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FOURTH
SECTION
CASE OF RAFAŁ ORZECHOWSKI v. POLAND
(Application
no. 34653/08)
JUDGMENT
STRASBOURG
27 July
2010
This
judgment is final but it may be subject to editorial revision
In the case of Rafał Orzechowski v. Poland,
The
European Court of Human Rights (Fourth Section), sitting
as a Committee composed of:
Giovanni Bonello, President,
Lech
Garlicki,
Ján Šikuta, judges,
and
Lawrence Early, Section
Registrar,
Having deliberated
in private on 6 July 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 34653/08) 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 Rafał
Jerzy Orzechowski (“the applicant”), on 21 April
2008.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
23 November 2009 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.
- On
2 February 2010 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 1975 and lives in Gdynia.
A. Main proceedings
- On
29 August 2000 the applicant was charged with having committed
various offences, inter alia robberies, and was detained on
remand. Subsequently criminal proceedings were instituted against him
before the Gdańsk Regional Court.
- On 15 May 2001 the bill of indictment comprising
initial charges brought against the applicant was filed with the
Gdańsk Regional Court.
- On 24 June 2004 the applicant was released from
detention by the decision of the Gdańsk Regional Court.
- On
11 July 2006 the Gdańsk Regional Court decided that it was not
competent to examine the case and ordered that it be transferred to
the Brodnica District Court. On 9 August 2006 the Gdańsk Court
of Appeal upheld this decision.
- On
20 September 2007 the Brodnica District Court ordered that the case
be transferred to the Toruń Regional Court finding the latter
court competent to examine the case having regard to the recent
amendments in the applicable law.
- On
14 November 2007 the Brodnica District Court quashed its previous
decision concerning the question of competence.
- It
appears that the proceedings are currently still pending before the
Brodnica District Court acting as a court of first-instance and no
hearing has yet been held in the case.
B. Proceedings under the 2004 Act
- On 5 October 2004 the Gdańsk Regional Court
rejected the applicant’s complaint 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”) on formal grounds.
- On
25 March 2005 the Gdańsk Court of Appeal examined the
applicant’s second complaint under the 2004 Act and dismissed
it as ill founded. The court established that the bill of
indictment had been lodged as early as 15 May 2001; however, the case
had been very complex, which justified the overall length of the
proceedings.
- The
applicant’s subsequent complaints under the 2004 Act were
rejected on 15 November 2005 and 27 April 2006 for various procedural
reasons.
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 TO STRIKE OUT THE
APPLICATION UNDER ARTICLE 37 OF THE CONVENTION
- On
2 February 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 the
proceedings in which the applicant had been involved. In respect of
non-pecuniary damage the Government proposed to award PLN 20,000 to
the applicant (the equivalent of approx. 5,000 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. 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 thereof 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 failed to submit observations on the merits of the case.
- The
period to be taken into consideration began on 29 August 2000 and has
not yet ended. It has thus lasted until the present almost ten years
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, the Gdańsk
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.
III. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained of the excessive length of his detention
ordered in the course of the criminal proceedings. He relied on
Article 5 § 3 of the Convention, which reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
- The
Court observes that the applicant’s detention was eventually
discontinued on 24 June 2004 (see paragraph 8 above). It follows that
this part of the application was lodged outside the statutory
six-month time-limit and must be rejected pursuant to Article 35
§§ 1 and 4 of the Convention.
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 PLN 100,000 Polish zlotys (the equivalent of
approximately 25,000 euros (EUR) in respect of non-pecuniary damage.
- The
Government found the amount to be exorbitant and unsubstantiated.
- The
Court, ruling on equitable basis, awards the applicant EUR 8,000
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 complaint concerning the excessive
length of the 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
8,000 (eight 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 27 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence
Early Giovanni Bonello
Registrar President
