FOURTH SECTION

DECISION

Application no. 33314/06 by Dariusz KACZMAREK against Poland

The European Court of Human Rights (Fourth Section), sitting on 26 January 2010 as a Chamber composed of:

Nicolas Bratza , President, Lech Garlicki , Giovanni Bonello , Ljiljana Mijović , Päivi Hirvelä , Ledi Bianku , Nebojša Vučinić , judges, and Lawrence Early, Section Registrar ,

Having regard to the above application lodged on 3 August 2006,

Having regard to the declaration submitted by the respondent Government on 21 October 2009 requesting the Court to strike the appli cation out of the list of cases,

Having deliberated, decides as follows:

THE FACTS

The applic ant, Mr Dariusz Kaczmarek, is a Polish national who was born in 19 75 and lives in Warsaw . He was represented before the Court by Ms M. Gąsiorowska, a lawyer practising in Warsaw . 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.

1. First set of criminal proceedings against the applicant

On 12 July 2002 the applicant was arrested on suspicion of having committed several counts of theft, robbery and an assault of a police officer committed while acting as part of an organised criminal group.

On 16 July 2002 the Warsaw District Court remanded the applicant in custody, relying on the reasonable suspicion that he had committed the offences in question.

The court indicated that the evidence gathered in the case, in particular the testimonies of a crown witness and those of other suspects, showed that there was a sufficient probability that the applicant had committed the offences with which he had been charged. It attached importance to the likelihood of a severe sentence of imprisonment being imposed on the applicant and the risk that he would attempt to obstruct the proceedings. The court also referred to the risk of his absconding and going into hiding , given the fact that the applicant had previously been sought pursuant to a “wanted” notice. The court found no special grounds, as laid down in Article 259 § 1 of the Code of Criminal Procedure, that would justify imposing a less severe preventive measure.

In the course of the investigation, the applicant ’ s detention was extended on several occasions by the domestic courts ’ decisions.

An appeal by t he applicant against the detention order, and likewise his further appeals against some of the decisions extending his detention and all his subsequent applications for release and appeals against refusals to release him , were unsuccessful. In his applications and appeals, he argued that his lengthy detention was against the law.

On an unspecified date a bill of indictment was lodged with the Warsaw District Court. The applicant was charged with several counts of t heft, burglary and assault of a police officer.

On 23 November 2005 the Warsaw District Court found the applicant guilty as charged and sentenced him to twelve years ’ imprisonment and a fine. The applicant appealed.

On 10 November 2006 the appellate court quashed the first-instance judgment in respect of the applicant and referred the case back for reconsideration.

During the court proceedings the courts further extended the applicant ’ s detention on 10 November 2006 (until 15 January 2007), 11 January 2007 (until 14 May 2007), on unspecified subsequent dates, on 2 April 2008 (until 11 August 2008) and on an unspecified subsequent date.

On 5 November 2008 the Warsaw District Court found the applicant guilty of several counts of theft, robbery and assault of a police officer committed while acting as part of an organised criminal group. The court sentence d the applicant to eleven years and nine months ’ imprisonment and to a fine.

It appear s that the applicant appealed and the proceedings before the Warsaw Regional Court are still pending.

2. Second set of criminal proceedings against the applicant

On 27 January 2004 the Warsaw District Court remanded the applicant in custody, relying on the reasonable suspicion that he had committed several offences of theft and robbery.

The court indicated that the evidence gathered in the case showed that there was a sufficient probability that the applicant had committed the offences with which he had been charged. It attached importance to the likelihood of a severe sentence of imprisonment being imposed on the applicant and the risk that he would attempt to obstruct the proceedings.

In the course of the investigation and during the court proceedings, the applicant ’ s detention was extended on several occasions by the domestic courts ’ decisions. In all their decisions the authorities relied on the original grounds given for the applicant ’ s detention.

An appeal by the applicant against the detention order, and likewise his further appeals against some of the decisions extending his detention and all his subsequent applications for release and appeals against refusals to release him , were unsuccessful. In his applications and appeals, he argued that his lengthy detention was against the law.

