FOURTH SECTION

DECISION

Application no. 28953/03 
by Elżbieta SULWIŃSKA 
against Poland

The European Court of Human Rights (Fourth Section), sitting on 18 September 2007 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr G. Bonello
 Mr K. Traja
 Mr L. Garlicki
 Ms L. Mijović
 Mr J. Šikuta, 
 Mrs P. Hirvelä, judges
and Mr T.L. Early, Section Registrar,

Having regard to the above application lodged on 31 August 2003,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the unsuccessful friendly settlement negotiations,

Having regard to the Government’s request to strike the case out of its list of cases in so far as it related to the length of the criminal proceedings brought against the applicant and the text of a unilateral declaration made with a view to resolving the issues raised by that complaint,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Elżbieta Sulwińska, is a Polish national who was born in 1948 and lives in Warszawa. She is represented before the Court by Ms M. Gąsiorowska, a lawyer practising in Warszawa. The respondent Government are represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1.      The criminal proceedings

On 22 September 1992 the applicant’s 18-year old daughter died in a car accident.

On 31 October 1995 M.D., aged 11, was kidnapped from her home by an unknown man and taken to the apartment of an unidentified woman who kept the child there for about two hours. According to the child’s testimony the woman spoke to her about her late daughter and subsequently let her go. Apparently M.D. had not been able to find the apartment where she had been kept. Police officers asked the administrator of the housing estate whether a woman, who had recently lost her child, resided there. The administrator indicated the name of the applicant.

On 31 October 1995 the applicant had a day off. Her acquaintance Z.J. asked her to withdraw his salary for him from his workplace, 20 km away from her home. She went there in the morning. Later, she spent a few hours with her friend and after that went shopping. She kept the shop receipts which she later copied and saved to corroborate her testimony.

On the same day at 6 p.m. police officers searched the applicant’s apartment and took her to the police station for interrogation. She was released at 10 p.m. She claims that she was not informed of the reasons for her arrest or of the charges against her.

On 22 May 1996 the applicant was served with a decision to bring charges against her.

According to the applicant neither the police nor the prosecutor examined the evidence proving that she had not been at home at the time the offence had been committed. She also filed with different institutions numerous complaints about the conduct of the prosecution.

On 9 December 1996 the prosecutor decided to place the applicant in a psychiatric institution for observation with a view to establishing whether she could be held criminally responsible. The psychiatrists released the applicant after a week, finding that her mental health was sound.

On 28 November 1997 a bill of indictment was submitted to the Warszawa District Court. The applicant and another person were charged with kidnapping an 11-year old girl and detaining her in the applicant’s flat. Apparently the charges were based solely on the girl’s testimonies and none of the evidence suggested by the applicant was examined by the prosecution.

The first hearing in the case was held on 7 August 2002. Subsequently, hearings were held on 9 October 2002, 14 November 2002, 13 January 2003, 24 February, 28 March, 19 May, 2 July, 16 September, 20 October, and 16 December 2003. A different prosecutor attended each of the hearings.

On 23 May 2003 the District Court requested the then employer of Z.J. to verify whether the applicant had collected Z.J.’s salary on his behalf on the day of the kidnapping. As the employer company had in the meantime moved, a reply was submitted to the court only on 17 December 2003.

On 22 December 2003 the Warsaw District Court acquitted the applicant of all charges. The court emphasised that the applicant’s line of defence had not been verified by the police and the prosecutors and that the evidence had not been prepared properly.

2.      The proceedings under the 2004 Act

On 19 January 2005 the applicant lodged a complaint under the 2004 Act about the excessive length of these proceedings, invoking clearly, at the beginning and end of her complaint, the substance of section 18 of the Act, although not referring to the precise number of this section. The applicant also informed the competent court that she had lodged an application with the Court, and provided the date on which her application had been lodged as well as its number.

On 16 February 2005 the court dismissed the applicant’s complaint about the length of the proceedings. The court first noted that it was entitled to examine only the period after 17 September 2004 (the date of entry into force of the 2004 Act). Further, it observed that the impugned proceedings had been terminated on 22 December 2003 and that the judgment had become final on 28 February 2004, thus before the entry into force of the 2004 Act. In any event, the applicant had not complied with the provisions of section 5 of the 2004 Act in that the complaint had not been lodged while the impugned proceedings were still pending. The domestic court did not refer to the fact that the applicant had lodged an application with the Court.

