European Court of Human Rights

FOURTH SECTION

DECISION

Application no. 12447/04
by Halina MAMZER and Zdzisław DYLICH
against Poland

The European Court of Human Rights (Fourth Section), sitting on 21 October 2008 as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
David Thór Björgvinsson,
Ledi Bianku,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 16 March 2004,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

Having regard to the declaration submitted by the respondent Government on 7 February 2008 requesting the Court to strike the application out of the list of cases and the applicants' reply to that declaration,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mrs Halina Mamzer and Mr Zdzisław Dylich, are Polish nationals who were born in 1932 and 1946 respectively and live in Łaziska and Godów. They were represented before the Court by Mr Z. Stęchły, a lawyer practising in Rybnik. The Polish Government (“the Government”) were 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.  Civil proceedings for delivery of property

On 14 December 1999 the applicants lodged with the Katowice Regional Court (Sąd Okręgowy) a claim for compensation for the unlawful conviction of their father.

At the session held on 19 March 2003 the Katowice Regional Court referred the case to the Warszawa Regional Military Court (Wojskowy Sąd Okręgowy).

On 30 October 2003 the court held a hearing and delivered its judgment. It partly granted the claim. The applicants did not lodge an appeal against it. The judgment became final on 7 November 2003.

In a letter of 4 December 2004 the applicants complained to the President of the Regional Court about the excessive length of the proceedings and the fact that despite their requests, a hearing had not been listed promptly. They further stated that the inactivity of the court was contrary to the Polish Constitution and the international conventions ratified by Poland.

On 22 January 2004 the President of the Regional Court informed them that the length of the proceedings had not affected the outcome of the proceedings for compensation. He held that the delay in the proceedings could not be considered tantamount to a tort committed by judges and, consequently, could not justify the liability of the State Treasury.

2.  Claim for damages under the 2004 Act

On 5 November 2004 the applicants lodged a claim for damages. They relied on section 16 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”), which entered into force on 17 September 2004, read in conjunction with Article 417 of the Civil Code.

The applicants sought a ruling declaring that on account of the excessive length of the proceedings before the Regional Court they had sustained pecuniary and non-pecuniary damage. They claimed 26,520 and 13,260 Polish zlotys (PLN) (approx. EUR 7,000 and 3,500, respectively) in respect of pecuniary damage and PLN 5,000 (approx. EUR 1,300) each for non pecuniary damage.

On 21 March 2005 the Katowice Regional Court gave judgment. The court acknowledged the excessive length of the proceedings. However, it dismissed the applicants' claim on the ground that they had failed to prove that as a consequence of the established breach of the reasonable-time requirement, they had incurred any pecuniary losses. As regards non pecuniary damage, the court held that in Polish law non-pecuniary damage could be awarded only in the situations specified in Articles 445 and 448 of the Civil Code (just satisfaction for violation of personal goods or for personal injury). The court stated that none of these situations was relevant in the present case.

On 9 November 2005 the Katowice Court of Appeal (Sąd Apelacyjny) upheld the judgment, repeating the grounds given by the court of first instance. A cassation appeal was not available.

B.  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 judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.

COMPLAINTS

The applicants complained under Article 6 § 1 of the Convention about the unreasonable length of the proceedings.

The Court raised of its own motion a complaint under Article 13 of the Convention, as to whether the applicant had an effective domestic remedy against the excessive length of the impugned proceedings.

THE LAW

The applicants complained about the length of the proceedings. They relied on Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Court raised of its own motion a complaint about the lack of an effective domestic remedy under Article 13 of the Convention which provides as follows:

Article 13

“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.”

By letter dated 7 February 2008 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“(...) the Government hereby wish to express – by way of a unilateral declaration – their acknowledgement of the unreasonable duration of the domestic proceedings in which the applicants were involved.

In these circumstances, and having regard to the particular facts of the case, the Government declare that they offer to pay to each of the applicants the amount of PLN 10,000 (ten thousand Polish zlotys). The sum referred to above, which is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses, will be free from 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 for the Protection of Human Rights. In the event of failure to pay this sum within the three-month period, the Government undertake to pay simple interest on it, from the 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 Government's unilateral declaration contains an unconditional acknowledgement that the length of the domestic proceedings in the applicants' case had gone beyond what can still be considered 'reasonable' and that the applicants' complaint about the length of the proceedings was not redressed at the domestic level.

...”

In a letter of 7 March 2008 the applicants expressed the view that the sum mentioned in the Government's declaration was unacceptably low.

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”.

It also recalls 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 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; WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03).

The Court has established in a number of cases, including those brought against Poland, its practice concerning complaints about the violation of one's right to a hearing within a reasonable time and about the lack of an effective remedy capable of providing redress for a breach of this right (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000 VII; Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006 ....; Majewski v. Poland, no. 52690/99, 11 October 2005; and Wende and Kukówka v. Poland, no. 56026/00, 10 May 2007; Kudła v. Poland [GC], no. 30210/96, ECHR 2000-IX; and Charzyński v. Poland (dec.) no. 15212/03, HR 2005- ...).

Having regard to the nature of the admissions contained in the Government's declaration, 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 application (Article 37 § 1(c)).

The Court further notes that this decision constitutes a final resolution of this application only in so far 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.

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).

Accordingly, it should be struck out of the list.

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.

Lawrence Early Nicolas Bratza
Registrar President