FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 19560/02 by Karol POPIEL against Poland

The European Court of Human Rights (Fourth Section), sitting on 9 October 2007 as a Chamber composed of:

Mr J. Casadevall , President , Mr G. Bonello , Mr K. Traja , Mr L. Garlicki , Ms L. Mijović , Mr J. Šikuta , Mrs P. Hirvelä, judges , and Mrs F. Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 20 August 2001 ,

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 unsuccessful friendly settlement negotiations,

Having regard to the Government ’ s request to strike the case out of its list of cases and the text of a unilateral declaration made with a view to resolving the issues raised by the application,

Having regard to the applicant ’ s comments on the Government ’ s proposal for a unilateral declaration,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Karol Popiel, is a Polish national who was born in 1961 and lives in Gorzów Wielkopolski , Poland . The respondent Government were represented by Mr J. Wo łąsiewicz of the Ministr y of Foreign Affairs .

The circumstances of the case

The facts of the case, as submitted by the parties , may be summarised as follows.

1. Proceedings for damages

In 1994 the applicant was diagnosed with Hepatits C which he believed he could have contracted in 1990 during his stay in a hospital.

On 8 December 1995 he lodged with the Gorzów Wielkopolski Regional Court ( Sąd Okręgowy ) a claim for damages against the hospital in question and the State Treasury.

At the hearing held on 31 January 1996 the court ordered that an expert opinion be obtained from the Szczecin Medical University .

On 2 December 1996 the applicant sent a letter asking the experts to expedite the preparation of their report. On 9 September 1997 the experts submitted their opinion to the trial court.

On 6 February 1998 the court ordered that a second expert opinion be obtained. It was submitted to the court on 26 January 1999 .

On 25 February 1999 the court asked the expert to prepare a supplementary report.

At the hearing held on 28 September 1999 the court heard evidence from the expert.

Between 31 January 1996 and 2 August 2000 the court held 11 hearings.

On 16 August 2000 the Gorzów Wielkopolski Regional Court gave judgment.

The applicant appealed.

On 13 March 2001 the Poznań Court of Appeal ( Sąd Apelacyjny ) upheld the first-instance judgment.

2. Proceedings for a disability pension

On 6 July 2001 the Gorzów Social Security Board ( Zakład Ubezpieczeń Społecznych ) gave a decision discontining the payment of the applicant ’ s disability pension.

Upon the applicant ’ s appeal, on 20 December 2002 the Gorzów Wielkopolski Regional Court gave judgment and upheld the first-instance decision.

The applicant appealed to the Poznań Court of Appeal.

The first hearing was set for 28 July 2004 .

On an unknown date the applicant filed a complaint under the Law on 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.

On 29 November 2004 the Supreme Court rejected his complaint for non-compliance wit h procedural requirements. The c ourt referred to its resolution of 1 6 November 2004 (no. III SPP 42/04) in which it held that A rticle 393 2 of the Code of Civil Procedure, as in force at the material time, applie d also to complaints lodged under the 2004 Act . Therefore, a person alleging a breach of the reasonable time requirement in the proceedings before the Supreme Court wa s required to file such a complaint through a lawyer.

As the applicant ’ s motion had not been signed by a lawyer, the Supreme Court rejected it on formal grounds.

On 12 May 2005 the Poznań Court of Appeal dismissed the applicant ’ s appeal against the first-instance judgment.

COMPLAINTS

1. The applicant complained under Article 6 § 1 of the Convention that the length of both sets of proceedings in his case exceeded a “reasonable time” within the meaning of this provision.

2. He further alleged under Articles 6 § 1 and 14 of the Convention that those proceedings had been unfair.

THE LAW

A. Complaint under Article 6 § 1 of the Convention as regards the length of the proceedings for damages

On 4 June 200 7 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by th is part of the application. It 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 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 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 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.

...”

The applicant did not expressly reject the Government ’ s initiative to make a unilateral declaration; however, he asked the Court to continue the examination of his case.

