by Józef KUŚNIEREK
The European Court of Human Rights (Fourth Section), sitting on 30 June 2009 as a Chamber composed of:
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 4 December 2006,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having deliberated, decides as follows:
The applicant, Mr Józef Kuśnierek, is a Polish national who was born in 1949 and lives in Jelcz-Laskowice. 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 follow.
1. Civil proceedings for division of marital property
On 19 October 2001 the applicant’s former wife lodged a claim for division of marital property with the Oława District Court (Sąd Rejonowy).
The first hearing was scheduled to 11 June 2002.
On 8 April 2003 the trial court obtained a report by a real estate expert.
On the same date the court issued an order to secure for the time of the proceedings a certain plot of land which belonged to the applicant.
On 10 October 2003 the Wrocław Regional Court (Sąd Okręgowy) quashed the above decision after the applicant’s appeal.
Subsequently, the Oława District Court held hearings on 21 September, 9 November and 14 December 2004.
On 21 December 2004 the trial court dismissed the applicant’s appeal to challenge the judge rapporteur. On 11 March 2005 the court dismissed the interlocutory appeal against the above decision.
On 5 July 2005 the Oława District Court rejected another appeal lodged by the applicant to challenge a judge.
On 29 September 2005 the applicant asked the court to issue a preliminary decision (orzeczenie wstępne) to exclude from the marital property in question his plot of land which had been the subject of the court’s order of 8 April 2003.
On 3 October 2005 the Oława District Court rejected the applicant’s motions to correct errors in the minutes from the previous hearings. On the same date the court ordered the opening of proceedings for rectification of entries in the land and mortgage register (o uzgodnienie treści księgi wieczystej ze stanem prawnym).
On 6 December 2005 the applicant appealed against the above decision.
It appears that both the main proceedings for division of the marital property and the proceedings concerning the land and mortgage register are currently pending.
2. Proceedings under the 2004 Act
On 16 March 2006 the applicant lodged a complaint about the unreasonable length of proceedings under 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”).
On 5 June 2006 the Wrocław Regional Court dismissed the complaint. The court held that the 2004 Act did not have retroactive effect and, consequently, examined the applicant’s claim only in respect of the period between the entry into force of the 2004 Act on 17 September 2004 and the date on which the complaint had been lodged by the applicant. The Wrocław Regional Court found that the impugned proceedings had not been unduly lengthy. The court emphasised that the applicant himself contributed to the length of the proceedings by lodging multiple procedural motions and interlocutory appeals.
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 decisions in cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
The applicant complained under Article 6 of the Convention of the excessive length of the proceedings in his case.
On 19 February 2009 the Court received the following declaration from the Government:
“I, Jakub Wołąsiewicz, declare that the Government of Poland offer to pay PLN 15,000 (fifteen thousand Polish zlotys) to Mr Józef Kuśnierek 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 and will be payable within three months from the date of the 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 17 February 2009 the Court received the following declaration signed by the applicant:
“I, Józef Kuśnierek, note that the Government of Poland are prepared to pay me the sum of 15,000 PLN (fifteen thousand 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 payable within three months from the date of the 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 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