Last Updated on May 14, 2019 by LawEuro
FIRST SECTION
DECISION
Application no. 34934/14
Robert RAKOWSKI
against Poland
The European Court of Human Rights (First Section), sitting on 6 November 2018 as a Committee composed of:
Ksenija Turković, President,
Krzysztof Wojtyczek,
Armen Harutyunyan, judges,
and Abel Campos, Section Registrar,
Having regard to the above application lodged on 7 April 2014,
Having regard to the declaration submitted by the respondent Government on 20 September 2017 requesting the Court to strike a part of the application out of the list of cases and the applicant’s reply to that declaration,
Having regard to the observations submitted by the respondent Government in respect of the remainder of the application and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, Mr Robert Rakowski, is a Polish national, who was born in 1974 and is detained in Żytkowice.
2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.
3. The applicant complained under Article 6 § 1 of the Convention about the unreasonable length of two sets of criminal proceedings and under Article 13 of the Convention about the lack of, or insufficient, redress for the excessive length of proceedings granted to him by the national courts.
4. On 7 July 2015 the application was communicated to the Polish Government pursuant to Rule 54 § 2 (b) of the Rules of Court, by virtue of the ninth operative provision of the pilot-judgment given in the case of Rutkowski and Others v. Poland (see Rutkowski and Others v. Poland, nos. 72287/10 and 2 others, §§ 223-228 and the ninth operative provision, 7 July 2015).
THE LAW
A. First set of proceedings
1. Article 6 § 1 of the Convention
5. The applicant’s first complaint concerned unreasonable length of criminal proceedings concerning charges of corruption which lasted from 16 October 2006 until 24 October 2016. The applicant alleged violation of Article 6 § 1 of the Convention, which in so far as relevant, provides:
“In the determination of … any criminal charge against him, everyone is entitled to a … hearing within a reasonable time by [a] … tribunal …”
6. The Government contested the complaint regarding the excessive length of the proceedings and requested the Court to declare inadmissible this part of the application. The Government submitted that the applicant had lost his victim status as he had been granted in total 9,000 Polish zlotys (PLN) in compensation for excessive length of these criminal proceedings.
7. As submitted by the Government, the applicant had lodged in total three successful complaints under the Law of 17 June 2004 on complaint about breach of the right to have a case examined in an investigation conducted or supervised by a prosecutor and in judicial proceedings without undue delay (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”).
The first complaint was allowed by the Warsaw Court of Appeal on 13 December 2011 and the applicant was awarded 5,000 PLN in compensation (case no. II S 71/11). The second complaint was allowed by the Warsaw Regional Court on 3 February 2015 and the applicant was awarded PLN 2,000 in compensation (case no. X S 4/15). The third complaint was allowed by the Warsaw Regional Court on 10 March 2016 and the applicant was awarded PLN 2,000 in compensation (case no. X S 26/16). In sum he was awarded PLN 9,000, equivalent to 2,200 euros (EUR). On each occasion the courts acknowledged that the domestic authorities had not dealt with the case with necessary speed and in consequence the applicant’s right to have his case examined without undue delay had been breached.
8. The applicant in general disagreed with the Government’s objection.
9. It is the Court’s settled case-law that where the national authorities have found a violation and their decision constitutes appropriate and sufficient redress, the party concerned can no longer claim to be a victim within the meaning of Article 34 of the Convention. Accordingly an applicant’s status as a victim may depend on compensation being awarded at domestic level on the basis of the facts about which he or she complains before the Court (see, among other authorities, Scordino v Italy (no. 1) [GC], no. 36813/97, §§ 178-213, ECHR 2006‑V, and Cocchiarella v. Italy [GC], no. 64886/01, §§ 72-98, ECHR 2006‑V) and on whether the domestic authorities have acknowledged, either expressly or in substance, the breach of the Convention. Only when those two conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application by the Court (see Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, p. 32, §§ 69 et seq., and Jensen v. Denmark (dec.), no. 48470/99, ECHR 2001-X).
10. Bearing in mind the fact that the domestic courts on three occasions acknowledged that there had been a violation of the right to trial within the reasonable time, the Court considers that the first condition laid down in its case-law, namely acknowledgment by the authorities of the infringement of a right protected by the Convention, has been satisfied.
