FOURTH SECTION

DECISION

Application no. 8930/06 by Marek KOCHALSKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 2 October 2007 as a Chamber composed of:

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

Having regard to the above application lodged on 6 February 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 formal declarations accepting a friendly 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 Kwidzyn . The Polish Government (“the 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.

1. Criminal proceedings against the applicant

On 11 March 1998 the applicant was arrested and, on 12 March 1998, detained on remand.

On 18 March 1998 he was charged with armed robbery.

On 20 May 1998 a bill of ind ictment was lodged with the Gdań sk District Court ( S ą d Rejonowy ) .

Between 2 October 1998 and 16 December 2005 the court listed 40 hearings, of which at least 21 were adjourned.

On 6 June 2006 the Gdań sk District Court convicted the applicant as charged and sentenced him to two years and six months ’ imprisonment.

The applicant has failed to inform the Registry whether he appealed against the first-instance judgment.

2. The applicant ’ s complaint under the 2004 Act

On 15 February 2005 the applicant lodged a complaint about the undue 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 24 March 2005 the Gdań sk Regional Court ( S ąd Okrę gowy ) dismissed his complaint on the ground that on the date of entry into force of the 2004 Act no undue delays in the court ’ s conduct of the case could be discerned. The court acknowledged that the proceedings before 2004 had been unreasonably lengthy for various reasons such as: the replacement of the judge rapporteur , the failure of witnesses and lawyers to appear on numerous occasions, and the need to start the trial anew since an interval between two hearings had exceeded the period permissible under the Code of Criminal Proceedings. However, the court stressed that the 2004 Act had entered into force on 17 September 2004 and could not be applied to the protracted conduct of court proceedings occurring before that date. Having analysed the conduct of the District Court in the period following the entry into force of the 2004 Act, the Regional Court found that the proceedings had been conducted with due diligence and within a reasonable time.

On 7 July 2005 the applicant again lodged a length of proceedings complaint with the Gda Å„ sk Regional Court . On 1 August 2005 the court rejected his complaint. The court relied on section 14 of the 2004 Act, according to which the applicant could lodge a new complaint in the same proceedings no earlier than 12 months from the date on which a decision on the merits had been given on a previous complaint.

On an unspecified date in 2006 the applicant lodged a further length of proceedings complaint.

On 18 April 2006 the Gdań sk Regional Court dismissed the complaint holding that since 24 March 2005, the date on which the applicant ’ s previous complaint was dismissed as ill-founded, the proceedings had been conducted without undue delay. The court did not examine the overall length of the proceedings.

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 Charzy ń ski 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.

As regards section 14 of the 2004 Act, it reads, in so far as relevant, as follows:

“The applicant may lodge a new length complaint in the same proceedings not earlier than after 12 months ... from the date on which a court gave a decision referred to in section 12.”

COMPLAINT

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

THE LAW

On 15 June 2007 the Court received the following declaration signed by the applicant:

“I note that the Government of Poland are prepared to pay me the sum of PLN 10,000 (ten 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 . 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 3 July 2007 the Court received the following declaration from the Agent of the Government:

“I declare that the Government of Poland offer to pay PLN 10,000 (ten thousand Polish zlotys) to Mr Marek Kocha lski 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 . 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 sh ould be struck out of the list.

For these reason s, the Court unanimously

Decides to strike the application out of its list of cases.

T.L. Early Nicolas Bratza Registrar President