FOURTH SECTION

DECISION

Application no . 56876/13 David HERNANDEZ 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 26 August 2013,

Having regard to the declaration submitted by the respondent Government on 24 March 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 David Hernandez, is a Dutch national, who was born in 1960 and is detained in Warsaw-Białołęka. He was represented before the Court by Mr M. Pietrzak, a lawyer practising in Warsaw.

The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs. The Dutch Government did not make use of their right to intervene under Article 36 of the Convention.

The applicant complained under Articles 5 § 3 and 6 § 1 of the Convention about the excessive length of his pre-trial detention and criminal proceedings against him.

The application had been communicated to the Government .

THE LAW

A. The scope of the case

The applicant complained about the excessive length of his pre-trial detention and the excessive length of criminal proceedings against him. He relied on Articles 5 § 3 and 6 § 1 of the Convention.

B. The Government ’ s unilateral declaration

After the failure of attempts to reach a friendly settlement, by a letter of 24 March 2015 the Government informed the Court 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 hereby wish to express – by way of the unilateral declaration – their acknowledgement of the violation of Articles 5 § 3 and 6 § 1 of the Convention due to the excessive length of the applicant ’ s detention on remand and criminal proceedings against him. Simultaneously, the Government declare that they are ready to pay the applicant the sum of 22,000 PLN which they consider to be reasonable in the light of the Court ’ s case-law in similar cases (see, inter alia , Ga łą zka v. Poland , judgment of 14 February 2012, application no. 18661/09 ) . 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 Convention. 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 periods plus three percentage points.

The Government 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 a letter of 28 April 2015, the applicant ’ s lawyer indicated that the applicant was not satisfied with the terms of the unilateral declaration on the ground that the acknowledgement of a violation and the proposed redress were insufficient.

The Court re iterates 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”.

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 Sulwińska 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 one ’ s 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) and the complaints about the excessive length of pre-trial detention (see, among many other authorities, KudÅ‚a v. Poland [GC], no. 30210/96, § 110 et seq ).

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 ).

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).

In view of the above, it is appropriate to strike the case out of the list .

C. Costs and expenses

Rule 43 § 4 of the Rules of Court provides:

“When an application has been struck out, the costs shall be at the discretion of the Court. ...”

The applicant claimed 6,150 euros ( EUR ) for legal costs and expenses. The applicant ’ s lawyer provided a copy of an invoice for the above mentioned amount.

The Government considered that the claim was excessive.

According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. Although the proceedings before the Court were not complex and resulted in a decision to strike the case out of its list, the applicant ’ s representative had submitted his observations on the case as well as other pleadings. The Court thus accepts that some of these costs were actually and necessarily incurred (see , mutatis mutandis , Ahmed v United Kingdom (dec), no. 31668/05, 14 October 2008; Meriakri v. Moldova (striking out), no. 53487/99, § 33, 1 March 2005 and Gil v. Poland (dec), no. 46161/11, 4 June 2013). Regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 1,200 covering the costs of the proceedings before the Court.

For these reasons, the Court , unanimously ,

Takes note of the terms of the respondent Government ’ s declaration in respect of the complaints under Articles 5 § 3 and 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Holds that the respondent State is to pay the applicant, within three months, EUR 1,200 (one thousand two hundred euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant , to be converted into Polish zlotys at the rate applicable at the date of settlement;

Holds that 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;

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