FOURTH SECTION

DECISION

This version was rectified on 19 April 2013

under Rule 81 of the Rules of Court.

Application no . 23465/10 Tomasz KULIBERDA against Poland

The European Court of Human Rights (Fourth Section), sitting on 19 March 2013 as a Committee composed of:

David Thór Björgvinsson , President, Vincent A. De Gaetano , Krzysztof Wojtyczek , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 22 April 2010,

Having regard to the declaration submitted by the respondent Government on 13 March 2012 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:

THE FACTS

The applicant, Mr Tomasz Kuliberda, is a Polish national, who was born in 1969 and is currently detained in the Kraków Remand Centre. He was represented before the Court by Mr J. Zakrzewski, a lawyer practising in Kraków. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs.

A. The circumstances of the case

The applicant was born in 1969 and lives in Kraków. He is currently detained in the Kraków Remand Centre.

1. Criminal proceedings against the applicant and his pre ‑ trial detention

On 7 July 2004 the applicant was arrested on suspicion of receiving stolen goods .

On 8 July 2004 the Kraków-Podgórze District Court ( Sąd Rejonowy ) remanded the applicant in custody, relying on the reasonable suspicion that he had committed the offence in question. The court underlined that the applicant was a recidivist offender. It attached importance to the likelihood of a severe sentence of imprisonment being imposed on the applicant and the risk that he would attempt to obstruct the proceedings. The court also underlined the fact that one of the mobile phones found with the applicant had been used to make unlawful threats to the victims of the offence.

An appeal by the applicant against the detention order, and likewise his further appeals against some of the decisions extending his detention and all his subsequent applications for release and appeals against refusals to release him were unsuccessful.

On 27 July 2004 the Kraków-Podgórze District Court extended the applicant ’ s pre-trial detention until 8 November 2004. The court again relied on a strong suspicion, supported by evidence from witnesses, that the applicant had committed the offence in question. It also attached importance to the likelihood of a severe sentence of imprisonment being imposed on the applicant. These facts gave rise to the courts ’ assumption that the applicant, if released, might obstruct the proper course of the proceedings, especially as some of the suspects were still at large.

On an unspecified subsequent date the applicant was additionally charged ( postanowienie o zmianie zarzutów ) with robbery and murder.

The courts further extended the applicant ’ s pre-trial detention on several occasions, namely on 4 November 2004 (to 31 December 2004), 20 December 2004 (to 29 March 2005), 23 March 2005 (to 6 July 2005), 30 June 2005 (to 30 September 2005), 22 September 2005 (to 31 December 2005), 29 December 2005 (to 31 March 2006) and 30 March 2006 (to 30 June 2006). The courts repeated the grounds previously given for the applicant ’ s continued detention. They also considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the risk that he might tamper with evidence or go into hiding. As regards the latter, the courts relied on the fact that the applicant himself had affirmed that he would flee if he was given the opportunity. They also emphasised the need to obtain further evidence such as DNA tests, telephone billing analysis, a mental health report on one of the co ‑ accused and additional witnesses ’ testimonies. Finally, the courts found no grounds warranting the applicant ’ s release from detention as provided for by Article 259 of the Code.

On 21 June 2006 the prosecution filed a bill of indictment with the Kraków Regional Court ( Sąd Okręgowy ) . The applicant was indicted on charges of murder, unlawful detention, robbery, causing bodily harm, influence peddling and identity theft. The bill of indictment comprised numerous charges brought against six defendants.

On 4 September 2006 the trial court held the first hearing. It subsequently held 32 hearings.

Because the length of the applicant ’ s detention had reached the statutory two-year time ‑ limit, as laid down in Article 263 § 3 of the Code of Criminal Procedure ( Kodeks postÄ™powania karnego ), the Kraków Regional Court applied to the Kraków Court of Appeal, asking for the applicant ’ s detention to be extended beyond that term. The Kraków Court of Appeal extended the applicant ’ s pre-trial detention on several occasions, namely on 28 June 2006 (to 7 March 2007), 6 March 2007 (to 7 July 2007), 6 July 2007 (to 7 November 2007), 5 November 2007 (to 7 February 2008) , and on an unspecified subsequent date. The court repeated the grounds previously given for the applicant ’ s continued detention emphasising the likelihood of a severe sentence of imprisonment being imposed on the applicant. It further underlined the complexity of the case which required the hearing of a large number of witnesses, including several experts.

