FOURTH SECTION

DECISION

Application no . 44034/11 Jakub KÄ„CKI against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 4 November 2014 as a Committee composed of:

George Nicolaou , President, Zdravka Kalaydjieva , Faris Vehabović , judges,

and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 7 July 2011 ,

Having regard to the declaration submitted by the respondent Government on 25 June 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 Jakub Kącki , is a Polish national, who was born in 1977 and lives in Pruszków . He was represented before the Court by Mr P. Dał kowski , a lawyer practising in Warsaw .

The Polish Government (“the Government”) were represented b y 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 and his pre ‑ trial detention

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

On 5 February 2008 the applicant was arrested on suspicion of membership in an organised and armed criminal group and illegal possession of weapons.

On 6 February 2008 the Warsaw Śródmieście District Court ( Sąd Rejonowy ) remanded him in custody, relying on the reasonable suspicion that he had committed the offences in question. It attached importance to the lik elihood of a severe sentence of imprisonment being imposed on the applicant and the risk that he would attem pt to obstruct the proceedings.

An appeal by the applicant against the detention order, and likewise his further appeals against the decisions extending his detention and his subsequent applications for release were unsuccessful.

T he applicant ’ s pre ‑ trial detention was later prolonged by the Warsaw Regional Court ( SÄ…d OkrÄ™gowy ) on 28 April, 28 July and 1 December 2008 and by the Warsaw Court of Appeal ( SÄ…d Apelacyjny ) on 3 February and 30 April 2009. The courts essentially repeated the ground previously given for his detention.

On 9 July 2009 a bill of indictment was lodged with the Warsaw Regional Court. The applicant was charged with illegal possession of weapons and drug trafficking committed in an organised criminal group and with membership in an organised and armed criminal group. The bill of indictment concerned altogether fourteen defendants.

On 24 September 2010 the Warsaw Regional Court held the first hearing in the case, after having obtained a translation of the bill of indictment into Kurdish for one of the defendants.

Meanwhile, t he applicant ’ s detention was prolonged by th e Warsaw Regional Court on 20 July and 2 November 2009, and by the Warsaw Court of Appeal on 2 February, 28 June and 3 August 2010.

Subsequently, t he Warsaw Court of Appeal extended the applicant ’ s detention by decisions of 13 January, 26 May and 18 October 2011 and of 28 February 2012 (extension until 29 June 2012). The applicant appealed against all of the above decisions, but to no avail .

In the decisions extending the applicant ’ s de tention pending trial the courts repeatedly relied on the strong suspicion that the applicant had committed the offences, the gravity of the offences in question and the severity of the anticipated penalty. They also stressed the risk that the applicant might tamper with evidence given the organised character of the crimes in question. Finally, they emphasised the complexity of the case, as the proceedings concerned fourteen defendants charged with altogether f ifty ‑ eight offences and the case-file contained over seventy volumes at that time.

As the Warsaw Region al Court did not request for the applicant ’ s detention to be prolonged beyond the period indicated in the decision of the Warsaw Court of Appeal of 28 February 2012 , the applicant was released on 29 June 2012.

On 30 April 2013 the Warsaw Regional Court gave judgment.

It appears that the proceedings are still pending before the second ‑ instance court.

Between August 2010 and February 2011 the applicant was serving a prison sentence imposed on him in another set of criminal proceedings.

2 . Proceedings under the 2004 Act

On 29 March 2010 the applicant ’ s lawyer lodged on his behalf a complaint with the Warsaw Court of Appeal under the Law of 17 June 2004 on complaints about a breach o f the right 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”). He sought a finding that the length of the criminal proceedings against him had been excessive and 20,000 Polish zlotys (PLN) in compensation.

On 20 May 2010 the Warsaw Court of Appeal dismissed the applicant ’ s complaint. The Court of Appeal found that, considering the complexity of the case and the number of the co ‑ accused, the first ‑ instance court had conducted the proceedings in a correct and timely manner. It further considered that although the first hearing had not yet been scheduled by the trial court, it was not due to any lack of diligence on the part of the court. In this respect the court noted that a number of judges had withdrawn from the case and that the bill of indictment needed to be translated into Kurdish language for one of the co-accused.

B. Relevant domestic law and practice

1. Length of p re-trial detention

The relevant domestic law and practice concerning the imposition of pre ‑ trial detention ( tymczasowe aresztowanie ), the grounds for its extension, release from detentio n 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 .

2 . Length of p roceedings

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 set out 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 judgments in the cases of Krasuski v. Poland , no. 61444/00, §§ 34-46, ECHR 2005-V and Krzysztofiak v. Poland , no. 38018/07, §§ 23-30, 20 April 2010.

COMPLAINTS

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

He further complained, without invoking any provisions of the Convention , about the unreasonable length of the criminal proceedings against him.

THE LAW

The applicant complained about the length of his pre ‑ trial detention . He relied on Article 5 § 3 of the Convention which, in so far as relevant, provides as follows:

Article 5 § 3

“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.”

He further complained about the length of the criminal proceedings against him . The complaint falls to be examined under Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:

Article 6 § 1

“In the determination of ... any criminal charge against him , everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

After the failure of attempts to reach a friendly settlement, by a letter of 23 June 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 hereby wish to express – by way of the unilateral declaration – their acknowledgement of the fact that the length of the applicant ’ s detention was not compatible with Article 5 § 3 of the Convention and that the length of criminal proceedings in the present case was in breach of Article 6 § 1 of the Convention.

Having regard to the applicant ’ s distress he allegedly suffered as a result of the excessive length of his detention and unreasonable length of criminal proceedings the Government declare that they offer to pay the applicant the amount of PLN 23,000 (twenty-three thousand Polish zlotys), which is to cover any and all pecu niary and non-pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to the applicant, which they consider to be reasonable in the present circumstances of the case. The above sum will be payable within three months from the date of notification of the decision taken by the Court p ursuant 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 peri od, 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 19 August 2014 , the applicant indicated that he was not satisfied with the terms of the unilateral declaration . He expressed the view that the sum mentioned in the Government ’ s declaration was unacceptably low in the light of the distress he had suffered.

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 o ut 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 concer ning 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 ). It has also addressed, in numerous cases, 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).

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 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.

FatoÅŸ Aracı George Nicolaou              Deputy Registrar President