by Roman ZAJDEL
The European Court of Human Rights (Fourth Section), sitting on 3 November 2009 as a Chamber composed of
Nicolas Bratza, President,
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 4 August 2006,
Having regard to the declaration submitted by the respondent Government on 4 August 2009 requesting the Court to strike the application out of the list of cases,
Having deliberated, decides as follows:
The applicant, Mr Roman Zajdel, is a Polish national who was born in 1957 and lives in Katowice. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was held in detention from 24 June 2003 to 16 January 2006 in a fraud case. Some of the charges were remitted by the prosecutor to another investigation.
On 26 October 2005 the applicant was charged with money laundering committed with an accomplice. On 27 October 2005 the Katowice District Court remanded him in custody in view of the reasonable suspicion that he had committed the offences in question. It further considered that there was a risk that he would induce the co-accused to give false testimony or obstruct the proper conduct of the proceedings by destroying the documentation necessary for the investigation. The court also stressed the likelihood that a heavy penalty would be imposed on him.
On 3 November 2005 the applicant appealed unsuccessfully against the decision on his detention. He maintained that the decision of the District Court was an extension of the applicant’s detention rather than a decision to remand him in custody, as he had been kept in detention since 24 June 2003.
Subsequently, further decisions to extend his detention were taken by the Katowice Regional Court and the Katowice Court of Appeal. The relevant decisions were taken on the following dates: 30 June 2006 (extending his detention until 30 September 2006), 25 September 2006 (extension to 31 October 2006), 23 October 2006 (extension to 12 January 2007), 10 January 2007 (extension to 28 February 2007) and 21 February 2007 (extension to 31 March 2007). The courts repeated the grounds originally given for his detention.
In the course of the proceedings the applicant made numerous unsuccessful applications for his detention to be lifted or replaced by another preventive measure and he appealed, likewise unsuccessfully, against decisions to extend his detention. In his applications he stated that the lengthy pre-trial detention was in breach of Article 5 § 3 of the European Convention on Human Rights. He submitted that persons kept in detention pending trial were entitled to “special diligence” in the proceedings on the part of the authorities. In his opinion, such diligence has not been shown in his case.
On 19 March 2007 the applicant was served with a bill of indictment.
On 28 March 2007 the Sosnowiec District Court lodged a motion for the case to be transmitted to the Katowice Regional Court. On 11 April 2007 the Katowice Court of Appeal transmitted the case to the Regional Courtdismissed transmittee.
On 7 May, 29 August and 22 November 2007 the Katowice Regional Court extended the applicant’s detention. The applicant appealed unsuccessfully. On 10 January 2008 the Katowice Court of Appeal prolonged his detention until 1 March 2008.
On 14 February 2008 the Katowice Regional Court held that the applicant would be released if he put up bail in the amount of PLN 75,000. The bail was paid and the applicant was released on 18 February 2008.
It appears that the proceedings are pending before the Katowice Regional Court.
A. Length of the applicant’s 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 4 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:
“...the Government hereby wish to express – by way of the unilateral declaration – their acknowledgement of the incompatibility of the length of pre-trial detention in the applicant’s case with the standards resulting from Article 5 § 3 of the Convention.
In these circumstances, and having regard to the particular facts of the case and the Court’s proposal for a friendly settlement, the Government declare that they offer to pay to the applicant the amount of PLN 9,000 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. ...”
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 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 (see 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 in respect of 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 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. Remaining complaints
The applicant, invoking Article 3 of the Convention, complained in general terms about the conditions of his detention on remand. He further alleged that he had not been properly informed of the reasons for his detention in breach of Article 5 § 2 of the Convention. The applicant also complained under Article 6 § 1 of the Convention that the proceedings had been unfair.
The Court has examined these complaints as submitted by the applicant. However, having regard to all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the applicant has failed to substantiate his complaints. It follows that this part of the application must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
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.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President