by Łukasz ZAPAŁ
The European Court of Human Rights (Fourth Section), sitting on 13 September 2011 as a Committee composed of:
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 24 November 2008,
Having regard to the declaration submitted by the respondent Government on 13 May 2011 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 Łukasz Zapał, is a Polish national who was born in 1979 and lives in Dębica. The Polish Government (“the Government”) were represented by their Agent, Mr Jakub Wołąsiewicz of the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 14 November 2006 the applicant was arrested.
On 17 November 2006 the Kraków District Court (Sąd Rejonowy) remanded him in custody, on suspicion of leading an organised criminal group engaged in human trafficking and several counts of extortion.
Subsequently, the applicant’s pre-trial detention was extended by decisions of the Kraków Regional Court (Sąd Okręgowy) delivered on 9 February, 5 April and 9 July 2007 and 10 March 2008.
On 9 September 2008 a bill of indictment was lodged with the Kraków Regional Court. Twenty-two persons were charged with, inter alia, numerous acts of human trafficking committed in an organised criminal group. On the same date the Regional Court prolonged the applicant’s detention until 5 October 2008. The applicant did not appeal against the decision.
On 1 October 2008 the Kraków Court of Appeal (Sąd Apelacyjny) further extended the applicant’s detention. The applicant lodged an interlocutory appeal against this decision. He alleged that his detention after 28 September 2008 has been unlawful, as the decision of 9 September 2008 was in breach of the procedural law. In that respect the applicant relied on the provisions of the Polish Code of Criminal Procedure which stipulated that a decision extending pre-trial detention for a period exceeding two years had to be given by a court of appeal. In view of the above, the Regional Court was competent to extend his detention only until 28 September 2008. The applicant’s appeal was dismissed by the appellate court on 30 October 2008, as manifestly ill-founded. It further noted that in so far as the applicant referred to a decision of 9 September 2008, the assessment of its lawfulness was outside the scope of the court’s supervision.
Later, the applicant’s detention was extended on 11 and 30 March and 15 and 29 September 2009.
The courts justified their decisions prolonging the applicant’s detention by the existence of a reasonable suspicion that the applicant had committed the offences and by the severity of the anticipated sentence. These considerations led the courts to assume that the applicant, if released, could go into hiding, induce witnesses to change their testimonies, or otherwise obstruct the proper course of the proceedings, particularly in view of the fact that he was charged with an offence of leading an organised criminal group. In that respect they also relied on the fact that the applicant had been sought pursuant to a wanted notice and a European Arrest Warrant. The courts attached great importance to the complexity of the case, the number of persons involved (22 accused, 900 victims) and the voluminous documentation gathered in the proceedings (over 110 volumes). The courts found no special grounds, as specified in Article 259 § 1 of the Code of Criminal Procedure, that would justify lifting the detention and imposing a less severe measure.
In its decision of 11 March 2009, the court noted that when detained between 2005 and 2006, the applicant had colluded with the co-accused.
The applicant’s appeals against decisions prolonging his detention and all his subsequent, numerous applications for release, were unsuccessful.
On 15 March 2010 the applicant was released on bail. The court ordered that the applicant be placed under police supervision and imposed on him a prohibition on leaving the country.
The proceedings are still pending before the Kraków Regional Court.
B. Relevant domestic law and practice
The relevant domestic law and practice concerning the imposition of detention on remand (tymczasowe aresztowanie), the grounds for its extension, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are presented 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 May 2006.
A. Length of detention
The applicant complained about the unreasonable length of his pre-trial detention. He relied on Article 5 § 3 of the Convention which, in so far as relevant, provides as follows:
Article 5 § 3
“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 13 May 2011 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 – its [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 the applicant the amount of PLN 6,000- (six thousand), 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 a rate equal to the marginal lending rate of the European Central Bank during the default periods 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 14 June 2011 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 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 – 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
The applicant complained that his detention after 28 September 2008 had been unlawful. In that respect he claimed that by extending the detention until 5 October 2008, the Regional Court had abused its powers. According to the provisions of the Polish Code of Criminal Procedure, a decision extending pre-trial detention for a period exceeding two years had to be given by a court of appeal. The applicant claimed that the Regional Court was competent to extend his detention only until 28 September 2008 only.
The Court notes that in its decision of 9 September 2008 the Regional Court extended the applicant’s detention beyond a period of two years. It is, however, to be noted that the applicant failed to lodge any appeal against this decision. Instead, he raised this issue in his appeal against a subsequent decision extending the detention (decision of 1 October 2008), with the result that this particular grievance could no longer be addressed by the court.
Furthermore, the Court notes that all the subsequent decisions extending the applicant’s detention were delivered in compliance with the procedural requirements.
It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
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 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.
Aracı Ljiljana Mijović
Deputy Registrar President