FOURTH SECTION

DECISION

App lication no. 35074/03 by Stanisł aw MATUSZCZYK against Poland

The European Court of Human Rights (Fourth Section), sitting on 23 June 2009 as a Chamber composed of:

Nicolas Bratza , President, Lech Garlicki , Giovanni Bonello , Ljiljana Mijović , Ján Šikuta , Mihai Poalelungi , Nebojša Vučinić , judges, and Lawrence Early, Section Registrar ,

Having regard to the above application lodged on 15 October 2003,

Having regard to the declaration submitted by the respondent Government on 7 April 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 Stanisł aw Matuszczyk, is a Polish national who was born in 1962 and lives in Nysa. 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. The applicant ’ s pre-trial detention.

The applicant, a police officer, was arrested on 19 June 1998. He was suspected of having accepted a bribe from a Bulgarian citizen in return for an assurance that he would not open an investigation against him.

On 21 June 1998 the Opole Regional Court ( SÄ… d Okr Ä™ gowy ) remanded the applicant in custody until 18 September 1998 on the ground that there was a reasonable risk that he would obstruct the investigation.

On 17 September 1998 the Opole Regional Court extended the applicant ’ s detention until 18 December 1998, holding that the reason for which he had been detained , namely the risk of obstructing the investigation, w as still relevant and that the investigation had not been finished.

On 16 December 1998 the Wrocł aw Court of Appeal ( Są d Apelacyjny) extended the applicant ’ s detention until 18 April 1999. This time new ground s were given for the court ’ s decision : t he applicant was suspected of having unlawfully killed a Bulgarian citizen and t he pre-trial detention was justified by the seriousness of the offence, the existence of evidence against the applicant and the likelihood of a heavy sentence being imposed .

The applicant ’ s pre-trial detention was subsequently extended by decisions of the Opole Regional Court (of 10 June 1999, 28 October 1999, 25 February 2000, 23 November 2000, 13 September 2001, 11 December 2001, 12 March 2002, 6 June 2002, 12 September 2002, 12 November 2002, 27 February 2003, 10 June 2003, 4 September 2003, 8 December 2003, 10 February 2004, 11 May 2004, 5 July 2004, 27 September 2004, 21 October 2004 a nd 13 September 2005), the Wrocł aw Court of Appeal (of 7 April 1999, 15 February 2001, 24 April 2001, 20 June 2001 and 3 June 2005) and the Supreme Court ( Sąd Najwyż szy – 8 June 2000).

Appeals by the applicant against the decisions extending his detention ( the Wroc ł aw Court of Appeal ’ s decisions of 25 June 1999, 24July 2001, and 21 December 2001 ) and a separate request for his release were all unsuccessful. On 12 August 1999 the Opole Regional Court refused to lift the pre-trial detention.

The domestic courts justified the applicant ’ s pre-trial detention by the existence of strong evidence against him, the likelihood of a heavy sentence and the risk of his try ing to obstruct the proper course of the proceedings. At the same time, the domestic courts did not find any “personal or family reasons” to discontinue his detention.

On 29 September 2005, following the applicant ’ s appeal against the further extension of his detention for another five months, the Wroc ł aw Court of Appeal partly varied the challenged decision and shortened the period of extension to three months. It noted that, after another remittal of the case, the proceedings before the first-instance court had again been lengthy and referred to its decision of 29 December 2004 acknowledging the excessive length of the proceedings (see below).

2. The criminal proceedings against the applicant

On 23 November 2000 the Opole Regional Court found the applicant guilty of murder, bribery and illegal possession of arms and sentenced him to 25 years ’ imprisonment.

On 25 January 2001 the applicant ’ s lawyer appealed against that judgment.

On 26 June 2001 the Wroc Å‚ aw Court of Appeal ( SÄ… d Apelacyjny ) quashed the first-instance judgment as regards two of the counts and remitted the case for further examination.

On 29 November 2004 the Opole Regional Court again convicted and sentenced the applicant.

On 24 March 2005 the applicant ’ s court-appointed lawyer lodged a further appeal.

