FOURTH SECTION

DECISION

Application no. 1083/07 by Roch PIELOK against Poland

The European Court of Human Rights (Fourth Section ), sitting on 30 June 2009 as a Chamber composed of:

Nicolas Bratza , President, Lech Garlicki , Ljiljana Mijović , David Thór Björgvinsson , Ján Šikuta , Päivi Hirvelä , Mihai Poalelungi , judges, and Lawrence Early, Section Registrar ,

Having regard to the above application lodged on 12 December 2006,

Having regard to the declaration submitted by the respondent Government on 11 March 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 ap plicant, Mr Roch Pielok, is a Polish national who was born in 1953 and lives in Heubach. He was rep resented before the Court by Ms K. Burska, a lawyer practising in Kobierzyce. 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 th e parties, may be summarised as follows.

1. Main proceedings

On 5 November 1993 the applicant lodged a motion for the grant of an easement (right of way) with the Kluczbork District Court ( SÄ…d Rejonowy ).

On 22 February 1995 the District Court gave a decision.

On 26 July 1995 the Opole Regional Court ( Sąd Okręgowy ) remitted the case.

The impartiality of the District Court judges was challenged. The challenge was dismissed as unfounded by the Regional Court on 16 November 1995.

On 17 September and 15 October 1996 the Kluczbork District Court held hearings.

On 9 January 1997 the court ordered expert evidence to be obtained. On 4 March 1997 the expert submitted his report to the court.

Between 23 September 1997 and 23 October 1998 the court held nine hearings, six of which were adjourned.

On 18 November 1998 the District Court stayed the proceedings on the applicant ’ s request. They were resumed on 8 June 2001.

The applicant challenged the impartiality of the District Court judges. The challenge was dismissed as unfounded by the Regional Court on 29 June 2001.

On 25 February 2002 the applicant complained to the President of the District Court about the delay in the proceedings. The President of the District Court informed him that the next hearing had been scheduled for 19 March 2002.

Between 7 May 2002 and 28 May 2004 the court held 8 hearings and three expert reports were requested.

On 28 May 2004 the Kluczbork District Court gave a decision .

On 28 October 2004 the Opole Regional C ourt amended it .

On 22 April 2005 the Supreme Court ( Sąd Najwyższy ) , sitting in camera , refused to entertain the cassation appeal a s it did not raise any issue of general importance.

2. Claim for damages under the 2004 Act

On 1 August 2005 the applicant lodged a claim for damages. He relied on section 16 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 n a naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) (“the 2004 Act”) , which entered into force on 17 September 2004, read in conjunction with Article 417 of the Civil Code.

The applicant sought a ruling declaring that his right to a trial within a reasonable time guaranteed by the Article 6 § 1 of the Convention had been breached and an award of just satis faction in the amount of 10,000 Poli sh zlotys (PLN) (approx. EUR 2,9 00).

On 13 March 2006 the Kluczbork District Court gave judgment and dismissed the claim. The court held that there were no delays for which the District Court could be held responsible. Moreover, it stated that the applicant ’ s claim for just satisfaction lacked any legal basis. The applicant lodged an appeal.

On 19 June 2006 the Opole Regional Court amended the judgment of first instance. The Regional Court acknowledged the excessive length of the proceedings before the District Court, finding that there had been a period of unjustified inactivity between 30 November 1995 and 17 June 1996 and that the trial court should have dealt with the case more speedily. It awarded the applicant 2,500 Polish zlotys (PLN) (approx. 625 euros (EUR)) in just satisfaction.

Referring to the amount of just satisfaction, the court declared that having analysed the circumstances of the case and partly accepting the applicant ’ s complaint, the amount of money awarded to him was adequate.

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 the judgment in the case of Krasuski v. Poland , no. 61444/00, §§ 34-46, ECHR 2005-V.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention about the unreasonable length of the proceedings.

He also alleged a breach of Article 13 of the Convention in that he had not had an effective remedy against the excessive length of the proceedings.

THE LAW

The applicant complained about the length of the proceedings and that he had no effective remedy at his disposal. He relied on Article s 6 § 1 and 13 of the Convention which, in so far as relevant, provide 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...”

Article 13

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.

By letter dated 11 March 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 a unilateral declaration – their acknowledgement of the unreasonable duration of the domestic proceedings in which the applicant was involved and that in particular circumstances of the applicant ’ s case, the remedy provided under the 2004 Act failed to redress in full the applicant ’ s complaint concerning the length of proceedings, with the result that the applicant was denied an effective remedy as required by Article 13 of the Convention. At the same time the Government note that the Opole Regional Court in a judgment of 17 June 2006 found a period of unjustified inactivity between 1995 and 1996 on the part of the court examining the case as to its merits and awarded the applicant a sum of 2,500 PLN on the basis of the 2004 Act.

In these circumstances, and having regard to the particular facts of the case, the Government declare that they offer to pay the applicant the amount of PLN 15,000. 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 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 27 March 2009 the applicant expressed the view that the sum mentioned in the Government ’ s declaration was acceptable only as regards just satisfaction. He claimed an additional PLN 13,593.98 for the costs and expenses incurred before the Court.

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 circ umstances, it may strike out an application 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 a nd 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; KudÅ‚a v. Poland [GC], no. 30210/96, ECHR 2000-IX; and CharzyÅ„ski 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 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 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 s 6 § 1 and 13 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 Registrar President