FOURTH SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 58369/00
by Henryk WALL
against Poland
The European Court of Human Rights (Fourth Section), sitting on 25 October 2005 as a Chamber composed of:
SirNicolas Bratza, President,
MrJ. Casadevall,
MrM. Pellonpää,
MrR. Maruste,
MrS. Pavlovschi,
MrL. Garlicki,
MrJ. Borrego Borrego, judges,
and Mrs F. Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 29 February 2000,
Having regard to the partial decision of 1 October 2002,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having deliberated, decides as follows:
THE FACTS
The applicant, Henryk Wall, is a Polish national who was born in 1946 and lives in Warsaw, Poland. He is represented before the Court by Mr A. Włoch, a lawyer practising in Cracow, Poland
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 17 November 1993 the prosecutor charged the applicant with trading in children within the meaning of Article IX of the Transitional Provisions of the Criminal Code of 1969, then in force.
On 30 June 1994 the Warsaw District Prosecutor lodged a bill of indictment against the applicant and other persons with the Warsaw Regional Court (Sąd Wojewódzki). The trial court held a number of hearings and heard evidence from several witnesses.
On 1 September 1998 a new Criminal Code entered into force. Article IX of the Transitional Provisions of the Criminal Code of 1969 was thereby replaced.
On 3 November 1999 the Warsaw Regional Court gave a decision and discontinued criminal proceedings against the applicant and against his co-accused insofar as they concerned charges under Article IX. The court held that in view of the fact that Article IX had ceased to be in force, the prosecuting authorities had amended the charges. However, this requalification could not be upheld. There were no grounds on which to accept that the notion of “trading in children” included also acts which could be only regarded as organising illicit adoptions. Consequently, the court had to discontinue the proceedings pursuant to Article 17 § 1 item 1 of the new Code, which provided that the criminal proceedings had to be discontinued if the charges against the accused had not been made out.
The prosecutor appealed.
On 4 February 2000 the Warsaw Court of Appeal, partly amended the contested decision. It held that the proceedings should have been discontinued on the ground that the acts concerned did not correspond with the constituent elements of the offence of trading in children as defined by the Polish law at the material time, and not on the ground that the charges against the accused had not been made out.
COMPLAINT
The applicant complained under Article 6 of the Convention about the excessive length of criminal proceedings against him.
THE LAW
On 1 September 2005 the Court received the following declaration signed by the applicant’s representative:
“I note that the Government of Poland are prepared to pay me the sum of PLN 11,000 with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum is to cover any pecuniary and non-pecuniary damage as well as costs and expenses and 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. 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.
I accept the proposal and waive any further claims against Poland in respect of the facts of this application. I declare that this constitutes a final settlement of the case.”
On 19 September 2004 the Court received the following declaration from the Polish Government:
“I declare that, the Government of Poland offer to pay PLN 11,000 to Mr Henryk Wall with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, and it will be payable within three months from the date of the 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 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 payment will constitute the final resolution of the case.”
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention and to strike the application out of its list of cases.
Francoise Elens PassosNicolas Bratza
Deputy RegistrarPresident
Full & Egal Universal Law Academy