FOURTH SECTION

DECISION

Application no . 63552/10 Stanisław HAUZER against Poland

The European Court of Human Rights (Fourth Section), sitting on 9 September 2014 as a Committee composed of:

Ledi Bianku , President, Zdravka Kalaydjieva , Krzysztof Wojtyczek , judges,

and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 8 October 2010,

Having regard to the declaration submitted by the respondent Government on 5 March 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 Stanisław Hauzer , is a Polish national, who was born in 1964 and lives in Świdnica .

The Polish Government (“the Government”) were represented by their Agent, Mrs J. Chrzanowska of the Ministry for Foreign Affairs.

The part of the application concerning the length of detention on remand and refusal to grant compassionate leave 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. Criminal proceedings against the applicant

On 19 July 2004 the applicant was arrested on suspicion of distribution of drugs committed while acting in an organised criminal group. On the same day the Świdnica District Court ( Sąd Rejonowy ) remanded him in custody for 3 months, relying on the reasonable suspicion – supported by evidence taken from witnesses – that he had committed the offence in question and the need to secure the proper course of the proceedings. The court also attached importance to the likelihood of a severe sentence of imprisonment being imposed on the applicant and the risk that he would attempt to induce witnesses to give false testimony or would otherwise obstruct the proceedings.

In the course of the investigation, the applicant ’ s detention was extended on several occasions, namely on 18 October 2004 (to 18 March 2005), 14 March 2005 (to 18 July 2005), 15 July 2005 (to 31 October 2005), 27 October 2005 (to 31 March 2006) and 2 March 2006 (to 18 July 2006). In all their decisions the authorities relied on the original grounds given for the applicant ’ s detention.

On 5 July 2006 a bill of indictment was lodged with the Åšwidnica Regional Court ( SÄ…d OkrÄ™gowy ). The applicant, together with 40 other co ‑ accused, was indicted on charges of drug smuggling and conspiracy to import drugs committed in an organised criminal group.

During the court proceedings the courts further extended the applicant ’ s detention on several occasions. The courts repeated the grounds previously given for keeping the applicant in custody.

On 13 October 2007 the court convicted the applicant as charged. He was sentenced to a cumulative penalty of 13 years ’ imprisonment. The applicant appealed.

The applicant ’ s detention on remand was subsequently extended on several occasions.

On 24 June 2008 the Wrocław Court of Appeal ( Sąd Apelacyjny ) partly upheld and partly modified the first-instance judgment. The applicant filed a cassation appeal.

On 19 May 2010 the Supreme Court ( Sąd Najwy ż szy ) quashed the first and second instance judgments and remitted the case to the Regional Court.

On the same day the Supreme Court again detained the applicant on remand. The court referred to the gravity of charges against the applicant. The courts further extended the applicant ’ s detention on 12 August 2010 (to 19 November 2010).

On 16 November 2010 the Św idnica Regional Court extended the applicant ’ s detention to 19 February 2011.

The applicant was released on bail on 22 November 2010.

The criminal proceedings against the applicant are pending.

2. Restrictions on the applicant ’ s contact with his family

The applicant submitted that he had filed a request to be granted compassionate leave from prison to attend his daughter ’ s first communion on 17 May 2006. He maintained that his request was refused. The Government argued that there had been no such request in the case file no V Pen 28/10.

On 27 February 2009 the applicant asked to be granted temporary leave from prison to be able to marry his common law wife. The wedding date was set for 23 December 2009.

On 27 November 2009 the penitentiary judge refused his request on the ground that it was not justified under Article 141a of the Code of Execution of Criminal Sentences as applicable at the material time. The applicant ’ s appeal was dismissed by the Ś widnica Regional Court on 17 December 2009. The court upheld the penitentiary judge ’ s decision and considered that the applicant and his partner could get married in prison.

His subsequent request for yet another temporary leave was dismissed by the penitentiary judge on 7 January 2010, on the ground that it was not justified under Article 141a of the Code of Execution of Criminal Sentences.

B. Relevant domestic law and practice

Article 141a § 1 of the Code of Execution of Criminal Sentences, as applicable at the material time reads as follows:

“In cases which are especially important for a convicted person, he or she may be granted permission to leave prison for a period not exceeding five days, if necessary under the escort of prison officers or other responsible persons ( osoby godnej zaufania ).”

COMPLAINTS

1. The applicant complained under Article 5 § 3 of the Convention about the excessive length of his detention on remand.

2. He further complained under Article 6 of the Convention alleging unfairness of the criminal proceedings against him.

3. Lastly, he submitted under Article 8 of the Convention that he had been refused compassionate leave to marry his long-time partner and to attend his daughter ’ s first communion.

THE LAW

A. Excessive length of detention on remand

The applicant complained about the excessive length of his detention on remand. He relied on Article 5 § 3 of the Convention.

By letter dated 5 March 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 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 violation of Article 5 § 3 of the Convention on account of excessive length of the applicant ’ s detention on remand. Simultane o usly the Government declare that they are ready to pay to the applicant the sum of PLN 13,000 which they consider to be reasonable in the light of the Court ’ s case-law in similar cases (see Ró ż a ń ski v. Poland , application no 16706/11, judgment of 22 January 2013; Kuliberda v. Poland , application no. 23465/10, decision of 19 March 2013; Jankowski v. Poland , application no 64947/12, decision of 10 September 2013)) as well as individual circumstances of the present 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 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...”

In a letter of 28 May 2014 the applicant expressed the view 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 or part of it 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 or part of it 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 examined 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).

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 len gth of detention on remand (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 examination of this part 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 this part of the application (Article 37 § 1 in fine ).

Accordingly, it should be struck out of the list.

B. Remaining complaints

Relying on Article 6 of the Convention the applicant also complained about unfairness of criminal proceedings against him.

However, the Court notes that the criminal proceedings against the applicant are still pending. Accordingly, the Court finds that the complaint is premature and as such must be declared inadmissible for non ‑ exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

The applicant further complained under Article 8 that he was refused compassionate leave to attend his daughter ’ s first communion.

The Government argued that the applicant had failed to submit any evidence in support of his complaint and that they had no knowledge about such a request ever having been lodged.

The applicant replied that he was refused compassionate leave to attend his daughter ’ s first communion on 19 May 2006. This refusal caused him a lot of pain, frustration and feelings of injustice.

Leaving aside other admissibility criteria, the Court points out that it is not open to it to disregard the application of the six ‑ month rule solely because a respondent Government have not made a preliminary objection based on that rule (see Marchowski v. Poland , no.10273/02, § 48, 8 July 2008, and Walker v. the United Kingdom ( dec. ), no. 34979/97, ECHR 2000-I). In the present case the applicant ’ s request for compassionate leave to attend his daughter ’ s funeral was submitted before 19 May 2006. Given that the applicant lodged his application form on 8 October 2010, the complaint must be declared inadmissible for non ‑ compliance with the six ‑ month rule set out in Article 35 § 1 of the Convention, and rejected in accordance with Article 35 § 4.

Lastly, the applicant complained under Article 8 of the Convention that he was refused compassionate leave from prison to marry his common-law wife.

The Court observes that this complaint fal ls to be examined under Article 12 of the Convention.

The Court further notes that there is no indication that the applicant and his common law wife were prevented from contracting marriage (see, mutatis mutandis, Frasik v. Poland , no. 22933/02, §§ 95-96, ECHR 2010 ‑ ... ( extracts )). In this respect the Court notes that on 17 December 2009 the Åš widnica Regional Court explicitly held that there was no obstacle for them from getting married in prison.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) 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 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 so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

FatoÅŸ Aracı Ledi Bianku              Deputy Registrar President