by Henryk SZYMCZYK
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 17 December 2007,
Having regard to the declaration submitted by the respondent Government on 29 May 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 Henryk Szymczyk, is a Polish national who was born in 1948 and lives in Katowice. He was represented before the Court by Mr Ł. Szatko, a lawyer practising in Katowice. 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.
1. Criminal proceedings against the applicant and his detention on remand
On 9 September 2003 the applicant was charged with bribery.
On 10 September he was arrested and on 11 September 2003 the Katowice District Court (Sąd Rejonowy) ordered his detention on remand.
The Katowice Regional Court (Sąd Okręgowy) dismissed the applicant’s interlocutory appeal against the detention order on 15 October 2003.
The applicant’s pre-trial detention was subsequently extended by decisions of the Katowice District Court and the Katowice Court of Appeal (Sąd Apelacyjny).
The courts justified the applicant’s detention by the existence of strong evidence against him and by the severity of the anticipated sentence, which gave rise to a fear that the applicant, if released, would obstruct the proper course of the proceedings. The courts also stressed that the case was of a complex nature and that it possibly involved a largerbigger number of offenders. They further noted that it was necessary to carry outperform further inquiries ng activitie.
On several occasions the applicant unsuccessfully requested his release and appealed against the decisions extending his detention.
On 27 August 2007 the Katowice Court of Appeal extended the applicant’s pre-trial detention. At the same time, stressing that the applicant had spent nearly four years in pre-trial detention, it decided that the applicant could be released under police supervision, a prohibition on his leaving the country and on payment of bail in the amount of 100,000 Polish zlotys (PLN) (approximately 26,000 euros (EUR)). On 24 October 2007 the court fixed the amount of bail for the applicant’s release at PLN 200,000 (approximately EUR 55,000). It further held that releasing the applicant from detention was justified by the advanced stage of the proceedings, as the prosecution had already collected the necessary evidence against the applicant and terminated the investigation.
The applicant did not pay the bail.
On 6 December 2007 a bill of indictment against the applicant and nineteen other suspects was filed with the Katowice Regional Court.
On 17 December 2007 the Katowice Regional Court requested the Supreme Court (Sąd Najwyższy) to refer the case to another court. On 7 February 2008 the Supreme Court rejected the request.
On 27 August 2008 the Katowice Court of Appeal refused to further extend the applicant’s detention. The applicant was released on 29 August 2008.
It appears that the proceedings are still pending.
2. Proceedings under the 2004 Act
On 18 January 2008 the applicant lodged a complaint about a breach of the right to have his case heard within a reasonable time. He relied on the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki).
On 28 February 2008 the Katowice Court of Appeal dismissed the applicant’s complaint. The court noted that the delays in the proceedings resulted from changes in criminal procedural law and that there were no delays for which the courts could be held responsible.
B. Relevant domestic law and practice
1. Preventive measures, including pre-trial detention
The relevant domestic law and practice concerning the imposition of detention on remandduring judicial proceedingson remand (aresztowanie tymczasowe), the grounds for its extensionprolongation, release from detention and rules governing other,, so-called “preventive measures” (środki zapobiegawcze) are presented 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.
2. Remedies for the excessive length of proceedings
The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are described in the Court’s decisions in the cases of Charzyński v. Poland (dec.), no. 15212/03, §§ 12-23, ECHR 2005 V and Ratajczyk v. Poland (dec.), no. 11215/02, ECHR 2005-VIII, and its judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
The applicant complained in substance under Article 5 § 3 of the Convention about the unreasonable length of his pre-trial detention.
He further complained about the unreasonable length of the proceedings.
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.”
He further 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:
Article 6 § 1
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
By a letter dated 29 May 2009 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues 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 the unilateral declaration – its acknowledgement of the fact that the applicant’s pre-trial detention was not compatible with a “reasonable time” requirement with [in] the meaning of Article 5 § 3 of the Convention and its acknowledgement of the unreasonable duration of the domestic proceedings in which the applicants were [the applicant was] involved.
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 21,000, 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 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 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. ...”
In a letter of 23 June 2009 the applicant’s lawyer expressed the view that the declaration was a proof of the Government’s acknowledgement of a violation of the applicant’s Convention rights and that the sum mentioned in the 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 or part thereof 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 under Article 5 § 3 of the Convention about the length of pre-trial detention (see Kauczor v. Poland, no. 45219/06, 3 February 2009 with further references). It has also addressed, in numerous case, 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; and Wende and Kukówka v. Poland, no. 56026/00, 10 May 2007).
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 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 use by the applicant of other remedies 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 under Articles 5 § 3 and 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 accordance with Article 37 § 1 (c) of the Convention.
Lawrence Early Nicolas Bratza