FOURTH SECTION
DECISION
Application no. 11235/08
by Krzysztof KOWALCZYK
against Poland
The European Court of Human Rights (Fourth Section), sitting on 3 November 2009 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Mihai Poalelungi, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 4 February 2008,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Krzysztof Kowalczyk, is a Polish national who was born in 1977 and lives in Wałbrzych. The Polish Government were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 29 July 2005 the applicant was arrested by the police on suspicion of having committed battery and having intimidated a witness.
On 29 July 2005 the Wałbrzych District Court (Sąd Rejonowy) decided to remand the applicant in custody. The court relied on a reasonable suspicion that the applicant had committed the offences and the high probability that a heavy sentence would be imposed on him. The court further considered that there was a risk that the applicant might interfere with the course of the proceedings and bring pressure to bear on witnesses, particularly in the light of the fact that he had previous convictions.
On 25 October and 23 December 2005 the applicant’s detention was further extended. The court relied on the grounds given previously.
On 9 March 2006 the applicant and two co-accused were indicted before the Wałbrzych District Court
On 31 March, 19 June, 12 September and 7 December 2006 the trial court further extended the applicant’s detention considering that the original grounds for it remained valid. The court also considered that there was a risk that the accused would interfere with the proper course of the proceedings, but referred to circumstances concerning
the two co-accused and not the applicant personally.
At a hearing on 2 March 2007 the Wałbrzych District Court extended the applicant’s detention, reiterating the grounds invoked previously.
Afterwards, the applicant’s detention was extended on 30 May 2007 on the grounds given previously.
On 3 July 2007 the trial court convicted the applicant and sentenced him to eight years’ imprisonment. The applicant was found guilty of, inter alia, destruction of property, forgery, battery, robbery and uttering threats together with two accomplices. Neither the conviction nor the charges included participation in an organised crime gang.
The applicant lodged an appeal against the judgment.
On 21 December 2007 the Świdnica Regional Court (Sąd Okręgowy) quashed the judgment and remitted the case. On the same date the court extended the applicant’s detention finding that the grounds previously given remained valid.
On 19 February 2008 the Wałbrzych District Court dismissed a request by the applicant to lift the pre-trial detention.
On 25 June 2008 the applicant’s detention was further extended. An appeal by the applicant against that decision was dismissed on 10 July 2008.
On 25 July 2008 the Wałbrzych District Court extended the applicant’s pre-trial detention; however, the court decided that the applicant could be released, under police supervision, on bail in the amount of 10,000 Polish zlotys (PLN) (approximately 3,000 euros). The court observed that the majority of the witness had been heard, so the risk that the applicant would try to bring pressure to bear on them was no longer justified.
The applicant’s family paid the bail.
On 8 August 2008 the applicant was released from detention.
COMPLAINTS
The applicant complained under Article 5 § 3 of the Convention of the unreasonable length of his pre-trial detention and about unfairness of his trial.
THE LAW
On 8 July 2009 the Court received the following declaration from the Government:
“I, Jakub Wołąsiewicz, Agent of the Government, declare that the Government of Poland offer to pay PLN 9,000 (nine thousand Polish zlotys) to Mr Krzysztof Kowalczyk with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, 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 payment will constitute the final resolution of the case.”
On 15 July 2009 the Court received the following declaration signed by the applicant:
“I, Krzysztof Kowalczyk, note that the Government of Poland are prepared to pay me the sum of PLN 9,000 (nine thousand Polish zlotys) with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, 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. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
I accept the proposal and waive any further claims against Poland in respect of the facts giving rise to this application. I declare that this constitutes a final resolution of the case.”
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously.
Decides to strike the application out of its list of cases.
Fatoş AracıNicolas Bratza
Deputy RegistrarPresident
Full & Egal Universal Law Academy