FOURTH SECTION

DECISION

Application no. 6497/08 by Mariusz NAJMOWICZ against Poland

The European Court of Human Rights (Fourth Section), sitting on 10 January 2012 as a Committee composed of:

David Thór Björgvinsson , President, Nebojša Vučinić , Vincent A. D e Gaetano , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 23 March 2007,

Having regard to the declaration submitted by the respondent Government on 14 June 2011 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 Mariusz Najmowicz , is a Polish national who was born in 1976 and lives in Gliwice . The Polish Government (“the Government”) were r epresented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

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 (case no. II K 377/09)

On 23 May 2006 the applicant was arrested on suspicion of having committed several offences of theft and receiving stolen goods.

On 24 May 2006 the Gliwice District Court ( Sąd Rejonowy ) remanded the applicant in custody, relying on the reasonable suspicion that he had committed the offences in question . The applicant ’ s pre-trial detention was subsequently extended on several occasions. I n addition to the reasonable suspicion that the applicant had committed serious offence s , the courts relied principally on the severity of the penalty to which he was liable and the need to secure the proper conduct of the proceedings given the risk that the applicant might tamper with evidence or otherwise obstruct the proceedings . As regards the latter, they relied on the fact that over twenty defendants had already been charged in the same set of proceedings and several other suspects were still at large.

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

On 16 May 2007 the Katowice Court of Appeal ( SÄ…d Apelacyjny ) ordered that the applicant and some of the co-accused be kept in custody until 23 August 2007. It stated, inter alia , that:

“A s an expert on car safety devices [the applicant] at least facilitated the stealing of cars by offenders.”

The court also relied on the fact that the applicant had partly confessed to having committed the offences with which he had been charged and that he had not had a permanent place of residence before his arrest. It concluded, having regard to the nature of the charges and the applicant ’ s significant role in the “criminal world”, that his detention was the only measure which could secure the proper conduct of the proceedings.

Both the applicant and his counsel appealed against that decision. In his appeal the applicant argued that he had not confessed to any of the offences with which he had been charged and that he was registered at his common ‑ law wife ’ s place of residence. The applicant ’ s counsel argued that the statements given by some of the co-accused did not corroborate the suspicion that the applicant had committed the offences with which he had been charged. He also called into question the assumption that the applicant would be likely to go into hiding if he did not have a permanent place of residence before his arrest.

On 13 June 2007 the Katowice Court of Appeal upheld the impugned decision.

In December 2007 the prosecution lodged a bill of indictment against the applicant with the Katowice- Wschód District Court . He was charged with several counts of aiding and abetting theft and receiving stolen goods . The bill o f indictment comprised numerous charges brought against 28 defendants.

On 19 December 2007 the applicant was released from custody and placed under police supervision. The court also barred the applicant from leaving the country.

On 28 March 2008 the case was referred to the Ruda ÅšlÄ…ska District Court.

On 1 April 2009 the Ruda ÅšlÄ…ska District Court decided that the proceedings against the applicant and some of the co-accused would be conducted separately.

Up to 20 January 2010 no hearing had been scheduled in the applicant ’ s case.

The proceedings are pending before the Ruda ÅšlÄ…ska District Court .

2. The applicant ’ s first complaint about the excessive length of the proceedings (case no. VI S 89/08)

On 11 December 2008 the applicant lodged with the Gliwice Regional Court ( Sąd Okręgo w y ) a complaint under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time ( Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) (“the 2004 Act”).

On 30 December 2008 the Gliwice Regional Court dismi ssed the applicant ’ s complaint, stating that the proceedings had been conducted with the requisite speed and without undue delay.

3 . The applicant ’ s second complaint ab out the excessive length of the proceedings (case no. VI S 1/10)

As the proceedings continued, on 31 December 2009 the applicant filed another complaint under the 2004 Act. On 20 January 2010 the Gliwice Regional Court dismissed the complaint on the ground that there had been no undue delay in the proceedings between 30 December 2008 (the date of the previous decision dismissing the applicant ’ s complaint) and the time of the lodging of the new complaint by the applicant.

4. Access to the investigation file

It can be seen from the correspondence between the applicant and his counsel that on two occasions the latter verbally requested the prosecutor to allow him access to the investigation file. The prosecutor refused the request. He justified his refusal by the need to secure the proper conduct of the investigation.

5 . Other issues

On 2 January 2007 the weekly magazine Motor published an article entitled “Techno-thieves” on car thieves who were using technologically advanced electronics. The same article was republished on 12 January 2007 by another weekly magazine, Angora . In th is article the applicant was referred to as one of the first electronics engineers to construct special equipment for c riminal g angs . The article also quoted a police officer who had questioned the applicant. Using the applicant ’ s first name and the first letter of his surname the police officer stated that the applicant had been constructing starters designed for stealing different types of cars. The police officer further asserted:

“[The applicant ’ s case ] was simple , as he demanded additional payment for recharging the starters and he knew that his products were used to steal cars. He can be charged [ można mu zarzucić ] with being an accomplice in these thefts .”

