FOURTH SECTION
DECISION
Application no. 4389/08
by Mieczysław KLUK
against Poland
The European Court of Human Rights (Fourth Section), sitting on 19 January 2010 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
Ján Šikuta,
Mihai Poalelungi,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 4 January 2008,
Having regard to the declaration submitted by the respondent Government on 12 November 2009 requesting the Court to strike the application out of the list of cases,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Mieczysław Kluk, is a Polish national who was born in 1948 and lives in Miedźno. He was represented before the Court by Mr Ł. Korga, a lawyer practising in Katowice. 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.
1. Criminal proceedings against the applicant and his pre-trial detention
On 12 May 2005 the applicant, the Katowice Regional Police Commissioner, was arrested on suspicion of unlawful threats, bribery and disclosure of privileged information to members of an organised criminal group.
On 14 May 2005 the Krakow District Court remanded the applicant in custody, relying on the reasonable suspicion that he had committed the offences in question. It attached importance to the likelihood of a severe sentence of imprisonment being imposed on the applicant and the risk that he would attempt to obstruct the proceedings.
An appeal by the applicant against the detention order, and likewise his further appeals against some of the decisions extending his detention and all his subsequent applications for release and appeals against refusals to release him were unsuccessful.
On 16 December 2005 a bill of indictment was lodged with the Szczecin District Court. On 27 January 2006 the applicant’s case was referred to the Szczecin Regional Court.
On 8 February 2006 the trial court asked the Krakow Appellate Prosecutor to rectify some procedural shortcomings in the bill of indictment. On an unspecified date an amended bill of indictment was lodged with the Szczecin Regional Court. The applicant was charged with unlawful threats, bribery and disclosure of privileged information.
During the court proceedings the courts further extended the applicant’s detention pending trial on several occasions, namely on 24 June 2005 (to 30 September 2005), 27 September 2005 (to 30 November 2005), 7 November 2005 (to 31 December 2005), 29 December 2005 (to 31 March 2006), 17 March 2006 (to 20 September 2006), 12 September 2006 (to 20 February 2007), 19 February 2007 (to 12 May 2007), 9 May 2007 (to 10 July 2007) and on 4 July 2007 (to 15 October 2007). The courts repeated the grounds previously given for the applicant’s continued detention. They attached importance to the likelihood of a severe sentence of imprisonment being imposed on the applicant and the risk that he would obstruct the proceedings.
On 3 October 2007 the Szczecin Court of Appeal decided not to extend the applicant’s detention beyond 15 October 2007. The court stated inter alia that almost all the evidence had already been taken and the risk of collusion that had originally justified the applicant’s detention had ceased.
It appears that the criminal proceedings against the applicant are still pending.
2. Limitations imposed on the applicant’s contact with his wife and daughter
On 1 June 2005 the applicant’s wife was informed by the Krakow Appellate Prosecutor that her request for permission to visit her husband had been dismissed on 27 May 2005 and that this decision was not subject to appeal.
On 5 July 2005 the Krakow Appellate Prosecutor again dismissed a similar request of the applicant’s wife in view of the fact that she might become a witness in the criminal proceedings against the applicant.
On several occasions the applicant complained unsuccessfully about the prohibition on any personal contact with his wife and daughter and about the fact that not only had all his letters to his wife been censored, some of them had also been intercepted or delayed.
The requests of the applicant’s wife for permission to visit her husband were dismissed on several subsequent occasions, namely on 14 July 2005, 4 October 2005, 22 February 2006 and 10 April 2007. The requests of the applicant’s daughter for a permit to visit her father were likewise dismissed on 29 July 2005, 9 and 17 October 2005, 22 February 2006 and 10 April 2007.
The applicant’s wife and daughter were allowed to visit him in prison in July 2007 in the presence of a prison guard.
COMPLAINTS
1. The applicant complained under Article 5 § 3 of the Convention that his pre-trial detention had been ordered by a trainee judge (asesor), who could not be considered a “judge” or an “officer authorised by law to exercise judicial power”.
2. Invoking the same provision of the Convention, the applicant maintained that his pre-trial detention had been excessively lengthy.
3. The applicant further complained under Article 6 § 1 of the Convention about the unfairness and the excessive length of the criminal proceedings against him.
4. Relying on Article 6 § 3 of the Convention the applicant alleged that he had obtained full access to the case file only in June 2007 whereas the trial had started in September 2006, which had seriously impaired his defence rights.
5. Finally, under Article 8 of the Convention, the applicant complained that on account of far-reaching restrictions imposed by the trial court on his personal contact with his wife and daughter his right to respect for his family life had been violated.
THE LAW
A. Length of pre-trial detention and limitations on contact with family
The applicant complained about the excessive 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.”
The applicant also complained about the restrictions placed on his personal contact and correspondence with his wife and daughter during his pre-trial detention. He invoked Article 8 of the Convention which provides as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
By letter dated 12 November 2009 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues 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 – its 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 and its acknowledgment that the restriction placed on the applicant’s personal contact and correspondence with his wife and daughter was not compatible with his right to respect for his family life guaranteed by Article 8 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 13,500, 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 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. ...”
The applicant did not comment on the Government’s declaration.
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, 18 September 2007).
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). It also refers to its case-law regarding complaints of a violation of Article 8 of the Convention in respect of limitations on detainee’s or prisoner’s personal contact with his or her family (see, for example, Ferla v. Poland, no. 55470/00, 20 May 2008; Eryk Kozłowski v. Poland, no. 12269/02, 4 November 2008).
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 topics, 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. Complaint under Article 5 § 3 of the Convention (detention ordered by a trainee judge)
The applicant further complained under Article 5 § 3 of the Convention that his pre-trial detention had been ordered by a trainee judge (asesor). However, the Court notes that the relevant decisions were given by the trainee judge on 14 May and 24 June 2005, while the applicant lodged his application on 4 January 2008. It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
C. Complaints under Article 6 §§ 1 and 3 of the Convention
The applicant also complained under Article 6 § 1 of the Convention about the unfairness and the excessive length of the proceedings. Invoking Article 6 § 3 of the Convention, he complained about the delay in providing him full access to the case file, which had impaired his defence rights. However, the Court notes that the criminal proceedings against the applicant are still pending before the domestic courts and that he has failed to lodge a complaint about the unreasonable length of the proceedings. 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 in respect of the complaints under Articles 5 § 3 (length of pre-trial detention) and 8 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 complaints in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy