FOURTH SECTION

DECISION

Application no. 14894/03 by Jadwiga GWARDYAN against Poland

The European Court of Human Rights (Fourth Section), sitting on 16 September 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 22 April 2003,

Having regard to the Court ’ s decision to examine jointly the admissibility and merits of the case (Article 29 § 3 of the Convention),

Having regard to the declaration submitted by the respondent Government on 21 February 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, Ms Jadwiga Gwardyan, is a Polish national who was born in 1950 and lives in Łódź. 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. Civil proceedings for compensation

On 30 January 1995 the applicant lodged a claim against the State Treasury with the Łódź Regional Court ( Sąd Okręgowy ). She sought financial compensation for medical malpractice and a supplementary monthly allowance of 340 Polish zlotys (PLN) to compensate her for the deterioration of her health.

On 26 March 2001 the Łódź Regional Court dismissed her claim.

The applicant appealed.

On 16 October 2001 the Łódź Court of Appeal ( Sąd Apelacyjny ) dismissed the appeal.

On 15 December 2001 the applicant lodged a cassation appeal.

On 7 January 2003 the Supreme Court ( Sąd Najwyższy) refused to entertain the applicant ’ s cassation appeal. It relied on a provision of the newly amended Code of Civil Procedure allowing it to leave without examination manifestly ill-founded appeals or appeals in cases where no serious legal issue arose.

2. Claim for damages under the 2004 Act

On 12 November 2004 the applicant lodged a claim for damages. She 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 na 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 on account of the excessive length of the proceedings she had sustained pecuniary and non-pecuniary damage. She claimed 50,000 Polish zlotys (PLN) (approx. 13,200 euros) under both heads.

On 8 December 2004 the applicant modified her claim and requested an additional monthly allowance amounting to PLN 340.

On an unspecified date the defendant, replying to the applicant ’ s claim, requested the court to dismiss the claim on the grounds that section 16 of the 2004 Act read in conjunction with Article 417 of the Civil Code only allowed compensation to be awarded for pecuniary damage caused by the excessive length of proceedings whereas the applicant “had simply been dissatisfied with the outcome of the relevant proceedings”.

On 1 April 2005 the applicant specified that she had claimed PLN 50,000 for the non-pecuniary damage she had allegedly sustained on account of the deterioration of her health and the distress caused by the excessive length of the proceedings. She also maintained her claim for a monthly supplementary allowance of PLN 340 and she amended in part the legal basis of her claim, relying only on Article 417 of the Civil Code.

On 17 August 2005 the Łódź Regional Court gave judgment. The court acknowledged that the relevant proceedings had lasted a considerable length of time but found that their length had not been “excessive”. However, analysing the situation under Article 417 of the Civil Code, the court dismissed the applicant ’ s claim on the grounds that she had failed to prove that, as a conse quence of the alleged breach of the reasonable-time requirement , she had incurred any pecuniary losses. The court did not refer to non-pecuniary damage. Further, the court held that its reasoning equally applied to section 16 of the 2004 Act which “had also been taken into account as a possible legal basis for the applicant ’ s claim”.

On an unspecified date the applicant appealed against the first-instance judgment. She submitted that the court had not examined her claim from the point of view of the violation of her personal rights.

On 5 July 2006 the Łódź Court of Appeal dismissed her appeal, repeating the grounds given by the court of first instance. The Court of Appeal also pointed out that compensation for non-pecuniary damage could not have been awarded under the provisions dealing with personal rights because the applicant had failed to prove that the courts had acted unlawfully.

On 12 September 2006 the applicant ’ s lawyer submitted her written comments finding no grounds for lodging a cassation appeal in this case.

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 ; 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 about the unreasonable length of the proceedings.

2. 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 impugned proceedings.

3. The applicant further complained under Article 6 § 1 of the Convention about the outcome of the civil proceedings in which she was involved. She also alleged a breach of Article 13 because the Supreme Court had refused to entertain her cassation appeal.

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 she had no effective remedy at her disposal. She 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...”

The Court raised of its own motion a complaint about the lack of an effective domestic remedy under 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.

By letter dated 21 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 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.

Consequently, the Government are prepared to accept the applicant ’ s claims for just satisfaction to a sum 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.

(...) as transpires from the Government ’ s unilateral declaration, the government accepted paying to the applicant as just satisfaction the amount of PLN 10,000 in the event of the Court ’ s striking the case out of its list

... ”

In a letter of 4 March 2008 the applicant expressed the view that the sum mentioned in the Government ’ s declaration 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 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 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, §§; 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).

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 Court has examined the remainder of the complaints as submitted by the applicant. However, having regard to all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the applicant has failed to substantiate her complaints. It follows that this part of the application 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 length-of-proceedings 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