FOURTH SECTION

DECISION

Application no. 6480/04 by Małgorzata KWAŚNIK against Poland

The European Court of Human Rights (Fourth Section), sitting on 20 May 2008 as a Chamber composed of:

Nicolas Bratza , President, Lech Garlicki , Giovanni Bonello , Ljiljana Mijović , Ján Šikuta , Päivi Hirvelä , Ledi Bianku , judges, and Lawrence Early, Section Registrar ,

Having regard to the above application lodged on 4 February 2004,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the declaration submitted by the respondent Government on 7 January 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 Małgorzata Kwaśnik , is a Polish national who was born in 1953 and lives in Mielec . 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. Insolvency proceedings

On 31 May 1999 the Rzeszów District Court ( Są d Rejonowy ) declared the applicant ’ s former employer , a joint-stock company , PZL Mielec SA , insolvent.

On 30 August 1999 the applicant submitted to the District Court a copy of a decision given by the Mielec District Court on 8 June 1999, whereby the court had stayed the proceedings for compensation instituted earlier by the applicant against her former employer.

On 1 March 2000 the applicant requested the judge-receiver ( sędzia-komisarz ) to grant her compensation of 200,000 Polish zlotys (PLN) in connection with criminal proceedings which the Board of Directors of the PZL Mielec SA had instituted against her. The criminal proceedings were later discontinued by the second-instance court.

On 5 December 2002 the applicant sent another letter to the judge-receiver; the letter apparently contained a request to place the applicant ’ s claim on the list of creditors ( lista wierzytelności ).

The letters of 30 August 1999 and of 5 December 2002 did not fulfil the statutory requirements laid down in the Regulation of the President of Poland of 24 October 1934 “The Insolvency Law” in respect of requests to place claims on the list of creditors. However, the judge-receiver failed to order the applicant to rectify the procedural shortcomings in these letters and they were left without reply.

As regards the claim referred to in the applicant ’ s letter of 1 March 2000, the trustee ( syndyk masy upadłościowej ) did not accept it and it was not placed on the list of creditors which, on 19 May 2000, was approved by the judge-receiver. On 30 May 2000 the list was published in the daily newspaper Rzeczpospolita . The applicant did not appeal against the decision approving the list of creditors.

The insolvency proceedings are still pending before the District Court.

2. Proceedings concerning complaints about the excessive length of the insolvency proceedings

On 8 June 2005 the applicant lodged a complaint with the Rzeszów Regional Court ( Sąd Okręgowy ) under section 5 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”) .

She sought a ruling declaring that the length of the proceedings before the Rzeszów District Court had been excessive and that she was entitled to just satisfaction “ in the appropriate amount ”.

On 7 July 200 5 the Rzeszów Regional Court gave a decision in which it acknowledged the excessive length of “ the judge-receiver ’ s actions taken during the insolvency proceedings ” , finding that failure to reply to the applicant ’ s letters of 30 August 1999 and 5 December 2002 on the part of the judge-receiver amounted to a breach of the applicant ’ s right to a trial within a reasonable time and awarded the applicant PLN 500 (approx. 121 euros (EUR)) in just satisfaction. Referring to the amount of just satisfaction, the court relied on the fact that the applicant had not lodged her request to place her claims on the list of creditors properly. The court held that it could not hold the judge-receiver responsible for the results of the applicant ’ s failure to act in accordance with the procedural requirements . Further, the court dismissed the part of the applicant ’ s claim whereby she sought a ruling that the insolvency proceedings concerning her particular claim lodged on 1 March 2000 had been excessive, finding that she had failed to lodge her request in accordance with procedural requirements and that she had not appealed against the list of creditors of 19 May 2000 approved by the judge-receiver.

3. P roceedings for compensation

On 27 October 1997 the applicant lodged a claim for compensation with the Mielec District Court. On 2 June 1999 the Mielec District Court gave judgment. The applicant lodged a notice of appeal but, on 8 June 1999, the proceedings were stayed. It appears that they have not yet been resumed.

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 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 . In respect of the insolvency proceedings, t he applicant complains under Article 6 § 1 of the Convention about the ir excessive length.

2. Regarding the applicant ’ s allegation that the just satisfaction granted to her by the domestic court was too low, the Court considered it appropriate to raise of its own motion the issue of Poland ’ s compliance with the requirements of Article 13 of the Convention, on account of indications that the applicant had no effective domestic remedy in respect of the unreasonable length of the civil proceedings.

3 . As regards th e proceedings for compensation, t he applicant complains under Article 6 § 1 of the Convention that they were both excessively long and unfair.

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 . 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...”

In the circumstances of the present case, the Court considered it appropriate to raise of its own motion the issue of Poland ’ s compliance with the requirements of Article 13 of the Convention, on account of indications that the applicant had no effective domestic remedy in respect of the unreasonable length of the civil proceedings.

Article 13 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 a letter dated 21 December 2007 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 unilateral declaration — its 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 in a sum of PLN 18,500, 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 of 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 said three-month period, the Government undertake to pay simple interest on it from 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 respectfully 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 19 January 2008 the applicant expressed the view that the sum mentioned in the Government ’ s declaration was unacceptably low and submitted her just-satisfaction claims.

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 of 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 notes 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 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, EC 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 part of the application only in so far as the proceedings before the Court are concerned. It is without prejudice to use by the applicant of other remedies before the domestic courts to claim further compensation in respect of the length of the impugned proceedings , including any delay in the proceedings which may occur after the date of this decision .

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. Complaints under Article 6 § 1 of the Convention relating to proceedings for compensation.

The applicant further complained that the second set of proceedings in which she was involved had been unfair and unreasonably lengthy.

However, the applicant ’ s complaints are inadmissible for failure to exhaust domestic remedies; as regards the length complaint, the applicant failed to make use of remedies provided by the “ 2004 Act ”. As regards the complaint about the alleged unfairness of the proceedings, the complaint is premature; the relevant proceedings are pending . It follows that the remainder of the application is inadmissible for non-exhaustion of domestic remedies and must be rejected pursuant to Article 35 § § 1 and 4 of the Convention.

C. Article 29 § 3 of the Convention

In view of the above conclusions, it is appropriate to discontinue the application of Article 29 § 3 of the Convention.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government ’ s declaration , concerning the insolvency proceedings, in respect of the complaints under Articles 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