FOURTH SECTION
DECISION
Application no. 45747/08
by Tomasz OTTO
against Poland
The European Court of Human Rights (Fourth Section), sitting on 2 November 2010 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 1 September 2008,
Having regard to the declaration submitted by the respondent Government on 6 July 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 Otto, is a Polish national who was born in 1973 and lives in Lodz. 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
The facts of the case, as submitted by the parties, may be summarised as follows.
On 25 September 2006 the applicant was arrested by the police on suspicion of having been dealing in drugs and being a member of an organised criminal gang.
On 26 September 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 extended the applicant’s detention on 19 December 2006 and 26 June, 19 September and 19 December 2007. The court relied on the grounds invoked previously 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 and 23 December.
On 10 March 2009 the applicant and 27 co-accused were indicted before the Łódź Regional Court (PR IV –VI Ds. 36/08) 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.
On 29 October 2009 the applicant complained 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”). On 9 December 2009 the Lódź Court of Appeal refused to examine the merits of his complaint.
The applicant’s trial is pending before the first-instance court and he remains in detention.
B. 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 against him.
THE LAW
The applicant complained about the excessive length of his detention on remand and the length of criminal proceedings against him. He relied on Articles 5 § 3 and 6 § 1 of the Convention which, in so far as relevant, provide 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.”
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
By letter dated 6 July 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.
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. Additionally, the Government wish to express their acknowledgment of the unreasonable duration of the preparatory proceedings in which the applicant was involved and that the applicant can claim to be a victim of violation of his right to have his case examined in the “reasonable time” in the meaning of Article 6 § 1 of the Convention.
In these circumstances, and having particular 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 10,000, 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 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.”
The applicant objected to the proposal, asked the Court not to strike his case of the list and wished that the examination of his case be continued.
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 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) and its practice concerning complaints about the violation of one’s right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006‑....; Majewski v. Poland, no. 52690/99, 11 October 2005; and Wende and Kukówka v. Poland, no. 56026/00, 10 May 2007.
Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed the Court considers that it is no longer justified to continue the examination 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 the application (Article 37 § 1 in fine).
Accordingly, it should be struck out of the list.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration in respect of the present application 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 accordance with Article 37 § 1 (c) of the Convention.
Fatoş AracıDavid Thór Björgvinsson
Deputy RegistrarPresident
Full & Egal Universal Law Academy