need to continue the investigation against the applicant.
On 8 November 2006 and 24 January 2007 the Łódź Court of Appeal decided to extend the applicant’s detention pending investigation beyond the statutory time-limit of one year laid down in Article 263 § 3 of the Code of Criminal Procedure (Kodeks postępowania karnego). The court found that the applicant had previously interfered with the proper course of the proceedings and that there had been a risk that a severe penalty would be imposed on him.
On 15 March 2007 the applicant was indicted before the Bełchatów District Court.
On 23 March and 11 June 2007 the Bełchatów District Court extended the applicant’s pre-trial detention reiterating the grounds given previously. The decisions contain identical reasoning.
The applicant’s detention was further extended on 10 September and 7 November 2007 with reference to the risk that a severe sentence could be imposed on him.
Afterwards the applicant’s detention was extended by the Katowice Court of Appeal on 14 November 2007. The court criticised the trial court’s motion for extension of the applicant’s detention considering it too laconic. Moreover, the court established that the trial had recently moved forward, however, only because on 7 November 2007 13 out of 14 co-accused had pleaded guilty and had accepted to be sentenced. Thus only the applicant’s case remained to be examined by the trial court.
The applicant appealed against all decisions extended his pre-trial detention; however, his appeals were dismissed.
On 12 March 2008 the Katowice Court of Appeal decided to further extend the applicant’s detention but also decided that the applicant could be released on bail in the amount of 50,000 Polish zlotys (PLN) (approximately 14,200 euros (EUR)).
It appears that the applicant paid the bail and was released on 17 March 2008.
B. Relevant domestic law
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 Articles 5 § 3 and 6 § 1 of the Convention about the unreasonable length of his pre-trial detention and of the criminal proceedings.
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:
“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 the unilateral declaration – its acknowledgement of the fact that the applicant’s pre-trial 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 particular regard to violation of Article 5 § 3 of the Convention, the Government declare that they offer to pay 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....
5. 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....
14. As transpires from the Government’s unilateral declaration, the Government accepted paying the applicant as just satisfaction in respect of the violation of Article 5 § 3 of the Convention the amount of PLN 9,000 in the event of the Court’s striking the case out of its list. ...”
In a letter of 1 September 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 Article 5 § 3 of the Convention as regards the unreasonable 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 about the length of the proceedings under Article 6 § 1 of the Convention.
The Government contested that argument and indicated that the applicant had failed to exhaust domestic remedies.
Pursuant to Article 35 § 1 of the Convention:
“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law...”
The Court observes that after the entry into force, on 17 September 2004, of the 2004 Act, it was open to the applicant to lodge with the relevant domestic court a complaint that the length of the proceedings was unreasonable. The applicant however failed to lodge such complaint about the length of the proceedings.
The Court has already examined that remedy for the purposes of Article 35 § 1 of the Convention and found it to be effective in respect of complaints of excessive length of judicial proceedings in Poland. In particular it has considered that that remedy is capable both of preventing the alleged violation of the right to a hearing within a reasonable time or its continuation, and of providing adequate redress for any violation that has already occurred (see Charzyński v. Poland (dec.), no. 15212/03, §§ 36 42, ECHR 2005-V).
It follows that this part of the application 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