FOURTH SECTION

DECISION

Application no. 37888/03 by Piotr GOLEC against Poland

The European Court of Human Rights (Fourth Section), sitting on 10 May 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 5 November 2003,

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 formal declarations accepting a friendly settlement of the case,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Piotr Golec , is a Polish national who was born in 1970 and lives in Bytom . He was rep resented before the Court by Mr J. Gałkowski , a lawyer practising in Bielsko-Biała . The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

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 and trial

On 29 February 2000 the applicant was arrested by the police. On the same day the Katowice District Court ordered his detention on remand on suspicion of supplying illegal drugs. He was detained in the Zabrze Detention Centre. From 28 August 2000 to 23 May 2001 he was detained in the Tarnów Prison.

The applicant ’ s detention was prolonged by the District Court on further unspecified dates.

The investigation was conducted by the Department of Organised Crime of the Katowice Regional Prosecutor ’ s Office. On 11 October 2000 the Regional Prosecutor informed the applicant that he had refused the applicant ’ s requests of 25 September and 10 October 2000 for a cross-examination of a certain prosecution witness.

In October and November 2000 the Regional Prosecutor, following a complaint from the applicant ’ s mother, informed her that the applicant could not be transferred to another prison. On 12 November 2001 , in reply to the applicant ’ s complaint, the Regional Prosecutor informed him that he had been transferred to the Tarnów Prison in order to isolate him from his co-suspects.

In November 2000 the applicant ’ s mother requested that the applicant be examined by a neurologist. On 19 December 2000 the Tarnów Prison ’ s Governor informed the applicant ’ s mother that her son had been examined by a neurologist on 30 November and 9 December 2000 . The neurologist had found that the applicant was not in need of any specialised treatment.

In November 2001 the applicant ’ s mother requested that the applicant be examined by an urologist in view of the suspicion that he suffered from inflammation of the testis. On 26 November 2001 the Regional Prosecutor informed her that according to information from the Gliwice Detention Centre, where the applicant was detained, the applicant had suffered from inflammation of the testis but he had recovered in the meantime. Accordingly, he could remain in detention.

On 18 January 2002 the Katowice Regional Prosecutor filed a bill of indictment with the Cieszyn District Court. The applicant was charged with supplying large quantities of illegal drugs (4 kg of amphetamine) and possession of drugs. The bill of indictment specified that the applicant had been convicted in the past of drug-related offences. There were four other defendants in the case. Three of the defendants, but not the applicant, were charged with acting in an organised criminal group.

On an unspecified date the trial court made a severance order in respect of the proceedings against one of the defendants.

On 29 January 2002 the Cieszyn District Court prolonged the applicant ’ s detention on remand until 28 February 2002 . It noted that there was a strong likelihood that the applicant had committed the offences in question given the evidence obtained in the case, in particular that of the State ’ s witness ( świadek koronny ). The District Court also observed that there was a risk that the applicant would obstruct the proceedings, given the number of the defendants, the nature of the charges and the complexity of the case. The court considered that the prolongation of the applicant ’ s detention and keeping the defendants in separate detention centres was the only measure which could secure the proper conduct of the proceedings. It also had regard to the fact that prior to his arrest the applicant had permanently lived in Germany and had only rented a flat in Poland . Lastly, the court found that the continued detention of the applicant was justified by the likelihood that he would be given a heavy sentence, in particular having regard to his previous conviction for a similar offence.

On 29 January 2002 the Cieszyn District Court referred the case to the Katowice District Court, finding that the latter court had jurisdiction to hear it. Consequently, the bill of indictment was transmitted to the Katowice District Court on 13 March 2002 . On 27 March 2002 the Katowice District Court requested the Katowice Regional Court to order the referral of the case back to the Cieszyn District Court. On 12 April 2002 the Regional Court refused that request.

Since on 28 February 2002 the applicant ’ s detention had reached the statutory 2 years ’ time-limit laid down in Article 263 § 3 of the CCP, further prolongation of his detention was ordered by the Katowice Court of Appeal.

