FOURTH SECTION
DECISION
Application no. 47694/09
by Beata LIPKA
against Poland
The European Court of Human Rights (Fourth Section), sitting on 25 January 2011 as a Committee composed of:
David Thór Björgvinsson, President,
Päivi Hirvelä,
Mihai Poalelungi, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 18 August 2009,
Having regard to the declaration submitted by the respondent Government on 5 November 2010 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, Ms Beata Lipka, is a Polish national who was born in 1968 and lives in Zabrze. 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.
On 9 November 2006 the applicant was arrested on suspicion of fraud. On 10 November 2006 the Zabrze District Court remanded her in custody in view of the reasonable suspicion that she had committed fraud and forgery to the detriment of a bank while acting in an organised criminal group. It relied on the severity of the anticipated penalty, having regard to the scale of the criminal activities and the significant number of charges. The court further found that there was risk that the applicant might tamper with evidence which followed from the fact that the applicant had been charged with commission of offences as a member of a criminal gang. On 29 December 2006 the Katowice Regional Court dismissed the applicant’s appeal against that decision.
On 1 February 2007 the Zabrze District Court prolonged the applicant’s detention until 9 May 2007. It underlined that keeping the applicant in custody was necessary in order to prevent her from tampering with evidence. Such risk was significant given the nature of the relations between members of a criminal gang and, in the court’s view, did not have to be supported by any concrete evidence. On 2 May and 27 June 2007 the District Court extended the applicant’s detention respectively until 3 July and 3 October 2007 invoking similar grounds.
Since the applicant’s detention pending investigation had reached the statutory time-limit of twelve months laid down in Article 263 § 2 of the Code of Criminal Procedure (“CCP”), further prolongation of her detention was ordered by the Katowice Court of Appeal. On 26 September 2007 the Court of Appeal prolonged the applicant’s detention until 31 January 2008. It found that the severity of the anticipated penalty and the complexity of the investigation justified her detention on remand. The same court gave further decisions on the applicant’s detention on 23 January, 21 February and on an unspecified date in March 2008, extending it respectively until 29 February, 30 April and 30 June 2008.
On 19 June 2008 the prosecution filed a bill of indictment with the Gliwice Regional Court. The applicant was charged with 33 counts of fraud and forgery committed to the detriment of a bank and having acted in an organised criminal gang.
On 23 June 2008 the Gliwice Regional Court prolonged her detention on remand until 23 September 2008. In addition to the grounds previously invoked, it considered that the applicant’s detention was justified under Article 258 § 2 of the CCP since that provision established a presumption to the effect that the likelihood of a severe penalty being imposed on the applicant might induce her to obstruct the proceedings. On 15 September 2008 the Regional Court prolonged the applicant’s detention until 9 November 2008.
Subsequently, the Court of Appeal prolonged the applicant’s detention on 5 November 2008 (until 9 March 2009), 4 March 2009 (until 9 September 2009), 10 June 2009 (until 30 September 2009) and on 16 September 2009 (until 31 December 2009).
On 17 December 2009 the Gliwice Regional Court ordered the applicant’s release and placed her under police supervision. It also imposed a ban on leaving the country.
During the proceedings the applicant filed numerous but unsuccessful applications for release and appealed, likewise unsuccessfully, against the decisions prolonging her detention.
COMPLAINTS
1. The applicant complained under Article 5 of the Convention about the excessive length of her detention on remand.
2. The applicant also complained under Article 6 of the Convention about the unreasonable length of the criminal proceedings.
THE LAW
A. Length of pre-trial detention
The applicant complained about the excessive length of her pre-trial detention. She relied on Article 5 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 letter dated 5 November 2010 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. By a further letter of 15 December 2010 the Government made technical and editorial amendments to the initial declaration.
The declaration provided as follows:
“The Government hereby wish to express – by way of the unilateral declaration – their acknowledgement of the unreasonable duration of the applicant’s pre-trial detention that is violation 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 PLN 4,000, which they consider to be reasonable in the light of the Court’s case law. The sum referred to above 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 the 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. ...”
In a letter of 26 November 2010 the applicant left the issue of the unilateral declaration to the Court’s discretion. She maintained that her pre-trial detention had been excessively long.
The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application or part of 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 or part thereof 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 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 (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, the part of the application concerning the complaint under Article 5 § 3 of the Convention should be struck out of the list.
B. Remaining complaint
The applicant further complained under Article 6 of the Convention that the length of the criminal proceedings against her had been unreasonable.
However, the Court notes that persons complaining about the length of proceedings before the Polish courts are required by Article 35 of the Convention to lodge a complaint about the breach of the right to a trial within a reasonable time under the Law of 17 June 2004 (see Charzyński v. Poland (dec.), no. 15212/03, ECHR 2005‑V). It appears that the applicant failed to make use of this remedy.
It follows that this complaint 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 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.
Fatoş AracıDavid Thór Björgvinsson Deputy Registrar President
Full & Egal Universal Law Academy