11. As regards the second condition, namely appropriate redress from the authorities for the wrong suffered, the Court must determine whether the sum awarded can be considered sufficient to make good the alleged damage and breach (seeScordino, cited above). The Court notes that the compensation granted in the present case is lower compared with the sums awarded for comparable delays in the Court’s case-law. In such circumstances, the Court can accept the amount awarded to the applicants in so far as it is not manifestly unreasonable which falls to be assessed in the light of all the circumstances of the case. These include not merely the duration of the proceedings in the specific case but the value of the award judged in the light of the standard of living in the State concerned, and the fact that under the national system compensation will in general be awarded and paid more promptly than would be the case if the matter fell to be decided by the Court under Article 41 of the Convention (see Društvo za varstvo upnikov v. Slovenia (dec.), no. 66433/13, 21 November 2017, § 61, and Kalazic v. Croatia (dec.), no. 15382/04, 28 September 2006).
12. In the light of the material in the file and having regard to the particular circumstances of the case, the Court considers that in aggregate the sum awarded to the applicant can be considered sufficient and therefore appropriate redress for the violation suffered (seeCataldo v. Italy (dec.), no. 45656/99, 3 June 2004).
13. The Court therefore concludes that, in respect to the complaint about the unreasonable length of the first set of proceedings, the applicant can no longer claim to be a “victim”, within the meaning of Article 34 of the Convention, of the alleged violation of his right to a trial within a reasonable time.
14. Accordingly, this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
2. Article 13 of the Convention
15. The applicant complained that the remedy under the 2004 Act had been ineffective in his case. He invoked Article 13 of the Convention, which reads as follows:
“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.”
16. The Court reiterates that Article 13 requires the State to provide an effective legal remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see Sürmeli v. Germany [GC], no. 75529/01, § 98, 8 June 2006). Considering that the complaint about the excessive length of the proceedings is incompatible ratione personae, the Court finds that the applicant did not have an arguable claim for the purposes of Article 13, which is therefore not applicable to his case.
17. It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3, and must be rejected pursuant to Article 35 § 4 (see, Društvo za varstvo upnikov, cited above, § 68).
B. Second set of proceedings
18. By letter dated 20 September 2017 the Government informed the Court that they proposed to make a unilateral declaration with a view to partly resolving the issues raised by the application. The Government acknowledged a violation of Article 6 § 1 on account of the excessive length of the second set of criminal proceedings against the applicant and violation of Article 13 on account of the lack of an effective remedy, securing sufficient redress for a violation of Article 6 § 1. They offered payment to the applicant of PLN 12, 530. The Government further undertook to adopt a range of general measures in respect of other persons who were victims of similar violations or might be affected by similar violations in the future. The sum referred to above is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. In the event of failure to pay this sum within the said three-month period, the Government undertook to pay simple interest on each of them, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default periods plus three percentage points. In addition, the Government made a declaration on general measures to be adopted in implementation of the Rutkowski and Others pilot judgment (see Załuska and Rogalska v. Poland and 398 other applications (dec.), nos. 53491/10 and 72286/10, §§ 23‑25, 20 June 2017). They further requested the Court to strike out this part of the application in accordance with Article 37 of the Convention.
19. On 28 February 2018 the applicant indicated that he was not satisfied with the terms of the unilateral declaration.
20. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
21. It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the case to be continued.
22. To this end, the Court has examined the declarationsin the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
23. The conclusions reached by the Court on admissions and undertakings contained in the Government’s declarations in the first group of 400 cases submitted in the pilot-judgment procedure apply to the present case (see Załuska and Rogalska (dec), cited above, §§ 51-53).
24. Having regard to the nature of the admissions contained in the Government’s declarations, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases ‑ the Court considers that it is no longer justified to continue the examination of the applications (Article 37 § 1 (c)).
25. Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
26. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
27. In view of the above, it is appropriate to strike the cases out of the list.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Articles 6 § 1 and 13 of the Convention in respect to the second set of proceedings and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike that part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Done in English and notified in writing on 29 November 2018.
Abel Campos Ksenija Turković
Registrar President
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