FOURTH SECTION

DECISION

Application no. 20495/02 by Zdzisł aw MIKOŁAJCZUK against Poland

The European Court of Human Rights (Fourth Section), sitting on 20 February 2007 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr S. Pavlovschi , 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 8 May 2002,

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 regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Zdzisław Mikołajczuk, is a Polish national who was born in 1953 and lives in Piła , Poland . 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 3 January 2002 at about 9 a.m. , two p olicemen came to the a p p licant ’ s house. They were called by the a p p licant ’ s common law wife, who claimed that the a p p licant had behaved aggressively towards her. The p olicemen found that the a p p licant was calm and that there was no reason for them to intervene, so they left.

After the a p p licant ’ s return from work, which was about 2 p.m. , two p olicemen again came to his house. They ordered the a p p licant to follow them to the p olice station. U p on their arrival, the a p p licant was informed that he had been arrested on sus p icion of domestic violence and destruction of p ro p erty. Furthermore, his arrest had been necessary to secure the p ro p er conduct of criminal p roceedings against him (which a p p arently had been p ending) and that there had been a reasonable sus p icion that he might go into hiding. He was released on 4 January 2002 at 2 p.m. At the time of his arrest the a p p licant lodged an interlocutory a p p eal in respect of his arrest, which was recorded in the minutes of his arrest. This interlocutory a p p eal was never transferred to the District Court.

On 11 January 2002 the a p p licant lodged an interlocutory a p p eal with the Piła District Court ( Sąd Rejonowy ) about his allegedly unlawful arrest. He invoked Article 5 of the Convention and stressed that there had been no reason able grounds for his arrest. He p ointed out that he had not been aware that any criminal p roceedings against him had been p ending. In addition, he had never been in hiding from the police. Lastly, he claimed that he had not committed any offence. For the above reasons, he considered that the arrest had been unlawful.

On 8 February 2002 the Piła District Court held a hearing. The a p p licant was not present. The court gave a decision and dismissed the a p p licant ’ s interlocutory appeal. It held:

“The evidence available at the time of the arrest, in p articular the victims ’ testimonies, indicate that there was a reasonable sus p icion that the sus p ect [i.e. the a p p licant] had committed the offences with which he had been charged. The file contains a co p y of a summons ordering the a p p licant to a p p ear at the Piła Police Station on 21 December 2001 for interrogation. It further a p p ears from the materials in the file that the sus p ect failed to com p ly with this order as the file does not contain minutes of the interrogation. However, it cannot be established that the sus p ect deliberately failed to a p p ear since the file does not contain a return sli p acknowledging recei p t of the summons. In p articular the return sli p of 18 December 2001 does not bear the a p p licant ’ s signature.

However, the a p p licant ’ s arrest on the grounds that he might tam p er with the evidence was justified. It is also confirmed by the testimony of the alleged victim and the documents submitted by her on 2 January 2001 . In p articular he had frequently threatened her. ... In this res p ect the a p p licant ’ s arrest was well ‑ founded. Having examined the case file the court cannot consider that the arrest was unlawful.

The court also notes that the police officer who arrested the a p p licant had failed to com p ly with Article 246 § 2 of the Code of Criminal Procedure, which p rovides for immediate transfer of an interlocutory appeal against an arrest to a District Court. In the minutes of the arrest it is noted that the a p p licant had made such an interlocutory appeal.”

No appeal against this decision was available.

B. Relevant domestic law and practice

Provisions relating to arrest are included in Articles 243 ‑ 248 of the Code of Criminal Procedure of 1997 (“the Code”).

Article 246, of the Code p rovides, in so far as relevant:

“ § 1. An arrested p erson may lodge a n interlocutory a p p eal against his arrest with a court. In this appeal the arrested p erson may request an examination of the grounds and l awfulness of his arrest and the correctness thereof.

§ 2. The interlocutory a p p eal shall be immediately referred to the D istrict C ourt having jurisdiction over the p lace of arrest, which shall examine the matter immediately.

§ 3. Where the arrest has been found to be unjustified or unlawful, the court shall order an immediate release of the arrested p erson.

...”

Article 464, of the Code, relating to p artici p ation in court sessions, as a p p licable at the material time, p rovided:

§ 1. Parties, defence counsel and attorneys shall be entitled to attend a session of an a p p ellate court hearing an interlocutory a p p eal, against a final decision in the case . They are entitled to p artici p ate also when they have been entitled to p artici p ate in the first ‑ instance court ’ s session.

§ 2. In all other cases an a p p ellate court may allow the p arties, or a defence counsel or an attorney to p artici p ate in the session.

...“

On 6 December 2004 t he Constitutional Court gave judgment and declared Article 464 of the Code of Criminal Procedure incom p atible with the right to p ersonal liberty guaranteed by the Constitution . The Court observed that it was insufficient from the p oint of view of the procedural guarantees of the right of liberty and security that the p erson com p laining about an arrest decision could not be heard by the court con sidering his or her interlocutory a p p eal against the arrest decision .

On 21 Se p tember 2005 Article 464 of the Code was amended, to the extent that it now p rovides for a p ossibility to attend a court ’ s session when an interlocutory a p p eal against an arrest decision is being examined.

COMPLAINTS

The a p p licant complain ed under Article 5 about the unlawfulness and arbitrariness of his arrest.

He also alleged, invoking Article 6 § 1, that the p rocedure by which he had sought to challenge the unlawfulness of his arrest had been unfair. In particular, he submitted that it had not been adversarial, as he could not participate in a court ’ s session during which his interlocutory a p p eal against the arrest decision had been examined.

THE LAW

On 24 November 2006 the Court received the following declaration from the Polish Government:

“I declare that the Government of Poland offer to pay PLN 8,000 (eight thousand Polish zlotys) to Mr ZdzisÅ‚aw MikoÅ‚ajczuk 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 free of any taxes that may be applicable. It will be payable within three months from the date of the 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.”

On 29 January 2007 the Court received the following declaration signed by the applicant :

““I, ZdzisÅ‚aw MikoÅ‚ajczuk, note that the Government of Poland are prepared to pay me the sum of PLN 8,000 (eight thousand Polish zlotys) 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 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. 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 accept the proposal and waive any further claims against Poland in respect of the facts of this application. I declare that this constitutes a final settlement of the case.”

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Co nvention). Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it sh ould 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