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FOURTH
SECTION
CASE OF KRAWCZAK v. POLAND
(Application
no. 40387/06)
JUDGMENT
STRASBOURG
8 April
2008
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 Krawczak v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Stanislav Pavlovschi,
Ljiljana
Mijović,
David Thór Björgvinsson,
Ján
Šikuta,
Päivi Hirvelä, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 18 March 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 40387/06) 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 Janusz
Krawczak (“the applicant”), on 22 September 2006.
- The
applicant was represented by Mrs M. Sykulska-Przybysz, a lawyer
practising in Tczew. The Polish Government (“the
Government”) were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
- The
applicant complained under Article 6 of the excessive length of
proceedings and under Article 13 of the Convention that the remedy
provided for by the 2004 Act was ineffective because it did not allow
a claimant to claim compensation for the delay which occurred before
the date of entry into force of the 2004 Act. He also alleged a
violation of Article 6 read in conjunction with Article 13 of the
Convention in that he had been deprived of his right to have the
remedy examined by an impartial court. He contended in this
connection that certain judges who had ordered his pre-trial
detention to be prolonged had also examined his length of proceedings
complaint.
- On
12 March 2007 the Court
decided to give notice of the application to the Government. Applying
Article 29 § 3 of the Convention, it decided to rule on the
admissibility and merits of the application at the same time.
- 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 1950 and lives in Poznań.
A. Criminal proceedings against the applicant
- On
17 June 1999 the Gdańsk District Court (Sąd Rejonowy)
remanded the applicant in custody for three months on three counts of
armed robbery. It considered that that measure was indispensable in
order to secure the proper conduct of the proceedings, having regard
to the serious nature of the offences in question and the likelihood
of a custodial sentence.
- The
first hearing took place on 28 December 2001. Since that date almost
180 hearings have been scheduled and nearly 400 witnesses heard. Many
hearings have been adjourned.
- On
21 September 2005 the court decided that, because of the lengthy
illness of a judge rapporteur, a new bench should be appointed. This
meant that the proceedings had to be restarted.
- On
24 November 2005 the Gdańsk Regional Court (Sąd
Okręgowy) severed the bill of indictment and ordered that
cases against fifteen other co accused be tried in separate
proceedings.
- The
proceedings are still pending.
B. Proceedings under the 2004 Act
- On
30 January 2006 the applicant lodged a complaint about the undue
length of the criminal proceedings under section 5 of 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”) and
requested just satisfaction of PLN 10,000.
- On
23 March 2006 the Gdańsk Court of Appeal (Sąd
Apelacyjny) dismissed his complaint on the ground that since the
date of entry into force of the 2004 Act no undue delays in the
proceedings could be discerned, the proceedings having been conducted
with due diligence and within a reasonable time. The court observed
that the 2004 Act had entered into force on 17 September 2004 and
could not be applied to the proceedings before that date.
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 the 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 FOR THE APPLICATION TO BE
STRUCK OUT UNDER ARTICLE 37 OF THE CONVENTION
- On
31 August 2007 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 a payment to the applicant of
PLN 10,000 (the equivalent of EUR 2,700). They 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.
- As
the Court stated in Tahsin Acar (cited above, §§
74-77), a distinction must be drawn between, on the one hand,
declarations made in the context of strictly confidential
friendly-settlement proceedings and, on the other, unilateral
declarations – such as the present declaration – made by
a respondent Government in public and adversarial proceedings before
the Court. In accordance with Article 38 § 2 of the Convention
and Rule 62 § 2 of the Rules of Court, the Court will proceed on
the basis of the Government's unilateral declarations and the
parties' observations submitted outside the framework of any
friendly-settlement negotiations, and will disregard the parties'
statements made in the context of exploring the possibilities for a
friendly settlement of the case and the reasons why the parties were
unable to agree on the terms of a friendly settlement.