On 15 September 2008 the applicant lodged a private bill of indictment against the author of the article.

On 26 June 2009 the Warszawa Praga-Północ District Court discontinued the criminal proceedings against the author of the article, stating that the private bill of indictment had been lodged outside the time-limit set by domestic law.

On an unspecified date in September 2010 the applicant instituted civil proceedings for the protection of his personal rights against the autho r of the article and the editor-in-chief of the magazine .

B. Relevant domestic law and practice

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

COMPLAINTS

1. The applicant complain ed under Article 5 § 1 (b) of the Convention that his pre-trial detention had been ordered by an assessor ( asesor ), who could not be considered a “judge” or an “officer authorised by law to exercise judicial power” within the meaning of that provision.

2. Invoking Article 5 § 3 of the Convention , the applicant maintain ed that his pre-trial detention had been lengthy.

3. The applicant further complained in substance under Article 5 § 4 of the Convention that the proceedings regarding the extension of his pre ‑ trial detention had not been adversarial and that he could not have effectively challenged the lawfulness of his continued detention. He referred in this respect to the refusal to grant him access to the investigation file for seventeen months.

4 . Relying on Article 6 § 1 of the Convention , the applicant alleged that the length of the criminal proceedings against him had been excessive.

5. In respect of the grounds for the Katowice Court of Appeal decision of 16 May 2007 extending his detention, the applicant complained under Article 6 § 2 of the Convention that the court had considered him guilty even before the opening of the trial.

6. The applicant also complained about an article in the weekly magazine Motor of 14 January 2007 in which he was referred to as one of the first electronics engineers to construct special equipment for c riminal g angs . The applicant submitted that the principle of presumption of innocence had been breached in his case, in violation of Article 6 § 2 of the Convention.

7 . U nder Article 8 of the Convention, the applicant complain ed about restrictions imposed on his contact with his family .

8. Further under Article 8 of the Convention, the applicant complained about being defamed by the author of an article in the weekly magazine Motor of 14 January 2007.

9. Finally, relying on Article 13 of the Convention, the applicant alleged that the interlocutory appeals against the decisions extending his pre-trial detention had been deliberately withheld by domestic courts.

THE LAW

A. Length of proceedings

The applicant complained about the length of the proceedings . He relied on Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:

Article 6 § 1

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

By letter dated 14 June 2011 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 th e unilateral declaration ‑ their acknowledgement that the length of the criminal proceedings before the Ruda ÅšlÄ…ska District Court which is not compatible with a “reasonable time” requirement within the meaning of Article 6 § 1 of the Convention.

In these circumstances, and having particular regard to the applicant ’ s wishes concerning just satisfaction, the Government declare that they offer an apology for the violation of the Convention, which they consider to be reasonable in the light of the Court ’ s case law.

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 21 July 2011 the applicant noted that the Government ’ s unilateral declaration refers solely to his complaint concerning the excessive length of the criminal proceedings against him whereas his application contained several other complaints. He therefore requested the Court to continue the examination of the application , declaring however that he did not wish to be awarded any compensation.

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 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 and the applicant ’ s express request that the only redress he expected was the acknowledgment of the breach of the Convention by the Polish authorities, the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).

The Court further notes that this decision constitutes a final resolution of this application only in so far as the proceedings before the Court are concerned. It is without prejudice to the use by the applicant of other remedies before the domestic courts to claim compensation in respect of the length of the impugned proceedings.

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

1 . Lawful arrest

The applicant also complained under Article 5 § 1 (b) of the Convention that the detention order of 24 May 2006 was issued by a trainee judge ( asesor ), who could not be considered a “judge” or an “officer authorised by law to exercise judicial power” within the meaning of that provision. The Court notes that the applicant lodged his application on 23 March 2007. It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

2 . Length of pre-trial detention

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

The Court notes that in their detention decisions the courts , in addition to the reasonable suspicion tha t the applicant had committed serious offence s , relied principally on the severity of the penalty to which he was liable and the need to secure the proper conduct of the proceedings given the risk that the applicant might tamper with evidence or otherwise obstruct the proceedings . As regards the latter, they relied on the fact that over twenty defendants had already been charged in the same set of proceedings and several other suspects were still at large.

The applicant was charged with numerous counts of aiding and abetting theft and receiving stolen goods. The Court accepts that the reasonable suspicion against the applicant of having committed the serious offences could in itially warrant his detention. In addition, it notes that the authorities were faced with the difficult task of determining the facts and the degree of alleged responsibility of each of the defendants.

