FOURTH SECTION

DECISION

Application no. 31134/05 by Waldemar FAJNAS against Poland

The European Court of Human Rights (Fourth Section), sitting on 29 April 2008 as a Chamber composed of:

Nicolas Bratza , President, Lech Garlicki , Giovanni Bonello , Ljiljana Mijović , Ján Šikuta , Päivi Hirvelä , Ledi Bianku , judges, and Lawrence Early, Section Registrar ,

Having regard to the above application lodged on 4 August 2005,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Waldemar Fajnas , is a Polish national who was born in 1962 in Radzyń Podlaski in Poland , and who lives in Kwidzyń.

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 12 March 1997 the applicant was arrested on suspicion of having committed cheque fraud. It appears that on 13 or 14 March 1997 he was charged with cheque fraud. Several months later, he stood trial along with a certain P.W., his alleged accomplice.

It appears that during the greater part of the impugned proceedings pending before the Gdańsk District Court ( Sąd Rejonowy ), the applicant remained at liberty under the supervision of a probation officer. In the applicant ’ s submission, he was present at almost all hearings and he informed his probation officer about his new address whenever he changed his place of residence. On 3 October 2004, however, the applicant was remanded in connection with another criminal case pending concurrently against him.

The applicant failed to inform the domestic court about his detention and did not appear at a hearing on 11 October 2004. As a result, on 11 October 2004, the Gdańsk District Court ordered that the applicant be detained on remand and it issued an arrest warrant. The applicant ’ s detention was subsequently extended until his conviction.

On an unspecified date the Gda Å„sk District Court decided to try the charges against P.W. in separate proceedings.

On 2 June 2005 the Gda ńsk District Court held the last hearing. On 6 June 2005 the Gda ńsk District Court delivered judgment. The applicant was convicted as charged and sentenced to 8 months ’ imprisonment. He did not appeal.

2. Proceedings under the 2004 Act

On an unspecified date in 2005 the applicant lodged a complaint about the un reasonable length of proceedings under 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 ”) .

On 16 May 2005 the GdaÅ„sk Regional Court ( SÄ…d OkrÄ™gowy ) dismissed the complaint. The court held that the 2004 Act did not have a retroactive effect and, consequently, examined the applicant ’ s claim only in respect of the period between the entry into force of the 2004 Act on 17 September 2004 and the date on which the complaint had been lodged by the applicant. The GdaÅ„sk Regional Court found that, during that part of the proceedings, there had been no inactivity or undue delay on the part of the relevant court. It was emphasised that it was the applicant and his co ‑ defendant who had contributed to the prolongation of the proceedings in that they had failed to appear at a number of hearings and to indicate their addresses.

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 stated in the Court ’ s decisions in the 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 its judgment in the case of Krasuski v. Poland , no. 61444/00, §§ 34-46, ECHR 2005-V.

COMPLAINT

The ap plicant complained under Article 6 of the Convention about the excessive length of the proceedings in his case.

THE LAW

On 24 July 2007 the Court received the following declaration signed by the applicant :

“I, Waldemar Fajnas , note that the Government of Poland are prepared to pay me the sum of 9,000 Polish zlotys (PLN) 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 converted into Polish zlotys at the rate applicable on the date of payment, and free of any taxes that may be applicable. It will be payable within three months from the date of the 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.

I accept the proposal and waive any further claims against Poland in respect of the facts of these applications. I declare that this constitutes a final resolution of the case.”

On 11 March 2008 the Court received the following declaration from the Polish Government:

“I declare that the Government of Poland offer to pay 9,000 Polish zlotys (PLN) to Mr Waldemar Fajnas 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 converted into Polish zlotys at the rate applicable on the date of payment, and free of any taxes that may be applicable. It will be payable within three months from the date of the 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.”

The Court takes note of the friendly settlement reached between the parties and considers that the matter has been resolved (Article 37 § 1 (b) of the Convention). Furthermore, in accordance with Article 37 § 1 in fine , the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the examination of the application to be continued. Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck 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