FOURTH SECTION

DECISION

Application no. 37850/03 by M. M. against Poland

The European Court of Human Rights (Fourth Section), sitting on 4 January 2008 as a Chamber composed of:

Nicolas Bratza , President, Josep Casadevall , Giovanni Bonello , Kristaq Traja , Lech Garlicki , Ján Šikuta , Päivi Hirvelä , judges,

and L awrence Early , Section Registrar , Having regard to the above application lodged on 10 November 2003,

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 26 July 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 is a Polish national who was born in 1974 and lives in Lewes. 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.

1. Proceedings for recognition of the applicant ’ s new identity

On 5 March 2002 the applicant lodged a civil claim with the Warsaw Regional Court ( SÄ…d OkrÄ™ gowy ) for recognition of her new gender identity, since she was a male-to-female transsexual. On 10 December 2002 the court ordered that an expert opinion be obtained. On 27 May 2003 the expert submitted his opinion to the court.

On 13 May 2003 the applicant complained to the President of the Regional Court about the delay in the proceedings. On 27 June 2003 the President of the Regional Court acknowledged the delay and informed her that this was partly related to difficulties in obtaining the expert opinion.

On 28 June 2003 the court decided that a second expert opinion needed to be obtained. On 19 July 2003 the expert submitted his opinion to the court.

In the meantime, on 7 July 2003, the applicant complained to the Ombudsman ( Rzecznik Praw Obywatelskich ) about the delays in the proceedings. In a letter of 5 September 2003 the Ombudsman acknowledged the delays and informed the applicant that the proceedings should be conducted without further delays.

On 24 November 2003 the court held a hearing and delivered its judgment. It ruled in the applicant ’ s favour and acknowledged her new female identity. None of the parties appealed against the judgment.

2 . The applicant ’ s complaint under the 2004 Act

On 16 December 2004 the applicant filed with the Warsaw Court of Appeal ( Sąd Apelacyjny ) a complaint of a breach of the right to a trial within a reasonable time and asked for just satisfaction . She specifically relied on s ection 18 of the Act 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 6 January 2005 the Court of Appeal rejected the applicant ’ s complaint , holding that the provisions of the 2004 Act were applicable exclusively to pending proceedings. It observed that the proceedings had been terminated by a final judgment of the Warsaw Regional Court .

3. The facts relating to the impact of the proceedings on the applicant ’ s private life

The applicant submitted that in the view of the delay which had occurred, the Polish authorities had failed to show respect for her private life. She had been registered at birth as a male, she had undergone partial gender reassignment surgery and she lived in society as a female. Nonetheless, for a period of almost two years the applicant had remained, in the eyes of the law, a male. She had not been able to continue her medical treatment (a court decision was necessary) or change her personal data in the civil status register and on her official identity documents.

In October 2002 the applicant had commenced her nursing studies at the Medical Academy . She had faced a considerable amount of daily embarrassment and difficulties as she had not been able to change her male name (also written on her badge) to her new female name. As a result she had to interrupt her studies and take a year ’ s leave, since she had not been able to follow practical nursing courses.

The applicant further submitted that in a number of situations requiring disclosure of an identity card, the divergence between her name and her appearance had exposed her to a hostile reaction from society and had been the cause of numerous humiliating experiences.

After the termination of the proceedings for change of identity, the applicant on 17 December 2003 lodged a request to change her male name to a female one. On 23 December 2003 the Warsaw Municipal Office ( UrzÄ…d Miasta Warszawy ) granted her request.

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. The applicant complain ed under Article 6 of the Convention of the excessive length of proceedings . The Court ex officio raised a related complaint under Article 13 of the Convention.

2. The applicant further complained that, in the view of the delays which have occurred, the Polish authorities had failed to show respect for her private life. She did not rely on any specific provision of the Convention.

THE LAW

The applicant complained about the length of the proceedings and (raised by the Court ex officio ) that she had no effective remedy at her disposal. She also complained that, given what was at stake for her in the proceedings, the authorities due to their delay in handling her claim, failed to ensure respect for her private life. She relied on Article s 6 § 1 , 8 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 8

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

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.

On 26 July 2007 the Government informed the Court that they proposed to resolve the case in the form of a unilateral declaration . They agreed with the facts of the case as submitted by the applicant and made the following declaration:

“ The Government hereby wish to express - by way of unilateral declaration – their acknowledgment of the unreasonable duration of the domestic proceedings in which the applicant was involved, and that in the particular circumstances of the applicant ’ s case, the remedy provided under the 2004 Act failed to redress the applicant ’ s length of proceedings complaint, with the result that the applicant was denied an effective remedy as required by Article 13 of the Convention, as well as a violation of the applicant ’ s right to respect for her private life, contrary to Article 8 of the Convention. 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. Th e 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 perio d 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.”

In a letter of 19 July 2007 the applicant expressed the view that the sum mentioned in the Government ’ s declaration was unacceptably low . She argued that the sum proposed by the Government was not adequate and could not be considered sufficient just satisfaction for the pecuniary and non-pecuniary damage sustained by her .

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 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, §§ 157-160 ; and CharzyÅ„ski v. Poland (dec.) no. 15212/03 ).

As regards the issue under Article 8, a breach of which has been acknowledged by the Government, the Court notes that the applicant ’ s claim was granted in its entirety and that her name was changed by the Warsaw Municipal Office according to her request.

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 this part of the application (Article 37 § 1 in fine ).

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 impugned proceedings.

Accordingly, it s hould be struck out of the list and the application of Article 29 § 3 of the Convention should be discontinued.

For these reasons, the Court unanimously :

Takes note of the terms of the respondent Government ’ s declaration in respect of the complaint s under Article s 6 § 1 , 13 and 8 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.

L awrence Early Nicolas Bratza Registrar President