On 15 December 2006 the Warsaw District Court found the applicant guilty as charged and sentenced him to ten years ’ imprisonment. The applicant appealed.

On 11 September 2007 the appellate court quashed the first-instance judgment in respect of the applicant and referred the case back for reconsideration.

During the re-trial proceedings the authorities further extended the applicant ’ s detention on several occasions, namely on 9 January 2008 (until 26 May 2008), 14 April 2008 (until 26 May 2008) and on an unspecified subsequent date.

It appears that the proceedings against the applicant are still pending.

3. The alleged ill-treatment of the applicant

On several occasions the applicant sought to institute criminal proceedings against police officers and prison guards, alleging that he had been ill-treated (beaten, tormented, insulted and intimidated) during his arrests and especially when being brought by the police to the hearings.

On 11 August 2006, 9 May and 31 December 2007 and 14 and 22 February 2008 the Warsaw District Prosecutor refused to institute an investigation into the applicant ’ s al legations of abuse of power by police officers and prison guards. The prosecutor held that there had been insufficient evidence to support the applicant ’ s assertion that police officers and prison guards had committed an offence.

It appears that the applicant did not appeal against any of those decisions.

With respect to three other complaints about his ill-treatment by police officers, the applicant failed to submit to the Court any documents supporting his allegations. In particular he did not submit the District Prosecutor ’ s decisions to discontinue the proceedings against the police officers.

4. Conditions of the applicant ’ s detention

The applicant filed at least sixty-two complaints about bad conditions in the Warsaw-Białołęka and the Warsaw-Mokotów Detention Centre ( Areszt Ś ledczy ), namely about the heating in his cell being broken, about the lack of light in the cells in the evenings, unhealthy food, dirty bedclothes, the presence of a foreigner among the inmates, not receiving a copy of the Criminal Code, ragged clothes, slippery pavements in the prison yard and placing him in solitary confinement for fourteen days as a disciplinary punishment.

All the applicant ’ s complaints were speedily and duly examined by the competent national penitentiary authorities and dismissed as unfounded .

B. Relevant domestic law and practice

The relevant domestic law and practice concerning the imposition of pre ‑ trial detention on remand ( aresztowanie tymczasowe ), the grounds for its extension, release from detention and rules governing others , 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 under Article 5 § 3 of the Convention of the unreasonable length of his pre-trial detention ordered in the course of both sets of criminal proceedings pending against him.

2. Invoking Article 3 of the Convention, the applicant complained about the bad conditions of his detention and ill-treatment by police officers and prison guards.

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 21 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 the unilateral declaration ‑ ‑ its acknowledgement of the fact that the applicant ’ s pre-trial detention was not compatible with a ‘ reasonable time ’ requirement within the meaning of Article 5 § 3 of the Convention.

Consequently, the G overnment are prepared to pay the applicant PLN 10,000 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 the 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 Government would respectfully suggest that the above declaration 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 the applicant as just satisfaction the amount of PLN 10,000 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 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 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.

B. Complaints under Article 3 of the Convention

The ap plicant also complained about the bad conditions of his detention, relying on Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

However, the Court considers that this complaint lacks substantiation. It observes that all the complaints filed by the applicant with the relevant penitentiary authorities were duly examined and rejected as unfounded (see above). Further, before the Court the applicant did not produce any new evidence that might lead to an opposite conclusion.

It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

Lastly, the applicant, relying on the same provision, complained about his ill-treatment during his arrests. On at least eight occasions, to no avail, he sought to institute criminal proceedings against police officers and prison guards on the grounds that he had been beaten up, tormented and intimidated (see above). The Court first observes that the applicant has not produced any evidence demonstrating that he was subjected to any ill ‑ treatment by policemen or prison guards. He also failed to produce relevant documents as regards three of his complaints. Further, insofar as the nature of the investigation carried out is concerned, it seems that he failed to exhaust domestic remedies, namely to appeal against the District Prosecutor ’ s decisions about the refusal to institute proceedings.

It follows that this part of the application must also 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.

Lawrence Early Nicolas Bratza Registrar President