FOURTH SECTION

FINAL DECISION

Application no. 18532/06 by Karol SZUTARSKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 26 June 2007 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr G. Bonello , Mr K. Traja , Mr L. Garlicki , Ms L. Mijović , Mr J. Šikuta , Mrs P. Hirvelä , judges , and Mr T.L. Early , Section Registrar ,

Having regard to the above application lodged on 14 April 2006,

Having regard to the partial decision of 16 January 2007,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having regard to the unsuccessful friendly-settlement negotiations,

Having regard to the Government ’ s request to strike the case out of its list of cases and the text of a unilateral declaration made with a view to resolving the issues raised by the application,

Having regard to the applicant ’ s comments on the Government ’ s proposal for a unilateral declaration,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Karol Szutarski , is a Polish national who was born in 1977 and lives in Ustka , Poland . He was represented before the Court by Mr Z. Kow alski, a lawyer practising in Sł upsk . 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 27 May 2002 the applicant was arrested by the police.

On 29 May 2002 the Gdańsk District Court ( Sąd Rejonowy ) decided to detain the applicant on remand in view of the reasonable suspicion that the applicant, acting in an organised criminal gang, had committed an armed robbery.

On 13 August and 14 November 2002 the Gdańsk Regional Court ( Sąd Okręgowy ) further prolonged his detention relying in particular on the risk that a heavy sentence would be imposed, which made it probable that the applicant would interfere with the course of the investigation. Moreover, the complexity of the investigation justified keeping the applicant in detention.

Subsequently, the applicant ’ s detention on remand was prolonged, inter alia , on 19 December 2002 and 11 March 2003. The Regional Court reiterated the original grounds given for detention and held that keeping the applicant in custody was necessary for securing the obtaining of evidence.

On 7 May 2003 the GdaÅ„sk Court of Appeal ( SÄ…d Apelacyjny ), upon an application from the GdaÅ„sk Regional Prosecutor ( Pr okurator OkrÄ™ gowy ), further prolonged the applicant ’ s pre ‑ trial detention. In addition to reiterating the grounds relied on previously, the court considered that the complexity of the case and the large number of co ‑ accused justified the fear that, if released, the applicant would interfere with the proper conduct of the proceedings.

On 16 June 2003 the applicant and 14 other co-accused were indicted before the Gdańsk Regional Court .

On 26 June and 18 December 2003 the GdaÅ„sk Regional Court prolonged the applicant ’ s pre ‑ trial detention. It considered that the severity of the possible sentence justified the fear that, if released, the applicant would attempt to influence witnesses or abscond.

Afterwards, as the length of the applicant ’ s detention had reached the statutory time ‑ limit of 2 years laid down in Article 263 § 3 of the Code of Criminal Procedure ( Kodeks postÄ™ powania karnego ), the Regional Court applied to the GdaÅ„sk Court of Appeal ( SÄ…d Apelacyjny ) asking for the applicant ’ s detention to be prolonged beyond that term. On 12 May, 22 September and 28 December 2004 the GdaÅ„sk Court of Appeal allowed the application and prolonged his pre ‑ trial detention. The court reiterated the grounds given previously.

On 15 November 2005 the Gdańsk Regional Court decided to lift the applicant ’ s detention and to release him on bail of PLN 120,000. The court established that releasing the applicant from detention was justified by the advanced stage of the proceedings as almost all witness had been heard by the trial court and that bail would secure his appearance at the trial.

On 13 April 2006 the applicant lodged a complaint about a breach of the right to have his case heard within a reasonable time. 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 ).

On 6 June 2006 the Gdańsk Court of Appeal dismissed the applicant ’ s complaint. The court established that since the indictment the trial court had been acting diligently and speedily, taking into consideration the particular complexity of proceedings concerning 15 co-accused charged with 90 offences. The case-file comprised 82 volumes. In order to thoroughly examine the case the trial court had held in total 51 hearings and had taken all actions without undue delay.

