by Krzysztof CHMIELEWSKI
The European Court of Human Rights (Fourth Section), sitting on 22 September 2009 as a Chamber composed of:
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 10 April 2008,
Having regard to the declaration submitted by the respondent Government on 21 May 2009 requesting the Court to strike the application out of the list of cases,
Having deliberated, decides as follows:
The applicant, Mr Krzysztof Chmielewski, is a Polish national who was born in 1971 and lives in Gliwice. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 28 February 2003 a bill of indictment was filed against the applicant with the Gliwice District Court. The applicant has not specified the nature of the charges against him.
By 2007 the trial court had held seven hearings in the case.
On 21 November 2007 the Gliwice Regional Court found, following the applicant’s complaint under the 2004 Act on complaints about a breach of trial within a reasonable time, that there had indeed been undue delay in the proceedings and that the actions taken by the District Court had either been belated or not effective. However, the court concluded that several other sets of criminal proceedings had been pending against the applicant at the relevant time and thus the circumstances of the instant case could not have caused him any particular distress. Accordingly, it dismissed the applicant’s claim for compensation for non-pecuniary damage.
The criminal proceedings are pending before the first-instance court.
The applicant complained under Article 6 § 1 of the Convention about the unreasonable length of the proceedings and the lack of an effective remedy in this connection.
The applicant complained about the length of the proceedings and that he had no effective remedy at his disposal. 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 his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
Article 13 provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
By a letter dated 21 May 2009 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 hereby wish to express – by way of unilateral declaration – its acknowledgement of the unreasonable duration of the criminal proceedings in which the applicant was involved. At the same time the Government admit that in the particular circumstances of the applicant’s case, the applicant’s complaint about the length of proceedings has not been redressed at the domestic level as required by Article 13 of the Convention and the applicant can claim to be a victim of violation of his right to have his case examined in the “reasonable time” in the meaning of Article 6 § 1 of the Convention.
In this 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 8,500 (EUR 2,000).
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 to 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 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 was requested to express his view on the Government’s declaration. However, he failed to respond to the Registry’s letter within the given time-limit.
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 and about the lack of an effective remedy capable of providing redress for a breach of this right (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; Wende and Kukówka v. Poland, no. 56026/00, 10 May 2007; Kudła v. Poland [GC], no. 30210/96, ECHR 2000-IX; and Charzyński v. Poland (dec.) no. 15212/03, ECHR 2005- ...).
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 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.
Since the proceedings concerned are still pending before the domestic courts, the Court’s strike-out decision is without prejudice to the use by the applicant of other remedies before the domestic courts to obtain redress for any delay in the proceedings which may occur after the date of this decision.
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 Nicolas Bratza