CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 13 novembre 2012

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POLAND   (Application no. 20920/09)                 JUDGMENT       STRASBOURG   13 November 2012       This judgment is final. It may be subject to editorial revision. In the case of Bańczyk and Sztuka 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 Fatos Aracı, Deputy Section Registrar, Having deliberated in private on 23 October 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 20920/09) 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 two Polish nationals, Mr Józef Bańczyk and Mr Jan Sztuka (“the applicants”), on 10 April 2009. 2.     The applicants were represented by Mr T. Gurbierz, a lawyer practising in Raciborz. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms   J.   Chrzanowska, of the Ministry of Foreign Affairs. 3.     On 13 January 2012 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS THE CIRCUMSTANCES OF THE CASE 4.     The applicants Mr Józef Bańczyk and Mr Jan Sztuka were born in 1941 and in 1974 respectively and live in Bienkowice. A.     Criminal proceedings against R.H., M.O., J.R. and M.B. (case no.   II   K 815/03) 5.     On 24 November 2003 the prosecution lodged a bill of indictment with the Kędzierzyn-Koźle District Court (Sąd Rejonowy). R.H., M.O., J.R. and M.B were charged with fraud and embezzlement. 6.     On an unspecified date between 17 December 2003 and 10   March   2004 the applicants joined the proceedings as a civil party and lodged a claim for compensation against the defendants (powództwo adhezyjne). 7.     The bill of indictment was only read out on 14 September 2005. In the following years 8 hearings were adjourned or cancelled due to various reasons (the health problems of one of the accused, illness of a defence lawyers, maternity leave of one of the trial judges, etc.). 8.     On 14   September   2011 the Kędzierzyn-Koźle District Court acquitted M.O., J.R. and M.B of all charges. On the same date the court discontinued the proceedings in respect of R.H., who had died in April 2011. As regards the applicants’ civil claims, they were left without examination. 9.     On 19   January   2012 the applicants appealed against the first-instance judgment. 10.     On   12 June   2012 the Opole Regional Court upheld the challenged judgment. B.     Proceedings under the 2004 Act (case no. VI S 21/09) 11.     On 14   April 2009 the applicants lodged with the Opole Regional Court a complaint 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”). 12.     On 15   June 2009 the Opole Regional Court dismissed the applicant’s complaint stating that there were no significant periods of   unjustified inactivity for which the Kędzierzyn-Koźle District Court had been responsible. The court held that the case no. II K 815/03 was a complex one. There were four co-accused, who faced numerous charges. 136 witnesses needed to be heard. Furthermore, the duration of proceedings was extended due to R.H.’s health problems, which necessitated many hearings to be postponed, and due to a maternity leave of one of the trial judges. THE LAW I.     THE GOVERNMENT’S REQUEST TO STRIKE OUT THE APPLICATION UNDER ARTICLE 37 OF THE CONVENTION 13.     On 9   May   2012 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 applicants’ rights under Article 6 § 1 of the Convention as a result of the unreasonable length of the proceedings in which the applicants had been involved. In respect of non-pecuniary damage, the Government proposed to award each of the applicants PLN   18,000 (the equivalent of approx. EUR   4,400). The Government invited the Court to strike the application out of its list of cases in accordance with Article 37 of the Convention. 14.     The applicants did not agree with the Government’s proposal and requested the Court to continue the examination of the case. They maintained that the amount offered was too low. 15.     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). 16.     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). 17.     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). 18.     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 19.     The applicants 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 his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 20.     The Government refrained from submitting observations on the admissibility and merits of the complaint. 21.     The period to be taken into consideration began on 10 March 2004 at the latest and ended on 12 June 2012 when the second-instance judgment was given. It thus lasted eight years and four months for two levels of jurisdiction. A.     Admissibility 22.     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 23.     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). 24.     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, by not taking into account the overall period of the proceedings, the Łódź 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). 25.     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.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 26.     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 27.     The applicants’ lawyer claimed 65,867.89 zlotys (PLN) for Jan Sztuka and PLN   99,347.88 for Józef Bańczyk in respect of pecuniary damage and PLN   30,000 for each applicant in respect of non-pecuniary damage. 28.     The Government did not express an opinion on the matter. 29.     The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. The Court considers that the applicants must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards each of them EUR   7,500 under that head. B.     Costs and expenses 30.     In the applicants’ claims for pecuniary damage some claims for costs and expenses were included. They each claimed, in particular PLN   100 for the court fees they had to pay for their length complaint lodged under the 2004   Act, PLN   200 for the costs of translation of some documents submitted to the Court and PLN   7,000 as costs they had to incur to go on numerous occasions from their domicile to the trial court. The applicants’ lawyer also produced two invoices for “legal service” for PLN   2,952 and PLN   4,428. However, he made no particular claim in this respect; in particular it is unknown whether this invoice concerns the applicants’ representation before the domestic courts or before the Court. 31.     The Government did not express an opinion on the matter. 32.     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 are 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 each of the applicants the sum of EUR 500 under this head. C.     Default interest 33.     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 1.     Rejects the Government’s request to strike the application out of its list of cases;   2.     Declares the application admissible;   3.     Holds that there has been a violation of Article 6 § 1 of the Convention;   4.     Holds (a)     that the respondent State is to pay to each of the applicants, within three months from the date on which the judgment becomes final in accordance with Article   44   §   2 of the Convention, the following amounts: (i)     EUR   7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)     EUR   500 (five hundred euros), plus any tax that may be chargeable to the applicants, 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;   5.     Dismisses unanimously the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 13 November 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Fatoş Aracı   George Nicolaou Deputy Registrar   President