FOURTH SECTION
DECISION
Application no. 9523/10
by Artur FABISIAK
against Poland
The European Court of Human Rights (Fourth Section), sitting on 14 June 2011 as a Committee composed of:
Zdravka Kalaydjieva, President,
Lech Garlicki,
Vincent A. De Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 8 February 2010,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Artur Fabisiak, is a Polish national who was born in 1972 and lives in Warszawa. The Polish Government (“the Government”) were represented by their Agent, Mr Jakub Wołąsiewicz of the Ministry of Foreign Affairs.
A. The circumstances of the case
1. Criminal proceedings against the applicant
On 20 September 1990 the applicant was charged with ten counts of burglary committed together with three other persons.
In December 1990 a bill of indictment was lodged with the Warsaw District Court (Sąd Rejonowy).
On 17 November 1997 the District Court stayed the proceedings and ordered that the applicant be remanded in custody, as he had failed to inform the court about his new place of residence. The applicant was remanded in custody the same day.
On 9 January 1998 the proceedings were resumed.
On 6 February 1998 the applicant’s detention was lifted.
It appears that the composition of the trial court changed nine times in the course of the proceedings.
Hearings in the case were not scheduled at regular intervals; in particular, no hearings were held between 12 June and 9 November 1992, 6 July 1993 and 12 May 1994, 6 July 1994 and 6 February 1998, 26 November 1998 and 30 November 2000 and 5 July 2001 and 30 January 2004.
On 22 September 2009 the Warsaw District Court gave its judgment and found the applicant guilty of nine counts of burglary. The applicant was sentenced to one year and five months’ imprisonment stayed on probation and a fine.
The applicant’s lawyer appealed against the judgment.
On 2 February 2010 the Warsaw Regional Court (Sąd Okręgowy) partly amended the judgment and sentenced the applicant to one year and four months’ imprisonment stayed on probation.
2. Proceedings under the 2004 Act
On 28 August 2009 the applicant’s lawyer lodged a complaint about a breach of his right to a trial within a reasonable time in respect of the criminal proceedings against him and asked for just satisfaction. She relied on the Law of 17 June 2004 on complaints about a breach of the right to an investigation conducted or supervised by a prosecutor and to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). She underlined that the composition of the trial court had changed several times in the course of the proceedings. The lawyer further stressed that although the applicant had failed to attend some hearings, his absence was justifiable.
On 15 September 2009 the Warsaw Regional Court dismissed the complaint, holding that the proceedings had not been unreasonable lengthy. It underlined that several hearings had to be adjourned due to the absence of the applicant and his lawyer.
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 set out in the Court’s decisions in the cases of Charzyński v. Poland, no. 15212/03 (dec.), §§ 1223, ECHR 2005-V, and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005‑VIII, and in its the judgments in the cases of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005V and Krzysztofiak v. Poland, no. 38018/07, §§ 2331, 20 April 2010.
COMPLAINT
The applicant complained under Article 6 § 1 of the Convention about the unreasonable length of the proceedings.
THE LAW
The applicant complained about the length of criminal proceedings against him. 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 ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
By letter dated 8 March 2011 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 the unilateral declaration – their acknowledgement of the fact that the length of the criminal proceedings in the present case was not compatible Article 6 § 1 of the Convention.
Consequently, the Government are prepared to pay the applicant PLN 20,000 as just satisfaction for the protracted criminal proceedings, 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 on 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 a 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 6 April 2011 the applicant expressed the view that the sum mentioned in the Government’s declaration was unacceptably low. He requested that the examination of his application be continued.
The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application or part thereof 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 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).
In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration 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 accordance with Article 37 § 1 (c) of the Convention.
Fatoş AracıZdravka Kalaydjieva
Deputy RegistrarPresident
Full & Egal Universal Law Academy