- The
Court considers that, under certain circumstances, it may be
appropriate 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, however, 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 does not require the Court to continue its examination of
the case (see Tahsin Acar, cited above, § 75;
Melnic v. Moldova, no. 6923/03, § 22,
14 November 2006).
- The
Court notes that it has specified in a number of cases the nature and
extent of the obligations which arise for the respondent State under
Articles 6 and 13 of the Convention as regards the guarantees of the
right to a trial within a reasonable time (see, among many others,
Kusmierek v Poland, no. 10675/02, judgment of 21
September 2004; and Zynger v. Poland, no. 66096/01,
judgment of 13 July 2004) and the requirement of an effective remedy
capable of providing appropriate redress for the damage resulting
from the breach of this right (see Kudła v. Poland [GC],
no. 30210/96, ECHR 2000 XI; Krasuski v. Poland,
no. 61444/00, ECHR 2005 ... (extracts); Charzyński
v. Poland (dec.), no. 15212/03, ECHR 2005 ...;
Majewski v. Poland, no. 52690/99, 11 October 2005; and
Cocchiarella v. Italy [GC], no. 64886/01, ECHR
2006 ...). Where the Court has found a breach of these Articles
it has awarded just satisfaction, the amount of which depended on the
particular features of the case.
- As
to whether it would be appropriate to strike out the present
application on the basis of the unilateral declaration made by the
Government, the Court notes in the first place that the relevant
Polish remedies against excessive length of proceedings introduced in
2004 proved to be ineffective in the circumstances of the present
case, because the Court of Appeal refused to apply the provisions of
the 2004 Act to the period before its entry into force (see paragraph
12 above).
- Further,
the Court observes that although the Government acknowledged in their
unilateral declaration that the domestic proceedings had been
unreasonably lengthy, they did not offer the applicant adequate
redress. The Court considers that the sum proposed in the declaration
in respect of non-pecuniary damage suffered by the applicant as a
result of the alleged violation of the Convention does not bear a
reasonable relationship to the amounts awarded by the Court for
non-pecuniary damage in similar cases.
- It cannot
be excluded that where an applicant has been speedily awarded
compensation of PLN 10,000 by a domestic court under the 2004 Act,
and has been promptly paid, the Court might consider
the amount to be compatible with its own awards in such cases,
bearing in mind the principles which it has developed in
this connection for determining victim status and for
assessing its own award in cases where it has found a breach of
the reasonable-time requirement (see
Cocchiarella,
cited above, §§ 85 107;
Scordino v. Italy
[GC], no. 36813/97,
§§ 193-215, 29 March 2006; and Dubjakova
v. Slovakia (dec.), no. 67299/01,
10 October 2004). However, these considerations cannot be
applied to a unilateral declaration which addresses a
situation where the remedy has failed or was not available to an
applicant who had to introduce proceedings under the Convention in
order to obtain redress (see Wawrzynowicz, cited
above, § 40).
- On
the facts and for the reasons set out above, the Court finds that the
Government have failed to establish 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).
- That
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 was
incompatible with the “reasonable-time” requirement laid
down in Article 6 § 1 of the Convention, which reads
as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government did not submit observations on the admissibility and
merits of the complaint, in view of their acknowledgment of the
violation of Article 6 of Convention in their unilateral declaration.
- The
period to be taken into consideration began on 17 June 1999 and
has not yet ended. It has thus lasted over 8 years and 7 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 that 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 had exceeded a reasonable time, the 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.
There
has accordingly been a violation of Article 6 § 1.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant also alleged a breach of Article 13 of the Convention in
that he had no effective domestic remedy in respect of the protracted
length of the proceedings in his case. Article 13 reads:
Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity.
- The
Government admitted that in the present case the remedy provided
under the 2004 Act failed to redress the applicant's length of
proceedings complaint.
A. Admissibility
- The
Court notes that this complaint is linked to that examined above and
must therefore likewise be declared admissible.
B. Merits
- The Court notes that, in the context of Article 13 and
remedies for excessive length of proceedings, it has already held
that such a remedy, or the aggregate of remedies, in order to be
“effective” must be capable either of preventing the
alleged violation of the right to a “hearing within a
reasonable time” or its continuation, or of providing adequate
redress for a violation that had already occurred (see, mutatis
mutandis, Kudła v. Poland, [GC], no. 30210/96, §
158 et seq., ECHR 2000-XI).
- It has already examined the remedy under the 2004 Act
for the purposes of Article 35 § 1 of the Convention
and found it effective in respect of complaints about the length of
judicial proceedings in Poland (see Charzyński, cited
above, §§ 36-42; Michalak v. Poland (dec.), no.
24549/03, §§ 37-43).
