FOURTH SECTION

DECISION

Application no. 49194/08 by Kazimierz KALITA against Poland

The European Court of Human Rights (Fourth Section), sitting on 11 May 2010 as a Chamber composed of:

Nicolas Bratza , President, Lech Garlicki , Giovanni Bonello , Ljiljana Mijović , Päivi Hirvelä , Ledi Bianku , Nebojša Vučinić , judges, and Lawrence Early, Section Registrar ,

Having regard to the above application lodged on 5 December 2005,

Having regard to the declaration submitted by the respondent Government on 25 September 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 FACTS

The applica nt, Mr Kazimierz Kalita , is a Polish national who was born in 1954 and lives in D ą browa Górnicza . He was represented before the Court by Mr M. Nawrot , a lawyer practising in Katowice . 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. Enforcement proceedings against the applicant

On 20 September 1995 a bank (the first creditor) issued a writ of execution ( tytuł wykonawczy ) against the applicant. The writ was based on a provision that the Constitutional Court ( Trybunał Konstytucyjny ) had meanwhile declared unconstitutional, by virtue of its judgment given on 16 May 1995 which came into force on 30 January 1996 .

On 13 November 1995 the first creditor asked the bailiff of the Koszalin District Court ( Komornik SÄ… du Rejonowego ) to institute enforcement proceedings against the applicant .

On 17 November 1995 the bailiff stayed the enforcement proceedings at the request of the first creditor.

On 1 December 1995 the bailiff resumed the stayed proceedings.

On 4 December 1995 the bailiff summoned the applicant to make a payment in favour of the first creditor on pain of starting the procedure for the preparation of an inventory and evaluation of his real estate.

On 21 December 1995 the applicant lodged a request with the Koszalin District Court ( S Ä…d Rejonowy ) for the writ of 20 September 1995 to be declared null and void.

On the same day the applicant ' s wife lodged a request for their property (a guest house located in Łazy ) to be excluded from the assets covered by the enforcement proceedings. She argued that the property in question was part of the marital assets and that no writ of execution had been issued against her.

On 1 March 1996 the bailiff seized movable property located in the guest house in Łazy .

On 25 March 1996 the bailiff informed the applicant that he had drawn up an inventory and made an evaluation of the real estate.

On 4 April 1996 the Będzin District Court gave an order for payment ( nakaz zapłaty ) against the applicant requested by a timber company (the second creditor).

On 21 June 1996 the bailiff seized certain of the applicant ' s receivables .

On 25 March 1997 the first creditor requested that the proceedings be discontinued due to the fact that the enforcement title of 20 September 1995 had become invalid.

On 4 July 1997 the Będzin District Court issued an enforcement clause ( klauzula wykonalności ) in respect of the payment order of 4 April 1996 against the applicant ' s wife, with liability being confined to the marital assets.

On 19 August 1997 the second creditor requested the bailiff of the Koszalin District Court to institute enforcement proceedings against the applicant .

On 1 September 1997 the bailiff ordered that these two sets of proceedings be joined.

On 30 December 1997 the bailiff discontinued the proceedings instituted by the first creditor. On 6 January 1998 he stated that he would continue the enforcement in the case initiated by the second creditor.

On 17 April 1998 the Koszalin District Court discontinued the enforcement proceedings instituted by the second creditor.

On 6 July 1998 the Koszalin Regional Court ( Sąd Okręgowy ) quashed the decision and ordered the bailiff to issue a writ of execution against the applicant ' s wife.

On 1 February 1999 the Koszalin District Court endorsed the grant at auction of property ( decyzja o udzieleniu przybicia ) to a certain Z.R.

On 15 April 1999 the District Court gave a decision whereby it adjudicated the property to Z.R. On an appeal by the applicant the Koszalin Regional Court quashed the decision on 20 August 1999.

Meanwhile, on 14 June 1999 the Koszalin District Court had given a decision ordering the bailiff to entrust Z.R. with the management of the real estate.

On 22 October 1999 the decision of 1 February 1999 was served on the applicant.

On 16 December 1999 the District Court rejected the applicant ' s appeal against the decision of 1 February 1999 due to formal shortcomings.

On 9 March 2000 the District Court rejected the applicant ' s request for retrospective leave to lodge an appeal against the decision of 1 February 1999 and for an exemption from court fees. The applicant appealed. On 9 June 2000 the Koszalin Regional Court dismissed the appeal.

On 11 January 2001 the Koszalin Regional Court dismissed the applicant ' s appeal against the decision of 16 December 1999. The applicant appealed.

On 26 July 2001 the Koszalin District Court rejected the applicant ' s complaint about the actions taken by the bailiff in the enforcement proceedings. Furthermore, it ordered the bailiff to instruct the administrator of the real estate, Z.R., on his obligations and rights. In addition, it demanded that the administrator submit a report on the management of the property to the court within one month.

On 28 December 2001 the Koszalin District Court issued a decision granting the ownership of the real estate to Z.R. The applicant appealed, arguing, inter alia , that the enforcement proceedings had been carried out on the basis of an invalid writ of execution.

On 26 March 2002 the Koszalin Regional Court rejected the applicant ' s appeal against the decision of 11 January 2001.

On 27 March 2002 the Koszalin Regional Court refused the applicant ' s request for the proceedings terminated on 11 January 2001 to be reopened.

