FOURTH SECTION

DECISION

Application no. 22515/06 by Jolanta ZAKRZEWSKA against Poland

The European Court of Human Rights (Fourth Section), sitting on 30 September 2008 as a Chamber composed of:

Nicolas Bratza , President, Lech Garlicki , Giovanni Bonello , Ljiljana Mijović , Päivi Hirvelä , Ledi Bianku , Nebojša Vučinić , judges ,

and FatoÅŸ Aracı, Deputy Section Registrar , Having regard to the above application lodged on 7 December 2005,

Having regard to the declaration submitted by the respondent Government on 20 June 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 , Mrs Jolanta Zakrzewska, is a Polish national who was born in 1963 and lives in Warszawa. 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. Main proceedings

On 29 October 2001 the applicant lodged a civil claim with the Warsaw Regional Court ( Sąd Okręgowy ) for replacement of a defective car, bought under a leasing contract.

On 26 November 2001, the applica nt paid a court fee. On 14 January 2002 she extended her claim, was served with the defendant ' s pleading and asked the court to schedule the hearing.

On 15 April 2002 the applicant again extended her claim. On the same day she asked the court to secure it ( zabezpieczenie roszczenia ). On 14 June 2002 the Warsaw Regional Court refused her request . The applicant lodged an appeal . The case file was transmitted to the Warsaw Court o f Appeal ( SÄ…d Apelacyjny ) on 11 October 2002 , which dismissed the applicant ' s appeal on 8 November 2002. On 17 January 2003 the case file was sent back to the Warsaw Regional Court .

On 25 September 2003 the c ourt held the first hearing. The applicant again extended her claim and lodged a motion for disqualif ication of a judge. I t was dismissed on 5 January 2004. On 12 January 2004 the applicant appealed. O n 19 March 2004 the Warsaw Court of Appeal dismissed her appeal.

O n 24 November 2003 the applicant lodged with the Minister of Justice ( Minister Sprawiedliwości ) a complaint alleging that the length of the proceedings had been unreasonable . It was sent to the President of the Warsaw Regional Court ( Prezes Sądu Okręgowego ) on 5 December 2003. On 13 January 200 4 the President of the Warsaw Regional Court , after examination of the applicant ' s complaint, stated that the proceedings had not been lengthy.

On 19 May 2004 the Warsaw Regional Court ordered the applicant to pay a court fee in respect of the part of her claim extended at the hearing held on 25 September 2003. On 14 June 2004 the applicant asked the court to exempt her from that fee. O n 21 June 2004 t he Warsaw Regional Court refused that request . T he applicant appealed. The appeal was dismissed by the Warsaw Court of Appeal on 9 Decembe r 2004. On 29 December 2004 the Warsaw Regional Court ordered the applicant to pay the court fee in respect of the extended part of her claim . As she failed to do so, on 19 January 2005 the Warsaw Regional Court returned that part of the claim.

In the meantime, o n 10 January 2005 the applicant asked the court to accelerate the proceedings and schedule a hearing.

On 29 March 2006 the court held a hearing .

On 12 April 2006 the Warsaw Regional Court partly allowed the applicant ' s claim. The parties appealed.

On 14 December 2006 the Warsaw Court of Appeal amended the first instance judgment and dismissed the applicant ' s claim.

2. The applicant ' s complaint under the 2004 Act

On 18 March 2005 the applicant, lodged with the Warsaw Court of Appeal a complaint under section 5 of the Law on 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”) , which entered into force on 17 September 2004. The applicant sought a ruling declaring that the length of the proceedings had been excessive and an award of just satisfaction , in the amount of 10,000 Polish zlotys (PLN) (approx. 2,500 euros (EUR) ). She also asked the Warsaw Court of Appeal to instruct the first-instance court to schedule a hearing in her case.

On 20 May 2005 the Warsaw Court of Appeal dismissed the applicant ' s complaint concerning the proceedings before the Warsaw Regional Court . On the other hand, the part of the complaint which related to the alleged inactivity of the Warsaw Court of Appeal in examination of the applicant ' s interlocutory appeals was transferred to the Supreme Court for examination. In its statement of reasons concerning the proceedings before the Warsaw Regional Court , the court observed that the provisions of the 2004 Act could be applied only to proceedings pending after 17 September 2004, namely the date of entry into force of the 2004 Act. In the opinion of the court, the first-instance proceedings were not unreasonably long. The court found that on the date of entry into force of the 2004 Act the proceedings had been pending before the second-instance court (examination of the applicant ' s interlocutory appeal against the decision of 21 June 2004 of the Warsaw Regional Court concerning the exemption from the court fee). The court admitted that between 5 February 2005 and 19 April 2005 no action had been taken in the applicant ' s case. However, this could not be attributable to the Warsaw Regional Court . The court further noted that dates of hearings depended on availability of judges and their workload. It stressed that no society could afford to maintain a judicial system which guaranteed immediate and prompt examination of a ny case, irrespective of its complexity.

On 30 June 2005 the Supreme Court returned the part of the applicant ' s length complaint transferred by virtue of the decision of 20 May 2005, as “it was not lodged and signed by a legal advis e r or an advocate”.

On 1 July 2005 the applicant ' s representative asked the Warsaw Court of Appeal to advise him what remedies were available against the decision given by that court on 20 May 2005. On 6 July 2005 the Warsaw Court of Appeal informed the applicant that no appeal was available against the above decision.

On 12 July 2005 the applicant, relying on the Supreme Court ' s resolution given on 28 June 2005 (no. III SZPP 1/05), according to which an appeal was available against a complaint lodged under the 2004 Act, lodged an appeal against the decision of 20 May 2005.

On 10 August 2005 the Warsaw Court of Appeal rejected the appeal as lodged outside the statutory time-limit. The applicant appealed.

On 3 October 2005 the Supreme Court gave a decision in which it dismissed the applicant ' s appeal against the decision of 20 May 2005 as inadmissible in law. It did not examine the appeal ag ainst the decision of 10 August 2005. The Supreme Court ' s decision was sent to the applicant on 23 November 2005.

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.

COMPLAINTS

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

2. She also alleged a breach of Article 13 of the Convention in that she 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 she had no effective remedy at her disposal. She 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 20 June 2008 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. 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 and the applicant can claim to be a victim of violation of her right to have her case examined in the “reasonable time” in the meaning of Article 6 § 1 of the Convention.

In these circumstances, and having regard to the particular facts of the case, the Government declare that they offer to pay the ap plicant the amount of PLN 10,000 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.

(...)”

In a letter of 14 July 2008 the applicant expressed the view that the sum mentioned in the Government ' s d eclaration was unacceptably low .

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 circumstances, 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 and about the lack of an effective remedy capable of providing redress f or 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.

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.

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 appli cation out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Fatoş Aracı Nicolas Bratza Deputy Registrar President