by Paweł SZYJKA
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 7 March 2008,
Having regard to the declaration submitted by the respondent Government on 29 June 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 Paweł Szyjka, is a Polish national who was born in 1978 and lives in Będzin. 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 22 November 2005 the applicant was arrested on suspicion of having committed a series of criminal offences against property while acting in an organised criminal group.
On the same day the Katowice District Court (Sąd Rejonowy) ordered his detention on remand. The court justified the applicant’s pre trial detention with reference to the strong evidence against him and the likelihood that a severe penalty would be imposed on him. The authorities emphasised that for the above reasons the applicable law allowed for a presumption that there was a risk that the applicant would obstruct the proper course of proceedings.
The applicant’s pre-trial detention was subsequently extended by decisions of the Katowice Regional Court (Sąd okręgowy) of 1 February, 4 May and 2 August 2006. The court repeated the reasons which had initially been given. In addition, it noted that the case was of a complex nature and involved a largebigger number of suspects acting in an organised criminal group.
Meanwhile, the applicant had confessed to the offences with which he had been charged, had pleaded guilty and asked the trial court to convict him under Article 387 of the Code of Criminal Procedure (‘the Code’) (the so called “voluntary surrender to sentence” - dobrowolne poddanie się karze).
On 24 August 2006 a bill of indictment against the applicant and eleven other suspects was lodged with the Katowice Regional Court.
The applicant’s detention was next extended by the Katowice Regional Court on 30 August 2006.
On 27 November 2006 the Katowice Regional Court found itself not competent to deal with the case and referred it to the Katowice District Court.
On 18 December 2006 the preventive measure was further extended.
On 14 March and 15 May 2007 the applicant’s lawyer asked the court to accelerate the proceedings and to list the first hearing.
On 1 April 2007 the Katowice District Court was divided into two new courts: the Katowice-Wschód District Court and the Katowice-Zachód District Court. The applicant’s case was allocated to the Katowice-Zachód District Court which, on 25 May 2007, found itself not competent to deal with the case and referred it to the Katowice-Wschód District Court.
On 31 May 2007 the applicant’s lawyer requested the court to fix the date of the first hearing.
On 1 June 2007 the Katowice-Zachód District Court prolonged the applicant’s detention.
On 30 July 2007 the Katowice-Wschód District Court found itself not competent to deal with the case and referred it to the Katowice Regional Court.
The applicant’s detention was subsequently prolonged by decisions of 4 September and 7 November 2007. In the latter decision the Katowice Court of Appeal (Sąd Apelacyjny) stressed the necessity to accelerate the proceedings and to schedule the first hearing.
On 19 November 2007 the Katowice Regional Court found that it had no competence to deal with the case and referred it back to the Katowice Wschód District Court.
The applicant’s detention was further extended by the Katowice Court of Appeal on 20 February 2008.
The first hearing took place on 17 April 2008. On that date the applicant, after having again pleaded guilty, was released.
On 2 July 2008 the Katowice-Wschód District Court convicted the applicant as charged and sentenced him to two years and two months’ imprisonment.
B. Relevant domestic law and practice
The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its extension, 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.
The applicant complained under Article 5 § 3 of the Convention about the unreasonable length of his 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 letter dated 29 June 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 the unilateral declaration – its acknowledgement of the violation of reasonableness of the length of the applicant’s pre-trial detention within 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 6,000 (six 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 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. ...”
The applicant did not express his view on the Government’s declaration.
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).
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.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration 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 accordance with Article 37 § 1 (c) of the Convention.
Lawrence Early Nicolas Bratza