CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 20 février 2007

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Casadevall ,   Mr   S. Pavlovschi ,   Mr   L. Garlicki ,   Ms   L. Mijović ,   Mr   J. Šikuta ,   Mrs   P. Hirvelä, judges , and Mr T.L. Early , Section Registrar , Having regard to the above application lodged on 8 May 2002, Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together, Having regard to the formal declarations accepting a friendly settlement of the case, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mr   Zdzisław   Mikołajczuk, is a Polish national who was born in 1953 and lives in Piła, Poland. 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 parties, may be summarised as follows. On 3 January 2002 at about 9 a.m., two policemen came to the applicant’s house. They were called by the applicant’s common law wife, who claimed that the applicant had behaved aggressively towards her. The policemen found that the applicant was calm and that there was no reason for them to intervene, so they left. After the applicant’s return from work, which was about 2 p.m., two policemen again came to his house. They ordered the applicant to follow them to the police station. Upon their arrival, the applicant was informed that he had been arrested on suspicion of domestic violence and destruction of property. Furthermore, his arrest had been necessary to secure the proper conduct of criminal proceedings against him (which apparently had been pending) and that there had been a reasonable suspicion that he might go into hiding. He was released on 4 January 2002 at 2 p.m. At the time of his arrest the applicant lodged an interlocutory appeal in respect of his arrest, which was recorded in the minutes of his arrest. This interlocutory appeal was never transferred to the District Court. On 11 January 2002 the applicant lodged an interlocutory appeal with the Piła District Court ( Sąd Rejonowy ) about his allegedly unlawful arrest. He invoked Article 5 of the Convention and stressed that there had been no reasonable grounds for his arrest. He pointed out that he had not been aware that any criminal proceedings against him had been pending. In addition, he had never been in hiding from the police. Lastly, he claimed that he had not committed any offence. For the above reasons, he considered that the arrest had been unlawful. On 8 February 2002 the Piła District Court held a hearing. The applicant was not present. The court gave a decision and dismissed the applicant’s interlocutory appeal. It held: “The evidence available at the time of the arrest, in particular the victims’ testimonies, indicate that there was a reasonable suspicion that the suspect [i.e. the applicant] had committed the offences with which he had been charged. The file contains a copy of a summons ordering the applicant to appear at the Piła Police Station on 21   December   2001 for interrogation. It further appears from the materials in the file that the suspect failed to comply with this order as the file does not contain minutes of the interrogation. However, it cannot be established that the suspect deliberately failed to appear since the file does not contain a return slip acknowledging receipt of the summons. In particular the return slip of 18   December   2001 does not bear the applicant’s signature. However, the applicant’s arrest on the grounds that he might tamper with the evidence was justified. It is also confirmed by the testimony of the alleged victim and the documents submitted by her on 2 January 2001. In particular he had frequently threatened her. ... In this respect the applicant’s arrest was well ‑ founded. Having examined the case file the court cannot consider that the arrest was unlawful. The court also notes that the police officer who arrested the applicant had failed to comply with Article   246 §   2 of the Code of Criminal Procedure, which provides for immediate transfer of an interlocutory appeal against an arrest to a District Court. In the minutes of the arrest it is noted that the applicant had made such an interlocutory appeal.” No appeal against this decision was available. B.     Relevant domestic law and practice Provisions relating to arrest are included in Articles 243 ‑ 248 of the Code of Criminal Procedure of 1997 (“the Code”). Article 246, of the Code provides, in so far as relevant: “§ 1. An arrested person may lodge an interlocutory appeal against his arrest with a court. In this appeal the arrested person may request an examination of the grounds and lawfulness of his arrest and the correctness thereof. § 2. The interlocutory appeal shall be immediately referred to the District Court having jurisdiction over the place of arrest, which shall examine the matter immediately. § 3. Where the arrest has been found to be unjustified or unlawful, the court shall order an immediate release of the arrested person. ...” Article 464, of the Code, relating to participation in court sessions, as applicable at the material time, provided: § 1. Parties, defence counsel and attorneys shall be entitled to attend a session of an appellate court hearing an interlocutory appeal, against a final decision in the case. They are entitled to participate also when they have been entitled to participate in the first ‑ instance court’s session. § 2. In all other cases an appellate court may allow the parties, or a defence counsel or an attorney to participate in the session. ...“ On 6 December 2004 the Constitutional Court gave judgment and declared Article 464 of the Code of Criminal Procedure incompatible with the right to personal liberty guaranteed by the Constitution. The Court observed that it was insufficient from the point of view of the procedural guarantees of the right of liberty and security that the person complaining about an arrest decision could not be heard by the court considering his or her interlocutory appeal against the arrest decision. On 21 September 2005 Article 464 of the Code was amended, to the extent that it now provides for a possibility to attend a court’s session when an interlocutory appeal against an arrest decision is being examined. COMPLAINTS   The applicant complained under Article 5 about the unlawfulness and arbitrariness of his arrest. He also alleged, invoking Article   6 §   1, that the procedure by which he had sought to challenge the unlawfulness of his arrest had been unfair. In particular, he submitted that it had not been adversarial, as he could not participate in a court’s session during which his interlocutory appeal against the arrest decision had been examined. THE LAW On 24   November   2006 the Court received the following declaration from the Polish Government: “I declare that the Government of Poland offer to pay PLN   8,000 (eight thousand Polish zlotys) to Mr   Zdzisław   Mikołajczuk with a view to securing a friendly settlement of the above ‑ mentioned case pending before the European Court of Human Rights. This sum, 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 the 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 period plus three percentage points. The payment will constitute the final resolution of the case.” On 29   January   2007 the Court received the following declaration signed by the applicant: ““I, Zdzisław Mikołajczuk, note that the Government of Poland are prepared to pay me the sum of PLN   8,000 (eight thousand Polish zlotys) with a view to securing a friendly settlement of the above ‑ mentioned case pending before the European Court of Human Rights. This sum, 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. From the expiry of the above ‑ mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. I accept the proposal and waive any further claims against Poland in respect of the facts of this application. I declare that this constitutes a final settlement of the case.” The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application (Article   37 §   1 in fine of the Convention). Accordingly, Article   29 §   3 of the Convention should no longer apply to the case and it should be struck out of the list. For these reasons, the Court unanimously Decides to strike the application out of its list of cases.   T.L. Early   Nicolas Bratza   Registrar   President