On 3 June 2005 the Wroc Å‚ aw Court of Appeal quashed the first-instance judgment and again remitted the case.

On 6 December 2005 the Opole Regional Court convicted and sentenced the applicant for the third time.

On 15 and 16 January 2006 the applicant and his lawyer lodged appeals.

On 22 May 2006 the Wroc Å‚ aw Court of Appeal upheld the first-instance judgment of 6 December 2005.

On 22 July 2006 the applicant ’ s lawyer lodged a cassation appeal .

On 19 July 2007 the Supreme Court dismissed the cassation appeal as manifestly ill-founded.

3. The applicant ’ s complaint concerning the length of the criminal proceedings.

On 8 November 2004 the applicant lodged a complaint with the Wroc ł aw Court of Appeal under section 5 of 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 post ę powaniu s ą dowym bez nieuzasadnionej zw ł oki) (“the 2004 Act”). He sought a ruling declaring that the length of the proceedings before the Opole Regional Court had been excessive, and just satisfaction of 10,000 zlotys ( PLN ) .

On 29 December 2004 the Wroc Å‚ aw Court of Appeal gave a decision in which it acknowledged the excessive length of the criminal proceedings and awarded the applicant PLN 3,000 (approx imately 789 euros ( EUR ) ) in just satisfaction.

B. Relevant domestic law and practice

1. As regards pre-trial detention

The relevant domestic law and practice concerning the imposition of pre ‑ trial detention ( aresztowanie tymczasowe ), the grounds for its extension, release from detention and the rules governing other “preventive measures” ( Å›rodki zapobiegawcze ) are stated 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.

2. As regards the excessive length of judicial proceedings

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court ’ s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII, and its judgment in the case of Krasuski v. Poland , no. 61444/00, §§ 34-46, ECHR 2005-V.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention of the unreasonable length and the unfairness of the criminal proceedings against him .

He also complain ed under Article 5 § 3 of the Convention about the len gth of his pre-trial detention.

He further c omplain ed under Article 8 of the Convention of the censorship of his correspondence.

THE LAW

A. Length of proceedings and length of the applicant ’ s pre-trial detention

The applicant 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 ...”

The applicant also 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 a letter dated 7 April 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 a unilateral declaration ‑ t heir acknowledgement of the violation of the applicant ’ s right to [a] hearing within [a] reasonable time and the lengthy application of pre-trial detention in respect of the applicant as guaranteed respectively by Articles 6 § 1 and 5 § 3 of the Convention.

Consequently, the Government are prepared to pay to the applicant the amount of PLN 21,000 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 from 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 for the Protection of Human Rights. In the event of failure to pay this sum within the 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 to the applicant the sum of PLN 21,000 in the event of the Court ’ s striking the case out of its list. ...”

In a letter of 9 May 2009 the applicant expressed the view that the sum mentioned in the Government ’ s declaration was unacceptably lo w and invited the Court to examine his application on the merits .

The Court notes 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”.

I n certain circumstances, the Court 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 the 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 ‑ ... .; Majewski v. Poland , no. 52690/99, 11 October 2005; and Wende and Kukówka v. Poland , no. 56026/00, 10 May 2007). It has also addressed in numerous cases against Poland under Article 5 § 3 of the Convention the 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 the application (Article 37 § 1(c) ) .

Moreover, in the 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. Remaining complaints

The applicant further complained under Article 6 § 1 of the Convention that the criminal proceedings against him had been unfair and under Article 8 of the Convention about the censorship of his correspondence .

However, the Court considers that the complaint about the alleged unfairness of the proceedings essentially concerns their outcome and, as such, is clearly of a fourth-instance nature. There is nothing in the case file which would disclose a violation of the applicant ’ s rights under Article 6 § 1 of the Convention.

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

As regards the complaint about the alleged censorship of the applicant ’ s correspondence, the Court notes that the applicant has failed to produce any prima facie evidence to support his allegations.

It follows that this part of the application is likewise manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 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 complaints under Article s 5 § 3 and 6 § 1 (length of the proceedings) 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 complaints in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Lawrence Early Nicolas Bratza Registrar President