FOURTH SECTION

DECISION

Application no . 9640/11 Mariusz KULETA against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 28 January 2014 as a Committee composed of:

Päivi Hirvelä , President, Vincent A. D e Gaetano , Robert Spano , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 13 January 2011 ,

Having regard to the declaration submitted by the respondent Government on 21 October 2013 requesting the Court to strike the application out of the list of cases ,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicant, Mr Mariusz Kuleta, is a Polish national, who was born in 1974 and lives in Gdańsk. He was rep resented before the Court by Mr M. Lipski, a lawyer practising in Gdańsk.

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

The part of the application concerning the excessive length of detention on remand had been communicated to the Government .

The circumstances of the case

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

On 14 January 2009 the applicant was arrested on suspicion of having acted in an organised criminal group dealing in drugs. On 15 January 2009 the GdaÅ„sk ‑ PoÅ‚udnie District Court remanded him in custody in view of the reasonable suspi cion that he had committed drug ‑ trafficking offences as a member of an organised criminal group. In this respect the court had regard to statements of witnesses and evidence obtained covertly by the police. It relied on the severity of the anticipated penalty and the risk that the applicant might obstruct the proceedings.

On 7 April 2009 the GdaÅ„sk Regional Court prolonged the applicant ’ s detention until 14 July 2009. It invoked the severity of the anticipated penalty. In this connection, it found that the applicant ’ s detent ion was justified under Article 258 § 2 of the Code of Criminal Procedure since that provision established a presumption to the effect that the likelihood of a severe penalty being imposed on the applicant might induce him to obstruct the proceedings. It also noted that the risk of obstruction of the proceedings flowed from the fact that the applicant had been charged with the commission of drug ‑ trafficking offences as a member of a criminal gang .

On 9 July 2009 the Gdańsk Regional Court prolonged the applicant ’ s detention until 14 October 2009. It relied on the same grounds as invoked in the previous decisions and additionally had regard to the fact that the investigation concerned many suspects.

On 30 September 2009 the prosecution filed a bill of indictment with the GdaÅ„sk Regional Court. The applicant was charged with a number of drug ‑ trafficking offences and having acted in an organised criminal group. There were eighteen other defendants in the case.

On 8 October 2009 the Gdańsk Regional Court prolonged the applicant ’ s detention on remand until 31 March 2010. It found that detention on remand was the only measure which could secure the proper conduct of the proceedings given, in particular, the risk of tampering with evidence or obstructing the proceedings by other means since the defendants had been members of the same criminal group.

On 17 November 2009 the trial court ordered that the case be remitted to the prosecution with a view to rectifying important shortcomings in the investigation. On 2 February 2010 the Gdańsk Court of Appeal dismissed the prosecution ’ s appeal against the order.

On 9 March 2010 an amended bill of indictment was filed with the Gdańsk Regional Court. On 16 March 2010 the trial court again ordered that the case be remitted to the prosecution. On 26 May 2010 the Gdańsk Court of Appeal quashed this decision and ordered that the case be examined by the trial court.

On 16 March 2010 the Gdańsk Regional Court prolonged the applicant ’ s detention until 30 June 2010. It relied on the same grounds as invoked in its previous decisions. The same court prolonged the applicant ’ s detention on 29 June 2010 (until 30 October 2010).

Subsequent decisions on the applicant ’ s detention were given by the Gdańsk Court of Appeal. On 29 December 2010 that court prolonged the applicant ’ s detention until 14 April 2011. In addition to the grounds previously invoked, it had regard to the particular complexity of the case. The same court prolonged the applicant ’ s detention on 12 April 2011 (until 14 August 2011), 10 August 2011 (until 14 November 2011), 2 November 2011 (until 14 February 2012), 31 January 2012 (until 14 April 2012), 14 March 2012 (until 14 June 2012), 5 June 2012 (until 14 October 2012) and on 9 October 2012 (until 14 January 2013). The Court of Appeal invoked similar grounds to those given earlier by the Gdańsk Regional Court. In its decision of 10 August 2011 the Court of Appeal noted that delays in the trial were not attributable to the trial court but resulted from the fact that the defendants had frequently filed various procedural motions, such as requests for change of their counsel or challenges to judges. The applicant filed unsuccessful appeals against decisions prolonging his detention on remand.

The applicant was released on 25 July 2013. The trial is pending.

On 17 January 2011 the applicant lodged a complaint with the Gdańsk Court of Appeal under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (“the 2004 Act”). He sought a ruling declaring that the length of the proceedings in his case had been excessive and claimed just satisfaction. On 1 March 2011 the Court of Appeal rejected his complaint for failure to comply with the statutory requirements. It found that the applicant had failed to indicate circumstances that would justify his co mplaint, as required by section 6 § 2(2) of the 2004 Act.

On 19 January 2012 the applicant filed a second complaint under the 2 004 Act. On 21 February 2012 the Court of Appeal rejected it on the same grounds as previously.

COMPLAINTS

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

2. The applicant also complained under Article 6 § 1 that the criminal proceedings have been lasting unreasonably long.

3. He further complained under Article 6 § 1 that the court which examined his complaint against the excessive length of the proceedings had not summoned him to a hea ring. Further, invoking Article 13, he complained that he could not appeal against first ‑ instance decision rejecting the above complaint.

THE LAW

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

After the failure of attempts to reach a friendly settlement, by a letter of 21 October 2013 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 this part of 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 acknowledgment of the fact that the length of the applicant ’ s detention was not compatible with Article 5 § 3 of the Convention.

Having regard to the applicant ’ s distress he allegedly suffered as a result [of] the excessive length of his detention, the Government declare that they offer to pay the applicant the amount of PLN 10, 000 (ten thousand Polish zlotys), which is to cover any and all pecuniary 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 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. ... ”

The applicant did not express h is position on the Government ’ s 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 or part thereof 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 thereof under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examinat ion of the case to be continued ( see Martyna v. Poland (dec.) , no. 72040/01, 15 January 2008).

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 (see, Tahsin Acar v. Turkey (preliminary issue) [GC], no. 26307/95, § § 75-77, ECHR 2003 ‑ VI ).

The Court has established in a number of cases, including those brought against Poland, its practice concerning compl aints of a violation of Article 5 § 3 of the Convention as regards the unreasonable 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 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 ).

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).

Accordingly, the part of the application concerning the complaint under Article 5 § 3 of the Convention should be struck out of the list.

Relying on Article s 6 and 13 of the Convention, t he applicant also complained about the unreasonable length of the proceedings. He further alleged that the court which examined his complaint against the excessive length of the proceedings had not summoned him to a hearing. Further, he complained that he could not appeal against the first ‑ instance decision rejecting the above complaint.

Having regard to all the evidence in its possession, and in so far as it has jurisdiction to examine the allegations, the Court has not found any appearance of a breach of the rights and freedoms guaranteed by the Convention or its Protocols.

It follows that this part of th e 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 in respect of the complaint 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 compl aint in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Fatoş Aracı Päivi Hirvelä Deputy Registrar President