FOURTH SECTION

DECISION

Application no . 38509/11 Pawe ł ŁAKOMIEC against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 31 March 2015 as a Committee composed of:

George Nicolaou , President, Ledi Bianku , Faris Vehabović , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 16 June 2011 ,

Having regard to the declaration submitted by the respondent Government on 13 August 2011 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 Pawe ł Łakomiec , is a Polish national, who was born in 1976 and lives in Andrespol . He was represented before the Court by Mr Ł . Brydak , a lawyer practising in Warsaw .

The Polish Government (“the Government”) wer e represented by their Agent, M s J. Chrzanowska of the Ministry of Foreign Affairs .

On 16 January 2014 the complaints concerning Article 5 § 3 of the Convention were communicated to the Government and the remainder of the application was declared inadmissible .

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 4 November 2009 the applicant was arrested on suspicion of aiding and abetting murder.

On 6 November 2009 the Kielce District Court ( SÄ…d Rejonowy ) remanded him in custody, relying on the reasonable suspicion that he had committed the offence in question. The court also emphasised the need to secure the proper conduct of the proceedings, given the gravity of the offence. Furthermore, it stressed the likelihood of a heavy prison sentence being imposed on the applicant after conviction.

The applican t ’ s appeal against this decision was dismissed by the Kielce Regional Court ( Sąd Okręgowy ) o n 23 November 2009 .

The applicant ’ s pre ‑ trial detention was further prolonged by the decisions of the Kielce Regional Court.

O n 23 July 2010 a bill of indictment against the applicant was lodged with the Kielce Regional Court. The applicant was charged with aiding and abetting murder. The bill of indictm ent concerned altogether twenty ‑ six defendants indicted inter alia on charges of leading and participating in an organised and armed criminal group, murder, robbery and fraud.

The applicant ’ s detention pending trial was prolonged by the decisions of the Kielce Regional Court of 2 August and 14 December 2010 and 24 May 2011 and, subsequently, by the decisions of the Cracow Court of Appeal ( SÄ…d Apelacyjny ) of 27 October 2011 and 26 April 2012 . The court s relied on the strong suspicion that the appl icant had committed the offence, the severity of the anticipated sentence and the need to secure the proper conduct of the proceedings. The y also referred to the risk that he might obstruct the proceedings, given that he was charged with having committed an offence which was closely linked with the activities of an organised and armed criminal group. They emphasised the complexity of the case noting that the case ‑ file at that time comprised over 200 volumes .

The applicant ’ s appeals against the above decisions extending his detention on remand, and , likewise, his requests for release, were unsuccessful .

On 25 September 2012 the Kielce Regional Court ordered that the applicant ’ s detention on remand be lifted on condition that he paid the bail in the sum of 30,000 Polish zlotys (PLN) (approximately 7,500 euros (EUR) ) until 16 October 2012.

The applicant did not appeal against this decision. The prosecutor lodged an appeal arguing that only keeping the applicant in custody would sufficiently secure the conduct of the proceedings.

On 10 October 2012 the Kielce Regional Court, sitting as a panel of three judges, upheld the contested decision. The court considered that the imposition of bail in the amount set in this decision would deter the applicant from obstructing the proceedings. Taking into account the advanced stage of the proceedings, their conduct would thus be sufficiently secured.

The applicant failed to pay the security within the prescribed time-limit. Referring to his difficult financial situation, he requested the Regional Court to release him on police supervision and a ban on his leaving the country instead of on bail, but to no avail.

The applicant ’ s detention was further prolonged by the decisions of the Cracow Court of Appeal of 29 October 2012 and of 25 April 2013. The court repeated the reasons previously given for the applicant ’ s detention, while noting that several witnesses remained to be heard before the trial court .

The applicant unsuccessfully appealed against both of the above decisions. In his appeal against the decision of 25 April 2013 he requested to be released on bail of PLN 10,000 (approximately EUR 2,500). He argued that all of the witnesses against him had already been heard and that the amount of bail as indicated by him was adequate, given the difficult financial situation of him and his family.

On 28 May 2013 the Cracow Court of Appeal upheld the contested decision. It consi dered that, as the applicant had been accused of having committed an offence of aiding and abetting murder - which was intrinsically linked with actions of an organised criminal group - the risk that he might obstruct the proceedings persisted.

On 7 August 2013 the applicant requested to be released on bail. He asked that the bail be reduced.

On 27 August 2013 the Kielce Regional Court ordered that the applicant ’ s detention on remand could be lifted on condition that he paid the bail in the amount of PLN 15,000 (EUR 3,750). The securit y was paid on 30 August 2013 by the applicant ’ s family .

T he applicant was released on 2 September 2013.

The criminal proceedings against the applicant are still pending.

B. Relevant domestic law and practice

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 in the cases of GoÅ‚ek v. Poland , no. 31330/02, §§ 27 ‑ 33, 25 April 2006 and Celejewski v. Poland , no. 17584/04, §§ 22 ‑ 23, 4 May 2006 .

