by Helena TENDERA-WŁASZCZUK
The European Court of Human Rights (Fourth Section), sitting on 3 November 2009 as a Chamber composed of:
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 23 September 2007,
Having regard to the declaration submitted by the respondent Government on 24 August 2009 requesting the Court to strike the application out of the list of cases,
Having deliberated, decides as follows:
The applicant, Ms Helena Tendera-Właszczuk, is a Polish national who was born in 1953 and lives in Katowice. She was represented before the Court by Mr C. Kłak, a lawyer practising in Kraków. The respondent Government were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The principal proceedings
On 30 June 2005 criminal proceedings against the applicant were discontinued, the prosecutor having found that the conclusions of the expert’s report were unfounded and that was no evidence that she had committed a criminal offence. This decision was upheld on 31 March 2006 by the Katowice District Court.
On 2 August 1999 the applicant brought a private prosecution against the expert charging him with criminal libel.
On 27 January 2006 the expert was acquitted of the charges by the Katowice District Court.
On 23 May 2006 the Katowice Regional Court dismissed the applicant’s appeal.
On 28 March 2007 the Supreme Court left the cassation appeal without consideration as being inadmissible in law.
2. The applicant’s complaint under the 2004 Act
On an unspecified date the applicant also lodged a complaint about a breach of her right to a trial within a reasonable time under the 2004 Act in respect of the proceedings which she had instituted against the expert.
The complaint was dismissed by the Katowice Regional Court on 26 April 2006. The court observed that from August 1999 until June 2000 there had been no progress in the proceedings. However, after that date 22 hearings had been held. Some of them had to be adjourned for various reasons, usually not attributable to the court. There were no grounds on which to find that the court had not conducted the proceedings expeditiously.
The applicant complained under Article 6 § 1 of the Convention about the unreasonable length of the proceedings.
The applicant complained about the length of the proceedings which she had instituted against the expert. She 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...”
By letter dated 24 August 2009 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 unilateral declaration — its acknowledgement of the unreasonable duration of the domestic proceedings in which the applicant was involved.
Consequently, the Government are prepared to accept the applicant’s claims for ... amounting to PLN 9,900 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 of 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 Government’s unilateral declaration contains an unconditional acknowledgment that the length of the domestic proceedings in the applicant’s case has gone beyond what can still be considered reasonable and that the applicant’s complaint about the length of the proceedings was not redressed at the domestic level”.
The applicant was requested to express her view on the Government’s declaration. However, she failed to respond to the Registry’s letter within the given time-limit.
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 or part thereof 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; 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, ECHR 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).
Moreover, in light of the above considerations, and in particular given the clear 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 this part 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 under Article 6 § 1 of the Convention 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.
Fatoş Aracı Nicolas Bratza Deputy Registrar President