M oreover, the Court considers that in cases such as the present one concerning large number of defendants , the risk that a detainee, if released, might bring pressure t o bear on witnesses or other co ‑ accused, or might otherwise obstruct the proceedings, is in the nature of things often particularly high. Indeed, in this context the Court notes that some suspects have not yet been arrested.

Furthermore, according to the authorities, the likelihood of a severe sentence being imposed on the applicant created a presumption that the applicant would obstruct the proceedings. However, the Court would reiterate that, while the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or reoffending, the gravity of the charges cannot by itself justify long periods of pre-trial detention (see Michta v. Poland , no. 13425/02, § 49, 4 May 2006).

However, in the particular circumstances of the case, and in view of the fact that the relevant period of the applicant ’ s detention lasted one year and seven months, upon which the applicant was released from custody and placed under police supervision, the Court considers that the grounds given for the applicant ’ s pre-trial detention were “relevant” and “sufficient” to justify holding him in custody for the entire relevant period.

It therefore remains to be ascertained whether the national authorities displayed “special diligence” in the conduct of the proceedings. The Court notes in this connection that between the date of the applicant ’ s arrest on 23 May 2006 and his release on 19 December 2007 the domestic authorities handled the applicant ’ s case with relative expedition, bearing in mind the complexity of the proceedings.

In view of the above considerations and in the light of the criteria established in its case-law in similar cases, the Court considers that the applicant ’ s detention does not disclose any appearance of a breach of the “reasonable time” requirement of Article 5 § 3 of the Convention. This complaint is therefore manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

3 . Access to the investigation file

T he applicant further allege d that the proceedings regarding the extension of his pre- trial detention were not adversarial and were therefore in breach of Article 5 § 4 of the Convention . He submitted, in particular, that he was refused access to the investigation file. In consequence, he was not in a position to effectively challenge the lawfulness of his continued detention . The Court observes that the applicant failed to apply for access to the investigation file in accordance with the applicable procedural requirements. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

4. Presumption of innocence

Relying on Article 6 § 2 of the Convention, the applicant alleged that the Katowice Court of Appeal decision of 16 May 2007 extending his pre-trial detention , in which the court stated that “ as an expert on car safety devices [the applicant] at least facilitated the stealing of cars by offenders ” violated his right to the presumption of innocence. The Court notes , however , that the applicant failed to raise this issue in the interlocutory appeal against the impugned decision. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

Th e applicant further complained under Article 6 § 2 of the Convention about an article in the weekly magazine Motor of 2 January 2007 in which he was referred to as one of the first electronics engineers to construct special equipment for c riminal g angs . In the article the applicant is identified by his name and the first letter of his surname. The author of the article quotes a police officer who took statements from the applicant during the criminal investigation against him. The applicant submitted that his right to the presumption of innocence had been violated .

The Court notes that the alleged breach of the presumption of innocence took place as a result of a publication of a statement made to a journalist by an unidentified police officer. Consequently, it appears that the person to be held responsible for the alleged breach is a journalist who made the statement public. Accordingly, the applicant had two domestic remedies at his disposal: a private bill of indictment and a civil claim for protection of his personal rights. While the applicant sought to use the first remedy, he committed a procedural mistake and his action was dismissed. Regarding the second remedy, the Court notes that the applicant lodged a civil claim against the journalist and the editor-in-chief of the magazine for defamation but did not raise the issue of the alleged breach of the presumption of innocence in relation to the relevant part of the article. In any event, the proceedings are still pending before the first-instance court. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

5 . Family life

The applicant also complained under Article 8 of the Convention that his extended detention ha s put a severe strain on his family life. The Court observes that detention, like any other measure depriving a person of his liberty, entails inherent limitations on his/ h er private and family life. The applicant has not reported that any limitations have been placed on the number of family visits, that such visits have been subject to supervision or that he has been subjected to a special prison regime or special visiting arrangements. It follows that this part of the application is manifestly ill ‑ founded and must be rejected in accordance with Article 35 § 3 and 4 of the Convention.

6 . Defamation

Further under Article 8 of the Convention, the applicant complains that he was defamed by the author of an article in the weekly magazine Motor of 14 January 2007. On 26 June 2009 the Warsaw District Court discontinued the criminal proceedings against the author of the article, stating that the applicant ’ s private bill of indictment had been lodged out of time. The Court notes that the applicant failed to lodge an interlocutory appeal against this decision. In September 2010 the applicant instituted civil proceedings for the protection of his personal rights against the author of the article and the editor of the magazine. The proceedings are pending. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

7. Effective remedy

Finally, invoking Article 13 of the Convention, the applicant complained that the interlocutory appeals against the decisions extending his pre-trial detention had been deliberately withheld by the domestic courts. However, having regard to all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the applicant has faile d to substantiate his complaint . It follows that this part of the application must be rejected 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 6 § 1 of the Convention concerning length of proceedings 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