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FOURTH SECTION

CASE OF GUT v. POLAND

(Application no. 32440/08)

JUDGMENT

(Revision)

This version was rectified on 17 January 2012

under Rule 81 of the Rules of the Court

STRASBOURG

7 February 2012

This judgment is final but it may be subject to editorial revision.

In the case of Gut v. Poland (request for revision of the judgment of 18 January 2011),

The European Court of Human Rights (Fourth Section), sitting as a committee composed of:

Ján Šikuta, President,
Lech Garlicki,
Vincent A. De Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 17 January 2012,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 32440/08) 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 Henryk Gut (“the applicant”), on 30 June 2008.

In a judgment delivered on 18 January 2011, the Court held that there had been a violation of Article 6 § 1 of the Convention on account of the length of criminal proceedings against the applicant. The Court also decided to award the applicant 3,600 euros (EUR) for non-pecuniary damage and dismissed the remainder of the claims for just satisfaction.

On 8 February 2011 the applicant informed the Court that his claims for costs and expenses were not mentioned in the judgment. He accordingly requested revision of the judgment pursuant to Rule 80 of the Rules of Court. He further requested rectification of paragraphs 6, 7, 13, 14 and 18 of the judgment under Rule 81 of the Rules of Court. In this connection he observed that he had been detained for a different period of time and also that he had been acquitted of some of the arson charges.

On 7 September 2011 the request for revision and rectification was communicated to the Government who were invited to submit their observations on the request. Those observations were received on 20 October 2011.

On 17 January 2012 the Committee decided to rectify paragraphs 6, 7 and 13 of the judgment. It was further decided to revise the judgment as regards the award of just satisfaction.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1958 and lives in Biskupiec.

A. Criminal proceedings against the applicant (charges of arson)

On 19 June 2002 the applicant was arrested on charges of arson and uttering threats. On an unknown later date he was indicted before the Biskupiec District Court.

The applicant was detained on remand for a total period of 8 months in 2002 and 2003.¹

On 3 June 2003 the District Court acquitted the applicant of some of the arson charges and convicted him of uttering threats and attempted arson.²

On 26 June 2003 the applicant appealed against his conviction.

On 16 October 2003 the Olsztyn Regional Court quashed the judgment and remitted the case.

Between 19 October 2005 and 29 March 2006 the District Court held seven hearings. On several occasions the applicant who was duly summoned, refused to appear at hearings. However, the court proceeded with the trial in his absence.

On 31 March 2006 the Biskupiec District Court convicted the applicant as charged and sentenced him to three years’ imprisonment.

On 14 September 2006 the Olsztyn Regional Court again quashed the judgment and remitted the case.

On 3 June 2009 the Gizycko District Court acquitted the applicant of all arson charges and convicted him of uttering threats.³

On 27 July 2009 the applicant filed his appeal against this judgment. It appears that the proceedings are pending before the Olsztyn Regional Court.

B. Proceedings under the 2004 Act

On 16 and 21 August 2007 the applicant lodged complaints with the Białystok 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 (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). The applicant sought a ruling that the length of the proceedings before the Olsztyn Regional Court had been excessive and an award of just satisfaction.

On 7 November 2007 the Court of Appeal gave a decision and dismissed the applicant’s complaint.

On 19 June 2008 the Olsztyn Regional Court dismissed yet another complaint under 2004 Act lodged by the applicant. The court considered that there had been no significant delays in the proceedings.

C. Other proceedings against the applicant

The applicant was also involved in several other sets of criminal and civil proceedings in particular, proceedings concerning assault of a judge and contempt of court. The proceedings were terminated respectively on 24 October 2005 and 14 March 2007 by the Olsztyn Regional Court.

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 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 25 October 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 criminal proceedings against the applicant. In respect of non pecuniary damage, the Government proposed to award the applicant 7,000 Polish zlotys (PLN). The Government invited the Court to strike out the application in accordance with Article 37 of the Convention. The applicant objected to the proposal.

The Court observes that, as it has already held on many occasions, it may be appropriate under certain circumstances to strike out an application 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 , the Court finds that the Government have failed to provide a sufficient basis for concluding that respect for human rights as defined in the Convention and its Protocols does not require it to continue its examination of the case (see, conversely, 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 its 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 proceedings 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 contested that argument.

The period to be taken into consideration began on 19 June 2002 and has not yet ended. It has thus already lasted eight years and four 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).

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 and the overall length of the proceedings, 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

Lastly, without invoking any provisions of the Convention, the applicant complained that he had been persecuted by the judicial authorities. He also complained about the outcome of the proceedings concerning assault of the judge.

The Court finds that the facts of the case do not disclose any appearance of a violation of the Convention. It follows that these complaints are manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.

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. Revision of the judgment of 18 January 2011

The Court notes that in paragraph 36 of its judgment of 18 January 2011 it stated that the applicant claimed 500,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. It further stated in paragraph 39 that the applicant had not made any claim for costs and expenses involved in the proceedings. The applicant argued that his letter of 10 August 2010, containing his claims for just satisfaction (a total amount of EUR 500,000), included also a claim for costs and expenses.

The Court observes that the applicant’s claims for just satisfaction of 10 August 2010 were sent to the Government who submitted their comments. However, by omission, the applicant’s claims for costs and expenses were not stated in the judgment. In these circumstances the Court considers that paragraphs 36-39 of the judgment of 18 January 2011 should be revised by adding a new heading “A. Damage and costs and expenses” and the following wording set out in paragraphs 41-44 below.

The applicant claimed in total 500,000 euros (EUR) in respect of pecuniary and non-pecuniary damage and costs and expenses. In respect of costs and expenses he asked in particular for 400 Polish zlotys (PLN) for medications which he had to give to his sick farm animals; PLN 300 for a taxi ride home from the District Court in Działdowo; PLN 8 000 for travelling to domestic courts during the several years of domestic proceedings; PLN 18 000 for court fees incurred in the domestic proceedings; PLN 2 000 for lawyer’s fee in the domestic proceedings; PLN 9 200 for an ornithological expertise; PLN 15 500 PLN- for lawyer’s fees in the proceedings before the Court ; PLN 4 000 for translation and postage in the proceedings before the Court PLN 15 500 for lawyer’s fees in the proceedings before the Court and PLN 4,000 for translation and postage in the proceedings before the Court.

The Government contested the claim.

The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 3,600 in respect of non pecuniary damage.

As regards the claim for costs and expenses, 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 documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 250 for the proceedings before the Court.

B. Default interest

The Court considers it appropriate that the default interest rate 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

Decides to revise the judgment of 18 January 2011 as regards the application of Article 41 of the Convention,

accordingly,

Holds

(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Polish zlotys at the rate applicable at the date of settlement:

(i) EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 250 (two hundred fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 7 February 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Ján Šikuta
Deputy Registrar President

11. Rectified on 17 January 2012. The original text read as follows: “6. Between 19 March and 19 June 2006 the applicant was detained on remand.”

22. Rectified on 17 January 2012. The original text read as follows: “7. On 3 June 2003 the District Court convicted him as charged and sentenced him to three years' imprisonment.”

33. Rectified on 17 January 2012. The original text read as follows: “13. On 3 June 2009 the Giżycko District Court again convicted the applicant as charged.”