FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 6909/07 by Piotr MUCHOWSKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 9 December 2008 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 17 January 2007,

Having regard to the declaration submitted by the respondent Government on 17 March 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 FACTS

The applicant, Mr Piotr Muchowski , is a Polish national who was born in 1963 and lives in Poznań . He was represented before the Court by Mr R. Magnuszewski, a lawyer practising in Pozna ń . 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 for distribution of inheritance

On 4 December 1991 a certain G.M. lodged with the Poznań District Court (S ą d Rejonowy) a request for distribution of an inheritance. The inheritance comprised, among other assets, property in the centre of Poznań .

On an unspecified date the applicant and his wife acquired from G.M. a 50% share in the property constituting part of the estate.

On 4 June 1998 the applicant and his wife requested leave from the court to join the proceedings as parties. From that date the applicant became involved in the proceedings. When the applicant and his wife joined the proceedings, the proceedings had been stayed because G.M. had died.

On 27 January 1999 the applicant ' s lawyer requested the court to resume the proceedings.

On 13 April 1999 the Poznań District Court resumed the proceedings.

Between 13 September 1999 and 27 October 2005 the court scheduled seventeen hearings, of which ten were adjourned for various reasons, for instance the absence of witnesses and experts or the need to obtain additional evidence.

The proceedings are pending before the first-instance court.

2. The applicant ' s complaint under the 2004 Act

On an unspecified date in June 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 29 August 200 6 the Poznań Regional Court (Sąd Okręgowy) dismissed his complaint on the ground that on the da te of the entry into force of the 2004 Act no undue delays in the proceedings could be discerned. The court acknowledged that the proceedings before 2004 had been unreasonably lengthy for various reasons and found some periods of inactivity on the part of the Poznań District Court (from November 2000 to October 2001 and from March 2003 to October 2003) . However, the court stressed that the 2004 Act had entered into force on 17 September 2004 and could not be applied to events occurring before that date. Having analysed the conduct of the District Court in the period following the entry into force of the 2004 Act, the Regional Court found that the proceedings had been conducted with due diligence and within a reasonable time.

On 19 September 2006 the applicant lodged an appeal against the decision of 29 August 2006.

On 26 September 2006 the Poznań Regional Court dismissed the appeal as inadmissible in law.

B. Relevant domestic law and practice

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated 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 , and the judgment in the case of Krasuski v. Poland , no. 61444/00, §§ 34-46, ECHR 2005-V.

COMPLAINTS

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

2. He also alleged a breach of Article 13 of the Convention in that he had not had an effective remedy against the exce ssive length of the proceedings, because he had no right to appeal against the decision given by the Poznań Regional Court on 26 October 2006.

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 28 February 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 a unilateral declaration – their acknowledgement of the unreasonable duration of the domestic proceedings in which the applicant was involved.

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 23,000 Polish zlotys (PLN ).

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 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 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 1 April 2008 the applicant ' s lawyer 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 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 or part thereof 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 observes 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 ( see 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; 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 this part 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. It is without prejudice to the use by the applicant of other remedies before the domestic courts to claim further compensation in respect of the length of the impug ned proceedings, which are still pending before the domestic courts.

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. Complaint under Article 13

The applicant further complained that he had no effective remedy at his disposal , because the domestic court had rejected his appeal against the unfavourable decision of the court which had dealt with his length complaint . He relied on Article 13 of the Convention which provides as follows:

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.

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. However, the “effectiveness” of a “remedy” within the meaning of that provision 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).

While the subsidiarity principle underlying the Convention system requires the Contracting States to introduce a mechanism addressing complaints about the excessive length of proceedings within the national legal system, they are afforded – subject to compliance with the requirements of the Convention – some discretion as to the manner in which they provide individuals with the relief required by Article 13 and conform to their Convention obligation under that provision. In particular, where the State has introduced a compensatory remedy, the Court must leave to it a wide margin of appreciation and allow it to organise the remedy – including the interpretation and application of the notion of “damage” in a given case – in a manner consistent with its own legal system, traditions and the standard of living in the country concerned (see Kudła , ibid. , and Scordino (no. 1) , cited above, §§ 188-189).

In particular, it is open to the State to organise a remedy in such a way as to provide the examination of a given case at one instance only. The Convention does not provide for a right to appeal to a higher judicial instance.

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 part of 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