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FOURTH
SECTION
DECISION
Application no.
33544/09
by Marek SŁONECKI
against Poland
The
European Court of Human Rights (Fourth Section), sitting on
31 January 2012 as a Chamber composed of:
David
Thór Björgvinsson, President,
Lech
Garlicki,
Päivi
Hirvelä,
George
Nicolaou,
Ledi
Bianku,
Zdravka
Kalaydjieva,
Vincent
A. De Gaetano, judges,
and
Lawrence Early, Section
Registrar,
Having
regard to the above application lodged on 15 June 2009,
Having
regard to the declaration submitted by the respondent Government on 8
September 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 Marek Słonecki, is a Polish national who was born
in 1977 and is currently detained in Gdańsk Remand Centre. He
was represented before the Court by Mr A. Kiczka, a lawyer practising
in Gdańsk. The Polish Government (“the Government”)
were represented 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 applicant and supplemented by
the Government, may be summarised as follows.
- On
18 July 2006 the applicant was arrested on suspicion of drug
trafficking, membership of an armed and organised criminal group and
illegal possession of dangerous materials and detained on remand. In
its decision to detain the applicant, the Gdańsk Regional Court
(Sąd Okręgowy) relied on a reasonable suspicion that
the applicant had committed the aforementioned offences. It attached
particular importance to the likelihood that a severe sentence
of imprisonment would be imposed on the applicant and to the
risk that he would attempt to obstruct the proceedings.
- The
applicant’s detention on remand was extended by the Gdańsk
Regional Court on 3 October 2006, 4 January 2007, 12 April 2007,
21 June 2007 and on later unspecified dates in December 2007 and
in June 2008. Subsequently, it was extended by the Gdańsk Court
of Appeal (Sąd Apelacyjny) on 16 July 2008, 14
October 2008, 9 December 2008, 24 March 2009, 24 June 2009, 23
September 2009, 25 November 2009, 29 December 2009 and on 2
February 2010. The applicant’s appeals against some of the
above decisions were dismissed by the Gdańsk Court of Appeal on
4 July 2007, 13 August 2008, 12 November 2008, 13 January 2009,
21 April 2009, 15 July 2009, 22 December 2009 and on 24 February
2010.
- In
their decisions to extend the applicant’s detention, the
authorities repeatedly stated that the initial grounds invoked in the
detention order continued to apply. They moreover pointed to the need
to obtain supplementary evidence and to the complexity of the case
which concerned thirteen accused, one hundred and twenty witnesses
and involved the examination of more than ninety volumes of
documents.
- The
courts concluded that in the specific context of the applicant’s
case which concerned organised drug trafficking, detention on remand
constituted the only security measure capable of guaranteeing the
proper conduct of the proceedings. They also noted that there were no
special circumstances, health-related, family-related or otherwise,
militating in favour of the applicant’s release.
- Until
27 September 2006 the applicant was serving a concurrent sentence
of imprisonment, imposed in another set of criminal proceedings.
- On
15 June 2007 the bill of indictment was lodged with the Gdańsk
Regional Court. On 5 October 2007 the trial court requested the
Gdańsk Regional Prosecutor to rectify certain procedural
shortcomings in the bill. On 16 October 2007 the completed bill of
indictment was lodged with the Gdańsk Regional Court.
- On
19 March 2010 the Gdańsk Regional Court convicted the applicant
as charged and sentenced him to nine years’ imprisonment. It
appears that the applicant’s conviction has not been quashed to
date and that he continues to be detained on remand.
B. Relevant domestic law and practice
- The
relevant domestic law and practice concerning the imposition of
pre trial detention on remand
(aresztowanie
tymczasowe), the grounds for its
extension, release from detention and rules governing other
“preventive measures” (środki
zapobiegawcze) are set out in the
Court’s judgments in the cases of Gołek
v. Poland (no. 31330/02, §§
27-33, 25 April 2006) and Celejewski
v. Poland (no. 17584/04, §§
22-23, 4 May 2006).
COMPLAINT
- The applicant complained under Article 5 § 3 of
the Convention that the length of his detention on remand had been
excessive.
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:
“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
a letter dated 8 September 2011 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 agree in general with the
presentation of facts included in the statement of facts prepared by
the Court’s Registry on 23 February 2011.
(...) In these circumstances, the Government hereby wish
to express – by way of the unilateral declaration – their
acknowledgement of the violation of reasonableness of the length
of the applicant’s pre-trial detention within the meaning of
Article 5 § 3 of the Convention. Simultaneously, the Government
declare that they are ready to pay the applicant the amount of 4,000
PLN. This sum, 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 consider that the offered sum of
4,000 PLN is in accordance with 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.”
- The
applicant did not comment 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 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 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,
6 May 2003).
- 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 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
compensation proposed in the amount of 4,000 PLN – 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 examination of
the application (Article 37 § 1 in fine).
- Accordingly,
it should be struck out of the list.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s
declaration 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.
Lawrence
Early David Thór Björgvinsson
Registrar President
