FOURTH SECTION

FINAL DECISION

Application no. 11602/02 by Sp ół ka z o.o. WAZA against Poland

The European Court of Human Rights (Fourth Section), sitting on 26 June 2007 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr G. Bonello , Mr K. Traja , 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 7 March 2002 ,

Having regard to the unsuccessful friendly settlement negotiations,

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 partial decision of 4 July 2006 ,

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, “ Waza ” S p ół ka z o .o. (“the applicant company”), is a Polish limited liability company with its registered office in Warsaw . The applicant company is represented before the Court by Mr J. Janas, a lawyer practising in Wa rsaw . The respondent Government are 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) The civil proceedings

On 21 February 1992 two members of the “Waza” company ’ s management board allegedly misappropriated the company ’ s property.

On 25 January 1993 the applicant company lodged a claim with the Warsaw Regional Court for return of the property.

On 9 October 1997 the Warsaw Regional Court dismissed the applicant company ’ s claim. the applicant company appealed.

On 15 April 1998 the Warsaw Court of Appeal quashed the judgment and remitted the case for re-examination, finding that the lower court had failed to assess the facts properly and had applied the law incorrectly.

On 3 February 1999 the applicant company asked the Regional Court to accelerate the examination of the case.

On 30 May 2000 the Warsaw Regional Court found in the applicant company ’ s favour. The defendants appealed.

On 21 December 2001 the Warsaw Court of Appeal quashed the judgment and remitted the case for re-examination due to shortcomings in the assessment of the case and having regard to the court ’ s failure to give reasons for the application of the relevant legal provisions to the facts of the case. On 3 January 2002 the applicant company asked the courts to accelerate the examination of the case.

On 27 May 2004 the Warsaw Regional Court gave a judgment in the case. Both parties appealed. On 14 March 2005 the case-file was transferred to the Court of Appeal.

On 27 October 2005 the applicant company reached a friendly settlement with one of the defendant s and withdrew its claim against him. O n 28 October 2005 the proceedings were discontinued insofar as they concerned this defendant.

On 15 December 2005 the proceedings were discontinued , following the applicant company ’ s withdrawal of the claim with respect to the other defendant .

2) The proceedings concerning the complaint about the excessive length of the civil case

On 17 March 2005 the applicant company complained to the Supreme Court about the length of the proceedings under the 2004 Act (see below). The applicant company described the course of the proceedings before the Regional Court and the Court of Appeal, providing dates, rulings and also excerpts from the Court of Appeal judgments. The applicant company submitted that the proceedings had lasted over twelve years and that erroneous judgments had repeatedly been remitted for re-examination. It stressed that the facts and applicable law were very simple and that the examination of the case should not have taken more than a year and a half in two instances. It asked that just satisfaction be granted and that the courts be instructed to accelerate the proceedings. Further, the applicant company submitted that it had lodged an application with the European Court of Human Rights and had thus complied with the requirements of section 18 of the 2004 Act.

On 12 May 2005 the Supreme Court dismissed the complaint concerning the proceedings before the Court of Appeal. It also transmitted the case to the Warsaw Court of Appeal with a view to examining the alleged delays in the proceedings before the Regional Court . The court found that according to section 4 of the 2004 Act it was only empowered to examine the conduct of the lower-instance court.

Turning to the examination of the conduct of the Court of Appeal, the Supreme Court took into consideration only the period between 14 March 2005, the date on which the case-file had been transferred to the Court of Appeal, and 21 March 2005, when the applicant ’ s length complaint had reached the court. Consequently, the court concluded that the period of seven days did not allow for a finding that the proceedings before the Court of Appeal had exceeded a reasonable time and the applicant company ’ s complaint was therefore ill-founded.

On 28 July 2005 the Warsaw Court of Appeal, having examined the conduct of the Regional Court , rejected the applicant company ’ s complaint about the undue length of the proceedings on formal grounds. The court considered that the applicant company had failed to show circumstances that would justify an examination of its request, as required by section 6 of the 200 4 Act. The court found that the mere fact that the proceedings had, in the applicant ’ s opinion, lasted too long did not suffice for a finding that the proceedings had lasted longer than was necessary. The applicant company was obliged to point to specific actions or omissions of the court that had resulted in undue delays.

The court further found that, in any event, the complaint would have to be dismissed, as the provisions of the 2004 Act applied only to undue length of proceedings occurring after 17 September 2004 when the Act came into force. The applicant company had not proved that undue delays had occurred between that date and 14 March 2005 when the case had been transferred to the Court of Appeal.

COMPLAINTS

THE LAW

On 13 April 200 6 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. At the same time, the Government admit that in the particular circumstances of the applicant ’ s case, the applicant ’ s complaint about the length of the proceedings has not been redressed at the domestic level as required by Article 13 of the Convention.

The Government are prepared to pay the applicant a sum of 20,000 zlotys as just satisfaction. 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 therefore invite the Court to strike the present case out of the list of cases. They suggest that the present 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 company requested the Court to reject the Government ’ s initiative on the basis that the unilateral declaration was insufficient in terms of the level of compensation proposed, which they found in adequate having regard to the damage sustained.

In particular, the applicant company submitted that its attempt to claim compensation before the domestic courts for the unreasonable length of the proceedings had failed, since the domestic courts had partly dismissed and partly rejected its complaint lodged under the 2004 Act. Consequently, the applicant company requested the Court to continue the examination of its case and deliver a judgment.

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 8 January 2007 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. 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 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 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