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DEEG v. POLAND - 39489/08 [2010] ECHR 1320 (21 September 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1320.html
Cite as:
[2010] ECHR 1320
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FOURTH
SECTION
CASE OF DEEG v. POLAND
(Application
no. 39489/08)
JUDGMENT
STRASBOURG
21
September 2010
This
judgment is final but it may be subject to editorial revision.
In the case of Deeg v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as
a Committee composed of:
Giovanni Bonello, President,
Lech
Garlicki,
Ján Šikuta, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having deliberated
in private on 31 August 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 39489/08) against the
Republic of Poland lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Polish national, Mr Wojciech
Deeg (“the applicant”), on 11 August 2008.
The
applicant was represented by Ms B. Zwara, a lawyer practising in
Gdańsk. The Polish Government (“the
Government”) were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
On
15 June 2009 the
President of the Fourth Section of the Court decided to give notice
of the application to the Government. In accordance with Protocol
No. 14, the application is assigned to a Committee of three
Judges.
On
8 February 2010 the Government submitted a unilateral declaration and
invited the Court to strike out the application, in accordance with
Article 37 of the Convention. The applicant filed an objection.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1981 and is currently detained at a remand
centre in Gdańsk.
A. Main proceedings
On
26 November 1998 the applicant was arrested on suspicion of having
committed a robbery. Subsequently several sets of criminal
proceedings were instituted against him under the supervision of the
Gdańsk District Prosecutor. They were all later joined to be
conducted together by the prosecutor's decision of 12 April 1999.
On
26 June 1999 the Gdańsk District Prosecutor officially launched
a criminal investigation against the applicant.
On
25 October 2005 the applicant was indicted before the Gdańsk
District Court on an initial charge.
The
first hearing, scheduled for 24 January 2006, was cancelled due to
the absence of the applicant and the co-accused.
On
1 March 2006 the Gdańsk District Court quashed the applicant's
detention.
The
next two hearings, listed for 11 April and 17 May 2006, were
cancelled due to the absence of the applicant and the co-accused.
On
17 May 2006 the applicant was again detained on remand by the
decision of the Gdańsk District Court; however, following the
judgment of the Gdańsk District Court given in another set of
criminal proceedings the applicant started to serve a sentence of
four years' imprisonment.
At
the hearing held on 6 July 2006 the court ordered that an expert's
report on the applicant's mental health be prepared.
Between
31 August 2006 and 6 June 2007 the court held seven hearings, of
which three were cancelled (one was adjourned due to the applicant's
illness whereas the other because it was not
possible to secure the applicant's transport from prison).
On
3 August 2007 the case was assigned to another judge who held the
first hearing on 23 October 2007.
The
hearings, scheduled for 14 and 18 December 2007, were adjourned as
the applicant filed a motion for access to the case-file.
At
the hearing held on 19 December 2007 witnesses were heard.
The
hearing scheduled for 13 February 2008 was adjourned.
The
next hearings were held on 5 August, 17 October and 25 November
2008 and 15 January 2009.
On
22 January 2009 the Gdańsk District Court gave a judgment
sentencing the applicant to two years and three months' imprisonment.
He appealed.
On
26 June 2009 the Gdańsk Regional Court upheld the judgment given
in the first-instance.
B. Proceedings under the 2004 Act
On
11 April 2008 the applicant lodged a complaint with the Gdańsk
Regional Court 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”).
He sought a ruling that the length of the proceedings before the
Gdańsk District Court had been excessive and an award of just
satisfaction in the amount of 10,000 Polish zlotys (PLN).
On
10 June 2008 the Gdańsk Regional Court dismissed the complaint.
The court observed that the length of the proceedings in the
applicant's case could not be considered as unreasonable. It further
held that the trial court could not be held responsible for delays
caused by the absence
of witnesses.
It referred to the complexity of the case and the number of
witnesses and held that the proceedings had been conducted
diligently.
II. 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 2004 Act, are stated in the Court's
decisions in the cases of Charzyński v. Poland no.
15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v.
Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in
the case of Krasuski v. Poland, no. 61444/00, §§
34-46, ECHR 2005-V.
THE LAW
I. THE GOVERNMENT'S REQUEST TO STRIKE OUT THE APPLICATION
UNDER ARTICLE 37 OF THE CONVENTION
On
8 February 2010 the Government submitted a unilateral declaration
similar to that in the case of Tahsin Acar v. Turkey
((preliminary objection) [GC], no. 26307/95, ECHR 2003-VI) and
informed the Court that they were ready to accept that there had been
a violation of the applicant's rights under Article 6 § 1 of the
Convention as a result of the unreasonable length of the proceedings,
in which the applicant had been involved. In respect of non-pecuniary
damage the Government proposed to award PLN 5,000 to the
applicant (the equivalent of approx. 1,250 euros (EUR)). The
Government invited the Court to strike out the application in
accordance with Article 37 of the Convention.
The
applicant did not agree with the Government's proposal. He considered
that the amount proposed did not constitute sufficient just
satisfaction for the damage he had sustained and requested the Court
to continue the examination of the application.
