European Court of Human Rights

FOURTH SECTION

DECISION

Application no. 20715/09
by Aleksander WINIARSKI
against Poland

The European Court of Human Rights (Fourth Section), sitting on 2 November 2010 as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
David Thór Björgvinsson,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić,
Vincent Anthony de Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having regard to the above application lodged on 20 March 2009,

Having regard to the declaration submitted by the respondent Government on 23 July 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 Aleksander Winiarski, is a Polish national who was born in 1980 and lives in Zabrze. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

The circumstances of the case

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

On 22 August 2005 the applicant was arrested on suspicion of drug trafficking. On 23 August 2005 the Katowice District Court remanded him in custody in view of the reasonable suspicion that he had committed drug-trafficking offences.

On 14 November 2005 the Katowice Regional Court prolonged the applicant’s detention until 15 January 2006. It noted that witnesses’ statements and the results of searches pointed to a strong likelihood that the applicant had committed the offences in question. In addition, there was a risk that the applicant might go into hiding or tamper with evidence, having regard to the fact that he was a member of a criminal gang and not all persons involved in the drug-trafficking had yet been identified.

On 3 January 2006 the Regional Court extended the applicant’s detention until 31 March 2006, relying on the similar grounds. On 27 March 2006 the applicant’s detention was prolonged until 30 June 2006. The Regional Court invoked the significant social danger of the offences with which the applicant had been charged.

On 19 June 2006 the Regional Court prolonged the applicant’s detention until 23 August 2006.

On 17 August 2006 the Katowice Court of Appeal extended the applicant’s detention until 23 November 2006. It noted that the severity of the anticipated penalty might induce him to obstruct the proceedings. Furthermore, the risk of obstructing the investigation flowed from the fact that the applicant had been charged with commission of offences as a member of a criminal gang. The Court of Appeal found that the investigation was particularly complex within the meaning of Article 263 § 4 of the Code of Criminal Procedure. It required, inter alia, seeking legal assistance from the Dutch prosecuting authorities.

On 22 November 2006 the Court of Appeal extended the applicant’s detention until 30 December 2006. In addition to the grounds previously relied on, it considered that the applicant’s detention was justified under Article 258 § 2 of the Code of Criminal Procedure since that provision established a presumption to the effect that the likelihood of a severe penalty being imposed on the applicant might induce him to obstruct the proceedings. The court further underlined the particular complexity of the case which concerned 43 suspects of 21 were detained on remand.

On an unspecified date in December 2006 the prosecution filed a bill of indictment with the Katowice Regional Court. The applicant was charged with a number of drug-trafficking offences and having acted in an organised criminal group.

On 28 December 2006 the Katowice Regional Court prolonged the applicant’s detention until 30 June 2007. Relying on the grounds which had been invoked previously, it held that detention on remand was the only measure which could secure the proper conduct of the proceedings given, in particular, the risk of tampering with evidence as the defendants had been members of the same criminal gang.

On 11 June 2007 the Regional Court extended the applicant’s detention until 22 August 2007. In 2007 the trial court held twelve hearings.

On 8 August 2007 the Katowice Court of Appeal prolonged the applicant’s detention until 31 December 2007. It relied on the same grounds as invoked in the previous decisions. The same court prolonged the applicant’s detention on 19 December 2007 (until 30 April 2008), 23 April 2008 (until 30 June 2008) and on 25 June 2008 (until 31 October 2008).

In its decision of 23 April 2008 the Court of Appeal urged the trial court to conduct the proceedings as swiftly as possible having regard to the length of the applicant’s detention.

The applicant appealed unsuccessfully against some decisions prolonging his detention.

On 22 October 2008 the Katowice Regional Court gave judgment. The applicant was found guilty and sentenced to four years and four months’ imprisonment and a fine.

On 17 December 2009 the Katowice Court of Appeal acquitted the applicant of the charge of having acted in an organised criminal group and reduced his sentence to three years and eights months’ imprisonment.

COMPLAINT

The applicant complained under Articles 3 and 6 §§ 1 and 3 (c) of the Convention about the excessive length of his detention on remand.

THE LAW

The applicant complained about the excessive length of his detention on remand. This complaint falls to be examined under 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 23 July 2010 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 violation of reasonableness of the length of the applicant’s pre-trial detention 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 4,000 (four thousand Polish zlotys), 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 the 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 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. ...”

In a letter of 23 August 2010 the applicant expressed the view that the sum mentioned in the Government’s declaration was unacceptably low. He requested the Court to continue the examination of the application.

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) 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 of a violation of Article 5 § 3 of the Convention as regards the unreasonable 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).

In view of the above, it is appropriate to strike the case out of the list.

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 accordance with Article 37 § 1 (c) of the Convention.

Fatoş Aracı Nicolas Bratza
Deputy Registrar President