FOURTH SECTION

DECISION

Application no. 9200/09 by Marian GURGUL against Poland

The European Court of Human Rights (Fourth Section), sitting on 23 February 2010 as a Chamber composed of:

Nicolas Bratza , President, Lech Garlicki , Giovanni Bonello , Ljiljana Mijović , David Thór Björgvinsson , Ledi Bianku , Mihai Poalelungi , judges, and Lawrence Early, Section Registrar ,

Having regard to the above application lodged on 3 February 2009,

Having regard to the declaration submitted by the respondent Government on 20 August 2009 requesting the Court to strike the appli cation out of the list of cases,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Marian Gurgul , is a Polish national who was born in 1959 and lives in Kraków. He was represented before the Court by Mr Ł. Szatko, a lawyer practising in Katowice . The Polish Government (“the Government”) were r epresented 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 23 October 2006 the applicant was charged with several counts of fraud, money laundering, extortion and usury committed in an organised criminal group.

On 26 October 2006 he was arrested and on 27 October 2006 detained on remand by the Kielce 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 in view that certain victims had reported being threatened by the members of the criminal group. It stressed that several members of the criminal group has not yet been remanded in custody. The court 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.

The applicant ' s detention was further prolonged by decisions of the Kraków Regional Court ( Sąd Okręgowy ).

On 12 October 2007 a bill of indictment against the applicant and other co-accused persons was lodged with the Kraków Regional Court . In the course of the proceedings the applicant ' s detention was prolonged regularly by the Kraków Regional Court .

On 24 October 2008 the Kraków Court of Appeal ( Sąd Apelacyjny ) extended the applicant ' s detention until 30 May 2009. The court repeated the grounds previously given and stressed that the case was complex (fifteen persons accused of one hundred and twenty-nine charges; two hundred and fifteen witnesses). It further noted that although the trial had re-commenced in July (as one of the judges had broken his leg), the Regional Court had already held twenty-two hearings and the proceedings had been conducted with due diligence.

The applicant ' s detention was lifted by the Kraków Regional Court on 14 May 2009. The proceedings are still pending.

The applicant unsuccessfully appealed, on several occasions, against decisions extending his detention, alleging that the evidence against him was unreliable. He also relied on his personal circumstances, in particular his health problems (stomach bleeding). The applicant ' s requests to have his detention lifted and a more lenient preventive measure imposed were likewise unsuccessful.

The courts justified their decisions prolonging the applicant ' s detention by the need to hear the accused and the large number of witnesses, the complexity of the case, the voluminous documentation gathered in the course of the proceedings, 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, in particular in view of the fact that several victims had been threatened by certain members of the criminal group. Further, the courts observed that one of the accused had fled the country and a wanted notice ha s been issued for him . Lastly, the courts noted that the applicant had received adequate medical care in prison.

B. Relevant domestic law and practice

The relevant domestic law and practice concerning the imposition of pre ‑ trial detention ( aresztowanie tymczasowe ), the grounds for its extension, release from detention and rules governing other so ‑ called “preventive measures” ( Å›rodki zapobiegawcze ) are set out in the Court ' s judgments in the cases of GoÅ‚ek v. Poland , no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland , no. 17584/04, §§ 22-23, 4 August 2006.

COMPLAINT

The applicant complained under Article 5 § 3 of the Convention about the unreasonable length of his detention.

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.”

By letter dated 20 August 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 th e unilateral declaration ‑ ‑ its acknowledgement of the unreasonable duration of the detention on remand implied on the applicant.

In 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 4,5 00 [four thousand five hundred Polish zlotys], 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. ... ”

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 ).

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.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government ' s declaration 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 accordance with Article 37 § 1 (c) of the Convention.

Lawrence Early Nicolas Bratza Registrar President