FOURTH SECTION

DECISION

Application no. 45982/06 by Krzysztof ANDRZEJCZYK 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 S. Pavlovschi , Mr L. Garlicki , Ms L. Mijović, judges and Mr T.L. Early , Section Registrar ,

Having regard to the above application lodged on 9 November 2006 ,

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 unsuccessful friendly settlement negotiations,

Having regard to the Government ’ s request to strike the case out of its list of cases and the text of a unilateral declaration made with a view to resolving the issues raised by the application,

Having regard to the applicant ’ s comments on the Government ’ s propos ed unilateral declaration,

Having deliberated, decides as follows:

THE FACTS

The applicant, M r Krzysztof Andrzejczyk, is a Polish national who was born in 1972 and lives in Warszawa. He was represented before the Court by M r S. Hambura, a lawyer practising in Berlin . The respondent Government were represented 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.

On an unknown date in 1995 proceedings against a third party (J.S.) were instituted. J.S. was charged with causing grievous bodily harm to the applicant. The applicant was an auxiliary prosecutor in the proceedings.

On 22 March 2001 the Warsaw Regional Court sentenced the accused to two years ’ imprisonment and conditionally suspended the execution of the sentence for four years. The court decided not to examine the civil claim (lodged by the prosecutor) as the evidence gathered in the course of the proceedings was not sufficient for the determination of the civil claim. The applicant, the prosecutor and the accused appealed.

On 28 December 2001 the Warsaw Court of Appeal sentenced the accused to three years ’ imprisonment (without suspension of the execution of the sentence).

On 5 January 2004 the accused requested to have the criminal proceedings reopened. He contended that a legal provision on the strength of which he had been sentenced had been subsequently amended by a ruling of the Constitutional Court .

On 1 July 2004 the Supreme Court quashed the judgments of 22 March 2001 and 28 December 2001 and remitted the case.

On 7 December 2005 the Warsaw District Court sentenced the accused to three years ’ imprisonment. It decided not to rule on the civil claim lodged by the prosecutor as this would have significantly prolonged the criminal proceedings. The accused appealed.

On 16 May 2006 the Warsaw Regional Court upheld the judgment of 7 December 2005.

On 3 July 1998 the applicant lodged a civil claim for damages and a disability pension against the accused.

On 6 April 1999 the proceedings were stayed pending the outcome of the criminal proceedings .

On 29 December 2003 the Warsaw Regional Court , Civil Department, awarded compensation and a disability pension to the applicant. The defendant appealed.

On 16 December 2004 the Warsaw Court of Appeal, Civil Division, quashed the judgment of 29 December 2003 and remitted the case.

On 1 5 March 2005 the proceedings were stayed pending the outcome of the criminal proceedings; they were resumed on 30 June 2006.

The hearing scheduled for 5 December 2006 was adjourned at the request of the applicant ’ s lawyer.

The h earing scheduled for 15 March 2007 was adjourned until 19 June 2007. The applicant ’ s lawyer was summoned to submit information and documents concerning social benefits obtained by the applicant.

On 19 June 2007 the court stayed the proceedings in accordance with Article 177 § 1 of the Code of Civil Procedure, since the plaintiff had not complie d with the court ’ s summons .

On 5 July 2007 the applicant informed the court that he had revoked his representative ’ s power of attorney. The proceedings are pending.

The applicant lodged a complaint under the 2004 Act about the excessive length of the proceedings.

On 20 January 2006 the Warsaw Regional Court dismissed the applicant ’ s complaint. The court examined only the part of the proceedings after the entry into force of the 2004 Act, that is after 17 September 2004.

B. Relevant domestic law [1]

On 17 September 200 4 the Law of 17 June 200 4 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 ) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings. A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under section 2 read in conjunction with section 5(1) of the 200 4 Act.

On 18 January 2005 the Supreme Court ( Sąd Najwyższy ) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date but only when they had not yet been remedied.

COMPLAINT

The applicant complained under Article 6 of the Convention about the length of the aforementioned proceedings.

THE LAW

On 31 July 2007 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by the application. It 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 acknowledgement of the unreasonable duration of the domestic proceedings in which the applicant was involved. At the same time, the Government admit that in the particular circumstances of the applicant ’ s case, the applicant ’ s complaint about the length of the proceedings has not been redressed at the domestic level as required by Article 13 of Convention.

Consequently, the Government are prepared to accept the applicant ’ s claims for just satisfaction in the amount of PLN 15,000 which they consider reasonable in the light of the Court ’ s case law. 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 applicant requested the Court to reject the Government ’ s initiative on the basis that the unilateral declaration was inadequate in terms of the amount of compensation proposed.

The Court observes at the outset that the parties were unable to agree on the terms of a friendly settlement of the case. It recalls that, according to Article 38 § 2 of the Convention, friendly-settlement negotiations are confidential and that Rule 62 § 2 of the Rules of Court further stipulates that no written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in contentious proceedings. However, the declaration was made by the Government outside the framework of the friendly-settlement negotiations.

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”.

Article 37 § 1 in fine includes the proviso that:

“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

The Court also recalls that under certain circumstances, it may strike out an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

The Court has already examined the respondent Government ’ s unilateral declaration s submitted in cases similar to the present one (see WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02 , 26 June 2007; Sulwi ń ska v. Poland (dec .), no. 28953/03 , 18 September 2007, with further references).

Having regard to the Court ’ s principles and considerations set out therein, to the nature of the admissions contained in the Government ’ s unilateral declaration, as well as the Government ’ s readiness to pay the applicant PLN 15,000 (which amount the Court finds reasonable in comparison with its awards in similar cases), the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).

The Court further notes that this decision constitutes a final resolution of this application only insofar as the proceedings before the Court are concerned. It is without prejudice to the use by the applicant of other remedies before the domestic courts to claim further compensation in respect of the length of the impugned proceedings.

In the light of all the above considerations, 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 the application (Article 37 § 1 in fine ).

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

Takes note of the terms of the respondent Government ’ s declaration 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 accordance with Article 37 § 1 (c) of the Convention.

T.L. Early Nicolas Bratza Registrar President

[1] For a more detailed presentation of the relevant domestic law see Rata jczyk v. Poland (dec.), no. 11215/02, ECHR 2005 ; Char zyński v. Poland ( dec.), no. 15212/03 , ECHR 2005