CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 11 février 2014

.s800EAC49 { font-size:12pt } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s13F94BE1 { font-family:Arial; letter-spacing:-0.2pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sB8084949 { width:138.49pt; display:inline-block } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sF5107D2 { margin-top:12pt; margin-left:31.75pt; margin-bottom:6pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .sA5C4F8A9 { margin-top:36pt; margin-bottom:0pt; text-align:left; page-break-inside:avoid; page-break-after:avoid } .s66CC5A41 { width:26.02pt; display:inline-block } .s3487DFFE { width:201.62pt; display:inline-block } .s64406319 { width:11.68pt; display:inline-block } .s7B0354FA { width:193.28pt; display:inline-block } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .s32563E28 { margin-top:0pt; margin-bottom:0pt }   FOURTH SECTION DECISION Application no. 49281/09 Jerzy DAŃKO against Poland The European Court of Human Rights (Fourth Section), sitting on 11   February 2014 as a Committee composed of:   Ledi Bianku, President,   Paul Mahoney,   Krzysztof Wojtyczek, judges, and Fatoş Aracı, Deputy Section Registrar, Having regard to the above application lodged on 6 September 2009, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Jerzy Dańko, is a Polish national, who was born in 1973 and lives in Kraków. He was represented before the Court by Ms   M.   Pecyna, a lawyer practising in Kraków. 2.     The Polish Government (“the Government”) were represented by their Agents, Mr J. Wołąsiewicz, succeeded by   Ms   J.   Chrzanowska, of the Ministry of Foreign Affairs . A.     The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 1.     Main proceedings 4.     On 24 May 2000 the applicant, a police officer, was charged with taking part in a scuffle with his neighbours. 5.     On 11 September 2000 the bill of indictment was lodged with the Kraków-Krowodrza District Court ( Sąd Rejonowy). The criminal proceedings were conducted against the applicant and two other co-accused (certain Z.S. and G.S.). 6.     On 25 March 2002 the Kraków District Court convicted the applicant as charged and sentenced him to one   year and one   month of imprisonment suspended on probation. As a result of the applicant’s appeal, on 7   February   2003 the Kraków Regional Court ( Sąd Okręgowy ) quashed the first-instance judgment and remitted the case. 7.     On 28 February 2008 the Kraków-Krowodrza District Court again convicted the applicant but refrained from imposing a sentence on him. The applicant appealed. 8.     On 15   October   2008 the Kraków Regional Court quashed the District Court’s judgment and remitted the case. 9.     On 19   March   2009 the Kraków-Krowodrza District Court acquitted the applicant. He had not lodged an appeal and the judgment became final on 27   March   2009. 10.     Two other co-accused were convicted on the same date. They appealed against the judgment. On 16 June 2009 the appeals lodged by Z.S. and G.S. were dismissed by the Kraków Regional Court. 2.     Proceedings under the 2004 Act 11.     On 26   March   2009 the applicant lodged 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”). He sought the court to find that the length of the proceedings, which by that time had lasted for almost nine years, had been unreasonable. He further submitted that he had been charged with taking part in a scuffle and that, in his view, a criminal case concerning minor bodily injuries should not warrant such a lengthy examination. He also underlined that the ongoing criminal proceedings against him had seriously affected his career as a police officer. 12.     On 21   April   2009 the Kraków Regional Court rejected the applicant’s complaint reasoning that the applicant had failed to specify the circumstances justifying his claim as required by section 6 of the 2004 Act. The domestic court did not request the applicant to rectify formal shortcomings of the complaint. B.     Relevant domestic law and practice 13.     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 judgments in the cases of Krasuski v. Poland , no. 61444/00, §§ 34-46, ECHR 2005-V; and Wawrzynowicz v. Poland , no. 73192/01, §§ 23-28, 17   July 2007. COMPLAINTS   14.     The applicant complained under Article 6 of the Convention that the length of the proceedings in his case exceeded a reasonable time. 15.     Under the same provision, he also complained that the impugned proceedings had been conducted in an unfair manner. 16.     Lastly, under Article 13 of the Convention, the applicant complained that he had had no effective remedy against the excessive length of proceedings. THE LAW A.     Alleged violation of Article 6 § 1 of the Convention on account of the excessive length of the proceedings 17.     The applicant first complained that the length of the proceedings in his case had been unreasonable. He relied on Article 6 § 1 of the Convention, which provides, in so far as relevant: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 18.     The Government contested that argument arguing that the applicant had failed to exhaust domestic remedies. 1.     The parties’ submissions 19.     The Government submitted that the applicant had not made appropriate use of the remedy under the 2004 Act as he had not respected the statutory requirements and on 21 April 2009 the complaint had been rejected on formal grounds. Moreover, he could lodge again a complaint about the length of the proceedings as they lasted for another two months. The Government further submitted that the applicant could also have obtained redress by bringing a civil action under Article 417 of the Civil Code for compensation for the damage resulting from the length of the proceedings in his case, pursuant to section 16 of the 2004 Act. 20.     The applicant submitted that he had exhausted all the remedies provided for by the Polish law by lodging, on 26 March 2009, his complaint under the 2004 Act. The complaint, however, was rejected because the domestic court acted with excessive formalism. The applicant further stated that the judgment against him had become final on 27 March 2009 and he could not have lodged a new complaint. 2.     The Court’s assessment 21.     The Court notes that pursuant to Article 35 § 1 of the Convention: “The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law...” It must accordingly determine whether the Government’s objection that domestic remedies have not been exhausted is well-founded in the instant case. 22.     