The Court observes at the outset that the parties were unable to agree on the terms of a friendly settlement of the case. It recalls that, according to Article 38 § 2 of the Convention, friendly-settlement negotiations are confidential and that Rule 62 § 2 of the Rules of Court further stipulates that no written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in contentious proceedings. However, the declaration was made by the Government on 18 January 2007 and was subsequently amended outside the framework of the friendly-settlement negotiations.

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”.

Article 37 § 1 in fine includes the provis i o n that:

“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

The Court also recalls that under certain circumstances, it may strike out an application under Article 37 § 1 (c) of the Convention 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 ); Meriakri v. Moldova ( ( striking out), no. 53487/99 , 1 March 2005 ); Swe dish Transport Workers Union v. Sweden ( (striking out), no. 53507/99, 18 July 2006 ) and Van Houten v. the Netherlands ( ( striki ng out), no. 25149/03 , ECHR 2005 ‑ IX ).

As to the circumstances of the instant case, t he Court notes that it has specified in a number of cases the nature and extent of the obligations which arise for the respondent State under Article 6 of the Convention as regards the guarantees of the right to a trial with in a reasonable time (see, among many others, Kusmierek v. Poland, no. 10675/02, judgment of 21 September 2004; Zynger v. Poland, no. 66096/01, judgment of 13 July 2004) and the requirement of an effective remedy capable of providing appropriate redress for the damage resulting from the breach of this right (see KudÅ‚a v. Poland [GC], no. 30210/96, ECHR 2000 ‑ XI ; Krasuski v. Poland , no. 61444/00, ECHR 2005 ‑ ... (extracts) ; CharzyÅ„ski v. Poland (dec.), no. 15212/03, ECHR 2005 ‑ ...; Majewski v. Poland , no. 52690/99, 11 October 2005 ; Cocchiarella v. Italy [GC], no. 64886/01, ECHR 2006 ‑ ...; Wende and Kukowka v. Poland , no. 56026/00 , 10 May 2007 ). Where the Court has found a breach of these Articles it has awarded just satisfaction, the amount of which depended on the particular features of the case.

Having regard to the nature of the admissions contained in the Government ’ s unilateral declaration, as well as the amount of compensation proposed (which can be considered reasonable in comparison with the Court ’ s awards in similar cases), the Court considers that it is no longer justified to continue the examination of th is part of the application (Article 37 § 1 (c)) (see, for the relevant principles, Tahsin Acar as cited above ; and also Haran v. Turkey , no. 25754/94, judgment of 26 March 2002) and that it should be struck out of the list .

The Court is moreover satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of th is part of the application ( Article 37 § 1 in fine ).

B. Complaint under Article 6 § 1 of the Convention as regards the length of the proceedings for a disability pension

The applicant complained under Article 6 § 1 of the Convention that the length of the proceedings had been incompatible with the “reasonable time” requirement.

However, the Court observes that the applicant failed to exhaust domestic remedies, as his complaint made under section 5 of the 2004 Act was rejected by the Supreme Court on procedural grounds.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

C. Complaints under A rticle 6 § 1 and A rticle 14 of the C onvention about the outcome of both sets of proceedings

The applicant also complained under Article 6 § 1 and Article 14 of the Convention that both sets of civil proceedings had been unfair. In particular, he alleged that the domestic courts had incorrectly assessed the evidence.

However, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I, with further references).

In the present case the applicant did not allege any particular failure on the part of the relevant courts to respect his right to a fair hearing. Indeed, his complaints are limited to a challenge to the outcome of the proceedings.

Assessing the circumstances of the case as a whole, the Court finds no indication that the impugned proceedings were conducted unfairly.

The Court is further of the view that the complaint under Article 14 of the Convention is entirely unsubstantiated.

It follows that th ese complaint s are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

D. Article 29 § 3 of the Convention

In view of the above conclusions, Article 29 § 3 of the Co nvention should no longer apply to the case.

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 proceedings for damages and of the modalities for ensuring compliance with the undertakings referred to therein ; and

Decides to strike th is part of the application out of its list of cases in accordance with Artic le 37 § 1 (c) of the Convention;

Declares inadmissible the remainder of the application.

F. Aracı J. Casadevall Deputy Registrar President