COMPLAINTS

1.      The applicant complained under Article 6 § 1 of the Convention about the excessive length of the proceedings. She submitted that had it not been for the criminal proceedings conducted against her for several years, she would have been promoted and her retirement pension would have been higher.

2.      The applicant alleged an infringement of her right to liberty and security of person in that the prosecutor had ordered her observation in a psychiatric institution.

3.      She also complained under Article 6 § 2 of the Convention that she had not been informed promptly of the accusations against her.

4.      Further, the applicant alleged that the investigations were unfair in that her statements and evidence were ignored and examined only at the trial.

THE LAW

1. As to the complaint about the length of the proceedings

On 16 April 2007 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by the length of proceedings complaint. It further requested the Court to strike out the complaint in accordance with Article 37 of the Convention.

The declaration provided as follows:

“(...) the Government hereby wish to express by way of unilateral declaration — its acknowledgement of the unreasonable duration of the domestic proceedings in which the applicant was involved. At the same time, the Government admit that in the particular circumstances of the applicant’s case, the applicant’s complaint about the length of the proceedings has not been redressed at the domestic level as required by Article 13 of the Convention.

Consequently, the Government are prepared to accept the applicant’s clams for just satisfaction to a maximum of 18,000 zlotys which they consider to be reasonable in the light of the Court’s case law. The sum referred to above, which 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 European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period, until settlement, at a rate equal to the marginal lending rate of the European Central, Bank during the default period plus three percentage points.

The Government would respectfully suggest that the above declaration might be accepted by the Court as ‘any other reason’ justifying the striking out of the case of the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention.”

The applicant failed to comment on the Government’s proposal.

The Court observes at the outset that the parties were unable to agree on the terms of a friendly settlement of the complaint. It recalls that, according to Article 38 § 2 of the Convention, friendly-settlement negotiations are confidential and that Rule 62 § 2 of the Rules of Court further stipulates that no written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in contentious proceedings. However, the declaration was made by the Government outside the framework of the friendly-settlement negotiations.

The Court recalls 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”.

Article 37 § 1 in fine includes the proviso that:

“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

The Court also recalls that under certain circumstances it may strike out an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued. To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); Meriakri v. Moldova ((striking out), no. 53487/99, 1 March 2005); Swedish Transport Workers Union v. Sweden ((striking out), no. 53507/99, 18 July 2006) and Van Houten v. the Netherlands ((striking out), no. 25149/03, ECHR 2005-IX).

As to the circumstances of the instant case, 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; 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; Cocchiarella v. Italy [GC], no. 64886/01, ECHR 2006-...; Wende and Kukówka v. Poland, no. 56026/00, 10 May 2007). 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.

Having regard to the nature of the admissions contained in the Government’s unilateral declaration as well as the amount of compensation proposed - namely PLN 18,000 (which can be considered reasonable in comparison with the Court’s awards in similar cases) - the Court considers that it is no longer justified to continue the examination of this complaint (Article 37 § 1 (c)) (see, for the relevant principles, Tahsin Acar as cited above; and also Haran v. Turkey, no. 25754/94, judgment of 26 March 2002).

The Court further notes that this decision constitutes a final resolution of this part of the application only insofar as the proceedings before the Court are concerned. It is without prejudice to the use by the applicant of other remedies before the domestic courts to claim further compensation in respect of the length of the impugned proceedings.

In light of all the above considerations, 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 this part of the application (Article 37 § 1 in fine) and it should therefore be struck out of the list.

2. As to the remaining complaints

As to the complaints concerning the alleged infringement of the applicant’s right to liberty and the lack of prompt information relating to the accusations against her, the Court notes that the alleged breaches occurred in 1995 and 1996. It follows that these complaints have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

The applicant also complained about the unfairness of the preliminary investigation in her case. In this connection the Court notes that the applicant obtained a fair hearing before an independent and impartial tribunal in the proceedings before courts with full jurisdiction and was acquitted of all charges. Furthermore, the domestic court acknowledged all the various shortcomings committed by the police and the prosecutors during the phase of the investigation. It follows that the applicant cannot claim to be a victim within the meaning of Article 34 of the Convention. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. As to the application of Article 29 § 3 of the Convention

Having regard to the above considerations and to its conclusions set out below, the Court decides to discontinue the application of Article 29 § 3 of the Convention to the case.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government’s declaration and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention in so far as it concerns the complaint about the length of the proceedings;

Declares the remainder of the application inadmissible.

T.L. Early Nicolas Bratza  
 Registrar President

SULWIŃSKA v. POLAND DECISION


SULWIŃSKA v. POLAND DECISION