The Government’s plea of non-exhaustion of domestic remedies is based on three principal arguments. First, the applicant did not lodge a complaint of a breach of his right to a trial within a reasonable time in accordance with the statutory requirements. Second, the applicant could have lodged another complaint after the rejection of his first complaint by the domestic courts. Lastly, he could have made a claim under Article 417 of the Civil Code for compensation for the damage suffered as a result of the excessive length of the proceedings. 23.     As regards the complaint under section 5 of the 2004 Act, the Court has already examined that remedy for the purposes of Article 35 § 1 of the Convention and found it effective in respect of complaints about the length of judicial proceedings in Poland. In particular, it considered that it was capable both of preventing or putting an end to an alleged violation of the right to a hearing within a reasonable time, and of providing adequate redress for any violation that had already occurred (see Charzyński v.   Poland (dec.), no. 15212/03, §§ 36-42). In that connection, the Court observes that the applicant made use of that remedy and lodged a complaint about the length of the proceedings. 24.     It further observes that, pursuant to section 6 of the 2004 Act, a complaint alleging a breach of the right to a trial within a reasonable time must include a request to find that there was an unreasonable delay in the impugned proceedings and circumstances to justify the request. The Court observes that on 26 March 2009 the applicant lodged a complaint under the 2004 Act. He vaguely referred to the allegedly excessive length of the proceedings, not specifying why he was of the view that the proceedings were excessive or during which periods. In this respect the Court notes that in the similar case of Wojciechowski   v. Poland (dec.), no. 23362/02 it found that the applicant had not exhausted domestic remedies. In particular, the applicant failed to specify in his complaint under the 2004 Act the period of proceedings to which his complaint related, to submit relevant argumentation supporting the allegation as to the excessive length of proceedings and to state precisely what he requested. In the present case similarly the applicant’s complaint was a bare formulation of claim without any arguments. In the light of the circumstances of the case the Court finds that there is nothing in the case file to render the domestic court’s reasoning unreasonable or arbitrary and to find its approach too formalistic. Therefore, the Court considers that the applicant did not make use of the relevant remedy in compliance with the formal requirements laid down in domestic law. 25.     With regard to the Government’s claim that the applicant could have lodged another complaint under the 2004 Act because they lasted for another two months, it is to be noted that the proceedings continued in respect to the applicant’s co-accused. The final judgment against the applicant had been given on 19 March 2009 and became final on 27 March 2009 while his complaint under the 2004 Act had been rejected on 21 April 2009. Therefore, the applicant had no opportunity to file a fresh, corrected complaint. 26.     The Court further notes that in its two similar cases against Poland (see Wende and Kukówka v. Poland , no. 56026/00, §§ 49-57, 10 May 2007 and Wawrzynowicz v. Poland , no. 73192/01, §§ 46-57, 17 July 2007) it found that the applicant had exhausted domestic remedies. However, in those cases the applicants relied on a transitional provision of the 2004 Act which allowed a complaint to be lodged in respect of proceedings which had already ended. Under that provision a complainant could make use of the remedy within six months of the date on which the Act entered into force. Thus it was only available for a limited period. By contrast, in the present case, although the impugned proceedings had already terminated when the applicant’s complaint was rejected, it was open to the applicant to bring an action for damages under Article 417 of the Civil Code. The Court had already considered this remedy as an “effective remedy” in respect of complaints about the length of judicial proceedings in Poland (see Krasuski v. Poland , no. 61444/00, § 72, ECHR 2005 ‑ V). 27.     The Court reiterates that it is not required that, in cases where the national law provides for several parallel remedies in various branches of law, the person concerned, after an attempt to obtain redress through one such remedy, must necessarily try all other means (see Kaniewski v. Poland , no. 38049/02, § 37, 8 November 2005). However, since in the present case the applicant did not make use of the relevant remedy in compliance with the formal requirements laid down in domestic law he should have made a claim under Article 417 of the Civil Code for compensation for the damage suffered as a result of the excessive length of the proceedings. This remedy would be adequate in the applicant’s case. 28.     Therefore, the Court is not satisfied that the applicant did everything that could reasonably be expected of him to exhaust domestic remedies. 29.     It follows that this complaint must be rejected under Article   35 §§   1 and   4 of the Convention for non-exhaustion of domestic remedies. B.     Other alleged violations of the Convention 30.     The applicant also complained under Article 6 § 1 of the Convention about the alleged unfairness of the impugned criminal proceedings. The Court notes that the applicant had been eventually acquitted and that the acquittal subsequently became final. Therefore, the applicant can no longer claim to be the victim of a violation of the invoked provision. 31.     With regard to the alleged lack of an “effective remedy” in respect of the excessive length of the proceedings, it should be recalled that the Court has already found the remedies provided for by the 2004 Act to be effective (see Charzyński v.   Poland (dec.), no.   15212/03, §§   12 ‑ 23, 1   March   2005, ECHR   2005 ‑ V; Figiel v.   Poland (no.   1) , no.   38190/05, §§   25 ‑ 30, 17   July   2008; Figiel v.   Poland (no.   2) , no.   38206/05, §§   29 ‑ 34, 16   September   2008). It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35   §§   3   (a) and   4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Fatoş Aracı   Ledi Bianku   Deputy Registrar   President