European Court of Human Rights

FOURTH SECTION

DECISION

Application no. 53122/07
by Marek MAŁAGOCKI
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,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 27 November 2007,

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

Having regard to the formal declarations accepting a friendly settlement of the case,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Marek Małagocki, is a Polish national who was born in 1968 and lives in Gdańsk. 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 distribution of matrimonial property

In March 2002 the applicant lodged an action with the Gdańsk District Court for distribution of matrimonial property.

A hearing scheduled for 17 June 2002 was adjourned because the parties had agreed to settle the case, but had ultimately failed to do so.

The next hearing was held on 8 July 2002. A hearing scheduled for 14 October 2002 was adjourned because, again, the parties had agreed to settle the case but had failed to do so. In December 2002 the court ordered an expert to submit an opinion regarding a plan for the distribution of the property. The opinion was submitted to the court on 5 February 2003. A hearing scheduled for 23 April 2003 was adjourned because the expert was on leave. On 15 May 2003 the court heard the expert.

On 26 June 2003 the court stayed the proceedings at the request of the parties as they had wanted to settle the dispute by a private arrangement. On 30 September 2004 the applicant requested the court to resume the proceedings. On 3 November 2004 the court resumed the proceedings.

A hearing scheduled for 2 December 2004 was adjourned because the applicant's former wife was absent. On 4 January 2005 the court heard witnesses. On 15 February 2005 the court stayed the proceedings pending the outcome of criminal proceedings against the applicant's wife. On 25 July 2005 the applicant requested the court to resume the proceedings as the criminal proceedings had been ended. On 5 August 2005 the court requested that the case file concerning the criminal proceedings be submitted to it, and subsequently, on 5 October 2005, resumed the proceedings. The next hearings were held on 21 November 2005 and 5 January 2006.

A hearing scheduled for 2 February 2006 was adjourned because the judge sitting in the case had been ill. The next hearings were held on 11 April and 30 May 2006. A hearing scheduled for 18 July 2006 was adjourned at the applicant's request. The next hearings were held on 7 September and 17 October 2006.

A hearing scheduled for 25 May 2007 was adjourned at the applicant's request. The next hearings were held on 17 July and 25 September 2007. On 8 October 2007 the Gdańsk District Court gave a decision on the merits. On 12 December 2007 the applicant lodged an appeal with the Gdańsk Regional Court. The proceedings are currently pending.

2. Proceedings under the 2004 Act

On 25 July 2007 the applicant lodged a complaint with the Gdańsk Regional Court under the Act 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”). He also claimed just satisfaction in the amount of 10,000 Polish zlotys (PLN – approximately EUR 2,630).

On 22 October 2007 the Gdańsk Regional Court dismissed the applicant's complaint on the ground that there had been no undue delay in the proceedings between the date of entry into force of the Act of 17 September 2004 and the date on which he had lodged his complaint.

COMPLAINT

The applicant complains under Article 6 of the Convention of a violation of his right to have his case heard within a reasonable time.

THE LAW

On 12 September 2008 the Court received the following declaration from the Government:

“I declare that the Government of Poland offer to pay PLN 8,500 (eight thousand five hundred Polish zlotys) to Mr Marek Małagocki with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum, 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 payment will constitute the final resolution of the case.”

On 28 July 2008 the Court received the following declaration signed by the applicant:

“I, Marek Małagocki, note that the Government of Poland are prepared to pay me the sum of PLN 8,500 (eight thousand five hundred Polish zlotys) with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum, 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. 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.

I accept the proposal and waive any further claims against Poland in respect of the facts giving rise to this application. I declare that this constitutes a final resolution of the case.”

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate to discontinue the application of Article 29 § 3 and to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Lawrence Early Nicolas Bratza
Registrar President