FOURTH SECTION

DECISION

Application no. 52468/07 by Tadeusz PORTUÅš against Poland

The European Court of Human Rights (Fourth Section), sitting on 6 October 2009 as a Chamber composed of:

Nicolas Bratza , President, Lech Garlicki , Giovanni Bonello , Ljiljana Mijović , Päivi Hirvelä , Ledi Bianku , Nebojša Vučinić , judges, and Fatoş Aracı, Deputy Section Registrar ,

Having regard to the above application lodged on 14 November 2007,

Having regard to the declaration submitted by the respondent Government on 7 July 2009 requesting the Court to strike the application out of the list of cases and the applicant ’ s reply to that declaration,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Tadeusz Portuś , is a Polish national who was born in 1953 and is currently detained in the Kamień Pomorski prison . The Polish Government (“the Government”) were r epresented by their Agent, Mr Jakub 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. First set of criminal proceedings against the applicant

On 18 January 1999 the applicant was charged with possession of drugs and amphetamine trafficking.

On 24 March 1999 a bill of indictment was lodged with the Gdynia District Court ( Sąd Rejonowy ), which, on an unspecified date, found itself not competent to deal with the case and referred it to the Gdańsk District Court.

On 5 July 1999 the Gdańsk District Court found itself not competent to deal with the case and referred it to the Gorzów Wielkopolski Regional Court ( Sąd Okręgowy ) which, on 12 January 2000, referred the case back to the Gdańsk District Court.

A first hearing, scheduled for 20 March 2000, was adjourned, as four of the accused persons, including the applicant, had failed to appear before the trial court.

A hearing scheduled for 19 May 2000 was adjourned, as the place of residence of one of the accused had to be established.

On 10 October 2000 the Gdańsk District Court adjourned the hearing, because two accused, including the applicant, were absent.

On 16 November and 4 December 2000 the Gdańsk District Court refused the applicant ’ s requests to have the charges against him severed .

A hearing scheduled for 14 December 2000 was adjourned as four accused were not escorted to the court from prison.

On 22 February 2001 and 19 April 2001 the applicant was not transported to the court from prison. Moreover, two of the accused failed to appear before the trial court.

A hearing scheduled for 17 June 2001 was adjourned, because one of the accused was absent.

On 30 August 2001 the Gdańsk District Court decided to have the charges against one of the accused persons severed, as she had persistently failed to appear before the trial court. A hearing was adjourned.

On 8 November 2001 two experts were heard. The next hearing, scheduled for 18 December 2001, was adjourned, as one of the accused was absent.

On 7 March 2001 the trial was opened.

Subsequent hearings were held on 5 and 30 April, 24 May, 21 June and 11 July 2002.

A hearing scheduled for 2 October 2002 was adjourned, due to a witness ’ s absence.

On 30 October 2002 the trial court requested the Gorzów Wielkopolski District Court to examine a certain witness and adjourned the hearing.

Two hearings, scheduled for 28 November and 20 December 2002, were adjourned, because two of the accused failed to appear before the court.

The subsequent two hearings, scheduled for 24 January and 28 February 2003, were adjourned, as the Gorzów Wielkopolski District Court had failed to execute the trial court ’ s request of 30 October 2002 and had not examined the witness in question.

The next hearing was held on 21 March 2003.

Two hearings, scheduled for 18 April and 10 June 2003, were adjourned as some of the accused failed to appear before the court and the applicant was not transported from prison. The next hearing was scheduled for 8 September 2003, due to the judge rapporteur ’ s holiday arrangements.

On 8 September 2003 the tri a l court again refused the applicant ’ s motion to have the charges against him severed . The hearing was adjourned, as one of the accused was ill.

Subsequent hearings were held on 3 November and 15 December 2003.

On 18 December 2003 the Gdańsk District Court convicted the applicant as charged and sentenced him to two years ’ imprisonment. The applicant appealed.

On 11 May 2006 the Gdańsk Regional Court quashed the judgment and remitted the case.

It appears that hearings were next held on 29 March and 8 August 2007 and 5 June, 17 July, 28 August and 23 October 2008 and 5 February 2009.

It seems that the proceedings are still pending before the Gdańsk District Court.

2. Second set of criminal proceedings against the applicant

On 25 November 2005 the applicant was detained on remand by a decision of the SÅ‚upsk District Court.

On 14 April 2006 a bill of indictment was lodged with the Szczecin Regional Court . The applicant and several other suspects were charged with an offence of attempted drug trafficking and participating in an organised criminal group.

On 13 June 2007 the Szczecin Regional Court convicted the applicant of attempted drug trafficking and sentenced him to nine years ’ imprisonment. He was acquitted of the remaining charges.

On 17 August 2007 the applicant lodged an appeal.

On 20 August 2007 the Słupsk Regional Prosecutor ( Prokurator P rokuratury Okręgowej ) lodged an appeal.

