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FOURTH
SECTION
CASE OF GUT v. POLAND
(Application
no. 32440/08)
JUDGMENT
(Revision)
This
version was rectified on 17 January 2012
under
Rule 81 of the Rules of the Court
STRASBOURG
7
February 2012
This
judgment is final but it may be subject to editorial revision.
In the case of Gut v. Poland (request for revision of the judgment
of 18 January 2011),
The
European Court of Human Rights (Fourth Section), sitting as a
committee composed of:
Ján Šikuta,
President,
Lech Garlicki,
Vincent A. De Gaetano,
judges,
and Fatoş
Aracı, Deputy
Section Registrar,
Having
deliberated in private on 17 January 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 32440/08) 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 Henryk Gut (“the applicant”), on 30
June 2008.
- In
a judgment delivered on 18 January 2011, the Court held that there
had been a violation of Article 6 § 1 of the Convention on
account of the length of criminal proceedings against the applicant.
The Court also decided to award the applicant 3,600 euros (EUR) for
non-pecuniary damage and dismissed the remainder of the claims for
just satisfaction.
- On
8 February 2011 the applicant informed the Court that his claims for
costs and expenses were not mentioned in the judgment. He accordingly
requested revision of the judgment pursuant to Rule 80 of the Rules
of Court. He further requested rectification of paragraphs 6, 7,
13, 14 and 18 of the judgment under Rule 81 of the Rules of Court. In
this connection he observed that he had been detained for a different
period of time and also that he had been acquitted of some of the
arson charges.
- On
7 September 2011 the request for revision and rectification was
communicated to the Government who were invited to submit their
observations on the request. Those observations were received on
20 October 2011.
- On
17 January 2012 the Committee decided to rectify paragraphs 6, 7 and
13 of the judgment. It was further decided to revise the judgment as
regards the award of just satisfaction.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1958 and lives in Biskupiec.
A. Criminal proceedings against the applicant (charges
of arson)
- On
19 June 2002 the applicant was arrested on charges of arson and
uttering threats. On an unknown later date he was indicted before the
Biskupiec District Court.
- The
applicant was detained on remand for a total period of 8 months in
2002 and 2003.
- On
3 June 2003 the District Court acquitted the applicant of some of the
arson charges and convicted him of uttering threats and attempted
arson.
- On
26 June 2003 the applicant appealed against his conviction.
- On
16 October 2003 the Olsztyn Regional Court quashed the judgment and
remitted the case.
- Between
19 October 2005 and 29 March 2006 the District Court held seven
hearings. On several occasions the applicant who was duly summoned,
refused to appear at hearings. However, the court proceeded with the
trial in his absence.
- On
31 March 2006 the Biskupiec District Court convicted the applicant as
charged and sentenced him to three years’ imprisonment.
- On
14 September 2006 the Olsztyn Regional Court again quashed the
judgment and remitted the case.
- On
3 June 2009 the Gizycko District Court acquitted the applicant of all
arson charges and convicted him of uttering threats.
- On
27 July 2009 the applicant filed his appeal against this judgment. It
appears that the proceedings are pending before the Olsztyn Regional
Court.
B. Proceedings under the 2004 Act
- On
16 and 21 August 2007 the applicant lodged complaints with the
Białystok Court of Appeal under 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”).
The applicant sought a ruling that the length of the proceedings
before the Olsztyn Regional Court had been excessive and an award of
just satisfaction.
- On
7 November 2007 the Court of Appeal gave a decision and dismissed the
applicant’s complaint.
- On
19 June 2008 the Olsztyn Regional Court dismissed yet another
complaint under 2004 Act lodged by the applicant. The court
considered that there had been no significant delays in the
proceedings.
C. Other proceedings against the applicant
- The
applicant was also involved in several other sets of criminal and
civil proceedings in particular, proceedings concerning assault of a
judge and contempt of court. The proceedings were terminated
respectively on 24 October 2005 and 14 March 2007 by the Olsztyn
Regional Court.
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 25 October 2010 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 criminal proceedings against the applicant. In respect of
non pecuniary damage, the Government proposed to award the
applicant 7,000 Polish zlotys (PLN). The Government invited the Court
to strike out the application in accordance with Article 37 of the
Convention. The applicant objected to the proposal.
- 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).
- 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 , 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).
- 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
- 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 19 June 2002 and has
not yet ended. It has thus already lasted eight years and four months
for two levels 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).
- 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 and the overall length
of the proceedings, 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
- Lastly,
without invoking any provisions of the Convention, the applicant
complained that he had been persecuted by the judicial authorities.
He also complained about the outcome of the proceedings concerning
assault of the judge.
- The
Court finds that the facts of the case do not disclose any appearance
of a violation of the Convention. It follows that these complaints
are manifestly ill-founded within the meaning of Article 35 § 3
and must be rejected pursuant to Article 35 § 4.
IV. 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. Revision of the judgment of 18 January 2011
- The
Court notes that in paragraph 36 of its judgment of 18 January 2011
it stated that the applicant claimed 500,000 euros (EUR) in respect
of pecuniary and non-pecuniary damage. It further stated in paragraph
39 that the applicant had not made any claim for costs and expenses
involved in the proceedings. The applicant argued that his
letter of 10 August 2010, containing his claims for just satisfaction
(a total amount of EUR 500,000), included also a claim for costs and
expenses.
- The
Court observes that the applicant’s claims for just
satisfaction of 10 August 2010 were sent to the Government
who submitted their comments. However, by omission, the applicant’s
claims for costs and expenses were not stated in the judgment. In
these circumstances the Court considers that paragraphs 36-39 of the
judgment of 18 January 2011 should be revised by adding a new heading
“A. Damage and costs and expenses” and the following
wording set out in paragraphs 41-44 below.
- The
applicant claimed in total 500,000 euros (EUR) in respect of
pecuniary and non-pecuniary damage and costs and expenses. In respect
of costs and expenses he asked in particular for 400
Polish zlotys (PLN) for medications which he had to give to his sick
farm animals; PLN 300 for a taxi ride home from the District Court in
Działdowo; PLN 8 000 for travelling to domestic courts
during the several years of domestic proceedings; PLN 18 000 for
court fees incurred in the domestic proceedings; PLN 2 000 for
lawyer’s fee in the domestic proceedings; PLN 9 200
for an ornithological expertise; PLN 15 500 PLN- for lawyer’s
fees in the proceedings before the Court ; PLN 4 000 for
translation and postage in the proceedings before the Court
PLN 15 500 for lawyer’s fees in the proceedings before the
Court and PLN 4,000 for translation and postage in the proceedings
before the Court.
- 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, it awards the applicant EUR 3,600 in respect
of non pecuniary damage.
- As
regards the claim for costs and expenses, according to the Court’s
case-law, an applicant is entitled to the reimbursement of costs and
expenses only in so far as it has been shown that these have been
actually and necessarily incurred and were reasonable as to quantum.
In the present case, regard being had to the documents in its
possession and the above criteria, the Court considers it reasonable
to award the sum of EUR 250 for the proceedings before the Court.
B. Default interest
- The
Court considers it appropriate that the default interest rate 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
Decides
to revise the judgment of 18 January 2011 as regards the application
of Article 41 of the Convention,
accordingly,
Holds
(a) that the respondent State is to pay the applicant,
within three months, the following amounts, to be converted into
Polish zlotys at the rate applicable at the date of settlement:
(i) EUR
3,600 (three thousand six hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
250 (two hundred fifty euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses;
(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 7 February 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Ján Šikuta
Deputy
Registrar President