The
Court observes that, as it has already held on many occasions, it may
be appropriate under certain circumstances to strike out an
application or part thereof under Article 37 § 1 (c) of the
Convention on the basis of a unilateral declaration by the respondent
Government even if the applicant wishes the examination of the case
to be continued. It will depend on the particular circumstances
whether the unilateral declaration offers a sufficient basis for
finding that respect for human rights as defined in the Convention
and its Protocols does not require the Court to continue its
examination of the case (see Tahsin Acar, cited above, §
75; and Melnic v. Moldova, no. 6923/03, § 22,
14 November 2006).
According
to the Court's case-law, the amount proposed in a unilateral
declaration may be considered a sufficient basis for striking out an
application or part thereof. The Court will have regard in this
connection to the compatibility of the amount with its own awards in
similar length of proceedings cases, bearing in mind the principles
which it has developed for determining victim status and for
assessing the amount of non-pecuniary compensation to be awarded
where it has found a breach of the reasonable time requirement (see
Cocchiarella v. Italy [GC], no. 64886/01, §§ 85-107,
ECHR 2006-...; Scordino v. Italy (no. 1) [GC], no.
36813/97, §§ 193-215, ECHR-2006-...; and Dubjakova v.
Slovakia (dec.), no. 67299/01, 10 October 2004).
On
the facts and for the reasons set out above, in particular the amount
of compensation proposed, which is substantially less than the Court
would have awarded in similar cases, the Court finds that the
Government failed to submit a statement offering a sufficient basis
for finding that respect for human rights as defined in the
Convention and its Protocols does not require the Court to continue
its examination of the case (see, by contrast, Spółka
z o.o. WAZA v. Poland (striking out), no. 11602/02, 26 June
2007).
This
being so, the Court rejects the Government's request to strike the
application out of its list of cases under Article 37 of the
Convention and will accordingly pursue the examination of the
admissibility and merits of the case.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE PROCEEDINGS
The
applicant complained that the length of the criminal proceedings in
their entirety had been incompatible with the “reasonable time”
requirement, laid down in Article 6 § 1 of the Convention, which
reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
The
Government failed to submit observations on the merits of the case.
The
period to be taken into consideration began on 26 November 1998 with
the applicant's arrest and ended on 26 June
2009. It thus lasted ten years and seven months for two levels
of jurisdiction.
A. Admissibility
The
Court notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above). Furthermore, the
Court considers that, in dismissing the applicant's complaint that
the proceedings in his case exceeded a reasonable time, the Gdańsk
Regional Court failed to apply standards which were in conformity
with the principles embodied in the Court's case-law (see Majewski
v. Poland, no. 52690/99, § 36, 11 October 2005).
Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
III. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant further complained of the excessive length of his detention
ordered in the course of the criminal proceedings. He relied on
Article 5 § 3 of the Convention, which, in so far as relevant,
reads 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.”
The
Court observes that the applicant's detention was eventually
discontinued on 2 March 2006 (see paragraph 10 above). Although it
was subsequently reapplied on 17 May 2006, simultaneously the
applicant commenced serving an imprisonment penalty imposed in
another set of criminal proceedings (see paragraph 12 above). The
latter period therefore falls outside the scope of Article 5 § 3
of the Convention and a complaint in this regard is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 and 4 of the Convention. As to the preceding period the Court notes
that the applicant complained outside the statutory six-month
time-limit and it must be rejected pursuant to Article 35 §§ 1
and 4 of the Convention.
Lastly,
the applicant complained that he had no right to appeal against the
decision of the Gdańsk Regional Court dismissing his complaint
of the excessive length of the proceedings. He relied on Article 13
of the Convention, which, in so far as relevant, reads as follows:
“Everyone (...) shall have an effective remedy
before a national authority (...)”
At
the outset the Court reiterates that it has already found in many
cases that the 2004 Act does in general provide the applicant with an
effective remedy in respect of a complaint about the length of the
proceedings (see Charzyński v. Poland (dec.), cited
above). The mere fact that the complaint, under the 2004 Act, is
examined at one court instance does not make it ineffective for the
purpose of Article 13 of the Convention. Moreover, the applicant is
entitled to make fresh complaints, provided that he lodges them at
one-year intervals, which does not seem to be an unreasonable
limitation (see Hermanowicz v. Poland, no. 44581/08, § 39,
24 November 2009).
In
the light of the foregoing, the Court considers that in the
circumstances of the present case it cannot be said that the
applicant's right to an effective remedy under Article 13 of the
Convention has not been respected. 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.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The applicant claimed 20,000 euros (EUR) in respect of
non pecuniary damage.
The
Government failed to express an opinion on the matter within the
prescribed time-limit.
The
Court, ruling on an equitable basis, awards the applicant EUR 6,000
in respect of non-pecuniary damage.
B. Costs and expenses
The
applicant also claimed EUR 4,000 for the costs and expenses incurred
before the Court.
The
Government failed to express an opinion on the matter within the
prescribed time-limit.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the applicant, who was represented
by a lawyer, the sum of EUR 900 under this head.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Dismisses the Government's request to strike the
case out of the list;
Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds
(a) that the respondent State is to pay the applicant,
within three months EUR 6,000 (six thousand euros) in respect of
non-pecuniary damage and EUR 900 (nine hundred euros) in respect of
costs and expenses, plus any tax that may be chargeable to be
converted into the currency of the respondent State at the rate
applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 21 September 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Giovanni
Bonello Deputy Registrar President
