by Arkadiusz KUBIK
against Poland (no. 2)
The European Court of Human Rights (Fourth Section), sitting on 19 May 2009 as a Chamber composed of:
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 8 December 2005,
Having regard to the declaration submitted by the respondent Government on 19 February 2009 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 Arkadiusz Kubik, is a Polish national who was born in 1934 and lives in Sosnowiec. 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. The proceedings against the trustee
On 23 July 2001 the applicant instituted proceedings against the trustee (syndyk masy upadłości) of a limited liability company which for several years had been in possession of the applicant’s plot of land and had not paid him any remuneration for using it in the absence of a contract. The applicant sought the return of his property.
On 26 April 2002 the Katowice Regional Court (Sąd Okręgowy) gave judgment and granted the applicant’s claim.
On an unspecified date the defendant appealed.
On 30 January 2003 the Katowice Court of Appeal (Sąd Apelacyjny) amended the judgment and ordered that the applicant’s property be returned to him in return for repayment of the amount spent on the property by the defendant. The outlay amounted to 1,029,550 Polish zlotys (PLN) (approx. EUR 270,000).
On an unspecified date the applicant lodged a cassation appeal with the Supreme Court (Sąd Najwyższy).
On 11 March 2004 the Supreme Court quashed the judgment and remitted the case to the Court of Appeal for re-examination.
On 22 September 2004 the Katowice Court of Appeal, having re examined the case, quashed the first-instance judgment and remitted the case to the Regional Court, finding that the first-instance court had failed to examine the amount spent on the property in question.
On 8 March 2005 and 24 May 2005 the Regional Court held hearings.
On 6 June 2005 it stayed the proceedings, finding that their outcome depended on the outcome of other proceedings for payment which the applicant had instituted against the company. The applicant appealed.
On 8 August 2005, the Katowice Court of Appeal dismissed his appeal.
On an unspecified date the applicant requested the court to resume the proceedings.
On 8 December 2006 the Katowice Regional Court refused the motion. The applicant appealed against that decision.
On 10 April 2007 the Katowice Court of Appeal amended the decision and resumed the proceedings.
On 20 December 2007 the Katowice Regional Court gave judgment.
On an unspecified date the defendant appealed.
On 11 April 2008 the Katowice Court of Appeal decided to stay the proceedings, apparently because of other proceedings pending before the
Katowice Regional Court. The applicant requested that reasons be given for that decision. On 25 April 2008 the Court of Appeal rejected his request.
The proceedings are pending.
2. The applicant’s complaint under the 2004 Act in respect of the proceedings for payment
On 3 February 2006 the applicant lodged a complaint 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 1 March 2006 the Katowice Court of Appeal rejected the complaint on account of a procedural mistake; the applicant had failed to specify in his complaint the legal basis of the claim and the relief sought, and, in particular, had not asked the court to declare that the length of the proceedings had been excessive.
On 7 July 2006 the applicant again lodged a complaint under the 2004 Act about the undue length of the proceedings.
On 25 August 2006 the Katowice Court of Appeal (Sąd Apelacyjny) dismissed his complaint. The court focused on the fact that the proceedings had been stayed on several occasions and that the decisions to stay them had been given in compliance with the relevant provisions of the Code of Civil Proceedings (Kodeks Postępowania cywilnego). It did not, however, examine the overall length of the proceedings.
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 the 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 its judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
The applicant complained under Article 6 § 1 of the Convention about the length of the proceedings.
The applicant complained about the length of the proceedings. 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 letter dated 11 February 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 the unilateral declaration – their 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 just satisfaction to a maximum of 9,000 Polish zlotys (PLN), which they consider to be reasonable in the light of the Court’s case-law.
The Government would 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...”
In a letter of 4 March 2009 the applicant expressed the view that the sum mentioned in the Government’s declaration was unacceptably low.
The Court reiterates 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 reiterates 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 the declaration carefully 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 the right to a hearing within a reasonable time (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; and Wende and Kukówka v. Poland, no. 56026/00, 10 May 2007).
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)).
The Court further notes that this decision constitutes a final resolution of this application only in so far as the proceedings before the Court are concerned. Since the proceedings concerned are still pending before the domestic courts, the Court’s strike-out decision is without prejudice to use by the applicant of other remedies to obtain redress for any delay in the proceedings which may occur after the date of this decision.
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 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.
Lawrence Early Nicolas Bratza