FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 46247/99 by Andrzej KUCHARCZYK against Poland

The European Court of Human Rights (Fourth Section), sitting on 7 September 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää, Mrs V. Strážnická , Mr J. Casadevall , Mr R. Maruste , Mr L. Garlicki , Ms L. Mijović, judges , and Mrs F. Elens-Passos , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 2 April 1998 ,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Andrzej Kucharczyk, wa s a Polish national who was born in 1944 . By letter of 22 May 2003, the applicant ’ s daughter, I.K., informed the Court that the applicant had died on 12 January 2003 and that she wished to pursue the application in her late father ’ s stead.

A. The circumstances of the case

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

The applicant entered into a contract with two companies “Rap” PPH and “Ebejot”. On 20 July 1992 the applicant filed an action with the Warsaw Regional Court ( S ą d Wojewódzki ) against those companies. He sought damages for a breach of contract.

From 4 June to 22 October 1993 the court held five hearings. On 22 October 1993 the court ordered an expert opinion. At the hearing held on 12 November 1993 the court delivered a partial judgment.

On 12 March 1994 an expert submitted his opinion to the court. On 5 May 1994 the applicant asked the court to secure his claim. The court dismissed that application on 11 July 1994 .

Between 15 December 1994 and 4 January 1996 the court held four hearings.

Meanwhile, the court asked the applicant to specify his claim. On 5 February 1996 the applicant submitted his pleadings to the court.

On 29 February 1996 the court held a subsequent hearing and ordered that evidence from two experts be obtained. On 1 7 June 1997 the first expert (an accountant) submitted his report to the court. At the hearing held on 17 April 1998 the court heard evidence from that expert.

On 4 May 1998 the applicant modified his claim.

On 26 August 1998 , in reply to the applicant ’ s complaints, the president of the Warsaw Regional Court informed him that the delay in the proceedings was caused by fact that the presiding judge had been on holiday.

On 24 September 1998 the second expert (an engineer) submitted his report to the court.

On 29 January 1999 the trial court held a hearing . At a hearing held on 26 March 1999 the Regional Court closed the examination of the case. On 31 March 1999 it reopened the examination of the case. A further hearing was held on 18 May 1999 .

On 28 May 1999 the Warsaw Regional Court delivered a judgment. Upon the applicant ’ s appeal, the Warsaw Court of Appeal ( S ą d Apelacyjny ) gave judgment on 7 February 2000 . The judgment is final.

B. Events that took place after the case was communicated

On 30 January 2003 the Registrar sent a letter to the applicant, informing him that the Court had decided to give notice of his application to the Polish Government. The applicant did not reply.

On 2 3 April 200 3 the Government submitted their written observations on the admissibility and merits of the application. On 2 4 April 200 3 the applicant was invited to file his pleading in reply by 23 May 200 3 .

In reply, the applicant ’ s daughter , I.K. , informed the Court that the applicant had died on 12 January 2003 and that she wished to pursue the application in his stead.

On 18 February 200 4 the applicant ’ s daughter was asked to submit her pleadings in reply to the Government ’ s observations of 2 3 April 200 3 by 1 1 March 200 4 . She failed to do so. On 2 April 2004 she was again asked to submit her observations in reply to the Government ’ s observations by 30 April 2004 . She did not reply.

On 2 Ju ly 200 4 the Registry sent, by registered mail with acknowledgement of receipt, a letter to the address indicated by the applicant ’ s daughter . She was asked to explain her failure to observe the procedure fixed in the case. She was further warned that if she failed to respond to that letter within 3 weeks, the Court might conclude that she no longer intended to pursue the application.

It emerges from the relevant acknowledgement of receipt (signed by “ Z.M.K ”- the applicant ’ s widow ) that the letter was delivered on 8 Ju ly 200 4 .

The applicant ’ s daughter has not to date resumed her correspondence with the Court.

COMPLAINT

The applicant complained under Article 6 that the length of the proceedings in his case had exceeded a “reasonable time”

THE LAW

The Court notes at the outset that the applicant died after the introduction of the application and his daughter , I.K . , informed the Court that she wished to pursue the application.

The Court recalls that it has accepted on a number of occasions that the close relatives of a deceased applicant may be entitled to take his or her place (see for instance the Scherer v. Switzerland judgment of 25 March 1994, Series A no. 287, p. 14-15, § 31). In the present case, the Court accepts that the applicant ’ s daughter is entitled to pursue the application.

However, the Court, having regard to the events that occurred after the notice of the application had been given to the Polish Government and after they had submitted their observations on the admissibility and merits of the case, considers it does not have to deal substantively with the present application and that Article 37 § 1 of the Convention should be applied. That provision, in its relevant part, reads:

“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application; ...

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.”

In this respect the Court notes that the applicant ’ s daughter did not submit within the time-limit her reply to the observations submitted by the respondent Government on 2 3 April 200 3 . She has also failed to respond to two further communications from the Registry of the Court, the last of which was a registered letter dated 2 Ju ly 200 4 .

In the circumstances, the Court concludes that the applicant ’ s daughter does not intend to pursue the application and that it is no longer justified to continue the examination of the case. Furthermore, the Court finds no reasons of a general character, as defined in Article 37 § 1 in fine , that would require it to continue the proceedings by virtue of that provision .

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention and to strike the application out of its list of cases.

Françoise Elens-Passos Nicolas Bratza Deputy Registrar President