FOURTH SECTION
DECISION
Application no. 26979/07
by Jacek WĘGIERKIEWICZ
against Poland
The European Court of Human Rights (Fourth Section), sitting on 8 September 2009 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Mihai Poalelungi, judges
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 19 June 2007,
Having regard to the declaration submitted by the respondent Government on 25 May 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 Jacek Węgierkiewicz, is a Polish national who was born in 1959 and lives in Kończyce Wielkie. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The applicant was arrested on 25 July 2004 on charges of several counts of tax fraud and membership of an organised criminal gang and, by a decision of the Katowice District Court of 27 July 2004, he was remanded in custody.
Subsequently, the applicant’s pre-trial detention was prolonged on several occasions by the Katowice District Court (decisions of 21 September 2004, 23 December 2004, 2 March 2005 and 6 June 2005) and by the Katowice Court of Appeal (decisions of 6 July 2005, 3 October 2005, 4 January 2006, 5 April 2006, 12 July 2006, 27 September 2006, 28 December 2006, 24 January 2007, 25 July 2007 and 17 October 2007).
To justify their decisions prolonging the applicant’s detention and their refusals to release him, the courts referred to the complexity of the case, the significant number of accused, the existence of a reasonable suspicion that the applicant had committed the offences concerned and the severity of the anticipated sentence. These considerations led the courts to assume that the applicant, if released, might obstruct the proper course of the proceedings.
The applicant applied a number of times, unsuccessfully, to be released from detention and to have that preventive measure changed to a more lenient one (decisions of the Katowice Court of Appeal of 10 August 2005, 8 February 2006, 27 April 2006, 9 August 2006, 3 November 2006 and 24 January 2007, and decisions of the Gliwice Regional Court of 25 September 2007 and 2 October 2007).
On 29 December 2006 the Bielsko Biała Regional Prosecutor filed a bill of indictment against the applicant with the Wodzisław Śląski District Court. On 18 July 2007 the Wodzisław Śląski District Court decided to transfer the applicant’s case to the Gliwice Regional Court. On 26 October 2007 the Gliwice Regional Court decided to transfer the applicant’s case back to the Wodzisław Śląski District Court.
The applicant was released on 21 February 2008. In February 2009 the Wodzisław Śląski District Court gave judgment convicting the applicant as charged. He did not appeal against that judgment.
COMPLAINTSThe applicant complained under Article 5 § 3 of the Convention of the excessive length of his pre-trial detention.The applicant complained under Article 6 § 1 of the Convention of a violation of his right to have his case heard within a reasonable time.The applicant complained, without further specification, that his private rights had been restricted and his correspondence had been censored by the prison authorities.
THE LAW
A. Length of pre-trial detention
The applicant complained that the length of his pre-trial detention had been excessive. He relied on Article 5 § 3 of the Convention, which, in so far as relevant, reads 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 a letter dated 25 May 2009 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 unilateral declaration – its acknowledgement of the fact that the applicant’s pre-trial detention was not compatible with a “reasonable time” requirement with the meaning 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 6,500.
The sum referred to above, which is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses, will be free from 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 for the Protection of Human Rights. In the event of failure to pay this sum within the three-month period, the Government undertake to pay simple interest on it, from the 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 Government would respectfully suggest that the above declaration 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 dated 16 June 2009 the applicant expressed the view that the sum mentioned in the Government’s declaration was unacceptably low.
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 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 (see 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).
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 involving alleged membership of an organised criminal gang (see Sandowycz v. Poland, no. 37274/06, § 43, 27 January 2009) – 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. Complaint under Article 6 § 1 of the Convention
The applicant complained under Article 6 § 1 of the Convention of a violation of his right to have his case heard within a reasonable time.
The Court observes that the applicant had the possibility of lodging a complaint under the 2004 Act on complaints about a breach of the right to a trial within a reasonable time in respect of the length of judicial proceedings with the competent domestic courts and has not submitted any information as to whether he has availed himself of that remedy.
This part of the application is therefore inadmissible under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
C. Complaint under Article 8 of the Convention
The applicant complained that his private rights had been restricted and his correspondence had been censored by the prison authorities.
The Court considers that the material in its possession does not disclose any appearance of a violation of this provision of the Convention.
Accordingly, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.
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.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy