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FOURTH
SECTION
CASE OF KULIK v. POLAND
(Application
no. 40909/08)
JUDGMENT
STRASBOURG
5 January
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Kulik v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
Päivi Hirvelä,
Ledi
Bianku,
Nebojša Vučinić, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 1 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 40909/08) against the
Republic of Poland lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Polish national, Mr Krzysztof
Kulik (“the applicant”), on 6 August 2008.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
2 April 2009 the
President of the Fourth Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
- On
16 June 2009 the Government submitted a unilateral declaration and
invited the Court to strike out the application, in accordance with
Article 37 of the Convention.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1960 and lives in Nowogród Bobrzański.
A. Main proceedings
- On
4 February 2002 criminal proceedings were instituted against the
applicant.
- On
2 January 2007 the applicant was indicted before the Jelenia Góra
Regional Court. He was charged with several counts of robbery. The
bill of indictment comprised 14 accused.
- On
9 March 2007 the Jelenia Góra Regional Court found that it had
no competence to deal with the case and referred it to the Zielona
Góra Regional Court.
- On
22 June 2007 the case was remitted to the
Zielona Góra Regional Prosecutor in connection with another
investigation conducted against one of the applicant's co-accused.
- The
first hearing was set down for 23 January 2008; however, on
22 January 2008, it was adjourned as the applicant's
co-accused's counsel had not been properly summoned.
- The
hearing, scheduled for 28 February 2008 was adjourned as a motion for
the judge to step down was to be considered.
- A
subsequent hearing, listed for 15 April 2008, was cancelled because
it was not possible for the police to bring the applicant's
co-accused from prison.
- The
hearing, scheduled for 20 May 2008, was adjourned as priority had
been given to another case.
- The
hearing, scheduled for 21 May 2008, was adjourned as another motion
for the judge to step down was to be considered.
- As
of August 2009 the proceedings were still pending.
B. Proceedings under the 2004 Act
- On
16 June 2008 the applicant filed with the Poznań Court of Appeal
a complaint about a breach of the right to a trial within a
reasonable time in respect of the criminal proceedings instituted
against him and asked for just satisfaction. He relied on 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”),
which entered into force on 17 September 2004.
- The
applicant stressed that he had been detained while awaiting his trial
and sought a ruling that the length of the proceedings before the
Zielona Góra Regional Court had been excessive and an award of
just satisfaction in the amount of 10,000 Polish zlotys (PLN) (the
equivalent of approx. 2,500 euros (EUR)).
- On 19 June 2008 the Poznań Court of Appeal gave a
decision in which it acknowledged the excessive length of the
proceedings before the Zielona Góra Regional Court, finding
that there had been a period of unjustified inactivity from 26 March
2007 until 5 December 2007. However, the court did not grant any just
satisfaction to the applicant, pointing out that the decision whether
to grant compensation in such proceedings was facultative.
II. 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 cases of Charzyński 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.
THE LAW
I. THE GOVERNMENT'S REQUEST TO STRIKE OUT THE APPLICATION
UNDER ARTICLE 37 OF THE CONVENTION
- On
16 June 2009 the Government submitted a unilateral declaration
similar to that in the case of Tahsin Acar v. Turkey
((preliminary objection) [GC], no. 26307/95, ECHR 2003-VI) and
informed the Court that they were ready to accept that there had been
a violation of the applicant's rights under Article 6 § 1 of the
Convention as a result of the unreasonable length of the proceedings,
in which the applicant had been involved. In respect of non-pecuniary
damage the Government proposed to award PLN 10,000 to the applicant
(the equivalent of approx. 2,500 euros (EUR)). The
Government invited the Court to strike out the application in
accordance with Article 37 of the Convention.
- The
applicant did not agree with the Government's proposal. He considered
that the amount proposed did not constitute sufficient just
satisfaction for the damage he had sustained and requested the Court
to continue the examination of the application.
- The Court observes that, as it has already held on
many occasions, it may be appropriate under certain circumstances to
strike out an application or part of an application under Article 37
§ 1 (c) of the Convention on the basis of a unilateral
declaration by the respondent Government even if the applicant wishes
the examination of the case to be continued. It will depend on the
particular circumstances whether the unilateral declaration offers a
sufficient basis for finding that respect for human rights as defined
in the Convention and its Protocols does not require the Court to
continue its examination of the case (see Tahsin Acar, cited
above, § 75; and Melnic v. Moldova, no. 6923/03, §
22, 14 November 2006).
- According
to the Court's case-law, the amount proposed in a unilateral
declaration may be considered a sufficient basis for striking out an
application or part thereof. The Court will have regard in this
connection to the compatibility of the amount with its own awards in
similar length of proceedings cases, bearing in mind the principles
which it has developed for determining victim status and for
assessing the amount of non-pecuniary compensation to be awarded
where it has found a breach of the reasonable time requirement (see
Cocchiarella v. Italy [GC], no. 64886/01, §§ 85-107,
ECHR 2006-...,; Scordino v. Italy (no.1) [GC], no. 36813/97,
§§ 193-215, ECHR-2006-...; and Dubjakova v. Slovakia
(dec.), no. 67299/01, 10 October 2004).
- On
the facts and for the reasons set out above, in particular the amount
of compensation proposed, which is substantially less than the Court
would have awarded in similar cases, the Court finds that the
Government failed to submit a statement offering a sufficient basis
for finding that respect for human rights as defined in the
Convention and its Protocols does not require the Court to continue
its examination of the case (see, by contrast, Spółka
z o.o. WAZA v. Poland (striking out), no. 11602/02, 26 June
2007).
- This
being so, the Court rejects the Government's request to strike the
application out of its list of cases under Article 37 of the
Convention and will accordingly pursue the examination of the
admissibility and merits of the case.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE PROCEEDINGS
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
- The
Government contested that argument.
- The
period to be taken into consideration began on 4 February 2002 and
has not yet ended. It has thus lasted until the present day some
seven years and nine months for one level of jurisdiction.
A. Admissibility
- The Court notes that this complaint is not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above). Furthermore, the Court
considers that, in dismissing the applicant's complaint that the
proceedings in his case exceeded a reasonable time (see paragraph 18
above), the Poznań Court of Appeal failed to apply standards
which were in conformity with the principles embodied in the Court's
case-law (see Majewski v. Poland, no. 52690/99, §
36, 11 October 2005).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed a lump sum of 16,000 Polish zlotys (the equivalent
of approx. 4,000 euros (EUR)) in respect of pecuniary and
non pecuniary damage.
- The
Government contested the claim.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, ruling on an equitable basis, it awards the applicant
the full sum claimed in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant did not make any claim for costs and expenses involved in
the proceedings.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Dismisses the Government's request to strike the
case out of the list;
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 4,000 (four
thousand euros) in respect of non-pecuniary damage, plus any tax that
may be chargeable, to be converted into the currency of the
respondent State at the rate applicable at the date of settlement;
(b) that
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.
Done in English, and notified in writing on 5 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
