CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 27 juillet 2010

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POLAND   (Application no. 34653/08)                       JUDGMENT     STRASBOURG   27 July 2010     This judgment is final but it may be subject to editorial revision In the case of Rafał Orzechowski 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 Lawrence Early, Section Registrar, Having deliberated in private on 6 July 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no.   34653/08) 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 Rafał Jerzy Orzechowski (“the   applicant”), on 21 April 2008. 2.     The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 3.     On 23 November 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 was assigned to a Committee of three Judges. 4.     On 2 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 FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1975 and lives in Gdynia. A.     Main proceedings 6.     On 29 August 2000 the applicant was charged with having committed various offences, inter alia robberies, and was detained on remand. Subsequently criminal proceedings were instituted against him before the Gdańsk Regional Court. 7.     On 15 May 2001 the bill of indictment comprising initial charges brought against the applicant was filed with the Gdańsk Regional Court. 8.     On 24 June 2004 the applicant was released from detention by the decision of the Gdańsk Regional Court. 9.     On 11 July 2006 the Gdańsk Regional Court decided that it was not competent to examine the case and ordered that it be transferred to the Brodnica District Court. On 9 August 2006 the Gdańsk Court of Appeal upheld this decision. 10.     On 20 September 2007 the Brodnica District Court ordered that the case be transferred to the Toruń Regional Court finding the latter court competent to examine the case having regard to the recent amendments in the applicable law. 11.     On 14 November 2007 the Brodnica District Court quashed its previous decision concerning the question of competence. 12.     It appears that the proceedings are currently still pending before the Brodnica District Court acting as a court of first-instance and no hearing has yet been held in the case. B.     Proceedings under the 2004 Act 13.     On 5 October 2004 the Gdańsk Regional Court rejected the applicant’s complaint 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”) on formal grounds. 14.     On 25 March 2005 the Gdańsk Court of Appeal examined the applicant’s second complaint under the 2004 Act and dismissed it as ill ‑ founded. The court established that the bill of indictment had been lodged as early as 15 May 2001; however, the case had been very complex, which justified the overall length of the proceedings. 15.     The applicant’s subsequent complaints under the 2004 Act were rejected on 15 November 2005 and 27 April 2006 for various procedural reasons. II.     RELEVANT DOMESTIC LAW AND PRACTICE 16.     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 17.     On 2 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 20,000 to the applicant (the equivalent of approx. 5,000 euros (EUR)). The Government invited the Court to strike out the application in accordance with Article 37 of the Convention. 18.     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. 19.     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). 20.     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). 21.     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). 22.     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 23.     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 ...” 24.     The Government failed to submit observations on the merits of the case. 25.     The period to be taken into consideration began on 29 August 2000 and has not yet ended. It has thus lasted until the present almost ten years for one level of jurisdiction. A.     Admissibility 26.     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 27.     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). 28.     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 Court of Appeal 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). 29.     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 30.     Lastly, the applicant 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 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.” 31.     The Court observes that the applicant’s detention was eventually discontinued on 24 June 2004 (see paragraph 8 above). It follows that this part of the application was lodged outside the statutory six-month time-limit and must be rejected pursuant to Article   35 §§   1 and   4 of the Convention. IV.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 32.     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 33.     The applicant claimed PLN 100,000 Polish zlotys (the equivalent of approximately 25,000 euros (EUR) in respect of non-pecuniary damage. 34.     The Government found the amount to be exorbitant and unsubstantiated. 35.     The Court, ruling on equitable basis, awards the applicant EUR   8,000 in respect of non-pecuniary damage. B.     Costs and expenses 36.     The applicant did not make any claim for costs and expenses involved in the proceedings. C.     Default interest 37.     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 1.     Dismisses the Government’s request to strike the case out of the list;   2.     Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;   3.     Holds that there has been a violation of   Article 6 § 1 of the Convention;   4.     Holds (a)     that the respondent State is to pay the applicant, within three months EUR 8,000 (eight thousand euros) in   respect of non-pecuniary damage, 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;   5.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 27 July 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Lawrence Early   Giovanni Bonello   Registrar   President