FOURTH SECTION

DECISION

Application no. 72169/01 by Danuta RZESZOWSKA-SOBCZYK against Poland

The European Court of Human Rights ( Fourth Section), sitting on 2 October 2007 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr S. Pavlovschi , Mr L. Garlicki , Ms L. Mijović , Mr J. Šikuta , Mrs P. Hirvelä , judges and Mr T.L. Early , Section Registrar ,

Having regard to the above application lodged on 14 December 1999 ,

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 propos ed unilateral declaration,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Danuta Rzeszowska-Sobczyk , is a Polish national who was born in 1960 and lives in Żarów . She was represented before the Court by M s B. Słupska-Uczkiewicz , a lawyer practising in Wrocław . The respondent Government were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

A. The circumstances of the case

1. Proceedings on the merits

On 25 October 1993 the applicant lodged an action against the Social Security Board for payment of sickness and maternity benefits. She claims that despite her several requests and inquiries the court took no action in her case.

On 23 May 1995 the Wrocław Regional Court issued a decision to stay the proceedings because criminal proceedings had been instituted against the applicant and her employer.

On an unspecified later date she requested that the civil case be resumed. On 10 January 1996 the court refused, since the criminal proceedings in question had not yet been terminated. The applicant claims that her subsequent requests to proceed with her civil case remained unanswered.

On 9 March 1999 the Wrocław Regional Court discontinued the proceedings . The applicant appealed.

On 2 March 2000 the proceedings were resumed by a decision of the Wrocław Regional Court .

Apparently the proceedings were terminated on 6 June 2000 by a judgment of the Regional Court dismissing the applicant ’ s claims.

2. Proceedings under the 2004 Act

On 16 March 2005 the applicant lodged a complaint under the 2004 Act about the excessive length of the proceedings with the Regional Court . In her complaint she informed the court that she had lodged an application with the Court and submitted a copy of her application and a letter from the Registry indicating her application number.

On 14 April 2005 the Court of Appeal, competent to deal with her length complaint, asked the Ministry of Foreign Affairs whether the applicant had lodged an application with the Court.

On an unspecified later date the Court of Appeal summoned the applicant to depose when she had lodged her application with the Court. Apparently the post could not serve the summons on the applicant due to her absence.

On 10 May 2005 the Court of Appeal rejected the applicant ’ s complaint about the length of the proceedings. The court observed that the impugned proceedings had been terminated on 6 June 2000 by the judgment of the Regional Court dismissing the applicant ’ s claims. The court further noted that the applicant had not complied with its summons and had not submitted information regarding her application to the Court. The court went on to state that the number of the applicant ’ s application – 72169/01 – implied that she had lodged it in 2001 and not in 1999 as she had claimed. Therefore, it was not shown that she had complied with the provisions of section 18 of the 2004 Act, because when she introduced her complaint with the Court the proceedings on the merits had already been terminated. Thus, her complaint had to be rejected. The court did not refer to the request it had submitted to the Ministry of Foreign Affairs.

In reply to a query of 30 May 2005, on 31 May 2005 the Registry informed the Ministry of Foreign Affairs that the applicant had submitted her application to the Court on 14 December 1999 at a time when the proceedings had still been pending.

COMPLAINTS

1. The applicant complained under Article 6 of the Convention about the excessive length of the proceedings in her case.

2. The applicant also complained that the proceedings instituted under the 2004 Act were unfair and her complaint had been unjustifiably rejected by the domestic court.

THE LAW

On 31 May 2007 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by 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 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 Convention .

Consequently, the Government are prepared to accept the applicant ’ s clams for non-pecuniary damage to a maximum of PLN 10,000. 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 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 requested the Court to reject the Government ’ s initiative on the basis that the unilateral declaration was insufficient both in terms of the statement on the merits of her case and the amount of compensation proposed.

In particular, the applicant submitted that the domestic court had not protected her rights sufficiently , arbitrarily rejecting her complaint lodged under the 2004 Act and thus failing to examine the complaint on the merits. This, in her opinion, proved that the remedy provided for by the 2004 Act was ineffective. Consequently, the applicant requested the Court to continue the examination of her case in order to ensure the proper application of the 2004 Act.

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 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 proviso 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 Articles 6 and 13 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. P oland , 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 Kukówka 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 Government ’ s readiness to pay the applicant PLN 10,000 (which amount the Court finds reasonable in comparison with its awards in similar cases) , the Court considers that it is no longer justified to continue the examination 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) .

The Court further notes that this decision constitutes a final resolution of this application only insofar 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 length of the impugned proceedings.

In the light of all the above considerations, 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 the application ( Article 37 § 1 in fine ).

Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government ’ s declaration 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 accordance with Article 37 § 1 (c) of the Convention .

T. L . Early Nicolas Bratza Registrar President