FOURTH SECTION

DECISION

Application no. 14883/04 by Jan NOWIŃSKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 7 October 2008 as a Chamber composed of:

Nicolas Bratza , President, Lech Garlicki , Giovanni Bonello , Ljiljana Mijović , Ján Šikuta , Mihai Poalelungi , Nebojša Vučinić , judges, and Lawrence Early, Section Registrar ,

Having regard to the above application lodged on 19 April 2004,

Having regard to the declaration submitted by the respondent Government on 3 July 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 ap plicant, Mr Jan Nowiński, is a Polish national who was born in 1961 and lives in Trzebnica. 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. Proceedings for divorce, contact and parental responsibility

T he applicant is a policeman and the father of two minor children. The application concerns the applicant ' s proceedings for divorce and access rights.

On an unspecified date in 1998 the applicant fi led for divorce with the Wrocł aw Regional Court (Sąd Okręgowy) . He moved out of the flat he shared with the family in November 2001 and remains without a permanent o r temporary place of residence.

On 21 June 2002 he applied additionally for a right of access to his five ‑ year-old son. Subsequently, the applicant made numerous complaints to the court and the Minister of Justice of unreason able delays in the proceedings.

O n 4 December 2002 a hearing with regard to the question of access rights took place .

O n 26 February 2003 the applicant ' s claim was dismissed on the grounds that he did not have a place of residence and was not likely to be able to pr ovide proper care for his child.

The applicant c hallenged that decision and asked fo r an exemption from court fees.

On 19 March 2003 the Wrocł aw Regional Court dismissed the request , finding that the applicant was not indigent.

On 7 April 2003 the Wrocł aw Court of Appeal (Sąd Apelacyjny) upheld that decision .

O n 12 June 2003 his complaint was dismissed by the Wrocł aw Regional Court because of his failure to pay the court fee.

The above decision was upheld by the Wrocł aw Court of Appeal on 1 August 2003. The applicant ' s request for an extension of the time-limit for payment of the court fee was refused by the Wrocł aw Regional Court on 12 August 2003. On 29 December 2003 the Wrocł aw Regional Court refused the applicant ' s request for a copy of the latter decisio n, as it had been lodged out of time.

On 12 August 2003 the Wrocł aw Regional C ourt granted a divorce, limited the applicant ' s parental responsibility and made an order for contact twice a week. The court held that parental responsibility should be granted to the applicant ' s former wife and that giving the applicant parental responsibility for his son would result in the separation of a brother and sister who shared strong emotional ties (the applicant was not interested in having parental responsibility for his daughter). The court also pointed to the fact that the applicant had still no permanent address.

The applicant appealed against that decision and asked for an exemption fro m the court fee for lodging the appeal.

On 30 September 2003 the Wrocł aw Regional Court refused h is request.

The applicant appealed, but on 30 October 2003 , the Court of Appeal dismissed his appeal. It appears from the documents submitted that the applicant had in fact paid the court fee .

On 18 March 2004 the Wrocł aw Court of Appeal dismissed a request by the applicant for the exclusion from the divorce proceedings of a number of judges of the second-instance court.

On 19 May 2004 the Wrocław Court of Appeal dismissed an appeal lodged by the applicant and the divorce decree of 12 August 2003 became final.

2. The applicant ' s complaint under the 2004 Act

On 5 January 2005 the applicant lodged a complaint with the Supreme Court under the 2004 Act 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 post ę powaniu s ą dowym bez nieuzasadnionej zw ł oki ) (“the 2004 Act”) . He relied on section 18 of the 2004 Act.

On 18 February 2005 the Supreme Court ordered that the complaint be returned to the applicant. The Supreme Court relied on a new provision of the Code of Civil Procedure (kodeks postepowania cywilnego) , which had entered into force on 5 February 2005, according to which in proceedings before the Supreme Court the representation of a party by an advocate or legal adviser was obligatory. The applicant ' s complaint had not been lodged by a lawyer.

On 17 March 2005 the time-limit for lodging a complaint under section 18 of the 2004 Act expired.

