CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 28 janvier 2014

.s800EAC49 { font-size:12pt } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s39A7D870 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .sA5C4F8A9 { margin-top:36pt; margin-bottom:0pt; text-align:left; page-break-inside:avoid; page-break-after:avoid } .s66CC5A41 { width:26.02pt; display:inline-block } .sACF3BD4F { width:199.63pt; display:inline-block } .s64406319 { width:11.68pt; display:inline-block } .s7B0354FA { width:193.28pt; display:inline-block }   FOURTH SECTION DECISION Application no. 60734/12 Waldemar CZAJA 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. De Gaetano,   Robert Spano, judges, and Fatoş Aracı, Deputy Section Registrar, Having regard to the above application lodged on 9   September 2012, 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 and the applicant’s reply to that declaration, Having deliberated, decides as follows: FACTS AND PROCEDURE The applicant, Mr   Waldemar Czaja, is a Polish national, who was born in 1967 and lives in Sierakowice. 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 Gdańsk-Południe District Court remanded him in custody in view of the reasonable suspicion that he had committed drug-trafficking offences as a   member of an organised criminal group and rape. It noted that some members of the same criminal group were still at large and thus only the isolation of the applicant would prevent him from interfering with witnesses. The court further relied on the severity of the anticipated penalty. In this respect it had regard to the fact that the applicant had had previous convictions. On 7   April 2009 the Gdańsk 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 detention 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 group. There was also the need to obtain further evidence. 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. The court, having regard to the organised nature of the alleged criminal activities, further invoked the risk that the applicant might exert pressure on witnesses. It also had regard to the fact that the investigation concerned many suspects. On 30   September 2009 the prosecution filed a bill of   indictment with the Gdańsk Regional Court. The applicant was charged with a number of drug-trafficking offences, having acted in an organised criminal group and rape. 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 exerting pressure on witnesses or obstructing the proceedings by other means (hiding or fleeing the country) 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, inter   alia , from the fact that the defendants had frequently filed various procedural motions, such as requests for change of their counsel or challenges to judges. In its decision of 5   June 2012 the Court of Appeal lifted detention on remand in respect of five defendants whose role in the criminal group had been apparently insignificant. The applicant filed unsuccessful appeals against decisions prolonging his detention on remand. The applicant was released on 5   November 2013. The trial is pending. On 15   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 complaint, as required by section   6   §   2(2) of the 2004Act. On 3   September 2012 the applicant filed a second complaint under the 2004 Act. On 28   September 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 hearing. Further, invoking Article   13, he complained that he could not appeal against the 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. ...” By a letter of 3   December 2013, the applicant indicated that he was not satisfied with the terms of the unilateral 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 examination 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 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 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 Articles   6 and   13 of the Convention, the applicant also complained about the unreasonable length of the proceedings. He also 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 the application is manifestly ill ‑ founded and   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   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   Päivi Hirvelä   Deputy Registrar   President