FOURTH SECTION

DECISION

Application no. 22286/02 by Andrzej PRZEWOSKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 27 March 2008 as a Chamber composed of:

Nicolas Bratza , President, Lech Garlicki , Stanislav Pavlovschi , Ljiljana Mijović , David Thór Björgvinsson , Ján Šikuta , Päivi Hirvelä , judges, and Lawrence Early , Section Registrar ,

Having regard to the above application lodged on 14 February 2001,

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 declaration submitted by the respondent Government on 30 August 2007 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 Andrzej Przewoski , is a Polish national who was born in 1966 and lives in Gdańsk . He was rep resented before the Court by Ms A. Plejewska, a lawyer practising in Gdynia . The Polish Government (“the Government”) were r epresented by their Agent, Mr J. 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. Proceedings concerning fraud

On 10 March 1992 the Gdynia District Prosecutor charged the applicant with fraud and remanded him in custody. On 1 March 1993 the bill of indictment was filed with the court. On an unknown later date the applicant was acquitted. On 16 December 1993 he was released from detention. The applicant subsequently applied for compensation for his unlawful detention. On 11 February 1998 the Gdańsk Regional Court dismissed his claim on the ground that the statute of limitations had expired.

2. Proceedings concerning forgery and the alleged ill-treatment by police officers

In a letter of 5 February 2006 the applicant submitted complaints about another set of proceedings.

In 2000 the applicant was charged with forgery of a medical certificate.

On 29 December 2000 a bill of indictment was lodged with the Gdynia District Court.

On 12 October 2004 the applicant was remanded in custody. He further submits that he was beaten up by prison officers in May 2005. He attempted to institute criminal proceedings. However, on 30 June 2005 the Gdańsk District Prosecutor refused to open an investigation against the alleged culprits as it was revealed that no offence had been committed.

Between 12 May 2005 and 23 February 2006 the court held eight hearings.

On 26 April 2006 the Gdynia District Court acquitted the applicant of all charges.

On an unknown date in 2005 the applicant filed a complaint about the unreasonable length of the proceedings in his case. On 26 January 2006 the Gdańsk Regional Court dismissed his complaint. The court held that the presiding judge had been changed on three occasions. For these reasons, they had needed more time to acquaint themselves with the case. In addition the case had not yet been terminated because other criminal proceedings against the applicant were pending and, on a few occasions, hearings had been set for the same days.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention of the unreasonable length of the proceedings , in which he had been tried on the charge of forgery .

He also complained under Article 3 of the Convention of ill ‑ treatment in detention in 2005.

Finally, the applicant complained under Article 5 that his detention in 1992 and 1993 had been unlawful and that he did not receive any compensation.

THE LAW

A. Length of proceedings

The applicant complained about the length of the proceedings concerning forgery . 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 fair ... hearing ... by [a] ... tribunal...”

By letter dated 30 August 2007 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 unilateral declaration – its acknowledgment of the unreasonable duration of the domestic criminal proceedings in which the applicant was involved.

In these circumstances and having regard to the particular facts of the case, the Government declare that they offer to pay to the applicant the amount of PLN 10,000. ... 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 period plus three percentage points.

The above sum can be considered as reasonable in the light of the Court ’ s case-law. The Government would like to recall that the said sum is the maximum compensation for protracted length of the proceedings which may be awarded under the provisions of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (“the 2004 Act”). As it has been confirmed in the Court ’ s case-law the remedy provided for in the 2004 Act is capable of provising the applicants with appropriate redress for the alleged damage resulting from the length of the proceedings ( Krasuski v. Poland , judgment o f 14 June 2005, application no. 61444/00), thus satisfying the “effective remedy”-requirement within the meaning of Article 35 § 1 of the Convention.

The Government would 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 14 October 2007 the applicant expressed the view that the amount mentioned in the Government ’ s declaration wa s too low to compensate the damage suffered by the applicant as a result of the events he had complained about in 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 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 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 the 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 3 of the Convention of ill ‑ treatment in detention in 2005 and under Article 5 of the Convention that his detention between 1992 and 1993 had been unlawful and that he did not receive any compensation on that account.

The Court has examined the remainder of the complaints as submitted by the applicant. However, 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 faile d to substantiate his complaint under Article 3 of the Convention about the alleged ill-treatment while he was in the police custody in 2005 . As concerns the complaint about the applicant ’ s pre-trial detention from 1992 and 1993, as well as the decision of the Gdańsk Regional Court of 11 February 1998, the Court notes that this part of the application cannot be examined as the events complained of took place more than six months before the date on which this complaint was submitted to the Court.

It follows that both complaints must be reje cted in accordance with Article 35 §§ 1, 3 and 4 of the Convention.

C. Article 29 § 3 of the Convention

In view of the above conclusions, it is appropriate to discontinue the application of Article 29 § 3 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 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.

Lawrence Early Nicolas Bratza              Registrar              President