FOURTH SECTION

CASE OF GIL v. POLAND

(Application no. 29130/10)

JUDGMENT

STRASBOURG

20 December 2011

This judgment is final but it may be subject to editorial revision.

In the case of Gil v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
	George Nicolaou, President,
	Ledi Bianku,
	Vincent A. De Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 29 November 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 29130/10) 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 Grzegorz Gil (“the applicant”), on 19 May 2010.
2.  The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
3.  On 24 January 2011 the President of the Fourth Section of the Court decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was assigned to a Committee of three Judges.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1972 and is currently detained in Poznań Remand Centre.
A.  Criminal proceedings against the applicant
5.  On 3 September 1998 the applicant was charged with theft and extortion.
6.  On 10 February 1999 the prosecution filed a bill of indictment with the Gdańsk-Północ District Court (Sąd Rejonowy). The applicant was indicted as charged.
7.  On 5 December 2003 the Gdańsk-Północ District Court held the first hearing. It subsequently held some twenty hearings.
8.  On 3 October 2005 the Gdańsk-Północ District Court convicted the applicant of theft and extortion and sentenced him to two years and six months’ imprisonment. The applicant appealed.
9.  On 20 June 2007 the Gdańsk Regional Court (Sąd Okręgowy) quashed the impugned judgment and remitted the case.
10.  Hearings scheduled for 29 October and 7 December 2007 were adjourned as the applicant had failed to appear.
11.  On 11 February 2008 the presiding judge scheduled the next hearing for 12 March 2008 and ordered that the applicant be brought to a hearing by the police.
12.  Hearings scheduled for 12 March, 25 April and 3 June 2008 were adjourned as the applicant had failed to appear.
13.  On 9 July 2008 the Gdańsk-Północ District Court issued an arrest warrant against the applicant.
14.  On 25 May 2009 the applicant was arrested and remanded in custody.
15.  During the court proceedings the courts further extended the applicant’s pre-trial detention on several occasions. The applicant remains detained until the present date. Since his arrest the applicant has been serving a prison sentence of seven and a half years imposed on him in another set of criminal proceedings.
16.  A hearing scheduled for 18 August 2009 was cancelled as the applicant could not be transported to the courthouse.
17.  On 9 October 2009 the applicant’s legal-aid lawyer requested the court to adjourn a hearing as he had not been granted a visit with his client and therefore could not have discussed with him a defence strategy. The court adjourned a hearing until 17 November 2009.
18.  On 17 November 2009 the court held the first hearing. It subsequently held some twenty five hearings.
19.  The proceedings are still pending before the Gdańsk-Północ District Court.
B.  Proceedings under the 2004 Act
20.  On an unspecified date the applicant lodged with the Gdańsk Regional Court a complaint under section 5 of the 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”).
21.  On 25 May 2010 the Gdańsk Regional Court dismissed the applicant’s complaint. The court noted that delays in the proceedings were imputable to the applicant who had failed to appear for several hearings and had gone into hiding for over a year.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
22.  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
23.  On 14 June 2011 the Government submitted a unilateral declaration similar to that in the case 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 the applicant 16,000 Polish zlotys (PLN) (the equivalent of approx. 4,000 euros (EUR)). The Government invited the Court to strike out the application in accordance with Article 37 of the Convention.
24.  The applicant did not agree with the Government’s proposal.
25.  The Court observes that, as it has already held on many occasions, it may be appropriate under certain circumstances to strike out 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).
26.  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).
27.  On the facts and for the reasons set out above, in particular the amount of compensation proposed, the Court finds that the Government have failed to provide a sufficient basis for concluding that respect for human rights as defined in the Convention and its Protocols does not require it to continue its examination of the case (see, conversely, Spółka z o.o. WAZA v. Poland (striking out), no. 11602/02, 26 June 2007).
28.  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 its 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
29.  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... ”
30.  The Government refrained from submitting any observations on the admissibility and merits of the complaint.
31.  The period to be taken into consideration began on 3 September 1998 and has not yet ended. It has thus lasted thirteen years and one month for two levels of jurisdiction.
A.  Admissibility
32.  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
33.  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).
34.  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).
35.  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. The Court observes, in particular, that it took the Gdańsk-Północ District Court almost five years to hold the first hearing in the applicant’s case (see paragraphs 6‑7 above). 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.
III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
36.  In his letter to the Court of 14 January 2011 the applicant also complained under Article 5 § 3 about the length of his pre-trial detention. The Court notes that since his arrest on 25 May 2009 the applicant has been serving a prison sentence imposed on him in another set of criminal proceedings. Consequently, since that date he was detained “after conviction by a competent court” within the meaning of Article 5 § 1 (a) and, consequently, his detention thereafter falls outside the scope of Article 5 § 3. It follows that this part of the application is manifestly ill‑founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
37.  In his subsequent letter to the Court of 21 June 2011 the applicant further complained invoking Article 6 of the Convention that the Gdańsk‑Północ District Court judgment of 3 October 2005 was given by a trainee judge (asesor). The Court notes that this judgment was quashed by the Gdańsk Regional Court on 20 June 2007 and that the relevant proceedings against the applicant are still pending before the first-instance court. Accordingly, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention as being premature.
IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
38.  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
39.  The applicant claimed EUR 20,000 in respect of pecuniary and non‑pecuniary damage.
40.  In reply to the Court’s request to express an opinion on the matter the Government reiterated their unilateral declaration.
41.  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, it considers that the applicant has suffered non-pecuniary damage which is not sufficiently compensated by the finding of a violation of the Convention. Considering the circumstances of the case and making its assessment on an equitable basis, the Court awards the applicant EUR 7,000 under this head.
B.  Costs and expenses
42.  The applicant did not make any claim for costs and expenses involved in the proceedings.
C.  Default interest
43.  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
1.  Declares the complaint concerning the excessive length of the criminal proceedings admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months, EUR 7,000 (seven thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into Polish zlotys 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;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 20 December 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	George Nicolaou
	Deputy Registrar	President