On 29 April 2002 the Katowice District Court applied to the Katowice Court of Appeal for prolongation of the applicant ’ s and his three co-defendants ’ detention until 30 November 2002. It relied, in particular, on the need to have sufficient time to hear all relevant evidence at trial.

The Court of Appeal granted that application on 15 May 2002 . It relied on the strong likelihood that the applicant and other defendants had committed the offences with which they had been charged. In addition, the Court of Appeal invoked the severity of the likely sentence. It also found that there was a real risk that the defendants would obstruct the proceedings, since attempts to exert pressure on witnesses had occurred during the investigation. The Court of Appeal held that in the circumstances of the case the continued detention on remand was the only measure which could secure the proper conduct of the trial. Lastly, it instructed the District Court to take resolute measures in order to conclude the trial before 30 November 2002 .

On 20 November 2002 the Court of Appeal ordered that the applicant be kept in custody until 31 May 2003 , reiterating the grounds previously given. It further found that the prolongation of the applicant ’ s detention beyond the statutory 2 years ’ time-limit was justified under Article 263 § 4 of the C ode of Criminal Procedure by the complexity of the case. The Court of Appeal was somewhat critical of the fact that since March 2002, when the bill of indictment had been filed, the trial court had fixed only one hearing. However, on the other hand it pointed out that there had been some unspecified difficulties in the preparation of the trial. The Court of Appeal stressed that the current six-month extension should give the trial court s ufficient time to conclude the proceedings, assuming that the trial would be conducted with due diligence . In this respect, it noted that the trial court should aim at fixing more than two hearings per month. It further observed that the trial court should take measures in order to impose discipline on all parties as regards the conduct of the proceedings.

On 14 May 2003 the Court of Appeal extended the applicant ’ s detention until 31 August 2003 , invoking the grounds previously given. It observed that the continued detention of the applicant beyond the statutory time-limit was justified by the fact that several defendants had been charged with acting in an organised criminal group. It again instructed the District Court to take specific measures aimed at concluding the trial before 31 August 2003.

On 20 August 2003 the Court of Appeal prolonged the applicant ’ s detention until 30 November 2003 . It instructed the District Court to organise the trial in an appropriate manner . On 26 November 2003 the Court of Appeal ordered that the applic ant be kept in custody until 28 February 2004. It found that the trial court had to adjourn three hearings (9 and 31 October, and 21 November 2003) for reasons which could not be attributed to it (illness of a lay judge). In both those decisions the Court of Appeal invoked the grounds previously given for the applicant ’ s detention.

The applicant ’ s repeated appeals against the decisions prolonging his detention on remand were to no avail.

The trial court fixed the first hearing in the case for 31 October 2002 ; however that hearing was adjourned. The trial started on 4 December 2002 .

On 15 December 2003 the trial court had to restart the trial due to the death of a lay judge. Up to that date the trial court had scheduled 22 hearings, of which 13 were adjourned (in nine cases, for the lack of a police escort needed to secure the applicant ’ s and other defendants ’ presence before the court and , in three cases , due to an illness of a lay judge). The court heard evidence from the State ’ s witness in the course of 3 hearings.

On 13 January 2004 the Katowice District Court released the applicant under police supervision. It also imposed a prohibition on leaving the country and ordered the applicant to surrender his passport. The court found that most of the witness es , includi ng the State ’ s witness, had already been heard. It further noted that the trial had to be restarted due to the death of a lay judge. The District Court found that further prolongation of the applicant ’ s detention was not justified. In this respect, having regard to the evidence obtained at the trial, it observed that further continuation of that measure might result in the applicant ’ s detention being longer that his eventual sentence.

Between 15 December 2004 and 28 April 2005 the trial court held 19 hearings. 4 hearings were adjourned.

On 28 April 2005 the District Court gave judgment. The applicant appealed. It appears that the proceedings are pending.

