by Leszek GLINOWIECKI
The European Court of Human Rights (Fourth Section), sitting on 2 February 2010 as a Chamber composed of:
Nicolas Bratza, President,
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 18 July 2007,
Having regard to the declaration submitted by the respondent Government on 6 October 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 Leszek Glinowiecki, is a Polish national who was born in 1977 and lives in Elbląg. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry for Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 8 November 2004 the applicant was arrested on suspicion of fraud, theft, drug dealing and assault.
On 10 November 2004 the Olsztyn District Court remanded him in custody on charges of fraud, theft, drug dealing, assault and involvement in an organised criminal group. The court held that there was a reasonable suspicion that the applicant had committed the offences with which he had been charged. In addition, the detention was necessary to ensure the proper course of the proceedings. The court also referred to the likelihood that a severe sentence could be imposed on the applicant.
In reply to the applicant's motion of 20 December 2004, the Olsztyn District Prosecutor refused to grant permission to A.G, the applicant's common-law wife, and J.G, his mother, to visit the applicant in prison.
On 29 December 2004 the Olsztyn Regional Court dismissed an appeal by the applicant against the decision to detain him on remand. It repeated the grounds previously given for his detention.
The Bialystok Appeal Prosecutor refused permission to A.G to visit the applicant on 1 and 14 February 2005, 14 April 2005 and 2 May 2005.
On 31 January 2005 the Elbląg Regional Court extended the applicant's detention. The court relied on the reasonable suspicion against the applicant and on the risk that he would attempt to influence witnesses or otherwise interfere with the proper course of the proceedings. An appeal against this decision was dismissed by the Gdańsk Court of Appeal on 22 February 2005.
The applicant's detention was further extended on 30 May 2005 and 19 August 2005. In addition to the grounds given previously, the court relied on the probability that a severe sentence would be imposed on the applicant. The applicant's appeals against these decisions were dismissed by the Gdansk Court of Appeal on 8 June and 6 September 2005 respectively.
In May 2005 the applicant was visited in prison by A.G.
On 27 October 2005 and 25 January 2006 the Białystok Court of Appeal again extended the applicant's detention, finding that the original reasons for it were still valid. The applicant's appeals were unsuccessful.
On 29 April 2006 and 18 July 2006 the Elbląg Regional Court again extended the applicant's detention. In addition to the reasons given previously the court referred to the complexity of the investigation.
On 11 October 2006 and 3 April 2007 the Gdańsk Court of Appeal extended the applicant's detention until 3 April 2007 and 5 October 2007 respectively. On 8 May 2007 the Gdansk Court of Appeal dismissed the applicant's appeal.
On 25 September 2007 the Court of Appeal again extended the applicant's detention. The court stressed that the Regional Court had already heard evidence from 75 witnesses. In addition, 71 hearings had been held. On 16 October 2007 the Court of Appeal dismissed the applicant's appeal against this decision.
The applicant's detention was further extended on 18 December 2007. The court referred to the reasons previously given. It further noted that 102 hearings had been held and evidence from 141 witnesses had been obtained. This decision was upheld on appeal on 16 January 2008.
The applicant's detention was subsequently extended on 9 April 2008 and 25 June 2008. His appeals against these decisions were unsuccessful. The applicant was released from detention on 18 December 2008.
B. Relevant domestic law and practice
The relevant domestic law and practice concerning the imposition of pre trial detention (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “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.
A. Length of detention
“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 9 October 2009 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 this part of 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 the “reasonable time” requirement with the meaning of Article 5 § 3.
In these circumstances and having particular regard to [the] violation of Article 5 § 3 of the Convention, the Government declare that they offer to pay to the applicant the amount of PLN 4,500 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 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 30 October 2009 the applicant disagreed with the Government's proposal.
The Court reiterates 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 reiterates that in certain circumstances, it may strike out an application under Article 37 § 1(c) or part thereof 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).
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).
Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic (see Kauczor v. Poland, no. 45219/06, 3 February 2009 with further references), 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
The applicant further complained that between November 2004 and May 2005 he had not been allowed to maintain personal contact with his family, in particular A.G, his common-law wife.
The Government submitted that the Bialystok Appeal Prosecutor was obliged to secure the proper conduct of the proceedings against the applicant and other co-accused. Therefore the decisions taken in respect of A.G and the applicant's mother were justified by the interests of justice. They further stressed that as soon as the prosecutor considered that A.G. and the applicant's mother would not be heard as witnesses he granted permission for them to visit the applicant. Lastly, they maintained that the limitations applied served a legitimate aim and corresponded to a pressing social need. The nature of the proceedings and their complexity, as well as the number of accused, justified the length of the initial phase of the preparatory proceedings when the prosecuting authorities had to secure evidence.
The applicant objected to the Government's submissions.
The Court firstly reiterates that detention, like any other measure depriving a person of his liberty, entails inherent limitations on his private and family life. However, it is an essential part of a detainee's right to respect for family life that the authorities enable him or, if need be, assist him in maintaining, contact with his close family (see, mutatis mutandis, Messina v. Italy (no. 2) no. 25498/94, § 61, 28 September 2000).
Such restrictions as limitations on the number of family visits, supervision of those visits and, if so justified by the nature of the offence, subjection of a detainee to a special prison regime or special visit arrangements constitute an interference with his rights under Article 8 but are not, by themselves, in breach of that provision (ibid. §§ 62 63; see also Kucera v. Slovakia, no. 48666/99, §§ 127-128, 17 July 2007).
In the present case the Court observes that the applicant's common-law wife was refused permission to visit him on 1 and 14 February 2005, 14 April 2005 and 2 May 2005, but after 25 May 2005 no further restrictions on her visits to the applicant were applied.
Having regard to the nature and the seriousness of the offences committed by the applicant and having regard to the wide margin of appreciation afforded to the national authorities, the Court finds that a fair balance was struck in this case in that the restriction on the applicant's family life was proportionate to the aims pursued and therefore necessary in a democratic society.
It follows that this part of the application must be rejected as being manifestly ill-founded 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.
Lawrence Early Nicolas Bratza