by Janusz BARTOSIEWICZ
The European Court of Human Rights (Fourth Section), sitting on 1 September 2009 as a Chamber composed of:
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 1 September 2008,
Having regard to the declaration submitted by the respondent Government on 24 March 2009 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 applicant, Mr Janusz Bartosiewicz, is a Polish national who was born in 1969 and lives in Warszawa. 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 parties, may be summarised as follows.
a. Criminal proceedings against the applicant
On an unspecified date in 2004 criminal proceedings were instituted against the applicant.
On 29 June 2005 the Warsaw District Prosecutor filed a bill of indictment against the applicant with the Warsaw District Court. He was charged with theft.
On 15 May 2008 the court scheduled the first hearing in the case. It transpires that the criminal proceedings are currently pending.
b. Proceedings under the 2004 Act
On an unspecified date the applicant made a complaint to the Warsaw Regional Court under 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”). He alleged that the criminal proceedings pending before the Warsaw Regional Court had exceeded a “reasonable” time. He further requested 10,000 Polish zlotys (PLN) in compensation.
On 29 July 2008 the Warsaw Regional Court admitted that the proceedings in the applicant’s case had been unreasonably lengthy and attributed the delays to the continued inactivity of the court. The court rejected the applicant’s request for financial compensation.
B. Relevant domestic law and practice
The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions 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”), are set out in the Court’s decisions in the cases of Charzyński v. Poland (dec.), no. 15212/03, §§ 12 23, ECHR 2005-V and Ratajczyk v. Poland (dec.), no. 11215/02, ECHR 2005-VIII, and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
The applicant complained under Article 6 of the Convention that the length of the proceedings in his case had been unreasonable. He further complained, relying on the same provision, about various procedural shortcomings in the pending proceedings.
A. Length of proceedings
The applicant complained about the length of the proceedings. He relied on Article 6 of the Convention which, in so far as relevant, provides as follows:
Article 6 § 1
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
By letter dated 24 March 2009 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 acknowledgment of the fact that the length of applicant’s criminal proceedings was not compatible with a “reasonable time” requirement with the meaning of Article 6 § 1 of the Convention.
In these circumstances, and having regard to the particular facts of the case, the Government declare that they offer to pay to the applicant the amount of PLN 9,0001 which they consider to be reasonable in the light of the Court’s case-law. The sum referred to above, 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 of 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 the rate equal to the marginal lending rate of the European Central Bank during the default periods 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 4 May 2009 the applicant expressed the view that the sum mentioned in the Government’s declaration was unacceptably low.
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, 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, 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.
Since the proceedings concerned are still pending before the domestic courts, the Court’s strike-out decision is without prejudice to use by the applicant of other remedies to obtain redress for any delay in the proceedings which may occur after the date of this decision.
B. Complaint under Article 6 of the Convention
The applicant further complained of various procedural shortcomings in the criminal proceedings against him, relying on Article 6 of the Convention.
However, the Court observes that the relevant proceedings are currently pending. It follows that the applicant’s complaint is premature and 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 6 § 1 of the Convention regarding the length of the criminal 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 Nicolas Bratza
Deputy Registrar President
1 Approximately 2,000 euros (EUR)