FOURTH SECTION
DECISION
Application no. 18346/08
by Dariusz PEPŁOWSKI
against Poland
The European Court of Human Rights (Fourth Section), sitting on 12 January 2010 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
Ján Šikuta,
Mihai Poalelungi,
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 28 March 2008,
Having regard to the declaration submitted by the respondent Government on 28 September 2009 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 Dariusz Pepłowski, is a Polish national who was born in 1968 and lives in Zgierz. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. First set of criminal proceedings against the applicant
On 21 January 2004 the applicant was charged with leading an organised criminal group and numerous counts of fraud and extortion committed by that group.
On 22 January 2004 he was arrested and on 24 January 2004 detained on remand by a decision of the Zgierz District Court (Sąd Rejonowy). The court based its detention order on a reasonable suspicion that the applicant had committed the offences and on the severity of the likely penalty, which gave rise to a fear that he would induce witnesses to change their testimonies and obstruct the proper conduct of the proceedings, particularly as he had been making threats against the other persons charged in the proceedings. It further held that the applicant’s family issues were taken care of, as the Zgierz District Court had decided, on 22 January 2004, on custody of his children.
The applicant’s detention was subsequently extended.
The courts justified their decisions prolonging the applicant’s detention on remand and their refusals to release him by the need to hear the accused and witnesses, the complexity of the case, the significant number of persons involved, the voluminous documentation gathered in the case, the existence of a reasonable suspicion that the applicant had committed the offences and by the severity of the anticipated sentence (especially since the offences had been committed in an organised criminal group). These considerations led the courts to assume that the applicant, if released, could tamper with evidence and obstruct the proper course of the proceedings. The courts found, on several occasions, that there were no special grounds, as specified in Article 259 § 1 of the Code of Criminal Procedure, that would justify lifting the detention and imposing a less severe measure. They also stressed that the applicant received adequate medical care in prison. On 9 January 2009 the Łódź District Court noted that according to the doctors’ opinions the applicant should have undergone a surgery. It stressed, however, that the applicant refused to receive the necessary hospital treatment under convoy.
The applicant’s interlocutory appeals against the decisions prolonging his detention and his request to have the detention lifted and a more lenient preventive measure imposed were dismissed by the domestic courts.
On 5 February 2008 the Łódź District Court convicted the applicant and sentenced him to eight years’ imprisonment. Hi detention was prolonged.
On an unspecified date the applicant appealed against the judgment.
On 2 March 2009 the Łódź Regional Court (Sąd Okręgowy) quashed the judgment and remitted the case. The applicant was released on the same day.
It appears that the proceedings are still pending before the second‑instance court.
2. Second set of criminal proceedings against the applicant
On 2 February 2006 the applicant was charged with, inter alia, numerous counts of predatory extortion and fraud committed in an organised criminal group.
On 2 March 2006 the Łódź District Court ordered his detention on remand. The court based its detention order on a reasonable suspicion that the applicant had committed the offences and on the severity of the anticipated sentence, which gave rise to a fear that he would tamper with evidence. It noted that although the applicant has already been detained in another set of criminal proceedings, that detention order could have been lifted at any time.
The applicant’s pre-trial detention was subsequently extended.
The courts justified their decisions prolonging the applicant’s detention on remand by the existence of a reasonable suspicion that the applicant had committed the offences and by the severity of the anticipated sentence. These considerations led the courts to assume that the applicant, if released, could tamper with evidence and obstruct the proper course of the proceedings. The courts noted that although the applicant has been, since 22 January 2004, detained in another set of criminal proceedings, that pre‑trial detention could have been lifted at any time. The courts stressed that the applicant received adequate medical care and that there were no grounds that would justify lifting the detention and imposing a less severe measure.
The applicant’s interlocutory appeals against the decisions prolonging his detention were unsuccessful.
The applicant submits that his detention was lifted on 2 March 2008. It appears that the proceedings are still pending before the first-instance court.
