FOURTH SECTION

DECISION

Applications nos . 7362/09 and 7405/09 Janusz WILCZYŃSKI against Poland and Roman WILCZYŃSKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 18 December 2012 as a Committee composed of:

Päivi Hirvelä , President, Ledi Bianku , Paul Mahoney , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above applications lodged on 22 November and 8 December 2008 respectively,

Having regard to the declaration s submitted by the respondent Government on 9 October 2012 requesting the Court to strike the applications out of the list of cases and the applicants ’ reply to these declaration s ,

Having deliberated, decides as follows:

THE FACTS

The applicant in the first case, Mr Janusz Wilczyński (“the first applicant”), is a Polish national, who was born in 1957 and lives in Warsaw .

The applicant in the second case, Mr Roman Wilczyński (“the second applicant”), is a Polish national, who was born in 1961 and lives in Warsaw . The applicants are brothers.

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

The part of the applications concerning the excessive length of the proceedings had been communicated to the Government .

The circumstances of the case

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

The applicants were hired by the PZU Development as real estate consultants. The PZU Development was a subsidiary of the PZU, the largest Polish insurance company.

The applicants were arrested on 27 May 2002. On 30 May 2002 they were remanded in custody.

On 10 June 2003 the prosecution filed a bill of indictment with the Warsaw- Śródmieście District Court. The applicants were charged with fraud while acting as real estate agents for the biggest Polish insurance company. There were nine other defendants in the case. The case file comprised 76 volumes. The prosecution asked the court to hear evidence from 164 witnesses and to examine substantial amount of documentary evidence.

On 7 July 2003 the Warsaw- Śródmieście District Court requested the Warsaw Court of Appeal to transfer the case for examination by a regional court on account of its complexity. On 14 October 2003 that request was dismissed.

The trial court had to decide on numerous applications for prolongation of detention on remand and on various procedural motions submitted by the defendants.

On 14 April 2004 the trial was o pened. Between that date and 21 December 2007 the trial court scheduled 183 hearings of which 140 took place. Many hearings were cancelled due to illness of the judges. Some hearings had to be adjourned on account of the absence of witnesses or due to challenges to judges made by the defendants.

According to the Government, the trial court diligently organised hearings in the case. The trial was time-consuming because every defendant took the opportunity to respond to the charges in a very detailed manner and complained on every possible occasion. The charges concerned white-collar crimes which were complex to examine and necessitated many expert opinions. The size of the case file increased to 145 volumes.

On 17 December 2004 the applicants were released.

On 2 September 2005 both appl icants filed complaints about a breach of their right to a trial within a r easonable time. On 27 September 2005 the Warsaw Regional Court dismissed their complaints. It found that the length of the trial had been justified by the complexity of the case, the number of the defendants and the nature of the charges.

On 9 October 2006 the second applicant filed a new complaint about a breach of his right to a trial within a reasonable time. On 31 October 2006 the Warsaw Regional Court dismissed the complaint.

On 16 November 2006 the first applicant filed a new complaint about a breach of his right to a trial within a reasonable time . On 14 December 2006 the Warsaw Regional Court dismissed his complaint, relying on the same grounds as in its earlier decision. It also found that the proceedings had been properly managed by the trial court.

On 3 October 2008 the applicants fil ed again similar complaints. On 16 October 2008 the Warsaw Regional Court found that there had been delays in the proceedings since 21 September 2007 but refused to award compensation. The applicants did not lodge further complaints under the 2004 Act.

It appears that the trial had to start de novo in April 2010.

At the end of the trial the prosecution submitted to the court that the applicants and other defendants should be acquitted. On 18 October 2012 the trial court acquitted the applicants and other defendants.

COMPLAINTS

The applicants complained under Article 6 § 1 of the Convention about the excessive length of the criminal proceedings against them. They also alleged that the length of proceedings had entailed a breach of Article 3 of the Convention.

THE LAW

A. Joinder of the cases

Given their similar factual and legal background, the Court decides that the two applications should be joined pursuant to Rule 42 § 1 of the Rules of Court.

B. Length of criminal proceedings

The applicants complained under Article 6 § 1 of the Convention that their case had not been heard within a “reasonable time”.

After the failure of attempts to reach a friend ly settlement, by a letter of 9 October 2012 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the applications. They further requested the Court to strike out the applications in accordance with Article 37 of the Convention.

The terms of the declarations, which were identically worded in the two cases, provided as follows:

“The Government ... wish to express – by way of the unilateral declaration – their acknowledgement that the length of the criminal proceedings against the applicant violated Article 6 § 1 of the Convention.

Consequently, the Government are prepared to pay to the applicant the sum of PLN 15,000 which they consider to be reasonable in the light of the Court ’ s case law (see, Sobczuk v. Poland , case no. 51799/99, judgment of 25 May 2004; Bartosiewicz v. Poland , case no. 68756/01, decision of 19 September 2006; Kozakv . Poland , case no. 42123/08, decision of 26 May 2009; Motyl v. Poland , case no. 22803/08, decision of 1 December 2008; Cichowski v. Poland , case no. 21195/07, decision of 29 June 2010). 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. ... ”

In their letters of 18 and 19 November 2012 the second and the first applicants respectively requested the Court to reject the Government ’ s unilateral declarations and to continue the examination of their cases. They argued that the amount proposed by the Government did not constitute a sufficient redress and was disproportionate to the harm occasioned by the excessive length of the proceedings at issue (10 years and 6 months). They emphasised that the amount proposed was equivalent to slightly more than four average monthly salaries. The applicants averred that none of the ten defendants or their counsel had contributed to the delays in the proceedings. They also objected to the fact that the Government had not referred to the alleged violation of Article 3 in their cases.

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application or part thereof 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 applications”.

It also recalls that in certain circumstances, it may strike out an application or part thereof under Artic le 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the cases 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 sp. z o.o . v. Poland ( dec .) no. 11602/02, 26 June 2007; and Sulwińska v. Poland ( dec .) no. 28953/03, 18 September 2007).

The Court has established in a number of cases, including those brought against Poland , its practice concerning complaints about the violation of one ’ s right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006 ‑ V ; Majewski v. Poland , no. 52690/99, 11 October 2005; and Wende and Kukówka v. Poland , no. 56026/00, 10 May 2007).

Taking into account the particular features of the applicants ’ trial (complexity of the case, number of witnesses to be heard, voluminous file) and having regard to the nature of the admissions contained in the Government ’ s declaration s , as well as the amount s 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 applications (Article 37 § 1(c)).

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

Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, 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 applications (Article 37 § 1 in fine ).

Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declarations, the applications could be restored to the list in accordance with Article 37 § 2 of the Convention (see, Josipović v. Serbia ( dec .), no. 18369/07, 4 March 2008).

Relying on Article 3 of the Convention the applicants also alleged that the excessive length of the proceedings in their case had amounted to a breach of this provision. Having regard to all the evidence in its possession, and in so far as it has jurisdiction to examine the allegations, the Court has not found any appearance of a breach of the rights and freedoms guaranteed by the Convention or its Protocols.

It follows that this part of the application s is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to join the applications;

Takes note of the terms of the respondent Government ’ s declarations in respect of the complaint under Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein in respect of each applicant;

Decides to strike the applications out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application s inadmissible.

Fatoş Aracı Päivi Hirvelä Deputy Registrar President