FOURTH SECTION
DECISION
Application no. 36473/09
by Tomasz NAWROTKIEWICZ
against Poland
The European Court of Human Rights (Fourth Section), sitting on 14 September 2010 as a Committee composed of:
Ljiljana Mijović, President,
Ledi Bianku,
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 26 June 2009,
Having regard to the declaration submitted by the respondent Government on 25 March 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, Mr Tomasz Nawrotkiewicz, is a Polish national who was born in 1969 and lives in Łódź. He was represented before the Court by Mr P. Pszczółkowski, a lawyer practising in Łódź. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
A. The criminal proceedings - bill of indictment of 10 March 2009
On 27 October 2006 the applicant was arrested by the police on suspicion of having committed various offences while acting in an organised criminal gang.
On 29 October 2006 the Łódź District Court (Sąd Rejonowy) decided to detain the applicant on remand. 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 proceedings and bring pressure to bear on witnesses.
The applicant's appeal against the decision was dismissed.
Subsequently, the Łódź Regional Court (Sąd Okręgowy) extended the applicant's detention on 23 January, 26 June, 19 September and 19 December 2007. The court relied on the grounds invoked above and on the particular complexity of the case involving many co-accused, members of an armed gang.
In 2008 the applicant's pre-trial detention was extended on 28 March, 18 June, 22 October and 23 December.
On 10 March 2009 the applicant and 27 co-accused were indicted before the Łódź Regional Court on multiple charges related to burglaries, thefts, extortions, kidnappings, robberies, drug dealing and stolen cars, committed while acting in an organised, armed criminal gang. The bill of indictment was 350-pages-long.
On 30 March 2009 the Łódź Court of Appeal extended the applicant's detention until 31 December 2009.
The applicant unsuccessfully appealed against all decisions extending his pre-trial detention.
The applicant did not complain about the unreasonable length of the proceedings 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 applicant's trial is pending before the first-instance court and he remains in detention.
B. The other set of criminal proceedings – bill of indictment of 6 September 2007
On 6 September 2007 the applicant and 20 other co‑accused were indicted before the Łódź Regional Court on multiple charges related to extortions, attempted murders, kidnappings and robberies while acting in an organised criminal gang.
The trial is pending before the Łódź Regional Court.
C. Relevant domestic law and practice
1. Pre-trial detention
The relevant domestic law and practice regarding the imposition of detention on remand (tymczasowe aresztowanie), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) at the material time are stated 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.
2. Length of proceedings
The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court's decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII; and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
COMPLAINTS
The applicant complained, inter alia, under Articles 5 § 3 and 6 § 1 of the Convention about the unreasonable length of his pre-trial detention and of the criminal proceedings in case IVK 59/09.
THE LAW
A. Pre-trial detention
The applicant complained about the excessive length of his detention on remand. 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 letter dated 25 March 2010 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:
“The Government hereby wish to express – by way of the unilateral declaration- their 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.
In these circumstances, and having regard to violation of Article 5 § 3 of the Convention, the Government declare that they offer to pay to the applicant the amount of PLN 4,500, 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 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 of 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”
In a letter of 10 May 2010 the applicant expressed the view that the sum mentioned in the Government's declaration was unacceptably low and asked for PLN 10,000.
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 thereof 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 complaint
The applicant further complained that the criminal proceedings against him had lasted an unreasonably long time. He relied on Article 6 § 1 of the Convention, which, in so far as relevant reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...”
The Court reiterates that pursuant to Article 35 § 1 of the Convention it may only deal with the matter after all domestic remedies have been exhausted. In this connection, the Court observes that the applicant failed to make proper use of the remedy under the 2004 Act.
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 AracıLjiljana Mijović
Deputy RegistrarPresident
Full & Egal Universal Law Academy