CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 25 janvier 2011

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s72F8249F { font-family:Arial; display:none } .sB8084949 { width:138.49pt; display:inline-block } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s6B505E72 { margin:0pt; padding-left:0pt } .sE2AD579 { margin-top:18pt; margin-left:29pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s646AD26C { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sF3B96856 { width:11.87pt; display:inline-block } .s8AFA63C0 { width:219.11pt; display:inline-block } .sF0A1D14D { width:11.63pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } FOURTH SECTION DECISION Application no. 13388/09 by Bogusław LEMANOWICZ against Poland The European Court of Human Rights (Fourth Section), sitting on 25   January 2011 as a Committee composed of:   Ján Šikuta, President,   Lech Garlicki,   Vincent A. de Gaetano, judges , and Fatoş Aracı, Deputy Section Registrar, Having regard to the above application lodged on 6 March 2009, Having regard to the declaration submitted by the respondent Government on 25   August   2010 requesting the Court to strike the application out of the list of cases, Having deliberated, decides as follows: THE FACTS The applicant, Mr Bogusław Lemanowicz, is a Polish national who was born in 1962 and lives in Białobrzegi. 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.     The applicant’s detention on remand and the main proceedings   (case no. XVIII K 76/08) On 22   October   2006 the applicant was arrested and charged with several counts of armed robbery committed in various organised criminal groups. On 23   October   2006 the Warsaw District Court ( Sąd Rejonowy ) decided to detain him. The court held that there was a serious risk that the applicant, if released, would attempt to tamper with evidence, in particular by inducing witnesses to give false testimonies, or would otherwise obstruct the proper course of the proceedings. As a further justification for the detention the court pointed to the severity of the anticipated penalty. At the same time, the court found no special circumstances, foreseen by Article 259   §   1 of the Code of Criminal Procedure, militating against the applicant’s detention. The applicant’s detention on remand was subsequently extended by, inter alia , decisions given by the Warszawa Court of Appeal ( Sąd Apelacyjny ) on 19   October   2007, 2   October   2008 and 27   February   2009, 25   June 2009 and 29   December   2009. The domestic courts generally justified their decisions by the complexity of the case involving at least thirty-two suspects and eighty-six volumes of documentary evidence, the severity of the anticipated penalty and by the need to carry out supplementary procedural actions. Moreover, the courts pointed to the serious nature of the charges brought against the applicant, resulting in a particularly high risk of the applicant’s absconding or otherwise obstructing the course of the proceedings. They also stressed the organised nature of the criminal groups in which the applicant had been allegedly involved. On 9 January 2008 a bill of indictment was lodged with the Siedlce Regional Court. On 5 March 2008, at the Siedlce Regional Court’s request, the Lublin Court of Appeal referred the case to the Warsaw Regional Court ( Sąd   Okręgowy ). On 9 June 2009 the Warszawa Regional Court dismissed the applicant’s request for release from detention. The refusal was justified by the gravity of the charges laid against the applicant, the severity of the anticipated penalty and the risk of exerting unlawful influence on witnesses. On the same occasion, the Regional Court requested the Governor of the remand centre in which the applicant was held to submit additional information concerning the state of the applicant’s health, in particular his spine disease, in order to verify whether it could be treated in prison or justified the applicant’s release. On 28 January 2010 the Warsaw Court of Appeal decided to extend the applicant’s detention, giving the applicant an alternative of being released on bail and under police supervision. The court explained that because a large part of the evidence had already been taken, there was no longer a high risk that the applicant would obstruct the procedure. Following the payment of security, the applicant was released on an unknown date in February or March 2010. The criminal proceedings are currently pending before the first-instance court. 2.     Restrictions of the applicant’s contacts with his family The applicant submitted that during his detention on remand, in the period from his arrest in October   2006 until around October   2008, his contacts with his wife and children had been restricted, in that he could only communicate with his relatives through a glass partition and via internal phone. However, he failed to provide any details concerning the alleged restrictions or to show that he had ever attempted to raise those issues before the domestic authorities. B.     Relevant domestic law and practice The relevant domestic law and practice concerning the imposition of detention on remand ( aresztowanie tymczasowe ), the grounds for its extension, release from detention and rules governing other , so ‑ called “preventive measures” ( środki zapobiegawcze ) are set out 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. COMPLAINTS   1.     The applicant complained under Article 5 § 3 of the Convention that the length of his detention on remand had been excessive. 2.     Relying on Article 6 of the Convention, he moreover alleged excessive length of the criminal proceedings pending against him. 3.     Lastly, he complained that the prison authorities severely restricted his contacts with his family, in violation of Article 8 of the Convention. THE LAW A.     Length of detention The applicant complained about the length of his pre-trial detention. 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 a letter dated 25 August   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: “(...) As to the facts, the Government agree in general with the Statement of Facts of 12 May 2010 as prepared by the Registry of the Court. (...) the Government hereby wish to express – by way of the unilateral declaration – its acknowledgement of the unreasonable duration of the applicant’s pre-trial detention, which was not in compliance with the requirement of   Article   5 §   3 of the Convention. Consequently, the Government are prepared to accept the applicant’s claims to a maximum of PLN   3,100. The Government would 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. (...) As transpires from the Government’s unilateral declaration, the Government accepted paying to the applicant just satisfaction up to PLN   3,100 in the event of the Court’s striking the case out of its list.” The applicant failed to submit any observations as regards the unilateral declaration submitted by the Government. 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, 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 of a violation of Article   5 §   3 of the Convention as regards the unreasonable length of pre ‑ trial detention ( 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 compensation proposed in the amount of PLN   3,100 – 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. Remaining complaints 1.     Article 6 of the Convention The applicant complained under Article 6 of the Convention that the length of the criminal proceedings was excessive. The Court notes that the applicant failed to demonstrate that he had availed himself of the possibility to file a complaint 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 Court recalls that it has already found that the 2004 Act provides for an effective remedy in respect of the excessive length of proceedings (see Charzyński v.   Poland (dec.), no.   15212/03, §§   12-23, ECHR 2005 ‑ V; Figiel v.   Poland (no.   1) , no.   38190/05, §   25-30, 17   July 2008; Figiel v.   Poland (no.   2) , no.   38206/05, §   29 ‑ 34, 16   September 2008). Consequently, this complaint must be declared inadmissible for non ‑ exhaustion of domestic remedies in accordance with Article   35 §§   1 and 4 of the Convention. 2.     Article 8 of the Convention The applicant further complained under Article 8 of the Convention that the prison authorities had unfairly restricted his contacts with family. In this respect the Court should observe that the applicant failed to sufficiently substantiate his complaint by providing it with details as to the scope of the alleged restrictions. Moreover, it notes that he failed to demonstrate that he had ever attempted to address this issue at the domestic level by way of filing any complaints with the prison authorities. In the light of the above reasons, the complaint must be declared inadmissible as manifestly ill ‑ founded, for want of substantiation. It follows that this part of the application must be rejected in accordance with Article   35 §§   1, 3 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 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 Aracı   Ján Šikuta   Deputy Registrar   President