by Zbigniew TYMOSZUK
The European Court of Human Rights (Fourth Section), sitting on 26 May 2009 as a Chamber composed of:
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 10 October 2007,
Having regard to the declaration submitted by the respondent Government on 25 March 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 Tymoszuk, is a Polish national who was born in 1963 and lives in Tychy. 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.
The applicant was arrested and charged with several counts of bank forgery, committed while acting in an organised criminal gang. By a decision of the Katowice District Court of 6 November 2003 he was detained for a period of seven days. Subsequently, the applicant was released but the court placed him under police supervision.
On 27 November 2003 the Katowice appellate prosecutor issued a wanted notice in respect of the applicant as he had left his place of permanent residence. On 21 October 2004 the applicant was apprehended in the Czech Republic and handed over to the Polish authorities on 20 January 2005. By a decision of the Katowice District Court of 24 January 2005 he was placed in pre-trial detention with effect from 20 January 2005.
Subsequently, the applicant’s pre-trial detention was extended on several occasions by the Katowice Regional Court (decisions of 13 March, 19 April, 24 July and 30 October 2006) and by the Katowice Court of Appeal (decisions of 17 January and 25 October 2007 and 23 January 2008).
The courts justified their decisions extending the applicant’s pre-trial detention and their refusal to release him by reference to the complexity of the case, 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 believe 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 (complaints of 23 March and 28 July 2006, 26 January and 12 November 2007 and 30 January 2008, and decisions of the Katowice Court of Appeal of 9 August 2006, 14 February and 1 August 2007 and 31 January 2008).
On 5 April 2008 the applicant was released on bail. The proceedings are currently pending before the first-instance court.
The applicant complained under Article 5 § 3 of the Convention of the excessive length of his 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 a letter dated 25 March 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 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 1,500.
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 dated 27 April 2009 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, § 3, 27 January 2009) – 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