On 30 May 2006 the Gdańsk Regional Court gave a judgment. The court convicted the applicant and sentenced him to 5 years ’ imprisonment. It appears that the applicant requested that the reasoned judgment be served on him with a view to lodging an appeal.

The proceedings are pending.

COMPLAINTS

The applicant complained under Article s 5 § 3 and 6 § 1 of the Convention about the unreasonable length of the pre-trial detention and of the criminal proceedings in his case.

THE LAW

On 2 May 2007 the Government informed the Court that they proposed to resolve the case in the form of a unilateral declaration . They agreed with the facts of the case as submitted by the applicant and made the following declaration:

“ The Government hereby wish to express - by way of unilateral declaration – its acknowledgment of the unreasonable duration of the domestic proceedings and the unreasonable length of the pre-trial detention of the applicant. The Government are prepared to pay the applicant a sum of PLN 5 000 as just satisfaction.

Th e sum referred to above , which is to cover any pecuniary and non ‑ pecuniary damage as well as costs and expenses, will be fee 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 perio d plus three percentage points.

...

The Government therefore invite the Court to strike the present case out of the list of cases. They suggest that the present 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 in his written reply dated 8 May 2007 requested the Court to reject the Government ’ s proposal. He argued that the sum proposed by the Government was not adequate and could not be considered sufficient just ‑ satisfaction for pecuniary and non-pecuniary damage sustained by him . In particular, the applicant submitted that his attempt to claim compensation from the domestic courts for the unreasonable length of the proceedings had failed as on 6 June 2006 the Court of Appeal had dismissed his complaint lodged under the 2004 Act . Consequently, the applicant requested that the Court continue the examination of his case and deliver a judgment.

The Court observes at the outset that the parties were unable to agree on the terms of a friendly settlement of the case. It rec alls that, according to Article 3 8 § 2 of the Convention, friendly-settlement negotiations are confidential and that Rule 62 § 2 of the Rules of Court further stipulates that no written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in contentious proceedings. However, the declaration was made by the Government on 2 May 2007 outside the framework of the friendly ‑ settlement negotiations.

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”.

Article 37 § 1 in fine includes the provisi on that:

“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

The Court also recalls that under certain circumstances, it may strike out an application under Article 37 § 1 (c) of the Convention 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 ); Meriakri v. Moldova ( ( striking out), no. 53487/99 , 1 March 2005 ); Swe dish Transport Workers Union v. Sweden ( (striking out), no. 53507/99, 18 July 2006 ) and Van Houten v. the Netherlands ( ( striki ng out), no. 25149/03 , ECHR 2005 ‑ IX ).

Turning to the instant case, t he Court notes that it has specified in a number of cases the nature and extent of the obligations which arise for the respondent State under Articles 5 § 3 and 6 § 1 of the Convention as regards the guarantees of the right to a trial with in a reasonable time or to release pending trial (see, among many others, Celejewski v. Poland , no. 17584/ 04, 4 May 2006 ; Czajka v. Poland , no. 15067/02, 13 February 2007 ; PiÄ…tkowski v. Poland , no. 5650/02 , 17 October 2006 , Barszcz v. Poland , no. 71152/01, 30 May 2006 ) .

Having regard to the nature of the admissions contained in the declaration, as well as the amount of compensation proposed, the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)) (see, for the relevant principles, Tahsin Acar as cited above ; and also Haran v. Turkey , no. 25754/94, judgment of 26 March 2002) .

The Court further notes that this decision constitutes a final resolution of this application only insofar as the proceedings before the Court are concerned. It is without prejudice to the use by the applicant of other remedies before the domestic courts to claim further compensation in respect of the impugned proceedings.

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, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.

For these re asons, the Court by a majority

Takes note of the terms of the respondent Government ’ s declaration 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 .

T.L. Early Nicolas Bratza Registrar President