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Cite as: [2010] ECHR 1479
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FOURTH SECTION
DECISION
Application no.
8305/07
by Jurand NAGÓRSKI
against Poland
The European Court of Human Rights (Fourth Section), sitting on 14 September 2010 as a Committee composed of:
Ljiljana Mijović,
President,
Ledi Bianku,
Nebojša Vučinić,
judges,
and Fatoş Aracı, Deputy Section
Registrar,
Having regard to the above application lodged on 19 December 2006,
Having regard to the declaration submitted by the respondent Government on 2 June 2010 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 Jurand Nagórski, is a Polish national who was born in 1969 and lives in Gdynia. 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 19 July 2000 the applicant was arrested by the police on suspicion of armed robbery. On 20 July 2000 the Gdańsk District Court ordered that he be detained on remand in view of the reasonable suspicion that he had committed the offence in question, the severity of the anticipated penalty and the fear that he might tamper with evidence.
On 12 October 2000 the Gdańsk Regional Court extended the applicant's detention. It reiterated the grounds originally given for his detention.
In the course of the investigation, the applicant's detention was several times prolonged by the Gdańsk Regional Court. The court reiterated the grounds originally given for his detention and stressed that keeping him in custody was necessary to secure the process of obtaining evidence. The relevant decisions were given on 5 December 2000 and 31 May 2001, The applicant's appeals against those decisions – in which he contested the reasonableness of the charge against him – were rejected by the Gdansk Court of Appeal.
On 15 May 2001 the Gdańsk Regional Prosecutor indicted the applicant on numerous counts of armed robbery before the Gdańsk Regional Court. The bill of indictment listed 120 charges brought against 19 accused, who were all remanded in custody.
Between 18 June 2001 and 1 December 2004 the applicant was serving two prison sentences imposed in another set of criminal proceedings against him.
In its decision of 25 June 2003 extending the applicant's detention, the Gdańsk Court of Appeal observed that the trial could not have been terminated due to obstructive behaviour in that they had filed the defendants' numerous requests challenging the trial court. It further considered that although the applicant and other defendants were free to make use of their procedural rights, the abuse of those rights had undoubtedly led to delays in the trial. It also noted that the trial court had taken various procedural steps in order to accelerate the proceedings.
In the course of the proceedings the applicant made numerous, unsuccessful applications for release, including on the ground that his detention entailed harsh consequences for his family. He appealed, likewise unsuccessfully, against refusals to release him and decisions extending his detention.
On 21 March 2005 the Gdańsk Regional Court made a severance order with a view to expediting the proceedings, and referred the applicant's and three other defendants' case to the Słupsk Regional Court.
On 18 November 2005 the Słupsk Regional Court made a further severance order and referred the case back to the Gdańsk Regional Court. The trial before the Gdańsk Regional Court began on 23 June 2006.
During the proceedings, the Gdańsk Court of Appeal extended the applicant's detention several times. The relevant decisions were given in particular on 11 January and 25 October 2006. In all those decisions the Court of Appeal considered that the original grounds given for the applicant's detention were still valid. It stressed that keeping him in custody was necessary.
Since 31 October 2007 the applicant has been serving a prison sentence imposed in another set of criminal proceedings against him.
The proceedings are still pending before the first-instance court.
B. Relevant domestic law and practice
1. Pre-trial detention
The relevant domestic law and practice regarding the imposition of detention on remand (tymczasowe aresztowanie), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) at the material time are stated 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.
2. Length of proceedings
The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court's decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII; and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
COMPLAINTS
THE LAW
A. Pre-trial detention.
The applicant complained about the excessive length of his detention on remand. He relied on Article 5 § 3 of the Convention which, in so far as relevant, provides 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 2 June 2010 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 fact that the applicant's pre-trial detention was not compatible with a “reasonable time” requirement within 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 PLN 12,000 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 of 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 the rate equal to the marginal lending rate of the European Central Ban during the default period plus three percentage points
...”
In a letter of 5 July 2010 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 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 c 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
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...”
The Court reiterates that pursuant to Article 35 § 1 of the Convention it may only deal with the matter after all domestic remedies have been exhausted. In this connection, the Court observes that the applicant failed to make proper use of the remedy under the 2004 Act.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
However, the Court considers that this complaint lacks substantiation. It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
The Court has examined the remainder of 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 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 Ljiljana Mijović
Deputy
Registrar President
