by Józef FRANKOWSKI
against Poland (no. 2)
The European Court of Human Rights (Fourth Section), sitting on 15 September 2009 as a Chamber composed of:
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 26 June 2006,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having deliberated, decides as follows:
The applicant, Mr Józef Frankowski, was a Polish national who was born in 1934 and lived in Jasło. On 11 May 2009 the applicant’s children, Ms Monika Bemben and Mr Radosław Frankowski, informed the Registry that the applicant had died and that they wished to pursue the application. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
A. First set of civil proceedings
On 21 December 1994 the applicant’s wife, B.F., filed for divorce with the Kraków Regional Court (Sąd Okręgowy).
On 29 January 1998 the Kraków Regional Court granted a divorce.
B. Second set of civil proceedings
On 4 September 1998 the applicant lodged a claim for division of matrimonial property with the Kraków District Court (Sąd Rejonowy).
On an unspecified date the applicant lodged a motion for the establishment of the parties’ respective shares in the matrimonial property.
On 2 March 2000 the Kraków District Court gave a preliminary decision (postanowienie wstępne) by which the applicant’s motion was dismissed.
The applicant lodged an appeal, which was dismissed by the Kraków Regional Court on 25 September 2000.
On an unspecified date the applicant lodged a cassation appeal against that decision.
On 10 May 2001 the Supreme Court (Sąd Najwyższy) refused to deal with the cassation appeal (no legal issue of general importance).
On 25 January 2002 the representative of the applicant’s former wife requested the court to adjourn the hearing because she was ill.
On 25 March 2002 the parties agreed to settle the case and the proceedings were stayed. However, they apparently failed to do so and on 15 May 2002 the applicant’s former wife requested the court to resume the proceedings.
The proceedings were resumed on 15 July 2002.
On 21 January 2003 the court appointed an expert to prepare a valuation of the matrimonial property. The opinion was submitted on 27 May 2003.
On 1 December 2004 the Kraków District Court ordered a supplementary expert’s opinion and adjourned the hearing.
On 31 January 2005 the applicant requested the court to adjourn the next hearing because he was ill.
On 30 May 2005 the requested additional opinion was submitted to the court and the expert was heard.
A hearing scheduled for 28 June 2005 was adjourned as the applicant was ill.
On 26 August 2005 the Kraków District Court gave a preliminary decision (postanowienie wstępne) on the parties’ respective shares in the matrimonial property.
On 13 October 2005 the applicant appealed against that decision.
On 8 November 2005 the Kraków District Court stayed the proceedings, as the parties were absent.
On 10 March 2006 the proceedings were resumed.
On 9 January 2007 the Kraków Regional Court partly amended the first instance decision and partly dismissed the applicant’s appeal.
At the moment of the applicant’s death the proceedings have been pending before the first-instance court.
C. Third set of civil proceedings
On 29 April 2007 the applicant lodged a request for re-opening of the civil proceedings terminated by the decision of the Kraków Regional Court of 9 January 2007.
On 9 May 2007 the President of the Kraków Regional Court requested the applicant to submit necessary documents. The summons was served on the applicant’s lawyer on 16 May 2007.
On 31 May 2007 a part of the requested documents was submitted. On 12 June 2007, after the expiry of the time-limit set, the applicant submitted another part of the documents.
On 21 June 2007 the President of the Kraków Regional Court returned the request for re-opening to the applicant as he had failed to fulfil the formal requirements within the prescribed time-limit.
D. Proceedings under the 2004 Act
On 31 October 2005 the applicant lodged a complaint with the Kraków Court of Appeal (Sąd Apelacyjny) about a breach of the right to a trial within a reasonable time in respect of the proceedings concerning the division of matrimonial property and asked for just satisfaction. He relied on 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 12 January 2006 the Kraków Regional Court dismissed his complaint. It limited its examination of the length of proceedings issue to the period after the entry into force of the 2004 Act and stressed that the Act could not be applied to the protracted length of court proceedings occurring before that date. Having analysed the conduct of the District Court during the period after the entry into force of the 2004 Act, the Court of Appeal found that the proceedings had been conducted with due diligence and within a reasonable time.
On 3 August 2009 the Court received the following declaration from the Government:
“I, Jakub Wołąsiewicz, Agent of the Government, declare that the Government of Poland offer to pay PLN 18,000 (eighteen thousand Polish zlotys) jointly to Mr Józef Frankowski’s heirs, Ms Monika Bemben and Mr Radosław Frankowski, 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 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 27 July 2009 the Court received the following declaration signed by the applicant’s heirs:
“We, Monika Bemben and Radosław Frankowski, heirs of the deceased applicant, Mr Józef Frankowski, note that the Government of Poland are prepared to pay us jointly the sum of PLN 18,000 (eighteen 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 free of any taxes that may be applicable and 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.
We accept the proposal and waive any further claims against Poland in respect of the facts giving rise to this application. We 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.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President