- The Court notes that the national authorities are in
principle better placed than an international court to evaluate the
facts of a case. Nevertheless, in their assessment and appreciation
they must apply standards which are in conformity with the principles
embodied in the Convention as developed in the case-law of the Court.
The Court has already indicated on a great number of occasions that
the reasonableness of the length of proceedings must be assessed in
the light of the particular circumstances of the case taken as a
whole and in this connection the Court's approach consists in
examining the overall length of the proceedings and in covering all
stages of the proceedings (see Majewski v. Poland, no.
52690/99, § 34-35, 11 October 2005).
- In
the present case, the Gdańsk Court of Appeal dismissed the
applicant's complaint on the ground that since the date of entry into
force of the 2004 Act no undue delays in the proceedings could be
discerned (see paragraphs 11 and 12 above). In so doing, the domestic
court examined only the period after the date of the entry into force
of the 2004 Act, namely 17 September 2004. The Court notes that
placing temporal restrictions on the application of the remedy is a
common practice of the domestic courts and must be considered
inconsistent with Convention standards (see, in this connection, Tur
v. Poland, §§ 62-68, 23 October 2007; Majewski,
cited above, § 36; and Bako v Slovakia, (dec), no
60227/00, 15 March 2005).
- The
Court would further observe that while the effectiveness of the
remedy is undermined by the domestic courts' restrictive approach to
the scope of the remedy ratione temporis, the remedy itself
may prove to be deficient in so far as it limits the domestic courts'
examination of the period to be assessed to the judicial phase of the
proceedings alone. The Court notes that under the 2004 Act the
domestic courts have no competence to examine separately the length
of the pre-trial stage of criminal proceedings, which amounted in the
instant case to a period of over two years. However, in order for the
remedy to be Article 13 compliant, the domestic courts should take
that period into account when assessing the length of the judicial
phase of the proceedings and when calculating the amount of just
satisfaction due in the circumstances of a particular case. The Court
reiterates in this connection that a remedy may be accepted as
effective only if it is capable of addressing all stages of the
impugned proceedings.
-
Having regard to the above considerations and to the fact that a
period of almost seven years was excluded from the domestic court's
examination, the Court finds that the remedy under the 2004 Act, as
applied in the present case, cannot be regarded as “effective”
within the meaning of Article 13 of the Convention.
Accordingly,
there has been a violation of that provision.
IV. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Article 6, read in conjunction with
Article 13 of the Convention, that he was deprived of his right to
have his claim examined by an impartial court because some of the
judges of the Court of Appeal who examined his length of proceedings
complaint had previously made orders remanding him in custody in the
criminal proceedings.
- The Court has already examined a complaint where a
judge presiding over an applicant's trial in criminal proceedings had
on many occasions dealt with his applications for release and found
no violation of Article 6 of the Convention (see Jasiński v.
Poland, no. 30865/96, §§ 48-58, 20 December
2005).
- Reasoning
a maiori ad minus and having examined the present complaints,
regardless of other possible grounds of inadmissibility, the Court
considers that the applicant's misgivings about the impartiality of
judges examining his length complaint cannot be regarded as
objectively justified.
- 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.
V. 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 20,000 euros (EUR) in respect of non-pecuniary
damage. This sum comprised the claim for costs and expenses in the
amount of 1,989 zlotys (PLN) and EUR 25 (see paragraph 48 below).
- The
Government contested the claim.
- The
Court considers that the applicant must have sustained non pecuniary
damage. Ruling on an equitable basis, it awards him EUR 7,000
under this head.
B. Costs and expenses
- The
applicant also claimed PLN 1,989 and EUR 25 for the costs and
expenses incurred before the domestic courts and before the Court.
- The
Government contested the claim.
- 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 information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 500 covering costs
under all heads.
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
- Rejects the Government's request to strike the
application out of the list;
- Declares the complaint concerning the excessive
length of the proceedings and the complaint concerning the
ineffectiveness of the domestic remedy against the length of
proceedings admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 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 the following
sums, to be converted into Polish Zlotys at the rate applicable at
the date of settlement:
(i) EUR 7,000
(seven thousand euros) in respect of non-pecuniary damage;
(ii) EUR 500
(five hundred euros) in respect of costs and expenses;
(iii) any
tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 8 April 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
