FOURTH SECTION

DECISION

Application no . 15991/08 Lech NIKOLSKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 11 December 2012 as a Chamber composed of:

Ineta Ziemele , President, Päivi Hirvelä , George Nicolaou , Ledi Bianku , Zdravka Kalaydjieva , Krzysztof Wojtyczek , Faris Vehabović , judges, and Lawrence Early , Section Registrar ,

Having regard to the above application lodged on 7 March 2008,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Lech Nikolski , is a Polish national, who was born in 1955 and lives in Warszawa. He was represented before the Court by Mr M. Zakręt , a lawyer practising in Tychy .

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The background of the case

3. Between 2001 and 2003 the applicant was the head of the Prime Minister ’ s political cabinet ( Szef Gabinetu Politycznego Prezesa Rady Ministów ).

4. In July 2002 a prominent film producer L. Rywin , in exchange for a bribe, offered to A.M. the editor of Poland ’ s largest newspaper - Gazeta Wyborcza - to arrange for a change in a draft law aimed at limiting the print media ’ s influence on radio and television. He claimed to be acting on behalf of what he called a “group in power” which wanted to remain anonymous. In December 2002 Gazeta Wyborcza printed the partial record of A.M. ’ s conversation with Mr Rywin .

5. In January 2003 the Sejm (the lower house of the Polish parliament) created a special parliamentary committee to conduct an investigation into the circumstances of the affair and the group in power.

Simultaneously, a separate criminal investigation was conducted against Mr Rywin .

6. On 5 April 2004 the Sejm committee officially terminated the parliamentary investigation. By a majority vote it adopted a final report which came to the conclusion that Mr Rywin had been acting on his own. Subsequently, the Sejm had to decide whether to accept the committee ’ s official final report or one of the various minority reports as the outcome of the investigation. Unexpectedly, on 24 September 2004 it voted to accept the minority report that most radically departed from the majority report and named the applicant as a member of the “group in power” and one of the masterminds behind Rywin ’ s mission (together with four other persons: the former prime minister, deputy minister of culture, head of the Polish public television and a high-ranking politician). The authors of the report considered that the applicant had committed the criminal offences of bribery and false testimony.

2. The criminal proceedings

7. On 11 October 2004 the applicant requested the Warsaw District Prosecutor ( Prokurator Rejonowy ) to institute an investigation in order to establish whether he had committed the offences listed in the parliamentary committee ’ s report.

8. The applicant ’ s case was transferred to the Warsaw Appeal Prosecutor ( Prokurator Apelacyjny ) and subsequently to the Białystok Appeal Prosecutor, where it was joined to an investigation which had already been pending (concerning the “group in power”).

9. The applicant was heard by the prosecutor on 28 December 2004 and 7 January 2005. It appears that he was not officially charged with a criminal offence.

10. On 7 September 2005 the applicant ’ s representative asked about progress in his case. In reply he was informed that it was not possible to envisage the date of termination of the proceedings.

11. On 28 May 2007 the applicant ’ s representative again asked the Appeal Prosecutor about the progress in the investigation. He confirmed that he was aware of the fact that the investigation concerned several persons and many issues.

12. On 4 June 2007 the Appeal Prosecutor informed the applicant that since the alleged bribery scandal concerned four other persons listed in the Sejm ’ s report of 24 September 2004, it was impossible to terminate the proceedings only with respect to the applicant.

13. In 2007 in view of the organisational changes in the prosecution authorities, the investigation was transferred to the newly created State Prosecution ( Prokuratura Krajowa ) and its Białystok office.

14. On 22 January 2008 the Białystok State Prosecutor discontinued the criminal proceedings partly on the ground that no offences had been committed and partly because some of the offences were time-barred. The Prosecutor obtained evidence from numerous witnesses including many politicians and obtained voluminous documentary evidence.

15. The applicant could not appeal against the decision to discontinue the proceedings, since he was not listed as one of the culprits in the final decision.

B. Relevant domestic law and practice

16. 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 CharzyÅ„ski 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 Krzysztofiak v. Poland , no. 38018/07 , §§ 23-31, 20 April 2010.

COMPLAINT

17. The applicant complained under Article 6 § 1 of the Convention about the excessive length of the criminal investigation in his case.

THE LAW

18. The applicant complained that the length of the investigation in his case 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...”

19. The Court first observes that t he applicability of Article 6 of the Convention in the instant case is open to doubt, as it is not clear whether the proceedings concerned the determination of a “criminal charge” against the applicant (see Šubinski v. Slovenia , no. 19611/04, § 62, 18 January 2007; and Eckle v. Germany , 15 July 1982, § 73, Series A no. 51) . However, it does not consider it necessary to examine this issue because, even assuming that Article 6 of the Convention is applicable, the application is in any event inadmissible for the following reasons.

20. The period to be taken into consideration began on 11 October 2004 and ended on 22 January 2008. It thus lasted 3 years, 3 months and 11 days.

21. 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).

22. In this respect the Court firstly observes that the case should be considered very complex: the investigation concerned a high profile bribery case and involved several politicians.

23. The Court further accepts that the applicant did not contribute to the length of the proceedings.

24. As regards the conduct of the domestic authorities, the Court observes that during the period under consideration the authorities heard evidence from numerous witnesses , including high-ranking politicians , and obtained voluminous documentary evidence. Consequently, the Court considers that the authorities displayed due diligence in handling the applicant ’ s case.

25. In view of the foregoing, and having regard to the overall length of the proceedings, the Court finds that the application 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.

Lawrence Early Ineta Ziemele Registrar President