Pursuant to Article 266 of the Code of Criminal Procedure, bail surety, in the form of cash, securities, lien or mortgage, can be deposited by the accused, or by another person. Determination of the sum, form and all relevant modalities of the bail surety should be made, having regard to the financial situation of the accused and, as the case may be, another person depositing the bail surety, as well as to the assessed damage which could have been caused by the offence concerned and to the character of the offence.

COMPLAINTS

The applicant complained under Article 5 § 3 of the Convention that the length of his pre ‑ trial detention was excessive .

He also complained that the domestic authorities had failed to take into account his and his family ’ s financial circumstances when fixing the amount of bail .

THE LAW

A. Length of pre-trial detention

The applicant complained about the length of his pre ‑ trial detention. He relied on Article 5 § 3 of the Convention .

After the failure of attempts to reach a friendly settlement, by a letter of 13 August 2014 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out the applica tion 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 fact that the period of the applicant ’ s pre-trial deten tion was not compatible with a ‘ reasonable time ’ requirement within the meaning of Article 5 § 3 of the Convention.

Simultaneously, the Government declare that they are ready to pay the applicant the sum of PLN 14,000, which they consider to be reasonable in the light of the Court ’ s case-law (see Różański v. Poland , judgment of 22 January 2013 , no. 16706/11 and Jankowski v. Poland , decision of 10 September 2013, no. 64947/12) and the particular circumstances of the foregoing case (the period of the applicant ’ s detention to be taken under consideration in the present case lasted 3 years and 10 months). The sum referred to above, which is to cover any pecu niary 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 f rom the date of notification of the decision taken by the Court p ursuant 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 peri od, the Government undertake to pay simple interest on it, from expiry of th at 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 might 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 30 November 2014 , the applicant indicated that he was not satisfied with the terms of the unilateral declaration on the ground that the sum mentioned in the Government ’ s declaration was unacceptably low .

The Court recalls 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, und er (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 recalls 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 e nd, the Court examine d carefully the declaration 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 under Article 5 § 3 of the Convention about the length of pre-trial detention (see Kauczor v. Poland , no. 45219/06, 3 February 2009 with further references).

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 examinat ion 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).

B. Conditions of bail

T he applicant also complained that the amount of bail had not been fixed by reference to his and his family ’ s financial circumstances . The relevant part of Article 5 § 3 reads:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. ”

The Government argued that this complaint should be declared inadmissible for non ‑ exhaustion of domestic remedies and as manifestly ill ‑ founded. They submitted that the applicant had failed to lodge an appeal against the decision of the Kielce Regional Court of 25 September 2012 ordering that the applicant ’ s detention be lifted on condition that he paid the bail until 16 October 2012 . In his subsequent applications for release the applicant had only requested the domestic courts to release him without indicating an adequate amount of bail. They also considered that the amount of bail set by the domestic courts was not exorbitant and was adequate to the special circumstances of the case. They argued that the amount of bail could not be fixed solely in reference to the financial situation of the applicant but should take into account also the severity of the accusations and the stage of the proceedings.

The applicant did not comment on the Government ’ s submissions.

The Court observes that the Kielce Regional Court first envisaged releasing the applicant on bail in its decision of 25 September 2012. It ordered that the applicant be released on condition that he paid the bail in the amount of PLN 30,000 until 16 October 2012. The decision did not contain any reference to the factors that the court took into account when fixing the amount of bail. The applicant failed to pay the sum within the prescribed time ‑ limit. However, the Court cannot but note that the applicant failed to lodge an appeal against this decision. Accordingly, this part of his co mplaint is inadmissible for non ‑ exhaustion of domestic remedies.

In its subsequent decisions of 29 October 2012 and 25 April 2013 the Cracow Court of Appeal prolonged the applicant ’ s detention without envisaging any possibility of releasing him on bail. Likewise, in the decision of 28 May 2013 , dismissing the applicant ’ s appeal against the extension of his detention, the Cracow Court of Appeal did not fix the bail in any amount. Only on 27 August 2013 the Cracow Regional Court again agreed to release the applicant on condition that he paid the bail in the amount of PLN 15,000. In accordance with the applicant ’ s request of 7 August 2013 the amount set for bail was significantly reduced from the amount of PLN 30,000 that he had been unable to pay. The sum was paid on 30 August 2013 and the applicant was subsequently released. Accordingly, in so far as the applicant could be understood as complaining of the amount set for bail by the authorities in this decision, the Court considers that the circumstances do not disclose any appearance of a breach of the applicant ’ s rights under Article 5 § 3 of the Convention .

It follows that this part of the application is manifestly ill ‑ founded and must be reje cted in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government ’ s declaration under Article 5 § 3 of the Convention as regards the length of pre ‑ trial detention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike this part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Declares the remainder of the application inadmissible.

Done in English and notified in writing on 23 April 2015 .

Fatoş Aracı George Nicolaou Deputy Registrar President