FOURTH SECTION

DECISION

Application no. 18779/02 by Andrzej HRYNIEWICKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 22 April 2008 as a Chamber composed of:

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

Having regard to the above application lodged on 23 April 2002,

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 21 November 2007 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 Andrzej Hryniewicki, is a Polish national who was born in 1962 and lives in Bielsk Podlaski. 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 payment

On 2 October 1987 H.H., the applicant ’ s father, sued M.O. and W.O. before the Warsaw District Court ( Sąd Rejonowy ). He sought payment.

On 9 June 1988 the court appointed a guardian to act on behalf of the defendants.

The first hearing took place on 5 March 1990 .

Hearings scheduled for 30 July 1991 and 5 June 1992 were adjourned.

On 5 June 1992 the court found that it was not competent to deal with the case and referred it to the Warsaw Regional Court ( Sąd Okręgowy ) .

On 5 January 1993 the District Cou rt returned the statement of claim to the plaintiff because he ha d not paid court fees.

O n 14 October 1993 t he Warsaw Regional Court quashed the decision of 5 January 1993. It found that the plaintiff was exempt from payment of court fees.

On 2 December 1993 the District Court quashed its decision of 5 June 1992.

A hearing listed for 4 February 1994 was adjourned because the plaintiff had died on 28 August 1993.

The applicant replaced H.H. as the plaintiff in the proceedings, following the latter ’ s death.

Hearings scheduled for 2 March and 14 May 1994 were adjourned.

On 10 June and 5 August 1994, 23 March and 25 April 1995 the court held hearings.

On 30 June 1995 the court , sitting in camera , ordered that expert evidence be obtained.

A hearing scheduled for 30 May 1996 was adjourned because the expert had failed to prepare his report . On 8 July 1997 the court adjourned the hearing as the defendant s had failed to appear before the court.

At the hearing on 17 October 1997 the court found that it had no competence to deal with the case, as the applicant had modified his claim, and referred the case to the Warsaw Regional Court .

The Regional Court referred the case back to th e District Court on 10 February 1999.

A hearing scheduled for 7 February 2000 was adjourned because the parties had failed to appear.

On 10 April 2000 the court ordered that fresh expert evidence be obtained.

On 20 March 2002 it ordered the expert to prepare a supplementary report .

On 15 July 2002 the Warsaw District Court partly granted the claim.

The Warsaw Regional Court upheld the first-instance judgment on 29 April 2003.

2 . The applicant ’ s complaint under the 2004 Act

On 19 November 2004 the applicant filed with the Warsaw Regional Court a complaint about a breach of the right to a trial within a reasonable time . H e specifically relied on section 18 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 i nto force on 17 September 2004.

However, on 28 December 2004 the Warszawa Regional Court rejected the applicant ’ s complaint. It held that the provisions of the 2004 Act were applicable exclusively to pending proceedings and that a complaint had to be lodged in the course of the proceedings. The court established that the relevant proceedings had been terminated by a final judgment on 29 April 2003.

3 . Proceedings for the division of an inheritance and dissolution of a co-ownership

On 5 February 1990 H.H. lodged a claim with the Warsaw District Court for the division of an inheritance and dissolution of a co-ownership. On 9 September 1993 the court stayed the proceedings because H.H. had died. On 1 October 1993 the Bielsk Podlaski District Court ruled that the applicant was the sole heir to H.H. ’ s estate. Consequently, he replaced H.H. in the proceedings.

On 21 June 2002 the Warsaw District Court gave a decision . On 23 January 2003 the Warsaw Regional Court quashed the decision and remitted the case. On 15 December 2003 the Warsaw District Court gave a decision. On 4 August 2005 the Warsaw Regional Court quashed the decision and remitted the case. The proceedings are pending before the Warsaw District Court.

On 19 November 2004 the applicant filed with the Warsaw Regional Court a complaint about a breach of the right to a trial within a reasonable time . H e relied on section 5 of the 2004 Act.

On 21 January 2005 the Warszawa Regional Court acknowledged the excessive length of the proceedings. It did not grant the applicant any just satisfaction, as he had not submitted his claim for just satisfaction as prescribed by section 12(4) of the Act.

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

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

THE LAW

A. Length of proceedings for payment

The applicant complained about the length of the proceedings for payment . 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 letter dated 21 November 2007 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue ra ised 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.

In these circumstances, and having regard to the particular facts of the case, the Government declare that they offer to pay to the applicant the amount of PLN 15,000.

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 from 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 would like to recall that the maximum compensation for protracted length of the proceedings which may be awarded under the provisions of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (“the 2004 Act”) is PLN 10,000. As it has been confirmed in the Court ’ s case-law the remedy provided for in the 2004 Act is capable of providing applicants with appropriate redress for the alleged damage resulting from the length of the proceedings ( Krasuski v. Poland , judgment of 14 June 2005, application no. 61444/00), thus satisfying the “effective remedy”-requirement within the meaning of Article 35 § 1 of the Convention.

The Government would 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.

...

Consequently, the Government are of the opinion that the circumstances of the above application may lead to the conclusion set out in sub-paragraph (c) of article 37 § 1 of the Convention, thus it is no longer justified to continue the examination of the application in the light of the Government ’ s unilateral declaration.

... ”

In a letter of 18 December 2007 the applicant did not raise any objections and expressed the view that he was ready to settle the case .

The Court recalls 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 (b ) enables the Court in particular to strike a case out of its list if:

“ the matter has been resolved ”.

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 (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; and Wende and Kukówka v. Poland , no. 56026/00, 10 May 2007).

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 and appears acceptable to the applicant (see above) – the Court considers that the matter raised by this part of the application has been resolved (Article 37 § 1( b ) ) .

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. Length of p roceedings for the division of an inheritance and dissolution of a co-ownership

The applicant further complained , invoking Article 6 § 1 of the Convention, about the unreasonable length of civil proceedings for the division of an inheritance and dissolution of a co-ownership.

The Court notes that the applicant lodged a complaint about a breach of the right to a trial within a reasonable time under the 2004 Act. However, he failed to submit his claim for just satisfaction under section 12(4) of the 2004 Act. Consequently, the domestic court acknowledged the excessive length of the proceedings, but it did not grant any just satisfaction on account of the applicant ’ s failure to comply with the Act ’ s procedural requirements. It follows that this part 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 in respect of the complaint under Article 6 § 1 of the Convention concerning the length of the payment proceedings 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 complaint in a ccordance with Article 37 § 1 (b ) of the Convention;

Declares the remainder of the application inadmissible.

Lawrence Early Nicolas Bratza Registrar President