European Court of Human Rights
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Cite as: [2010] ECHR 2066
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FOURTH SECTION
DECISION
Application no.
36714/09
by G.Ł.
against Poland
The European Court of Human Rights (Fourth Section), sitting on 16 November 2010 as a Committee composed of:
Ljiljana
Mijović,
President,
Lech
Garlicki,
Nebojša
Vučinić,
judges,
and Fatoş Aracı,
Deputy Section Registrar,
Having regard to the above application lodged on 22 June 2009,
Having regard to the declaration submitted by the respondent Government on 29 June 2010 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:
PROCEDURE
The applicant, Mr G.Ł., is a Polish national who was born in 1962 and lives in Dębe Wielkie. 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.
1. Criminal proceedings against the applicant
On 22 January 2004 the prosecution lodged a bill of indictment with the Siedlce District Court (Sąd Rejonowy). The applicant was charged with several counts of receiving of computer software.
On 9 December 2004 the Siedlce District Court held the first hearing. It subsequently held three hearings.
On 8 March 2005 the Siedlce District Court convicted the applicant as charged and sentenced him to a suspended term of six months’ imprisonment. The applicant appealed.
On 23 September 2005 the Siedlce Regional Court (Sąd Okręgowy) quashed the impugned judgment and remitted the case.
On 10 August and 18 September 2006 and on 15 January, 5 February, 12 March and 2 July 2007 the Siedlce District Court held hearings.
On 20 May 2007 an expert submitted a report.
On 9 July 2007 the Siedlce District Court convicted the applicant as charged and sentenced him to a suspended term of six months’ imprisonment. The applicant appealed.
On 23 January 2008 the Siedlce Regional Court quashed the impugned judgment and remitted the case.
On 31 March, 29 April, 17 June, 15 July, 2 September, 23 September and 14 October 2008 the Siedlce District Court held hearings.
On 6 March 2009 the Siedlce District Court discontinued the proceedings given the insignificant degree of social harm of the offence (znikoma społeczna szkodliwość czynu). The applicant appealed.
On 11 August 2009 the Siedlce Regional Court upheld the impugned judgment.
2. The applicant’s complaint about the excessive length of the criminal proceedings (case no. II S 1/09)
On an unspecified date the applicant lodged with the Siedlce Regional Court a complaint 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”).
On 25 February 2009 the Siedlce Regional Court acknowledged the excessive length of the proceedings before the Siedlce District Court. In particular, it referred to the period between 24 October 2005 and 4 July 2006 and qualified it as unjustified delay. The court refused however to grant the applicant any compensation considering that he had not sustained any pecuniary damage.
B. Relevant domestic law and practice
The relevant domestic law and practice concerning remedies for the excessive length of judicial and enforcement 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 in its the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
COMPLAINTS
THE LAW
A. Length of proceedings
The applicant complained about the length of the proceedings. 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...”
By letter dated 28 June 2010 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 acknowledgement that the length of the criminal proceedings in the present case has been in breach of the “reasonable time” requirement lad down in Article 6 § 1 of the Convention, the applicant can be considered a victim of a violation of his right to a hearing within “a reasonable time”.
Consequently, the Government are prepared to pay to the applicant the amount of PLN 9,600, 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 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 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 5 September 2010 the applicant requested the Court not to strike his case out of the list of cases and asked for 200,000 PLN in respect of non-pecuniary damage.
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 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 the application (Article 37 § 1(c)).
The Court further notes that this decision constitutes a final resolution of this application only in so far as the proceedings before the Court are concerned. It is without prejudice to the use by the applicant of other remedies before the domestic courts to claim further compensation in respect of the length of the impugned proceedings.
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.
B. Remaining complaints
The applicant also complained under Article 6 § 3 (d) of the Convention about the unfairness of the proceedings, in particular, that he could not question an expert during a hearing and further under Article 7 of the Convention that he was convicted of an offence not punishable under the domestic law.
The Court reiterates that a person may not claim to be a victim of a violation of his right to a fair trial under Article 6 of the Convention which, according to him, took place in the course of proceedings in which he was acquitted or which were discontinued (see X v. the United Kingdom, no. 8083/77, Commission decision of 13 March 1980, Decisions and Reports 19, p. 223; Eğinlioğlu v. Turkey, no. 31312/96, Commission decision of 21 October 1998, unreported; and Osmanov and Husseinov v. Bulgaria (dec.), nos. 54178/00 and 59901/00, 4 September 2003).
The Court notes that the proceedings against the applicant were discontinued because the insignificant degree of social harm of the offence. The Court considers that any defects which may have existed at the time of the applicant’s trial, including the unfairness of the proceedings and any breach of Article 7, must be considered to have been rectified by the discontinuation of the proceedings. Thus, the applicant can no longer claim to be the victim of the alleged violations of the Convention, as required by Article 34.
These complaints are accordingly incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
Invoking Article 13, the applicant also alleged a breach of the right to an effective remedy since domestic law did not provide for an appeal against the decision of the Siedlce Regional Court of 25 February 2009.
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 the complaint about the length of the proceedings (Charzyński v. Poland (dec.), no. 15212/03, ECHR 2005 V). The mere fact that the complaint, under the 2004 Act, is examined at one and single court instance, does not make it ineffective for the purposes of Article 13. 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 Figiel v. Poland (no. 1), no. 38190/05, § 29, 17 July 2008).
It follows that this complaint must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
Finally, the applicant alleged a breach of Article 13 since he had not been granted any compensation by the Siedlce Regional Court. The Court observes that the expression “effective remedy” within the meaning of Article 13 does not mean a remedy which is bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint (see, e.g., Šidlová v. Slovakia, no. 50224/99, § 77, 26 September 2006; Figiel v. Poland (no. 1), cited above.).
It follows that this complaint must also 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 6 § 1 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 Ljiljana
Mijović
Deputy Registrar President
