by Janusz POPIEL
The European Court of Human Rights (Fourth Section), sitting on 24 March 2009 as a Chamber composed of:
Nebojša Vučinić, judges
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 23 November 2004,
Having regard to the declaration submitted by the respondent Government on 6 November 2008 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
The applicant, Mr Janusz Popiel, is a Polish national who was born in 1954 and lives in Warszawa. He was represented before the Court by Ms M. Gąsiorowska, a lawyer practising in Warszawa. 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 concerning an increase of a disability pension
On 17 October 1996 the applicant lodged an action for an increase of his disability pension with the Warsaw Regional Court.
The hearing scheduled on 21 August 1997 was adjourned because of the applicant’s absence. On 18 December 1997 the applicant requested the court to secure his claim by granting him a monthly payment until the delivery of a judgment on the merits. He argued that he was unfit for work and did not have sufficient income.
The subsequent hearing was held on 17 February 1998. On 24 February 1998 the Warsaw Regional Court dismissed the applicant’s request. On 25 February 1998 the applicant extended his claim.
On 31 August 1998 the applicant again requested the court to secure his claim. At the hearing held on 7 September 1998 the Warsaw Regional Court secured his claim by ordering the defendant to make monthly payments until the proceedings had ended. The subsequent hearing was held on 19 July 1999.
On 16 December 1999 the court heard the applicant and announced that the judgment would be delivered on 23 December 1999. On 23 December 1999 the court adjourned the delivery of the judgment until 7 January 2000. On 7 January 2000 the court decided to continue the proceedings.
On 13 March 2000 the applicant requested the court to increase the amount of the monthly payment. At the hearing held on 17 August 2000 the Warsaw Regional Court refused the applicant’s request and appointed an expert to draw up an opinion on the applicant’s health. On 18 January 2001 the court heard the applicant and the expert.
On 30 January 2001 the Regional Court dismissed the applicant’s claim.
On 13 February 2002 the Warsaw Court of Appeal partly dismissed the applicant’s appeal, quashed the remainder of the judgment and remitted the case in this part for re-examination by the first-instance court. At the hearings held on 26 September 2002, 23 May 2003 and 10 July 2003 the Regional Court heard experts. On 4 August 2004 the first expert was re heard. The applicant again requested the court to secure his claim. On 13 August 2004 the applicant’s request was dismissed.
The applicant submitted that the proceedings are pending.
2. Proceedings under the 2004 Act
On 25 November 2004 the applicant lodged a complaint about the undue length of the proceedings under the 2004 Act, complaining that the length of the proceedings before the Regional Court had been excessive. He also claimed just satisfaction in the amount of PLN 10,000 (approx. EUR 2,500).
On 29 December 2004 the Warsaw Court of Appeal transferred the complaint to the Supreme Court considering that the complaint also concerned the proceedings before the Court of Appeal. On 18 February 2005 the Supreme Court transferred the complaint back to the Warsaw Court of Appeal, declaring that the Court of Appeal was competent to deal with it.
On 30 March 2005 the Warsaw Court of Appeal dismissed the complaint on the ground that there had been no undue delay in the proceedings between the date of entry into force of the Act on 17 September 2004 and the date on which the applicant had lodged his complaint.
The applicant, invoking Article 3 of the Convention, complained about the excessive length of the proceedings.
The applicant complained under Article 13 of the Convention that the 2004 Act was not an effective remedy against excessive length of proceedings.
A. Length of proceedings and the lack of an effective remedy in this respect
The applicant complained about the length of the proceedings and that he had no effective remedy at his disposal. He 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 a letter dated 6 November 2008 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out this part of 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.
In this circumstances and having regard to the particular facts of the case, the Government declare that they offer to pay to the applicant the amount of PLN 18,500.
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 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.
In a letter of 3 December 2008 the applicant accepted the sum mentioned in the Government’s declaration in respect of a violation of Article 6 of the Convention. He expressed the view that he wished to continue the case under Articles 3 and 13 of the Convention as he had initially invoked these provisions in his application.
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, 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 this part of the application (Article 37 § 1(c)).
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 this part of the application (Article 37 § 1 in fine).
Accordingly, it should be struck out of the list.
Since the proceedings concerned are still pending before the domestic courts, the Court’s strike-out decision is without prejudice to the use by the applicant of other remedies before the domestic courts to obtain redress for any delay in the proceedings which may occur after the date of this decision.
B. Complaint under Article 3 of the Convention
The applicant, invoking Article 3 of the Convention, complained about the excessive length of the proceedings. As far as it can be understood from the applicant’s submissions he invoked this provision claiming that due to the length of the proceedings he had been subjected to degrading treatment as his health had deteriorated throughout that period of time.
However, the Court considers that the material in its possession does not disclose any appearance of a violation of Article 3 of the Convention.
Accordingly, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.
C. Complaint under Article 13
The applicant further complained that the 2004 Act was not an effective remedy against excessive length of proceedings. He relied on Article 13 of the Convention which provides as follows:
“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.”
The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time. The Court has already found that the remedy under the 2004 Act is effective in respect of a length of proceedings complaint (see, Figiel v. Poland (no. 1), no. 38190/05, 17 July 2008). However, the “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see Kudła v. Poland [GC], no. 30210/96, §§ 154 et seq., ECHR 2000-XI, §§ 156-157). Accordingly, the fact that the applicant was unsuccessful in obtaining compensation in the circumstances of his case does not mean that he was denied an effective remedy.
It follows that this part of the application is manifestly ill founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration in respect of the complaint 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 so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Lawrence Early Nicolas Bratza