FOURTH SECTION

DECISION

Application no. 28690/08 by Tomasz LE Åš NIAK against Poland

The European Court of Human Rights (Fourth Section), sitting on 17 February 2009 as a Chamber composed of:

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

Having regard to the above application lodged on 3 June 2008,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Tomasz L eś niak , is a Polish national who was b orn in 1975 and lives in Nowogród Bobrzań ski. T he Polish Government (“the Government”) were represented by their Agent, Mr J. Wo łą siewicz of the Ministry of Foreign Affairs.

A. The circumstances of the case

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

1. Criminal proceedings against the applicant

On an unspecified date the District Prosecutor ( Prokurator Prokuratury Rejonowej ) opened an investigation into a burglary. The applicant was a suspect.

On 2 July 2003 the applicant was indicted before the Zielona Góra District Court ( Sąd Rejonowy ). The bill of indictment comprised charges of burglary against the applicant and two other accused (M.K and T.K.).

On 29 April 2004 the presiding judge ordered that the proceedings be joined to criminal proceedings against another accused (P.T.-R.).

The first hearing was scheduled for 8 July 2004. It was adjourned due to the absence of M.K.

A further hearing scheduled for 27 September 2004 was postponed since M.K. had failed to appear.

A hearing fixed for 20 January 2005 was changed due to scheduling difficulties.

A hearing was to be held on 16 February 2005 but was adjourned due to the absence of the applicant.

On 5 April 2005 the court ordered that an expert report be obtained in order to determine T.K. ’ s mental condition. On 30 April 2005 the experts submitted their reports to the court.

A hearing scheduled for 22 November 2006 was adjourned due to the absence of all the accused except the applicant.

A hearing listed for 14 February 2007 was postponed since T.K. had failed to appear.

On 9 May 2007 the case was referred to another judge who had been appointed to conduct this case.

The next hearing listed for 6 February 2008 was adjourned due to the absence of P.T.-R.

On 11 April 2008 the first hearing on the merits was held.

The next hearing took place on 29 May 2008.

On 5 July 2008 the Zielona Góra Regional Court gave its judgment and convicted the applicant as charged. The applicant did not appeal against the judgment.

2. Proceedings under the 2004 Act

On an unspecified date the applicant lodged a complaint with the Zielona Góra 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 s kardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu s ą dowym bez nieuzasadnionej zw ł oki ) (“the 2004 Act”).

The applicant sought a ruling that the length of the proceedings before the Zielona Góra District Court had been excessive and an award of just satisfaction in the amount of 10,000 Polis h zlotys (PLN) (approx. EUR 3,0 00).

On 23 April 2008 the Zielona Góra Regional Court exempted the applicant from court fees.

On 14 May 2008 the Regional Court gave a decision in which it acknowledged t he excessive length of the proceedings before the Zielona Góra District Court , finding that there had been a period of unjustified inactivity between 30 April 2005 and 22 November 2006. However, given that the applicant was serving a prison sentence at the relevant time, it held that he had not suffered any damage resulting from the excessive length of the proceedings. Consequently, it found that the applicant ’ s claim for compensation was ill-founded.

B. Rele vant domestic law and practice

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings 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.

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention about the exces sive length of the judicial phase of the proceedings .

THE LAW

On 15 January 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 8,000 (eight thousand Polish zlotys) to Mr Tomasz Le Å› niak 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 19 December 2008 the Court received the following declaration signed by the applicant:

“ I, Tomasz Le ś niak, note that the Government of Poland are prepared to pay me the sum of PLN 8,000 (eight 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 giving 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.

Lawrence Early Nicolas Bratza Registrar President