3. Proceedings under the 2004 Act
On 7 August 2008 the applicant lodged a complaint with the Łódź Regional Court about a breach of his right to a trial within a reasonable time in respect of the first set of criminal proceedings against him and asked for just satisfaction. He relied on 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”), which entered into force on 17 September 2004.
On 7 October 2008 the Łódź Regional Court dismissed his complaint as unfounded. The court held that in the light of the circumstances of the case, particularly the number of persons accused (47) and the voluminous documentation gathered in the proceedings (49 acts at the time a bill of indictment was lodged), the proceedings had been conducted within a reasonable time. It further stressed that from 19 October 2005 until 5 February 2008 the Zgierz District Court had held 81 hearings and that the proceedings were being conducted with due diligence. Lastly, the court underlined that the written grounds of the first-instance court judgment amounted to 293 pages.
B. Relevant domestic law and practice
1. Preventive measures, including pre-trial detention
The relevant domestic law and practice concerning the imposition of detention on remandduring judicial proceedingson remand (aresztowanie tymczasowe), the grounds for its extensionprolongation, release from detention and rules governing other,, so-called “preventive measures” (środki zapobiegawcze) are presented 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. Remedies for the excessive 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 set out in the Court’s decisions in the cases of Charzyński v. Poland (dec.), no. 15212/03, §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland (dec.), no. 11215/02, ECHR 2005-VIII, and its judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
COMPLAINTS
1. The applicant complained under Article 5 § 3 of the Convention that the length of his pre-trial detention had been excessive.
2. He further complained under Article 6 § 1 of the Convention about the unreasonable length of both sets of criminal proceedings.
THE LAW
A. The length of pre-trial detention in the first set of criminal proceedings and the length of first set of criminal proceedings
The applicant complained about the length of his pre-trial detention in the first set of criminal proceedings against him. He relied on Article 5 § 3 of the Convention which, in so far as relevant, provides as follows:
Article 5 § 3
“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.”
He further complained about the length of the first set of criminal proceedings against him. He relied on Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:
Article 6 § 1
“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 28 September 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 with[in] the meaning of Article 5 § 3 of the Convention and its acknowledgement of the unreasonable duration of the domestic proceedings in which the applicant was involved.
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 11,000, 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 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 periods 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 28 October 2009 the applicant expressed the view that the sum mentioned in the Government’s declaration was unacceptably low. He requested that the examination of his application 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 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). It has also addressed, in numerous case, 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 – which is consistent with the amounts awarded in similar cases – 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 this part of the application (Article 37 § 1 in fine).
Accordingly, it should be struck out of the list.
Since the proceedings concerned are still pending before the domestic courts, the Court’s strike-out decision is without prejudice to use by the applicant of other remedies to obtain redress for any delay in the proceedings which may occur after the date of this decision.
B. Remaining complaints
The applicant complained, invoking Article 5 § 3 of the Convention, about the unreasonable length of his pre-trial detention in the second set of criminal proceedings against him.
As regards the second set of criminal proceedings, the Court notes that the applicant was detained for two years (from 2 March 2006 until 2 March 2008). He was charged with numerous counts of predatory extortion and fraud committed in an organised criminal group. According to the well‑established case law of the Court (see, among other authorities, Bąk v. Poland, no. 7870/04, §§ 56-65, 16 January 2007; Chruściński v. Poland, no. 22755/04, §§ 34-42, 6 November 2007; and Tomecki v. Poland, no. 47944/06, §§ 29-37, 20 May 2008) and in view of the seriousness of the accusations and the fact that the case concerned a member of an organised criminal group, it cannot be said that the length of the applicant’s detention had been excessive.
It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
Lastly, the applicant complained about the excessive length of the second set of criminal proceedings against him.
The Court notes however, that in this respect the applicant failed to lodge a complaint under the 2004 Act about his right to a trial within a reasonable time. It follows that this part of the application is inadmissible for non‑exhaustion of domestic remedies and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
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 and 6 § 1 of the Convention concerning the first set of criminal proceedings against the applicant 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.
Fatoş AracıNicolas Bratza
Deputy RegistrarPresident
Full & Egal Universal Law Academy