CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 2 novembre 2010

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He was represented before the Court by Mr L. Cyrson, a lawyer practising in Poznań. 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 The facts of the case, as submitted by the applicant, may be summarised as follows. On an unspecified date a certain D.W. contacted the police on account of   an alleged fraud committed by the applicant. According to D.W.’s statements, after exchanging phone calls and one earlier meeting, he saw the applicant on 23 March 1997 at Warsaw Airport. Apparently D.W. gave the applicant 1,400 PLN in exchange for finding him a job in Germany. The applicant took the money and never contacted D.W. again. D.W. gave the police the name of the applicant and identified him from a photograph. On 20 July 1997 the applicant was charged with fraud. He acknowledged that he knew D.W. but denied the charge. On 27 May 1998 the prosecution lodged a bill of indictment with the Warsaw District Court ( Sąd Rejonowy ) (no. III K 1437/06). The applicant was indicted as charged. On an unspecified date the proceedings were stayed and subsequently resumed on 2 September 2005. On 6 October 2005 the applicant was served with the bill of indictment. A hearing scheduled for 20 October 2005 was adjourned in order to   enable the applicant to prepare his defence. On 9 January, 16 March and 12 April 2006 the Warsaw District Court held hearings. The court read out D.W.’s statements made in the course of the investigation and heard testimony from the applicant as well as from three other witnesses. One of the witnesses, A.G., partially confirmed D.W.’s statements by submitting that the applicant had rented a car from him. D.W. had seen the applicant in the car in Warsaw on 23 March 1997. Two other witnesses testified that at the time of the alleged offence they were with the applicant in Poznań. Although the Warsaw District Court allowed the applicant’s motion to view the CCTV footage taken from Warsaw Airport, the evidence could not be obtained because of the lapse of time. On 19 April 2006 the Warsaw District Court found the applicant guilty of fraud and sentenced him to one year’s imprisonment. As evidence, the court relied almost exclusively on D.W.’s statements, which were found to be more credible than those of the applicant and his witnesses. The applicant appealed against this judgment arguing, inter alia , that he   had not been given the opportunity to put questions to D.W. at any point of the proceedings. However, D.W.’s statements had been an essential part of the evidence leading to his conviction.   On 13 December 2006 the Warsaw Regional Court ( Sąd Okręgowy ) (no. IX Ka 760/06) upheld the lower court’s judgment finding no reason to   deviate from its assessment of the evidence. In connection with the applicant’s complaint that he had been denied the opportunity to put questions to D.W. the court observed that D.W. was abroad and summoning him would not only be exceedingly complicated but also unnecessary considering that his statements given during the investigation were consistent, logical and relevant. According to the Warsaw Regional Court, the fact that D.W. was not personally heard during the court proceedings had had no impact on the trial court’s findings. The applicant lodged a cassation appeal against this judgment. On 22 January 2008 the Supreme Court ( Sąd Najwyższy ) (no.   II   KK   243/07) dismissed the applicant’s cassation appeal as manifestly ill ‑ founded. 2.     Proceedings under the 2004 Act (no. IX S 40/05) On an unspecified date the applicant lodged with the Warsaw 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 6 December 2005 the Warsaw Regional Court admitted that the   proceedings in question had indeed been lengthy but refused to grant the   applicant any compensation. B.     Relevant domestic law and practice 1.     Remedies against unreasonable length of proceedings 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. 2.     The rules governing the examination of witnesses by the criminal courts Article 390 § 1 of the 1997 Code of Criminal Procedure (“the Code”) provides: “The accused has a right to be present during the taking of evidence in   the   proceedings. Article 391 of the Code provides as follows: “1.     If a witness has without good reason refused to testify, or has made a statement which differs from a previous one, or has stated that he does not remember certain details, or if he is abroad, or a summons cannot be served on him, or if he has not appeared for good reason or if the president of the court has declined to summon him pursuant to Article 333§2 [because upon the lodging of the bill of indictment the prosecution has asked that the records of his testimony be read out at trial], and also when a witness has died, the records of his previous statements may be read out, [regardless of whether they] have been made in the investigation or before the court in   the case in question or in another case or in any other procedure provided for by the law. 2.     In the circumstances referred to in paragraph 1, and also in the case specified in   Article   182 § 3, the records of evidence that a witness has given when heard as   an   accused may also be read out.” COMPLAINTS 1.     The applicant complained under Article 6 § 1 of the Convention that the length of the criminal proceedings against him had been excessive. 2.     The applicant further complained under Article 6 § 3 (d) of the Convention that his right to a fair trial had been breached in that he had been denied the opportunity to put questions to D.W., although D.W.’s statements had been treated as the decisive evidence against him. 3.     Relying on Article 6 § 3 (a) and (b) the applicant complained about the fact that he had been served with the bill of indictment more then seven years after it had been issued. THE LAW A.     Length and fairness 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...” He further complained that his right to a fair trial had been breached in that he had been denied the opportunity to put questions to D.W., although D.W.’s statements had been treated as decisive evidence against him. The applicant relied on Article 6 §§ 1 and 3   (d) of the Convention, the relevant parts of which provide: “1.     In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] tribunal ... ... 3.     Everyone charged with a criminal offence has the following minimum rights: ... (d)     to examine or have examined witnesses against him ...” By letter dated 30 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 – their acknowledgement that the length of the criminal proceedings in the present case was in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. The Government also admit that the applicant did not have a fair hearing in the determination of the criminal charge against him, as required under Article   6   §   1 of the Convention. Particularly, they acknowledge that the limitations on the rights of the defence in the applicant’s case gave rise to a breach of the requirements of Article 6 § 1 of the Convention taken together with Article 6 § 3 (d). In these circumstances, and having regard to the particular facts of the case, the Government declare that they offer to pay the applicant the amount of PLN 23,000 [twenty three thousand Polish zlotys], 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 21 July 2010 the applicant expressed the view that the sum mentioned in the Government’s declaration was unacceptably low. 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 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)). 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. The decision is based inter alia on the   statement of the respondent Government that there was a breach of the Convention and should be understood as a confirmation of that statement. Such confirmation   constitutes a sufficient legal basis for the reopening of the criminal proceedings on the domestic level if   such reopening is provided for by the domestic law. 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.     Complaint under Article   6 §   1 of the Convention taken in conjunction with Article   6 §   3 (d) The applicant further complained that he   had been served with the bill of indictment more then 7 years after it had been issued, which had prevented him from properly preparing his defence. The   Court observes that although the applicant was served with the bill of   indictment with unjustified delay, he was given by the domestic courts three months before the first hearing to prepare his defence. It follows that this complaint is manifestly ill-founded and must be rejected pursuant to 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 complaints under Article 6 § 1 of the Convention and Article   6   §   1 of the Convention taken in conjunction with Article   6 §   3   (d) 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 complaints in accordance with Article 37 § 1 (c) of the Convention; Declares the remainder of the application inadmissible.   Fatoş Aracı   Nicolas Bratza Deputy Registrar   President