FOURTH SECTION

DECISION

Application no. 31503/03 by Rafa Å‚ TRYBUS against Poland

The European Court of Human Rights (Fourth Section), sitting on 15 May 2007 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr S. Pavlovschi , 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 18 July 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 formal declarations accepting a friendly settlement of the case.

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Rafał Trybus, is a Polish national who was born in 1974 and lives in Warszawa. The Polish Government (“the Government”) are represented by their Agent, Mr Jakub Wołąsiewicz of the Ministry of Foreign Affairs .

The facts of the case, as submitted by the parties, may be summarised as follows.

1. The criminal proceedings against the applicant

On 7 October 1996 the Warsaw District Prosecutor lodged a bill of indictment against the applicant with the Warsaw District Court.

The first hearing was scheduled for 25 January 2002, but was adjourned to 12 March 2002 due to the absence of the accused.

On 12 March 2002 the court stayed the proceedings on the grounds that one of the accused was in hiding. By a letter of 29 April 2002, the court was informed by the police that one of the accused had died in 2001 and, consequently, on 12 August 2002 the proceedings were resumed.

The hearing scheduled for 28 January 2003 was adjourned until 7 April 2003 due to the absence of one of the accused.

The hearing scheduled for 15 May 2003 was adjourned until 10 June 2003 due to the absence of witnesses. On that date the court suspended the proceedings until 3 July 2003 . It subsequently prolonged the suspension until 18 September 2003, due to the applicant ’ s refusal to have a witness heard in the absence of his defence counsel.

On 18 September 2003 a hearing was held.

On 23 October 2003 the Warsaw District Court gave a judgment in the case, which became final.

By a ruling of 18 November 2004 the Warsaw Regional Court rejected the applicant ’ s complaint under the 2004 Act on complaints about a breach of the right to a hearing within a reasonable time, on the grounds that the proceedings were terminated and hence the 2004 Act could not be applied in the applicant ’ s case.

On 26 January 2005 the applicant renewed his complaint under the 2004 Act and submitted that he had lodged a complaint about the length of the proceedings with the Court, while they were pending.

The complaint was rejected by the Warsaw Regional Court on 22 February 2005. The court maintained that the proceedings were terminated on 23 October 2003 and that it could not be determined on the basis of the case file whether the applicant had in fact lodged a complaint with the Court about the length of the impugned proceedings.

2. The proceedings related to the applicant ’ s complaint about insufficient medical treatment

By a letter of 15 October 2004 the applicant was informed by the Warsaw Court of Appeal that an expert opinion concerning his dental treatment in the detention centre had been submitted on 23 September 2004.

On 12 October 2004 the Warsaw Court of Appeal upheld the Warsaw Regional Court ’ s decision of 28 June 2004 refusing to suspend the execution of the applicant ’ s sentence in view of his dental treatment.

COMPLAINTS

1. The applicant complain ed under Article 3 of the Convention that he had been subjected to torture during his dental treatment in the detention centre.

2. He also complain ed under Article 6 § 1 of the Convention about the length of the criminal proceedings in his case.

3. Finally, the applicant allege d , invoking Article 13 of the Convention, that he had been deprived of an effective remedy with respect to his request for a suspension of the execution of his prison sentence.

THE LAW

On 2 October 2006 the Court decided to communicate the application to the Government.

On 8 February 2007 the Court received the following declaration from the Government:

“I, Jakub Woł ą siewicz, Agent o f the Government , declare that the Government of Poland offer to pay 10 , 000 PLN to Mr Rafał Trybus 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 and 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 .”

On 8 March 2007 the Court received the following declaration signed by the applicant:

“I, Rafał Trybus, the applicant, note that the Government of Poland are prepared to pay me the sum of 10 , 000 PLN with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights 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 and 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 .

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.”

The Court takes note of the agreement reached between the parties (Article 37 § 1 of the Convention). It is satisfied that the settlement is based on respect for human rights as defined in the Convention or its Protocols (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of Court). 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