by Zbigniew RUTECKI
The European Court of Human Rights (Fourth Section), sitting on 3 November 2009 as a Chamber composed of:
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 19 April 2007,
Having regard to the declaration submitted by the respondent Government on 19 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 Zbigniew Rutecki, is a Polish national who was born in 1963 and lives in Elblag. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry for Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 30 November 2004 the applicant was arrested on suspicion of involvement in an organised criminal group.
On 1 December 2004 the Bialystok Olsztyn District Court remanded him in custody on charges of fraud, theft, drug dealing, assault and involvement in an organised criminal group. The court held that there was a reasonable suspicion that the applicant had committed the offences with which he had been charged. In addition, the detention was necessary to ensure the proper course of the proceedings.
On 1 February 2005 the prosecutor rejected the applicant’s request to be allowed a visit from his wife in prison. That decision did not contain any reasons.
On 16 February 2005 the Elblag Regional Court extended the applicant’s detention. The court relied on the reasonable suspicion against the applicant and on the risk that he would attempt to influence witnesses or otherwise interfere with the proper course of the proceedings.
The applicant’s detention was further extended on 30 May 2005 and 19 August 2005. In addition to the grounds given previously, the court relied on the probability that a severe sentence would be imposed on the applicant. It would appear that the applicant’s appeals against these decisions were unsuccessful.
On 27 October 2005 and 25 January 2006 the Białystok Court of Appeal again extended the applicant’s detention, finding that the original reasons for it were still valid.
On 8 December 2005 and 20 March 2006 the Appeal Prosecutor again rejected the applicant’s request to be allowed a visit from his wife and mother. These decisions did not contain any reasons.
20 April 2006, 18 July 2006 the Elblag Regional Court again extended the applicant’s detention. In addition to the reasons given previously, the court referred to the complexity of the investigation.
On 21 November 2006 and 3 April 2007 the Gdańsk Court of Appeal extended the applicant’s detention until 5 April 2007 and 5 October 2007 respectively. The court referred to the complexity of the case and the significant number of accused.
On 8 May 2007 the Gdansk Court of Appeal dismissed the applicant’s appeal. The court held that the grounds for keeping the applicant in detention were still valid.
On 25 September 2007 the Court of Appeal again extended the applicant’s detention. The court stressed that the Regional Court had already heard evidence from 75 witnesses. In addition, 71 hearings had been held. Furthermore, there was a need to obtain evidence from 62 witnesses some of whom lived in Norway and Germany. On 16 October 2007 the Court of Appeal dismissed the applicant’s appeal against this decision.
On 23 October 2007 the applicant and his wife obtained a divorce.
The applicant’s detention was further extended on 18 December 2007. The court referred to the reasons previously given. It further noted that 102 hearings had been held and evidence from 141 witnesses had been obtained. This decision was upheld on appeal on 16 January 2008.
The applicant’s detention was subsequently extended on 18 March 2008. On 15 April 2008 the Court of Appeal dismissed the applicant’s appeal against this decision.
On 24 June 2008 the Gdansk Court of Appeal again extended the applicant’s detention. The applicant filed an appeal against this decision on 7 July 1998.
B. Relevant domestic law and practice
The relevant domestic law and practice concerning the imposition of pre trial detention (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are set out 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.
A. Length of detention
“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 19 August 2009 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by raised by this part of the application. They further requested the Court to strike out this part of 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.
In these circumstances and having particular regard to violation of Article 5 § 3 of the Convention, the Government declare that they offer to pay to the applicant the amount of PLN 4,500 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.
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.”
In a letter of 17 September 2009 the applicant disagreed with the Government’s proposal.
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) or part thereof 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).
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 involving alleged membership of an organised criminal gang (see Sandowycz v. Poland, no. 37274/06, § 43, 27 January 2009) – the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1).
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 further complained that for several months he had not been allowed to maintain personal contact with his family.
The Government submitted that during the applicant’s detention he had had regular contact with his family. Between 8 August 2005 and 23 December 2008 the applicant had been contacted by member of his family on 147 occasions (telephone calls and visits in prison), that is four times a week on average.
The applicant objected to the Government’s submissions.
The Court firstly reiterates that detention, likewise any other measure depriving a person of his liberty, entails inherent limitations on his private and family life. However, it is an essential part of a detainee’s right to
respect for family life that the authorities enable him or, if need be, assist him in maintaining contact with his close family (see, mutatis mutandis, Messina v. Italy (no. 2) no. 25498/94, § 61, 28 September 2000).
Such restrictions as limitations on the number of family visits, supervision of those visits and, if so justified by the nature of the offence, subjection of a detainee to a special prison regime or special visit arrangements constitute an interference with his rights under Article 8 but are not, by themselves, in breach of that provision (ibid. §§ 62 63; see also Kucera v. Slovakia, no. 48666/99, §§ 127-128, 17 July 2007).
In the present case the Court observes that in general the applicant had regular contact with his family. He had had a chance to contact them by telephone and he also received visits from members of his family on many occasions.
Having regard to the nature and the seriousness of the offences committed by the applicant and having regard to the wide margin of appreciation afforded to the national authorities, the Court finds that a fair balance was struck in this case in that the restriction on the applicant’s family life was proportionate to the aims pursued and therefore necessary in a democratic society.
Lastly, the applicant complained about the conditions of his transport and the fact that he could not pay the mortgage on his property.
The Court has examined the 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 complaint.
It follows that this part of the application must be rejected as being manifestly ill-founded 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