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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
- 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.
- 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
- The
applicant was born in 1972 and is currently detained in
Poznań Remand Centre.
A. Criminal proceedings against the applicant
- On
3 September 1998 the applicant was charged with theft and
extortion.
- 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.
- On
5 December 2003 the Gdańsk-Północ
District Court held the first hearing. It subsequently
held some twenty hearings.
- 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.
- On
20 June 2007 the Gdańsk Regional Court (Sąd
Okręgowy) quashed the impugned judgment and remitted the
case.
- Hearings
scheduled for 29 October and 7 December 2007 were adjourned as
the applicant had failed to appear.
- 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.
- Hearings
scheduled for 12 March, 25 April and 3 June 2008 were
adjourned as the applicant had failed to appear.
- On
9 July 2008 the Gdańsk-Północ
District Court issued an arrest warrant against the
applicant.
- On
25 May 2009 the applicant was arrested and remanded in custody.
- 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.
- A
hearing scheduled for 18 August 2009 was cancelled as the
applicant could not be transported to the courthouse.
- 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.
- On
17 November 2009 the court held the first hearing.
It subsequently held some twenty five hearings.
- The
proceedings are still pending before the Gdańsk-Północ
District Court.
B. Proceedings under the 2004 Act
- 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”).
- 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
- 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
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.
- The
applicant did not agree with the Government’s 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 refrained from submitting any
observations on the admissibility and merits of the complaint.
- 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
- 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.
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.
- 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
- 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 EUR 20,000 in respect of
pecuniary and non pecuniary damage.
- In
reply to the Court’s request to express an opinion on the
matter the Government reiterated their unilateral declaration.
- 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
- 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
- Declares the complaint concerning the excessive
length of the criminal proceedings admissible and the remainder of
the application inadmissible;
- 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, 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;
- 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
