European Court of Human Rights
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Cite as: [2011] ECHR 281
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FOURTH SECTION
DECISION
Application no.
39413/06
by Szymon KOWALSKI
against Poland
The European Court of Human Rights (Fourth Section), sitting on 25 January 2011 as a Chamber composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
Päivi
Hirvelä,
Ledi
Bianku,
Nebojša
Vučinić,
Vincent
A. de Gaetano,
judges,
and
Lawrence Early, Section
Registrar,
Having regard to the above application lodged on 25 March 2007,
Having regard to the declaration submitted by the respondent Government on 14 November 2008 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 Szymon Kowalski, is a Polish national who was born in 1972 and lives in Warszawa. 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 6 June 2003 the Warsaw District Court (Sąd Rejonowy) charged the applicant with several offences, including membership of an armed criminal group, and detained him on remand. In its decision, the District Court relied on a reasonable suspicion that the applicant had committed the aforementioned offences. The applicant’s detention was subsequently extended on a regular basis.
On 10 March 2005 a bill of indictment was lodged with the Warsaw Regional Court (Sąd Okręgowy).
On 20 May 2005 the Warsaw Court of Appeal (Sąd Apelacyjny) extended the applicant’s detention, finding that the evidence collected in the course of the proceedings pointed to a high probability that the applicant had committed the offences with which he had been charged. It also attached particular importance to the likelihood that a severe sentence of imprisonment would be imposed on the applicant and to the risk that he would attempt to obstruct the proceedings should he be released.
On 22 November 2005 the Court of Appeal further extended the applicant’s detention. It observed that the extension was necessary due to the complexity of the case and that the detention on remand constituted the only security measure capable of guaranteeing the correct conduct of the proceedings.
On 24 January 2006 the Court of Appeal once more extended the applicant’s detention, holding that the proceedings could not have been terminated within the initially prescribed time-limit on account of certain objective circumstances such as the non-appearance of some witnesses.
On 14 February 2006 the Warsaw Regional Court convicted the applicant as charged and sentenced him to 9 years’ imprisonment.
On 24 August 2006 the Warsaw Court of Appeal quashed the first instance court’s judgment and remitted the case for re-examination.
On 9 October 2006 and 8 January 2007 the Warsaw Regional Court once again extended the applicant’s detention, holding that the correct conduct of the proceedings could only be guaranteed if the applicant remained in detention given the nature of the charges and the severity of the penalty likely to be imposed on him. In passing, the court observed that the re examination of the case would entail the reassessment of a large number of issues and that therefore it could be reasonably expected that the applicant’s detention would continue to be applied.
On 24 October 2007 the Warsaw Regional Court once again convicted the applicant as charged and sentenced him to 9 years’ imprisonment.
On 10 October 2008 the Warsaw Court of Appeal reduced the applicant’s penalty to 7 years and 6 months’ imprisonment and otherwise upheld the first-instance court’s judgment.
On 11 October 2010 the applicant was released and he currently remains at liberty.
B. Relevant domestic law and practice
The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other, so-called “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.
COMPLAINTS
THE LAW
A. Length of detention
The applicant complained about the length of his pre-trial detention. 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 a letter dated 14 November 2008 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:
“(...) As to the facts, the Government agree in general with the Statement of Facts of 11 March 2008 as prepared by the Registry of the Court.
(...) the Government hereby wish to express – by way of the 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 2, 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 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 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.
(...) As transpires from the Government’s unilateral declaration, the Government accepted paying to the applicant as just satisfaction the sum of EUR 2, 000 in the event of the Court’s striking the case out of its list.”
The applicant generally contested the unilateral declaration submitted by the Government.
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 of a violation of Article 5 § 3 of the Convention as regards the unreasonable length of pre trial detention (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 compensation proposed in the amount of EUR 2,000 – 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, this part of the application should be struck out of the list.
Remaining complaints
1. Complaint about the length of proceedings
The applicant generally complained under Article 6 of the Convention that the criminal proceedings conducted against him were excessively long. In this respect, the Court notes that the applicant failed to demonstrate that he had availed himself of the possibility to file a complaint under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2004 Act”). The Court recalls that it has already found that the 2004 Act provides for an effective remedy in respect of the excessive length of proceedings (see Charzyński v. Poland (dec.), no. 15212/03, §§ 12-23, ECHR 2005 V; Figiel v. Poland (no. 1), no. 38190/05, § 25-30, 17 July 2008; Figiel v. Poland (no. 2), no. 38206/05, § 29-34, 16 September 2008). Consequently, this complaint must be declared inadmissible for non exhaustion of domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.
2. Complaint about the alleged unfairness of the proceedings
In so far as the applicant alleged unfairness of the criminal proceedings against him, relying on Article 6 of the Convention, it suffices to note that he failed to substantiate his complaint and did not provide the Registry with any details as to the alleged shortcomings of the impugned proceedings. Consequently, it should be regarded as manifestly ill-founded.
It follows that the applicant’s complaints raised under Article 6 of the Convention must be rejected under Article 35 §§ 1 and 3 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 Registrar President