FOURTH SECTION

DECISION

Application no . 9599/13 Jacek NOWAK against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 2 July 2015 as a Committee composed of:

Päivi Hirvelä , President, Faris Vehabović , Yonko Grozev , judges,

and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 8 January 2013 ,

Having regard to the declaration submitted by the respondent Government on 15 April 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 Jacek Nowak , is a Polish national, who was born in 1966 and is detained in Warsaw . He was represented before the Court by Mr J. Łysakowski , a lawyer practising in Szczecin .

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 criminal proceedings against the applicant

On 20 September 1999 the applicant was arrested by the police in Sweden under the suspicion that he had committed a murder. In August 2000 the applicant was transferred to Poland where he was charged with murder of A and attempted murder of B.

On 18 May 2005 the Szczecin Regional Court (III K 350/03) convicted the applicant of having committed a murder and an attempted murder for motives deserving particular condemnation. He was sentenced to life imprisonment and deprivation of civic rights for 10 years. This conviction was later amended and on 14 February 2008 the Szczecin Court of Appeal finally convicted the applicant of murder and an attempted murder. He was sentenced to life imprisonment.

2. Imposition of the “dangerous detainee” regime

On 19 May 2005 the Szczecin Remand Centre Penitentiary Commission classified the applicant as a “dangerous detainee” (Article 88 § 3 of the Code of Execution of Criminal Sentences). It considered that it had been necessary to classify the applicant as a “dangerous detainee” as he had been convicted at the first instance of having committed a murder for motives deserving particular condemnation. The commission considered that the applicant had been hired by a criminal g ang in order to kill the victim B; moreover, the applicant had shot with “cold blood” the B ’ s girlfriend. It is not clear whether the applicant appealed against this decision.

Afterwards, every three m onths, the regime was extended.

On 9 June 2009, 15 March, 6 June, 2 September and 24 November 2011 the Radom Regional Court dismissed the applicant ’ s appeals against the decision of the Radom Remand Centre Penitentiary Commission. The court considered that the reasons to impose the “dangerous detainee” regime remain ed valid pointing to the applicant ’ s serious lack of moral character.

His “dangerous detainee” regime was further extended by the Radom Remand Centre Penitentiary Commission on 10 April 2012. The applicant lodged an appeal but it was d ismissed by the court only on 1 August 2012.

On 6 July and 4 October 2012 the penitentiary commission further extended the regime. The applicant ’ s appeals were dismissed. The court held that the decisions had been lawful.

On 27 March 2013 the Lublin Remand Centre Penitentiary Commission lifted the regime. The applicant remains in detention.

B. Relevant domestic law and practice

The relevant domestic law and practice concerning the imposition of “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 ap plicant complains under Article 3 of the Convention about lengthy imposition of the dangerous detainee regime. The applicant also complains under Articles 6 and 13 that he had no effective remedy from the decisions of the Penitentiary Commission imposing on him the special regime and that the proceedings were unfair.

THE LAW

The applicant complained about various aspects of application of “dangerous detainee” regime to him . He relied on Article s 3, 6 and 13 of the Convention.

After the failure of attempts to reach a friendly settlement, by letter of 15 April 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 infringement of Article s 3 , 6 and 13 of the Convention which resulted from the imposition on the applicant of the “dangerous detainee” regime from 19 May 2005 to 27 March 2013.

Simultaneously the Government declare that they are ready to pay the applicant the sum of PLN 40,000 which they consider to be reasonable in the light of the Court ’ s case-law in similar cases ( ...). 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 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 l etter of 25 May 2015 , the applicant indicated that he was not satisfied with the terms of the unilateral declaration.

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 applic ation 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 Cour t 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 examinat ion 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, 6 and 13 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 30 July 2015 .

Fatoş Aracı Päivi Hirvelä Deputy Registrar President