On 23 June 2004 the Cieszyn District Court endorsed the grant at auction of a right to perpetual use of a real estate located in Wis Å‚a to a certain A.T. On 9 September the court confirmed the transfer of the right to A.T. The applicant appealed.

Meanwhile, on 28 June 2004 the applicant complained to the President of the Koszalin Regional Court ( Prezes Sądu Okręgowego ) about the delay in the proceedings and asked for the proceedings to be accelerated. He stressed in particular that the decision of 26 July 2001 had not been enforced.

On 5 July 2004 the applicant lodged a complaint with the Cieszyn District Court against all the actions taken by the bailiff.

On 29 October 2004 the Cieszyn District Court rejected the complaint. The applicant appealed. On 9 February 2005 the Bielsko-Biała Regional Court quashed the decision.

On 4 March 2005 the Koszalin Regional Court dismissed the appeal against the decision of 28 December 2001. The court held that the objections raised by the applicant referred in particular to the writ of execution and the estimation of the value of the property and not to the decision itself. It appears that the decision was served on the applicant ' s legal representative, present at the hearing, on the same day.

On 21 July 2005 the Cieszyn District Court gave a decision whereby it drew up a plan for the division of a sum obtained during the proceedings.

On an unspecified date the applicant submitted a request to have the enforcement proceedings declared null and void. On 27 October 2005 the Warsaw Regional Court rejected the claim as inadmissible in law. On 21 November 2005 the applicant appealed.

On 5 August 2005 the Cieszyn District Court rejected the applicant ' s request for the reopening of proceedings. The applicant appealed. On 24 November 2005 the Bielsko-Biała Regional Court dismissed the applicant ' s request as manifestly ill-founded. The court stressed that a request for reopening of proceedings was not available in enforcement proceedings.

2. Proceedings under the 2004 Act

On 12 May 2005 the applicant lodged a complaint with the Warsaw Regional Court under section 5 of 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 spra wy w postępowaniu s ą dowym bez nieuzasadnionej zwł oki “the 2004 Act”).

The applicant sought a ruling that the length of the proceedings before the Koszalin District Court had been excessive and an award of just satisfaction in the amount of 10,000 Polish z loty s (PLN) (the equivalent of approx. 2,500 euros (EUR)) .

On 8 July 2005 the Koszalin Regional Court dismissed the applicant ' s complaint. The court held that the 2004 Act had taken full legal effect on the date of its entry into force, i.e. 17 September 2004. It acknowledged that there had been some periods of inaction for which the Koszalin District Court had been responsible. However, it found that in the period after 17 September 2004 there had been no inaction or undue delay on the part of the authorities. It accordingly held that there had been no breach of the right to a trial within a reasonable time during the relevant part of the proceedings. The court also stressed the fact that the applicant had made use of his procedural rights repeatedly, which caused delays.

B. Relevant domestic law and practice

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are presented in the Court ' s decisions in the cases of CharzyÅ„ski v. Poland no. 15212/03 ( dec .), §§ 12 ‑ 23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 ( dec .), ECHR 2005 ‑ VIII.

COMPLAINTS

1. The applicant complained under Article 6 § 1 of the Convention that the enforcement proceedings were unreasonably long.

2. Referring to Article 13 of the Convention he also complained that he could not effectively appeal against the decision of 28 December 2001.

3. He also complained, relying on Article 1 of Protocol No. 1 to the Convention , about the general conduct of the enforcement proceedings and, in particular, about the fact that he had lost his property.

THE LAW

A. Length of 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 a letter dated 24 September 2009 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 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 – its acknowledgement of the violation of the applicant ' s right to have his case heard within reasonable time within the meaning of Article 6 § 1 of the Convention.

Consequently, the Government are prepared to pay to the applicant the sum of PLN 13,000 which they consider to be reasonable in the light of the Court ' s case-law and p articular circumstances of the applicant ' s case that is the fact that the applicant being the debtor in the enforcement proceedings had seriously contributed to the length of the proceedings by issuing numerous unsubstantial motions, e.g. the applicant demanded to hear unnecessarily witnesses, further he tried to exclude a judge. The applicant ' s motions were lodged with long delays, e.g. in February 2005 the applicant tried to challenge the decision of 28 December 2001. Therefore, it cannot be inferred that all the applicant ' s activities aimed at impeding the prompt course of the proceedings in order that the enforcement proceedings were not terminated in due time.

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 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 periods 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.

... ”

In a letter of 20 October 2009 the applicant did not agree with the Government ' s proposal. He requested the Court to continue the examination of the 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 or part thereof 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 (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) ) .

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.

B. Remaining complaints

The applicant further complained that he could not effectively appeal against the decision of 28 De cember 2001 . He relied on Article 13 of the Convention, which, in so far as relevant reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority (...)”

The Court observes that under Article 35 § 1 of the Convention, the Court may only deal with the matter within a period of six months from the date on which the final decision was taken. It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

Lastly, the applicant complained about the general conduct of the enforcement proceedings and, in particular, about the fact that he had lost his property. He relied on Article 1 of Protocol No. 1 to the Convention, which, in so far as relevant, reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law (...)”

The Court considers that this complaint lacks substantiation. Further, it observes that the applicant ' s property was seized on the basis of a writ of execution issued against him to cover his debts. It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to 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 length of proceedings 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 Registrar President