On 4 December 2008 the Kraków Regional Court ( Sąd Okręgowy) found the applicant guilty as charged and sentenced him to 25 years ’ imprisonment. The applicant appealed. The applicant remained detained pending the appellate proceedings.

On 18 September 2009 the Kraków Court of Appeal ( Sąd Apelacyjny) quashed the impugned judgment and remitted the case.

During the re-trial the courts further extended the applicant ’ s pre-trial detention on several occasions, namely on 18 September 2009 (to 18 March 2010), 17 March 2010 (to 18 June 2010), 7 June 2010 (to 18 September 2010), on an unspecified subsequent date, 16 December 2010 (to 18 February 2011), 15 February 2011 (to 18 April 2011), and on 11 April 2011 (to 18 July 2011). The courts repeated the grounds previously given for the applicant ’ s continued detention.

On 16 June 2011 the Kraków Regional Court convicted the applicant on multiple charges, including murder, unlawful detention, robbery and causing bodily harm, and sentenced him to 25 years ’ imprisonment.

Simultaneously, by a decision of 16 June 2011 the Kraków Regional Court extended the applicant ’ s detention to 16 December 2011. The court relied in particular on the severity of the prison sentence, imposed on the applicant. The dete ntion was further extended on 8 December 2011 (to 16 March 2012) and on 15 March 2012 (to 5 April 2012).

On 4 April 2012 the Kraków Court of Appeal upheld the first ‑ instance judgment. It is not clear whether the applicant has lodged a cassation appeal.

2. Sentences of imprisonment served by the applicant durin g the pre ‑ trial detention.

While detained on remand the applicant served several sentences of imprisonment, imposed in earlier sets of proceedings. In particular, he served three prison sentences from 16 December 2004 to 20 Ap ril 2005, three more between 18 July and 14 December 2005, and two more from 8 December 2006 to 7 October 2008.

B. Relevant domestic law and practice

The relevant domestic law and practice c oncerning 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 GoÅ‚ek v. Poland , no. 31330/02, §§ 27-33, 25 April 2006 , and Celejewski v. Poland , no. 17584/04, §§ 22-23, 4 May 2006.

COMPLAINTS

Invoking Article 5 § 3 of the Convention, the applicant complained about the length of his pre-trial detention.

The applicant also complained under Article 6 § 1 of the Convention about the length of the criminal proceedings against him.

THE LAW

A. Length of pre-trial detention and length of proceedings

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:

“ 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.”

By letter dated 13 March 2012 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 – its acknowledgement of the violation of reasonableness of th e length of the applicant ’ s pre ‑ trial detention [1] within the meaning of Article 5 § 3 [2] of the Convention . Simultaneously, the Government declare that they are ready to pay the applicant the amount of PLN 8,500. They consider that the offered sum is in line with the Court ’ s case-law (see, inter alia , SÅ‚onecki v. Poland , application no. 33544/09, decision of 31 January 2012; Zambrzycki v. Poland , application no. 10949/10, judgment of 20 December 2011; Kwiatkowski v. Poland , application no. 20200/02, judgment of 12 April 2007; Górski v. Poland , application no. 28904/02, judgment of 4 October 2005.) The sum referred to above, which is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses, will be free from 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 for the Protection of Human Rights. In the event of failure t o pay this sum within the three ‑ month period, the Government undertake to pay simple interest on it, from the 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. ... ”

In a letter of 12 April 2012 the applicant expressed the view that the Government ’ s declaration was unacceptable as the sum offered was too low, given the circumstance of his case.

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 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 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. Complaint under Article 6 § 1

The applicant complained that the criminal proceedings against him had been excessively long. In this respect, the Court notes that the applicant failed to lodge a complaint about the breach of the right to a trial within a reas onable time under the Law of 17J une 2004 on complaints about a breach of the right to an investigation conducted and 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 ) (see Charzyński v. Poland (dec.), no. 15212/03, 1 March 2005). It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

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 complaint in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Fatoş Aracı David Thór Björgvinsson Deputy Registrar President

[1] 1. Rectified on 19 April 2013. The following text has been deleted: “ and the judicial proceedings ” .

[2] 2. Rectified on 19 April 2013. “Articles 5 § 3” has been replaced by “ Article 5 § 3 of the C onvention”.