On 6 November 2007 the Szczecin Court of Appeal ( SÄ…d Apelacyjny ) partly amended the judgment and imposed an additional fine of PLN 10,000 (EUR 2,500) on the applicant.

On 28 November 2007 the applicant lodged a cassation appeal.

On 4 September 2008 the Supreme Court ( Sąd Najwyższy ) dismissed the applicant ’ s cassation appeal as unfounded.

3. Proceedings under the 2004 Act

On 18 January 2008 the applicant lodged a complaint with the Gdańsk Regional Court about a breach of his right to a trial within a reasonable time in respect of the first set of criminal proceedings against him and asked for just satisfaction. He relied on 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”), which entered into force on 17 September 2004.

On 18 March 2008 the Gdańsk Regional Court dismissed his complaint on the ground that there had been no undue delay in the proceedings between the date of entry into force of the Act on 17 September 2004 and the date on which he had lodged his complaint. It noted that several hearings had to be adjourned because of the difficulties in escorting the accused persons to the trial court . It further underlined that the applicant had himself also contributed to the length of the proceedings , as he had failed, on several occasions, to appear before the trial court .

B. Relevant domestic law and practice

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 presented in the Court ’ s decisions in the cases of CharzyÅ„ski v. Poland (dec.), no. 15212/03, §§ 12-23, ECHR 2005 ‑ V and Ratajczyk v. Poland (dec.), no. 11215/02, ECHR 2005-VIII, and its judgment in the case of Krasuski v. Poland , no. 61444/00, §§ 34-46, ECHR 2005-V.

COMPLAINTS

1. The applicant complained under Article 6 § 1 of the Convention about the unfairness of both sets of criminal proceedings against him, alleging that there had been a wrongful assessment of evidence by the domestic courts .

2. Further, invoking Article 6 § 1 of the Convention, he complained about the unreasonable length of the first set of criminal proceedings.

3. Lastly, he also alleged that Article 13 of the Convention had been breached, as his complaint under the 2004 Act had been unsuccessful and he had no remedy to appeal against the judgment of 18 March 2008.

THE LAW

A. Length 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 ...any criminal charge against him , everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

By letter dated 7 July 2009 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 ‑ its acknowledgement of the fact that the length of the first set of criminal proceedings in the present case was in breach of the “unreasonable time” requirement of Article 6 § 1of the Convention. ( ... )

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 19,000 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 16 July 2009 the applicant expressed the view that the sum mentioned in the Government ’ s declaration was unacceptably low . He further claimed that the information submitted by the Government was incorrect and requested the Court to examine his application.

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application or part thereof 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).

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.

Since the proceedings concerned are still pending before the domestic courts, the Court ’ s strike-out decision is without prejudice to use by the applicant of other remedies to obtain redress for any delay in the proceedings which may occur after the date of this decision.

B. Remaining complaints

The applicant further complained , under Article 6 of the Convention, about unfairness of both sets of criminal proceedings, alleging wrongful assessment of evidence by the domestic courts .

With respect to the first set of proceedings, the Court notes that the proceedings are still pending before the first-instance court and therefore the applicant ’ s complaint is premature and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention .

As regards the second set of criminal proceedings, having regard to all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the applicant has failed to substantiate his complaint .

It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

Lastly, invoking Article 13 of the Convention, the applicant alleged a breach of the right to an effective remedy. He claimed that although his complaint under the 2004 Act had been unsuccessful, the national legislation did not provide for an appeal against the judgment of the Gdańsk Regional Court of 18 March 2008.

The Court has already held on several occasions that, subject to compliance with the requirements of the Convention, the Contracting States are afforded some discretion as to the manner in which they provide individuals with the relief required by Article 13 and conform to their Convention obligation under that provision. Where a State has taken a significant step by introducing a compensatory remedy, the Court must leave a wider margin of appreciation to the State to allow it to organise the remedy in a manner consistent with its own legal system and traditions and consonant with the standard of livin g in the country concerned (see KudÅ‚a v. Poland [GC], no. 30210/96, § § 154-155 , ECHR 2000 ‑ XI ; Scordino v. Italy (no. 1) [GC], no. 36813/97, § § 188-189 , ECHR 2006 ‑ V ) .

In particular, it is open to the State to organise a remedy in such a way as to provide the examination of a given case at one instance only (see Muchowski v. Poland (dec.) no. 6909/07, 9 December 2008). The mere fact that a complaint under the 2004 Act is examined before one level of jurisdiction does not therefore render that remedy ineffective.

Moreover, under the 2004 Act a fresh complaint can be lodged at one ‑ year intervals.

It follows that this part of the application 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 complaint about the unreasonable length of the first set of criminal proceedings under Article 6 § 1 of the Convention 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 complaint in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Fatoş Aracı Nicolas Bratza Deputy R egistrar President