FOURTH SECTION

DECISION

Application no. 49493/08 by Andrzej PAWIŁ OWSKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 15 September 2009 as a Chamber composed of:

Nicolas Bratza , President, Lech Garlicki , Giovanni Bonello , Ljiljana Mijović , David Thór Björgvinsson , Ledi Bianku , Mihai Poalelungi , judges, and Fatoş Aracı, Deputy Section Registrar ,

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

Having regard to the formal declarations accepting a friendly settlement of the case,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Andrzej Pawił owski , is a Polish national who was born in 1967 and is currently detained in the Wołów prison . The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs .

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

A . Criminal proceedings against the applicant

On an unspecified date the applicant was charged with burglary.

On 12 July 2002 the applicant was indicted before the Busko-Zdrój District Court ( Sąd Rejonowy ). The bill of indictment comprised charges of burglary against the applicant and other suspects.

The first hearing was scheduled for 2 September 2002.

On 18 February 2003 the court gave its judgment.

On 13 January 2004 the Kielce Regional Court ( Sąd Okręgowy ) quashed the judgment and remitted the case.

On 18 March 2004 the case file was transmitted to the Busko-Zdrój District Court which, on 8 June 2004, gave its judgment.

The defendants appealed. On 29 November 2005 the Kielce Regional Court quashed the judgment and remitted the case.

On 2 October 2007 the Busko-Zdrój District Court stayed the proceedings due to the fact the co-accused, R.J., had been sought by a “wanted” notice ( list gończy ) in other criminal proceedings.

On 3 December 2007 the court severed the charges against the applicant and resumed the stayed proceedings.

On 20 February 2008 the Busko-Zdrój District Court gave its judgment.

The applicant and his counsel appealed.

The proceedings are still pending before the Kielce Regional Court .

B . Proceedings under the 2004 Act

On 21 April 2008 the applicant lodged a comp laint with the Kielce Regional Court 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 stro ny do rozpoznania sprawy w postę powaniu sądowym bez nieuzasadnionej zwł oki “the 2004 Act”).

The applicant sought a ruling that the length of the criminal proceedings against him had been excessive and an award of just satisfaction in the amount of 10,000 Polish zlotys (PLN) . He also requested the Court to accelerate the proceedings.

On 26 August 2008 the Kielce Regional Court dismissed the applicant ’ s complaint. The court stressed that according to the judgment of the Supreme Court of 18 February 2005 only the current stage of proceedings is to be examined. Consequently, the court referred only to the period after the District Court judgment had been quas hed and the case remitted, i.e. 26 January 2006. The court found that during the relevant period there had been no inactivity or undue delay on the part of the Busko-Zdrój District Court. In addition, it stressed that the applicant had lodged his complaint under the 2004 Act after the proceedings in the first instance had been terminated. In the court ’ s view it meant that the applicant had not regarded this part of the proceedings as being lengthy.

COMPLAINTS

1. The applicant complained under Article 6 § 1 of the Convention about the unreasonable length of the criminal proceedings.

2. He also alleged that Article 13 of the Convention had been breached, as he had had no remedy at his disposal to appeal against the judgment of 26 August 2008.

3. Lastly, relying on Article 13 of the Convention , the applicant submitted that the rem edy provided by the 2004 Act was ineffective because it had not applied to the investigative stage of the criminal proceedings.

THE LAW

On 22 June 2009 the Court received the following declaration from the Government:

“ I, Jakub WoÅ‚Ä…siewicz, Agent of the Polish Government, declare that the Government of Poland offer to pay PLN 10,000 (ten thousand Polish zlotys) to Mr Andrzej PawiÅ‚owski with a view to securing a friendly settlement of the above ‑ mentioned case pending before the European Court of Human Rights.

This sum, 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 and 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 period plus three percentage points. The payment will constitute the final resolution of the case. ”

On 29 June 2009 the Court received the following declaration signed by the applicant:

“ I, Andrzej Pawiłowski, note that the Government of Poland are prepa red to pay me the sum of PLN 10,0 00 (ten thousand Polish zlotys) with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum, 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 and 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. 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.

I accept the proposal and waive any further claims against Poland in respect of the facts gi ving rise to this application. I declare that this constitutes a final resolution of the case.”

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

FatoÅŸ Aracı Nicolas Bratza              Deputy Registrar President