FOURTH SECTION

DECISION

Application no . 31804/10 Jan ZAŁUSKA against Poland

The European Court of Human Rights (Fourth Section), sitting on 9 April 2013 as a Committee composed of:

George Nicolaou , President, Zdravka Kalaydjieva , Faris Vehabović , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 24 May 2010,

Having regard to the declaration submitted by the respondent Government on 6 February 2013 requesting the Court to strike the application out of the list of cases and the applicant ’ s reply to that declaration,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Jan Załuska , is a Polish national, who was born in 1946 and lives in Warszawa. He was represented before the Court by Mr W. Wrzecionkowski , a lawyer practising in Olsztyn .

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

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

On 27 August 2001 the applicant was kidnapped by unknown individuals after a business meeting concerning a large-scale financial transaction in connection with privatisation of an oil refinery.

Between 27 August and 23 November 2001 the applicant was held captive by three individuals. The applicant was bound with a chain to a wall, beaten and left with his wounds unattended to, hung naked from a ceiling, soaked in water and asphyxiated by placing a plastic bag over his head. His persecutors interrogated him repeatedly and threatened him and his family in order to obtain information and powers of attorney. Afterwards the perpetrators left the applicant in the woods from where he managed to make his way home.

The applicant informed the police about the events. He also obtained a medical certificate confirming his injuries.

On 5 November 2002 the police arrested three persons in connection with the investigation into the events of 2001. Two of them remained in pre ‑ trial detention until August 2003.

On 30 June 2004 the prosecutor indicted L.M. and J.G. before the Warsaw District Court.

On 26 June 2007 the prosecutor indicted J.S., a lawyer with whom the applicant had had a meeting just before his kidnapping.

Afterwards both cases were joined and examined together (VK 1827/06).

In January and October 2008 the applicant, who joined the proceedings as an auxiliary prosecutor, asked the trial court to schedule a hearing.

On 16 November 2009 the applicant lodged a complaint about a breach of his right to trial within a reasonable time and asked for just satisfaction. He relied on the amended Law of 17 June 2004 on complaints about a breach of the right to an investigation conducted or supervised by a prosecutor and to a trial within a reasonable time ( Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki ) (“the 2004 Act”).

On 22 December 2009 the Warsaw Regional Court allowed the applicant ’ s complaint and awarded him 5,000 Polish zlotys (PLN) in compensation. The court considered that there had been a delay in particular after the lodging of the bill of indictment against L.M. and J.G. Moreover, the trial court had remained inactive since 2007.

On 29 November 2010 the Warsaw District Court decided to sever the proceedings and to examine the case against L.M. and J.G. separately from the case against J.S.

In 2011 both trial courts held many hearings in the two criminal cases but have not yet finished hearing the applicant and no witnesses have been heard. No judgment has been given.

COMPLAINT

The applicant complained under Article 6 of the Convention about the length of the criminal proceedings against his persecutors. The judicial authorities were not thorough or effective thereby exacerbating the post-traumatic stress disorder from which he had been suffering.

THE LAW

The applicant complained in substance about the State ’ s failure to fulfil its positive obligation to carry out an effective and thorough investigation into the serious abuses he was the victim of at the hands of private individuals. The Court considers that the applicant ’ s grievances should be examined from the angle of the procedural requirement implicit in Article 3 of the Convention which provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

By letter dated 6 February 2013 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They 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 - their acknowledgement of the violation of Article 3 of the Convention taking into consideration procedural protection from torture and inhuman and degrading treatment ( ... ) and on the account of distress allegedly suffered by the applicant with regard to the length of domestic proceedings ( ... ).

Consequently, the Government are prepared to pay the applicant the sum of PLN 30,000 (thirty thousand Polish zlotys) which they consider to be 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 Government would respectfully suggest that the above declaration might be accepted by the Court as ‘ any other reason ’ justifying the striking out of the case of the Court ’ s list of cases, as referred to in Article 37 § 1 (c) of the Convention ...”

The applicant did not comment on the Government ’ s unilateral declaration .

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”.

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

To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( Tahsin Acar v. Turkey , [GC ], no. 26307/95, §§ 75 ‑ 77, ECHR 2003 ‑ VI ; WAZA Spółka z o.o . v. Poland ( dec .) , no. 11602/02, 26 June 2007; and SulwiÅ„ska v. Poland ( dec .) , no. 28953/03).

Having regard to the nature of the admissions contained in the Government ’ s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).

Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic (see , among many other authorities , M.C. v. Bulgaria , no. 39272/98, ECHR 2003 ‑ XII, and Beganović v. Croatia , no. 46423/06 , §§ 83 ‑ 87, 25 June 2009 ), 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, 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 in respect of the complaint under Article 3 of the Convention 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.

Fatoş Aracı George Nicolaou Deputy Registrar President