On 5 April 2005 the Supreme Court ' s decision of 18 February 2005 was served on the applicant.

B. Relevant domestic law and practice

1. As regards remedies for excessive length of proceedings

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are set out in the Court ' s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V; 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.

2. As regards compulsory assistance of an advocate in proceedings before the Supreme Court.

Article 87 1 of the Code of Civil Procedure provides in so far as relevant:

“In proceedings before the Supreme Court the assistance of an advocate or le gal adviser shall be compulsory... ”

Article 130 § 5 of the Code of Civil Procedure provide s :

“Unless the law provides otherwise, s tatements of a case or pleading s which fail to comply with the formal requ irement set out in Article 87 1 shall be returned to the party without notice to remedy the formal shortcoming .”

COMPLAINTS

1 . The applicant complained under Article 6 § 1 of the Convention that the proceedings had lasted an unreasonably long time .

2. He also complained, without relying on any provisions of the Convention, that the Supreme Court, by applying the principle known as “compulsory assistance of an advocate” ( przymus adwokacki ) , deprived him of an effective remedy. In this context the Court raised of its own motion a complaint under Article 13 of the Convention , as to whether the applicant had an effective domestic remedy against the excessive length of the proceedings.

3. Lastly , t he applicant complain ed under Article 8 of the Convention that the State had failed to take measures to secure his relation ship with his son.

THE LAW

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 s 6 § 1 and 13 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...”

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 19 June 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. At the same time, the Government admit that in the particular circumstances of the applicant ' s case, the applicant ' s complaint about the length of the proceedings has not been redressed at the domestic level as required by Article 13 of the Convention. Further, the Government do acknowledge that in the particular circumstances of the present case the applicant ' s right of access to a court, as guaranteed by Article 6 § 1 of the Convention, in the proceedings under the 2004 Act was unduly restricted.

Consequently, the Government are prepared to accept the applicant ' s claims for just satisfaction at 14,000 Polish zlotys (PLN) which they consider to be reasonable in the light of the Court ' s case-law.

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.

(...) as transpires from the Government ' s unilateral declaration, the government accepted paying to the applicant as just satisfaction the sum of PLN 14,000 in the event of the Court ' s striking the case out of its list

... ”

In a letter of 21 July 2008 the applicant expressed the view that the sum mentioned in the Government ' s d eclaration was unacceptably low. He requested the Court not to strike his case out of the list and to examine it on the merits.

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 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; KudÅ‚a v. Poland [GC], no. 30210/96, ECHR 2000-IX , CharzyÅ„ski v. Poland (dec.) no. 15212/03, HR 2005- ... , and Tabor v. Poland , no. 12825/02 , 27 June 2006 ).

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. 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 impugned proceedings.

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 8 of the Convention

The applicant further complained under Article 8 of the Convention that the State had failed to adopt measures to secure his relation ship with his son.

In this context it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It is therefore not the Court ' s task to substitute itself for the domestic authorities in the exercise of their responsibilities as regards parental authority, but rather to review under the Convention the decisions taken by those authorities in the exercise of their power of appreciation (see, among other authorities, Olsson v. Sweden judgment of 24 March 1988, Series A no. 130 p. 32, § 68)

The Court notes that the applicant has a daughter and a son who live with their mother. The applicant was interested in being granted a right of access to his son. The domestic courts thoroughly analysed the situation and came to the conclusion that granting the applicant parental responsibility for his son would result in the separation of a brother and sister who shared strong emotional ties. Furthermore, the courts pointed to the fact that the applicant still had no permanent address and that it would be unlikely that he could provide proper care for his son in those circumstances.

In view of the above, it appears that in the present case the applicant ' s case was given sufficient and thorough examination. The Court considers that the domestic authorities may be regarded as having struck a fair balance between the interests of the applicant and those of his son and as having given decisions in the best interest of both the applicant ' s children.

The Court is therefore of the opinion that the facts of this part of the application do not disclose a breach of Article 8 of the Convention.

It follows that this complaint must be rejected as manifestly ill-founded, 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 complaints 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 so far as it relates to the above complaints in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Lawrence Early Nicolas Bratza Registrar President