FOURTH SECTION

DECISION

Application no. 17374/04 by Marek KOCHALSKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 6 November 2007 as a Chamber composed of :

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr G. Bonello , Mr K. Traja , Mr L. Garlicki , Ms L. Mijović , Mr J. Šikuta, judges , and Mr T.L. Early , Section Registrar ,

Having regard to the above application lodged on 19 April 2004,

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 f riendly settlement of the case,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Marek Kochalski, is a Polish national who was born in 1978 and lives in Kwidzy ń . 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. Criminal proceedings against the applicant

A bill of indictment against the applicant and 11 other co- accused was lodged with the Gdań sk Regional Court (Są d Okr ę gowy) on 26 April 1996. The applicant was charged with car thefts and some other attempted thefts.

On 25 August 1997 the Gda ń sk Regional Court gave judgment and sentenced the applicant to 2 years and 6 months ’ imprisonment.

The applicant ’ s lawyer and the lawyers of the other co-accused lodged their appeals.

On 14 May 1998 the Gdań sk Court of Appeal (S ą d Apelacyjny) quashed the first-instance judgment and remitted the case.

Between January 1999 and July 2004 the Regional Court held at least 36 hearings.

In 1999 at least one hearing per month was scheduled and many accused and witnesses were heard. In 2000 5 hearings were held and in 2001 4 hearings were held.

It appears that in 2002 the case lay dormant.

In 2003 the Regional Court held 8 hearings, 5 of which were adjourned for various reasons.

In 2004 the court scheduled 7 hearings and, on 19 July 2004, it gave judgment and again sentenced the applicant to 2 years and 6 months ’ imprisonment.

The first-instance judgment is not final; according to the applicant ’ s submissions an appeal against it was lodged and the appeal proceedings are still pending.

2. Proceedings under the 2004 Act

On 19 September 2004 th e applicant lodged with the Gdań sk Court of Appeal (Są d Apelacyjny) a complaint about a breach of the right to have his case heard within a reasonable time. He relied on 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 strony do rozpoznania sprawy w post ę powaniu s ą dowym bez nieuzasadnionej zw ł oki) (“the 2004 Act”).

On 16 November 2004 the Court of Appeal dismissed his complaint as ill-founded, although it acknowledged that “the proceedings against the applicant had indeed been pending for a considerable time”. The court found that, in his length complaint, the applicant had complained only about the fact that the court had not granted his request for the imposition of a more lenient sentence on account of his guilty plea and the so-called “voluntary acceptance of the penalty” (dobrowolne poddanie si ę karze). The court did not examine the course of the impugned proceedings and found that the applicant could not have lodged the request referred to above because at the time when the proceedings had been instituted, no such concept existed in the Polish legal system. Thus, the length of the proceedings could not have been caused by the court ’ s refusal to grant the applicant ’ s request.

B. Relevant domestic law

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 Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland , no. 61444/00, §§ 34-46, ECHR 2005-V.

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention about the excessive length of the criminal proceedings against him.

THE LAW

On 17 August 2007 the Court received the following declaration signed by the applicant:

“I note that the Government of Poland are prep ared to pay me the sum of PLN 11,000 (eleven thousand Polish zloty ’ s) 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 a ny taxes that may be applicable and 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. 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.”

On 14 September 2007 the Court received the following declaration from the Government:

“I declare that the Government of Poland offer to pay PLN 1 1,000 (eleven thousand Polish zlotys) to Mr Marek Kochalski with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human R ights.

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 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 payment will constitute the 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). 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.

T.L. Early Nicolas Bratza Registrar President