FOURTH SECTION

DECISION

Application no . 10337/13 Artur KOWALCZYK against Poland

The European Court of Human Rights (Fourth Section), sitting on 6 December 2016 as a Committee composed of:

Nona Tsotsoria , President , Krzysztof Wojtyczek , Marko Bošnjak , judges ,

and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 21 January 2013,

Having regard to the declaration submitted by the respondent Government on 5 May 2016 requesting the Court to strike a part of the application out of the list of cases and the applicant ’ s reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicant, Mr Artur Kowalczyk , is a Polish national, who was born in 1971 and is detained in Warsaw.

2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska , of the Ministry of Foreign Affairs.

3. The applicant complained under Article 5 § 3 of the Convention about the unreasonable length of his detention on remand. He further complained about the unreasonable length of the criminal proceedings against him and that this complaint under the 2004 Act had been rejected as he had not been able to pay the court fee of 100 Polish zlotys ((PLN) – approximately 22 Euros (EUR)).

4. The complaints were communicated to the Government.

5. After unsuccessful friendly-settlement negotiations, by letter dated 5 May 2016 the Government informed the Court that they proposed to make a declaration with a view to resolving the issues raised by the application.

6. They acknowledged a violation of the applicant ’ s rights guaranteed by Article 5 § 3 of the Convention. They undertook to pay the applicant PLN 20,000 (approximately EUR 4,600) to cover any pecuniary and non ‑ pecuniary damage as well as costs and expenses, which will be free of any taxes that may be applicable. This sum will be payable within three months from the date of notification of the decision taken by the Court. In the event of failure to pay this sum within the said three-month period, the Government undertook 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. They further requested the Court to strike out the application.

7. On 3 June 2016, the Court received a letter from the applicant informing the Court that he agreed to the terms of the Government ’ s declaration.

THE LAW

8. Having regard to the applicant ’ s complaint about the unreasonable length of his detention on remand under Article 5 § 3 of the Convention, the Court finds that following the applicant ’ s express agreement to the terms of the declaration made by the Government the case should be treated as a friendly settlement between the parties.

9. It therefore takes note of the friendly settlement reached between the parties in so far as it relates to the above complaint . 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.

10. In view of the above, it is appropriate to strike the case out of the list in so far as it relates to the above complaint.

11. Relying on Article 6 § 1 of the Convention, the applicant also complained about not being exempted from a court fee of PLN 100 (approximately EUR 22) due for his complaint about the unreasonable length of the proceedings under the 2004 Act . He also complained that the criminal proceedings against him, which are pending before the second-instance court, were unreasonably lengthy.

12. The Government contested these arguments and indicated that the applicant had failed to exhaust domestic remedies in respect of his length complaint and that his complaint about access to a court due to the court fee was manifestly ill-founded.

13. The Court observes that after the entry into force, on 17 September 2004, of the Law of 17 June 2004 on a complaint about a breach of the right to have a case examined in an investigation conducted or supervised by a prosecutor and in judicial proceedings without undue delay ( ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki ), it was open to the applicant to lodge a complaint about the length of the proceedings with the relevant domestic court. The applicant lodged such a complaint on one occasion, in October 2012; however, he failed to pay the court fee of PLN 100. The complaint was rejected and never examined on the merits.

14. The Court notes that it recently examined the effectiveness of a complaint under the 2004 Act in the pilot judgment in the case of Rutkowski and Others v. Poland (nos. 72287/10 , 13927/11 and 46187/11 , §§ 161-186, 7 July 2015) and it found a violation of Article 13 on account of the lack of effectiveness of this remedy only in its compensatory aspect (ibid., §§ 179 ‑ 186). Accordingly, the Court considers that the applicant in the present case was required by Article 35 § 1 of the Convention to complain to a domestic court under the 2004 Act about the alleged breach of the right to a trial within a reasonable time (see CharzyÅ„ski v. Poland ( dec. ), no. 15212/03 , §§ 39-42, 1 March 2005, and Rozumecki v. Poland ( dec. ), no. 32605/11, 1 September 2015 ). However, the applicant has failed to comply with the legal formalities, notably the payment of the court fee, necessary for lodging a valid complaint. He has thus not enabled the domestic courts to examine his grievances on the merits. Accordingly, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

15. In so far as the applicant complained about access to a court in that his request for exemption from the court fee of PLN 100 had been dismissed, the Court considers that the applicant failed to substantiate his complaint. In particular, he did not provide to the Court any evidence regarding his financial situation at the material time. Moreover, it appears that he did not substantiate to the domestic court his allegation that it had not been possible for him to pay the fee. In his original request for exemption the applicant stated that he had no money, while the domestic court had established that the applicant had had at his disposal the sum of PLN 360 (approximately EUR 85). In his submissions to the Court the applicant failed to clarify this contradiction. Moreover, had he considered that his financial situation deteriorated, or was incorrectly assessed, it was open to the applicant to lodge another complaint under the 2004 Act together with another request for exemption from the court fee, this time with appropriate proof of his financial situation (see Drużkowski v. Poland , no. 24676/07 , § 41, 1 December 2009 ). In those circumstances the Court does not find it substantiated that the applicant was unable to pay the standard fee, equivalent to EUR 22, necessary to lodge his complaint under 2004 Act. It follows that this part of the application is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to strike the application out of its list of cases pursuant to Article 39 of the Convention in so far as it relates to the complaint about the unreasonable length of the applicant ’ s detention on remand ;

Declares the remainder of the application inadmissible.

Done in English and notified in writing on 12 January 2017 .

Andrea Tamietti Nona Tsotsoria              Deputy Registrar President