by Robert WACHOWICZ
The European Court of Human Rights (Fourth Section), sitting on 1 December 2009 as a Chamber composed of:
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 12 February 2008,
Having regard to the declaration submitted by the respondent Government on 27 August 2009 requesting the Court to strike the application out of the list of cases,
Having deliberated, decides as follows:
The applicant, Mr Robert Wachowicz, is a Polish national who was born in 1974 and lives in Wołomin. 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 20 February 2004 the applicant was arrested on suspicion of having committed several offences against property, including car thefts, handling of stolen property and aiding the sale of stolen cars, while acting in an organised criminal group.
On the same date the Warsaw District Court (Sąd Rejonowy) ordered his detention on remand. It relied on the reasonable suspicion that the applicant had committed the offences in question. The court also considered that the applicant’s detention was justified by the severity of the penalty he faced and the risk that he would tamper with evidence. It underlined the complexity of the case, the large number of co accused and the need to carry out further inquiries.
On 8 April 2004 the Warsaw Regional Court (Sąd Okręgowy) upheld the first-instance decision. It relied, in particular, on the complexity of the case which concerned an organised criminal group.
The applicant’s pre-trial detention was subsequently extended by decisions of the Warsaw District Court delivered on 10 May, 28 July, 3 November and 28 December 2004. Subsequently, the applicant’s detention was prolonged by decisions of the Warsaw Court of Appeal (Sąd Apelacyjny) delivered on 15 February, 29 July, 30 December 2005, 25 July and 28 December 2006, 23 February and 19 June 2007.
Meanwhile, on 20 December 2006, the Warsaw Regional Prosecutor (Prokurator Okręgowy) filed a bill of indictment against the applicant and twenty two other persons.
On several occasions, the applicant unsuccessfully requested his release and appealed against the decisions extending his pre-trial detention.
On 25 January 2008 the Warsaw Court of Appeal extended the detention until 27 May 2008. The applicant appealed.
On 7 March 2008 the Warsaw Court of Appeal lifted the applicant’s detention, holding that the risk that the applicant would obstruct the investigation was no longer justified.
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 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.
The applicant complained under Article 5 § 3 of the Convention about the 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 27 August 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 – their acknowledgement of the fact that the length of the applicant’s pre-trial detention exceeded a “reasonable time” within the meaning of Article 5 § 3 of the Convention.
Consequently, the Government are prepared to pay the applicant PLN 4,000 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 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 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.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President