2. The applicant ’ s complaint against the unreasonable length of proceedings

On 8 March 2005 the applicant filed with the Katowice Regional Court a complaint about a breach of his right to a trial within a reasonable time and asked for compensation, relying on the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (“the 2004 Act”). He also invoked Articles 5 § 3 and 6 § 1 of the Convention.

He argued that there had been significant delays in the investigation and at the trial. In the la t ter respect, he referred to the jurisdictional dispute between the Cieszyn District Court and the Katowice District Court which had occurred at the beginning of 2002. Furthermore, he submitted that the trial court had not held hearings frequently, and that many of them had been adjourned for reasons attributable to the court. The applicant also referred to the repeated instructions of the Court of Appeal ur ging the District Court to organise the trial in an appropriate manner .

On 4 May 2005 Regional Court dismissed the applicant ’ s complaint, finding that there had been no unreasonable delays in the proceedings within the meaning of the 2004 Act. It held, in so far as relevant:

“First, it is to be noted that the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time already indicates in its title that it concerns the judicial stage of the proceedings, and thus the Regional Court is exempted from examination of the promptness and correctness of the measures taken at the investigation stage of the case and from taking a view on the defendant ’ s assertions concerning the investigation.”

The Regional Court found that the trial court had conducted the proceedings without undue delays. It observed that the bill of indictment had been filed on 18 January 2002 and that the trial court had given judgment on 28 April 2005 . It referred to the complexity of the case which had involved five defendants charged with numerous drug-related offences.

Furthermore, the Regional Court held that it was not established that there had been any unreasonable delay s at the first st age of the judicial proceedings in connection with the transfer of the case between two district courts. It stressed that the volume of evidence in the case and its complexity necessitated a more extensive preparation of the trial. In this respect, it also referred to the special measures which had to be taken in connection with the hearing of evidence from the State ’ s witness.

The Regional Court also observed that the trial court had conducted the trial swiftly, since it had held, on average, one hearing per month. It further found that the judge wh o heard the case had 207 cases o n her docket. In addition, the Regional Court noted that the trial court had taken disciplinary measures against witnesses who had failed to appear at the trial.

Lastly, the Regional Court found that the trial court was faced with some obstacles which were beyond its control, such as the death of a lay judge and the fact that a number of witnesses had been kept in various detention centres.

COMPLAINTS

1. The applicant complained under Article 3 of the Convention that during his detention on remand he had been subjected to inhuman and degrading treatment.

2. The applicant further complained under Article 5 § 1(a) and 5 § 3 about the excessive length of his pre-trial detention.

3. Invoking Article 6 § 1 of the Convention , he alleged that his right to have his case heard within a “reasonable time” had not been respected.

4. The applicant complained under Article 6 § 3 of the Convention about the Regional Prosecutor ’ s refusal of 11 October 2000 to grant his requests for a cross-examination of a prosecution witness.

5. In his letter dated 21 May 2005 the applicant contested the Katowice Regional Court ’ s decision of 4 May 2005, dismissing his complaint about a breach of his right to a trial within a reasonable time.

THE LAW

On 10 April 2007 the Court received the following declaration signed by the applicant:

“ I note that the Government of Poland are prepared to pay the sum of PLN 12,000 (twelve thousand Polish zlotys) to Mr Piotr Golec with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, 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. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

I declare that the applicant accept s the proposal and waive s any further claims against Poland in respect of the facts giving rise to this application. I declare that this constitutes a final resolution of the case. ”

On 13 April 2007 the Court received the following declaration from the Agent of the Government:

“ I declare that the Government of Poland offer to pay PLN 12,000 (twelve thousand Polish zlotys) to Mr Piotr Golec with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum , which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, 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 period plus three percentage points. The payment will constitute the final resolution of the case. ”

The Court takes note of the agreement reached between the parties and considers that the matter has been resolved (Article 37 § 1 (b) of the Convention). Furthermore, in accordance with Article 37 § 1 in fine , the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the examination of t he application to be continued. 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 reasons, the Court unanimously

Decides to strike the application out of its list of cases.

T.L. Early Nicolas Bratza Registrar President