CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 3 mai 2011

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He was represented before the Court by Mr Łukasz Szatko, a lawyer practising in Katowice. The Polish Government (“the Government”) were represented by their Agent, Mr Jakub 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. 1.     Criminal proceedings against the applicant and his pre-trial detention On 26 February 2007 the applicant was arrested on suspicion of, inter alia , drug trafficking, committed in an organised and armed criminal group. On 1 March 2007 the Warsaw District Court ( Sąd Rejonowy ) detained the applicant on remand. In the course of the investigation more then twenty other persons were arrested. The applicant’s detention was subsequently extended by decisions of the Warsaw Regional Court ( Sąd Okręgowy ) delivered on 21 May and 3   September 2007. On 26 September 2007 a bill of indictment against the applicant and twenty-eight other persons was lodged with the Warsaw Regional Court (it numbered one hundred forty-nine pages). Subsequently, the applicant’s detention was prolonged by the Warsaw Regional Court on 8 October 2007 and 11 February 2008. On 9 November 2007 the Warsaw Court of Appeal ( Sąd Apelacyjny ) dismissed the applicant’s interlocutory appeal against the extension decision of 8 October 2007. On 15 February 2008 the Warsaw Regional Court refused the applicant’s request to have his detention lifted and a more lenient preventive measure imposed. A first hearing was held on 25 March 2008. Subsequently, the trial court held hearings on 25, 26 and 28 March 2008. It appears that the trial has re-commenced on 25 April 2008, as one of the lay-judges ( ławnik ) had been disqualified from examining the case. Further hearings were held on 30 April, 5, 9, 26 and 30 May and 5 June 2008. A hearing scheduled for 6 June 2008 was adjourned until 8 September, due to the lay-judge’s illness. A hearing scheduled for 8 September 2008 was cancelled, as the accused could not have been transported to the court from the remand centre. On 2 December 2008 the applicant requested to have his detention lifted. It appears that his request was refused. On 4 December 2008 the Warsaw Court of Appeal extended the applicant’s detention until 30 June 2009. His interlocutory appeal was dismissed by the Warsaw Court of Appeal on 30 December 2008. On 22 January 2009 the applicant lodged yet another request to have the detention lifted and a more lenient preventive measure imposed. It was likewise dismissed by the Warsaw Regional Court on 16 January 2009.   The courts justified their decisions prolonging the applicant’s pre-trial detention by the need to hear the accused and the large number of witnesses, the complexity of the case, the significant number of persons involved (twenty-nine persons accused), 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. These considerations led the courts to assume that the applicant, if released, could tamper with evidence, induce the witnesses to change their testimonies and obstruct the proper course of the proceedings. The courts stressed that a number of experts’ opinions had to be requested and that a special room had to be reserved for hearings in the present case, as it concerned a dangerous criminal group. They found 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. On 18 June 2009 the Warsaw Court of Appeal prolonged the applicant’s detention until 31 December 2009. On 2 November 2009 the applicant was released. The proceedings are still pending before the first-instance court. 2.     Proceedings under the 2004 Act On 15 July 2008 the applicant lodged a complaint about a breach of his right to a trial within a reasonable time in respect of the 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 23 September 2008 the Warsaw Court of Appeal dismissed his complaint as unfounded. Having examined the case as of 25 September 2007 (after the bill of indictment had been lodged), the court found no undue delays in the proceedings It concluded that regard being had to the complexity of the case (twenty-nine persons accused, sixty-seven offences, seventy-nine volumes), the proceedings had been conducted within a reasonable time. 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 remand during judicial proceedingson remand ( aresztowanie tymczasowe ), the grounds for its extension prolongation , 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 described 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 about the excessive length of his pre-trial detention. 2.     He further complained, invoking Article 6 § 1 of the Convention, about the unreasonable length of the proceedings. THE LAW 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: 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 proceedings. 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 a letter dated 23 December 2010 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues 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 unilateral declaration – their acknowledgement of the unreasonable duration of the applicant’s pre-trial detention (Article 5 § 3 of the Convention) and of the domestic proceedings in which the applicant was involved (Article 6 § 1 of the Convention). In this [these] circumstances, and having regard to the particular facts of the case, the Government declare that they offer to pay the applicant the amount of PLN 9,000. 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 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. ...” The applicant’s lawyer did not submit any comments. 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 ‑ V; 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 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. For these reasons, the Court unanimously   Takes note of the terms of the respondent Government’s declaration under Articles 5 § 3 and 6 § 1 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 accordance with Article 37 § 1 (c) of the Convention.   Fatoş Aracı   Sverre Erik Jebens Deputy Registrar   President