FOURTH SECTION

DECISION

Application no . 7068/11 Krzysztof POWAŁKA against Poland

The European Court of Human Rights (Fourth Section), sitting on 27 January 2015 as a Committee composed of:

Ledi Bianku , President, Paul Mahoney, Krzysztof Wojtyczek, judges,

and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 12 January 2011,

Having regard to the declaration submitted by the respondent Government on 14 November 2014 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 Krzysztof Powałka , is a Polish national, who was born in 1986 and is detained in Lublin.

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

1. Criminal proceedings against the applicant

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

On 10 July 2007 the applicant was arrested on suspicion of murder. On 13 July 2007 the Lublin District Court ( SÄ…d Rejonowy ) remanded him in custody.

In the course of the investigation and during the court proceedings the applicant ’ s detention was prolonged on several occasions, in particular, on 17 September 2008, 6 February 2009, 1 July 2009. In all their detention decisions the authorities repeatedly relied on a strong suspicion that the applicant had committed the offence in question. They attached importance to the grave nature of those offences and the likelihood of a severe sentence of imprisonment being imposed on the applicant. They further considered the need to secure the proper conduct of the proceedings.

On 9 December 2009 the Lublin Regional Court gave judgment [IV K 64/09]. The applicant was convicted of murder and sentenced to life imprisonment.

The applicant appealed. He was kept in detention pending appeal proceedings.

On 29 June 2010 the Lublin Court of Appeal quashed the original conviction and remitted the case.

The retrial started on18 July 2010.

In the retrial proceedings the applicant made several, unsuccessful applications for release and appealed, likewise unsuccessfully, against decisions prolonging his detention. The relevant decisions on the prolongation of his detention were given, in particular, on 7 September 2010, 7 December 2010, 3 February 2011, 8 June 2011, 27 September 2011 and 6 December 2011. The courts repeated the grounds previously given for the applicant ’ s continued detention.

On 25 January 2012 the Lublin Regional Court upheld the original conviction but mitigated the sentence of imprisonment to twenty-five years (case no. IV K 296/10).

On 21 November 2012 Lublin Court of Appeal upheld the first-instance judgment (case no. II Aka 234/12).

It is not clear whether the applicant filed a cassation appeal. However, in a letter of 14 October 2013 he informed the Court that the Lublin Court of Appeal ’ s judgment was final.

2. Proceedings under the 2004 Act

On 25 January 2010 the applicant lodged with the Lublin Court of Appeal a complaint under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to an investigation conducted or supervised by a prosecutor and to a trial within a reasonable time ( Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki ) (“the 2004 Act”).

On 10 March 2010 the Lublin Court of Appeal (case no. II S2/10) dismissed the applicant ’ s complaint. It considered that the applicant ’ s complaint had been submitted after the termination of the first-instance proceedings.

The applicant subsequently lodged another complaint under the 2004 Act.

On 20 July 2011 the Lublin Court of Appeal (case II S 10/11) dismissed the applicant ’ s complaint. It considered that the proceedings in the applicant ’ s case were conducted with the requisite speed.

B. Relevant domestic law and practice

The relevant domestic law and practice concerning the imposition of detention on remand ( aresztowanie tymczasowe ), the grounds for its extension, release from detention and rules governing other , so-called “preventive measures” ( ś rodki zapobiegawcze ) are set out in the Court ’ s judgments in the cases of Gołek v. Poland , no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland , no. 17584/04, §§ 22-23, 4 May 2006.

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are presented in the Court ’ s decisions in the cases of CharzyÅ„ski v. Poland ( dec. ), no. 15212/03, §§ 12-23, ECHR 2005 ‑ V and Ratajczyk v. Poland ( dec. ), no. 11215/02, ECHR 2005 ‑ VIII, and its judgment in the case of Krasuski v. Poland , no. 61444/00, §§ 34-46, ECHR 2005-V.

COMPLAINTS

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

2. He further complained under Article 6 § 1 about the excessive length of criminal proceedings against him.

THE LAW

After the failure of attempts to reach a friendly-settlement, by a letter of 14 November 2014 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 wish to express by way of the unilateral declaration their acknowledgement of the unreasonable duration of the applicant ’ s pre-trial detention (Article 5 § 3 of the Convention) and of the domestic proceedings in which the applicant was involved (Article 6 § 1 of the Convention).

Simultaneously, the Government declare that they are ready to pay the applicant the sum of PLN 20,000, 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 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 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 a letter of 1 December 2014, the applicant indicated that he was not satisfied with the terms of the unilateral declaration.

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, 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 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 end, the Court will examine 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 Sulwińska v. Poland ( dec. ), no. 28953/03).

The Court has established in a number of cases, including those brought against Poland , its practice concerning complaints of a violation of Article 5 § 3 of the Convention as regards the unreasonable length of pre ‑ trial detention ( Kauczor v. Poland, no. 45219/06, 3 February 2009 with further references). Similarly, as regards the 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).

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 Articles 5 § 3 and 6 § 1 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 19 February 2015 .

FatoÅŸ Aracı Ledi Bianku              Deputy Registrar President