FOURTH SECTION

DECISION

Application no. 6420/02 by Zofia MODŁKOWSKA against Poland

The European Court of Human Rights (Fourth Section), sitting on 29 January 2008 as a Chamber composed of:

Nicolas Bratza , President, Josep Casadevall , Giovanni Bonello , Kristaq Traja , Stanislav Pavlovschi , Lech Garlicki , Ljiljana Mijović , judges, and Lawrence Early, Section Registrar ,

Having regard to the above application lodged on 11 January 2002,

H aving 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 13 April 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, Ms Zofia Modłkowska , is a Polish national who was born in 1961 and lives in Rakszawa. The Polish Government (“the Government”) were r epresented 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.

In 1998 the applicant, who was at that time on maternity leave, found out that her employer, a limited liability company, had been the subject of winding-up proceedings. She could not contact the employer, her employment contract was not formally terminated and she did not receive her employment certificate.

On 28 August 1998 the applicant lodged a claim for payment of salary and compensation. She also asked the court to order that the defendant provide her with a certificate of employment.

On 2 September 1998 the case was transferred to the Warsaw District Court (S Ä… d Rejonowy) .

On 19 November 1999 the Warsaw District Court appointed a guardian to represent the interests of the defendant.

On an unspecified date the applicant complained to the President of the Regional Court about the lack of progress in the proceedings.

On 19 January 2000 the President of the Regional Court informed the applicant that the delays in the proceedings were due to the fact that the defendant had no representative organ.

The hearings scheduled for 27 September 2000 and 12 September 2001 were adjourned.

On 22 May 2002 the W arsaw District Court delivered its judgment. It ruled in the applicant ’ s favour and granted her compensation. No appeal was lodged against the judgment and it became final and enforceable.

On 5 November 200 4 the applicant filed with the Warsaw Regional Court (S ą d Okręg owy) a complaint about a breach of the right to a trial within a reasonable time and asked for compensation. She relied specifically on s ection 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 into force on 17 September 2004 .

However, on 3 March 2005 the Regional Court rejected the applicant ’ s complaint , holding that the provisions of the 2004 Act, including section 18, were applicable exclusively to pending proceedings. The court found that the applicant had lodged her length of proceedings complaint after the date on which the main proceedings had been terminated and the fact that she had lodged an application with the European Court of Human Rights did not mean that the proceedings were pending.

B. Relevant domestic law and practice

The legal provisions that apply in the case and the relevant practice are set out in paragraphs 12- 23 of the decision in the case of Charzyński v. Poland , no. 15212/03 and in paragraphs 12- 23 of the decision in the case of Michalak v. Poland , no. 24549/03, both decisions delivered by the Court on 1 March 2005 .

COMPLAINTS

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

THE LAW

A. Length of proceedings

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...”

By letter dated 13 April 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. 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 10,000.

The Government would like to recall that the said sum is 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”). 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 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 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.

Additionally, the Government admit that in the particular circumstances of the applicant ’ s case, the remedy provided under Article 18 of the 2004 Act failed to redress the applicant ’ s complaint concerning the excessive length of the civil proceedings.

...

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 20 May 2007 the applicant informed the Registry that she did not accept the Government ’ s proposal .

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 ( 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 – the Court considers that it is no longer justified to continue the examination of th is part of th e 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.

The Court would add 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 the use by the applicant of other remedies which might be available before the domestic courts to claim further compensation in respect of the length of the impugned proceedings.

B. Complaint under Article 6 § 1 of the Convention about the alleged unfairness of the proceedings

The applicant further complained , invoking Article 6 § 1 of the Convention, about the alleged unfairness of the compensation proceedings.

However, the Court notes that the applicant failed to appeal against the first-instance judgment. 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, the application of Article 29 § 3 of the Convention to the case should be discontinued .

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government ’ s declaration in respect of the length of proceedings complaint under Article 6 § 1 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 complaint in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Lawrence Early Nicolas Bratza Registrar President