FOURTH SECTION

DECISION

Application no. 34756/08 by Mariusz Krzysztof PAWLAK 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 , 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 10 July 2008,

Having regard to the declaration submitted by the respondent Government on 13 October 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 Mariusz Krzysztof Pawlak , is a Polish national who was born in 1975 and lives in Lublin . 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 7 October 2006 the applicant was arrested.

On 16 October 2006 the Warsaw District Court ( Sąd Rejonowy ) detained the applicant on remand on suspicion of numerous counts of fraud. The court based its detention order on a reasonable suspicion that the applicant had committed the offences, which was supported by evidence, on the severity of the likely penalty and the need to secure the proper conduct of the proceedings. It stressed that a wanted notice ( list gończy ) was issued i n the course of the investigation with a view to locating the applicant. 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.

On 13 December 2006 the Warsaw Regional Court ( Sąd Okręgowy ) dismissed the applicant ' s interlocutory appeal against the detention order.

Subsequently, the applicant ' s detention was extended by decisions of the Warsaw District Court and the Warsaw Court of Appeal ( SÄ…d Apelacyjny ).

On 24 December 2007 a bill of indictment was lodged with the Warsaw Regional Court against the applicant and two other persons.

During the court proceedings the applicant ' s detention was further extended.

The applicant ' s appeals against decisions prolonging his detention were unsuccessful .

On 10 January 2008 the Warsaw Regional Court found that it was not competent to deal with the case and referred it to the Wrocław Regional Court . On the same day the court requested the Wrocław Court of Appeal to refer the case to the Warsaw court.

On 21 May 2008 the Wrocław Court of Appeal referred the case back to the Warsaw Regional Court .

On 5 August 2008 the Warsaw Regional Court requested the Supreme Court to refer the case to a different court of equal rank.

On 4 November 2008 the Supreme Court decided to refer the case to the Wrocław Regional Court .

The courts justified their decisions prolonging the applicant ' s detention by the need to hear a large number of witnesses, 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 induce the witnesses to change their testimonies or otherwise obstruct the proper course of the proceedings . Further, the courts observed that a wanted notice had been issued in the course of the investigation, as the applicant ' s place of residence between 1 December 2005 and 7 October 2006 could not be established. 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.

The applicant ' s detention was lifted on 25 February 2009. It appears that he was released on the same day.

The proceedings are currently pending before the first-instance court.

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.

COMPLAINTS

1. The applicant complained in substance under Article 5 § 3 of the Convention about the excessive length of his pre-trial detention .

2. Further, he complained about the unreasonable length of the criminal proceedings against him .

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:

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 13 October 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 violation of reasonableness of the length of the applicant ' s pre-trial detention within 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 the applicant PLN 6,800 (six thousand eight 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. ... ”

In a letter of 12 November 2009 the applicant expressed the view that the sum mentioned in the Government ' s d eclaration was unacceptably low. He requested that the examination of his application be continued.

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 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 about the unreasonable length of criminal proceedings against the applicant

T he applicant further complained, invoking Article 6 § 1 of the Convention, about the unreasonable length of the criminal proceedings against him.

The Court notes that persons complaining about the length of judicial proceedings in Poland are required by Article 35 § 1 of the Convention to make use of remedies provided by 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 applicant failed to avail himself of a remedy provided by the 2004 Act.

It follows that this part of the application is inadmissible for non ‑ exhaustion of domestic remedies and must be rejected in accordance with Article 35 §§ 1 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.

Lawrence Early Nicolas Bratza Registrar President