European Court of Human Rights

FOURTH SECTION

DECISION

Application no. 25044/07
by Damian KOTLARSKI
against Poland

The European Court of Human Rights (Fourth Section), sitting on 7 April 2009 as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
David Thór Björgvinsson,
Ledi Bianku,
Mihai Poalelungi, judges
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 22 May 2007,

Having regard to the declaration submitted by the respondent Government on 25 November 2008 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 FACTS

The applicant, Mr Damian Kotlarski, is a Polish national who was born in 1973 and lives in Pruszków. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

The facts of the case, as submitted by the parties, may be summarised as follows.

1. The first set of criminal proceedings against the applicant

The applicant was arrested on 7 July 2001 on charges of drug trafficking, robbery, incitement to arson and membership of an organised criminal gang. By a decision of the Warsaw District Court of 11 July 2001 he was detained on remand.

Subsequently, the applicant’s pre-trial detention was prolonged on several occasions by the Warsaw Regional Court (decisions of 1 October 2001, 27 December 2001, 3 April 2002, 24 February 2003, 20 June 2005, 26 September 2005, 30 January 2006, 24 April 2006, 18 August 2006 and 27 November 2006) and by the Warsaw Court of Appeal (decisions of 2 July 2002, 22 October 2002, 4 July 2003, 30 December 2003, 26 March 2004, 6July 2004, 14 September 2004 and 23November 2004).

The courts justified their decisions prolonging the applicant’s detention on remand and their refusals to release him by the complexity of the case, the significant number of accused, the existence of a reasonable suspicion that the applicant had committed the offences concerned and the severity of the anticipated sentence. These considerations led the courts to assume that the applicant, if released, might obstruct the proper course of the proceedings.

The applicant unsuccessfully applied to be released from detention and to have that preventive measure changed to a more lenient one (decisions of the Warsaw Court of Appeal of 1 February 2002 and 9 August 2002).

On 4 February 2005 the Warsaw Regional Court sentenced the applicant to 10 years’ imprisonment. On 22 September 2006 the Warsaw Court of Appeal quashed the first-instance judgment and remitted the case to the lower court. The proceedings are currently pending before the first instance court.

2. The second set of criminal proceedings against the applicant

On 17 November 2004 the Warsaw Appellate Prosecutor brought another bill of indictment against the applicant on charges of drug trafficking, several counts of robbery, arms trafficking and membership of an organised criminal gang and requested that he be detained. On 18 November 2004 the Warsaw District Court issued an arrest warrant against the applicant, who had already been detained in the course of the other set of proceedings.

Subsequently, the applicant’s pre-trial detention was prolonged on several occasions by the Warsaw Regional Court (decisions of 7 February 2005, 27 June 2005, 26 October 2005 and 20 March 2006) and by the Warsaw Court of Appeal (decisions of 14 November 2006, 23 February 2007, 27 July 2007 and 11 December 2007).

The courts justified their decisions prolonging the applicant’s detention on remand and their refusals to release him by the complexity of the case, the significant number of accused, the existence of a reasonable suspicion that the applicant had committed the offences concerned and the severity of the anticipated sentence. These considerations led the courts to assume that the applicant, if released, might obstruct the proper course of the proceedings.

The applicant unsuccessfully applied to be released from detention and to have that preventive measure changed to a more lenient one (decisions of the Warsaw Court of Appeal of 29 July 2005, 28 December 2006, 23 March 2007 and 21 August 2007).

On 4 April 2008 the applicant was released on bail and the court prohibited him from leaving the country and placed him under police supervision. The criminal proceedings are currently pending before the first instance court.

COMPLAINTS

1. The applicant complained under Article 5 § 3 of the Convention of the excessive length of his pre-trial detention.

2. The applicant complained under Article 6 § 2 that his continued detention had constituted in practice deprivation of liberty and had infringed his right to presumption of innocence.

THE LAW

A.  Length of pre-trial detention

The applicant complained that the length of his pre-trial detention had been excessive. He relied on Article 5 § 3 of the Convention, which, in so far as relevant, reads as follows:

“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 7 November 2008 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 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 of the Convention.

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 EUR 2,000.

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 15 December 2008 the applicant expressed the view that the sum mentioned in the Government’s 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 of 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 or part thereof 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 (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).

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(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.  Complaint under Article 6 § 2 of the Convention

The applicant complained under Article 6 § 2 that his continued detention constituted in practice deprivation of liberty and infringed his right to presumption of innocence.

The Court considers that the material in its possession does not disclose any appearance of a violation of this provision of the Convention.

Accordingly, this part of the application is manifestly ill founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

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.

Lawrence Early Nicolas Bratza
Registrar President