FOURTH SECTION

DECISION

Application no . 71760/11 Norbert REMBAK against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 13 October 2015 as a Committee composed of:

Faris Vehabović , President, Krzysztof Wojtyczek , Yonko Grozev , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 3 November 2011 ,

Having regard to the declaration submitted by the respondent Government on 1 July 2015 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:

FACTS AND PROCEDURE

The applicant, Mr Norbert Rembak , is a Polish national, who was born in 1985 and is detained in Kielce . He was represented before the Court by Mr M. Pietrzak and Mr P. Osik , lawyers practising in Warsaw .

The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs.

The application had been communicated to the Government .

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 arrest and detention on remand

On 22 June 2005 t he applicant was arrested under the suspicion of having committed homicide and robbery.

On 2 3 June 2005 the Kielce District Court detained him on remand .

On 20 August 2007 the Kielce Regional Court sentenced the applicant to a cumulative sentence of 25 years of imprisonment.

On 5 November 2008 the Kraków Court of Appeal quashed the judgment and remitted the case.

On 9 December 2010 another first instance judgment was given by the Kielce Regional Court . The applicant was again sentenced to 25 years of imprisonment .

On 2 4 November 2011 the Kraków Court of Appeal quashed the judgment with regard to the homicide charge, while upholding it with regard to the robbery . The sentence of 6 years of imprisonment was upheld. The period of the applicant ’ s detention had already exceeded his sentence on 22 June 2011. However the applicant remained in detention on remand.

On 24 November 2011 the Kraków Court of Appeal extended the applicant ’ s detention until 7 May 2012. The applicant appealed and his appeal was dismissed by the same court on 28 December 2011.

The most recent decision produced by the applicant extending his detention until 24 June 2013 was given by the Kielce Regional Court on 24 January 2013. The courts relied on the reasonable suspicion that the applicant had committed homicide and the high probability that a severe sentence would be imposed on him.

The applicant appealed against this decision. He complained, among other things, that for many years he had been separated from his family and could not attend his son ’ s first communion. The applicant also requested that the preventive measure imposed on him be varied.

On 6 March 2013 the Kraków Court of Appeal dismissed his appeal. The court repeated the same grounds for the applicant ’ s detention as previously and concluded that the limitation of contacts with family was a natural consequence of the applicant ’ s deprivation of liberty. The court found no grounds to vary the preventive measure imposed on the applicant.

T he applicant is apparently still detained on remand , at present only with regard to the homicide charge . The proceedings are pending before the Kielce Regional Court.

2. The applicant ’ s placement in a cell for dangerous detainees

The applicant also complained of the fact that he had been classified as a dangerous detainee and had been detaine d under a special security regime, first in the period 2007-2009 and afterwards between 12 April 2010 and 28 September 2011. He submitted that for most of the time in these periods he had been placed in a single cell which was a form of disciplinary penalty.

B. Relevant domestic law and practice

1. Detention on remand

The relevant domestic law and practice concerning the imposition of pre ‑ trial detention ( tymczasowe aresztowanie ), the grounds for its extension, release from detention and rules governing other so-called “preventive measures” ( Å›rodki zapobiegawcze ) are stated in the Court ’ s judgments in the cases of KudÅ‚a v. Poland [GC], no. 30210/96, §§ 75-79, ECHR 2000-XI; BagiÅ„ski v. Poland , no. 37444/97, §§ 42-46, 11 October 2005; and Celejewski v. Poland , no. 17584/04, §§ 22-23, 4 May 2006.

2. “Dangerous detainee ” regime

The relevant domestic law and practice concerning the imposition of the “ dangerous detainee ” regime are set out in the Court ’ s judgments in the cases of Piechowicz v. Poland (no. 20071/07 , §§ 105-117, 17 April 2012), and Horych v. Poland (no . 13621/08 , §§ 44-56, 17 April 2012).

COMPLAINTS

The applicant complain ed without invoking any provision of the Convention that when he was detained on remand he had spent 37 months in more severe conditions because he had been classified as a “dangerous detainee”.

He also complain ed under Article 5 § 3 of the Convention about the excessive length of his detention on remand .

THE LAW

The applicant complained about lengthy imposition of the dangerous detainee regime and about the excessive length of his pre-trial detention . His complaints were communicated under Articles 3 and 5 § 3 of the Convention .

After the failure of attempts to reach a friendly settlement, the Government informed the Court by letter of 1 July 2015 that they proposed to make a unilateral declaration with a view to resolving the issue raised by 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 wish to express by way of the unilateral declaration their acknowledgement of the violation of Article 3 of the Convention with regard to the cumulative effect of imposition on the applicant of the regime of “dangerous detainee” and of the violation of Article 5 § 3 of the Convention with regard to the unreasonable duration of the applicant ’ s pre-trial detention.

Simultaneously the Government declare that they are ready to pay the applicant the sum of PLN 25,000 (twenty-five thousand Polish zlotys) which they consider to be reasonable in the light of the Court ’ s case-law and the particular circumstances of the foregoing case. 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 of 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 the 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 mig ht 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 . ”

By letter of 14 August 2015 the applicant indicated that he was not satisfied with the terms of the unilateral declaration on the ground that , in particular, the proposed amount had been too low .

The Cour t re iterates th at 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 re iterates that in certain circumstances, it may strike out an application 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 has examined the declaration carefully 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 SulwiÅ„ska v. Poland ( dec. ), no. 28953/03, 18 September 2007 ).

The Court has established in a number of cases, including those brought against Poland, its practice concerning complaints about the violation of Article 3 as regards various aspects of application of the “dangerous detainee” regime (see, for example, Piechowicz and Horych , cited above).

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 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 ).

Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention ( Josipović v. Serbia ( dec. ), no. 18369/07, 4 March 2008).

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government ’ s declaration under Article s 3 and 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 accordance with Article 37 § 1 (c) of the Convention.

Done in English and notified in writing on 5 November 2015 .

FatoÅŸ Aracı Faris Vehabović              Deputy Registrar President