FOURTH SECTION

FINAL DECISION

Application no. 75108/01 by Zdzisław PADO against Poland

The European Court of Human Rights (Fourth Section), sitting on 9 March 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr A. Pastor Ridruejo , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki, judges , and Mr M. O'Boyle , Section Registrar ,

Having regard to the above application lodged on 15 August 2000,

Having regard to the Court's partial decision of 14 January 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Zdzisław Pado, was a Polish national, who was born in 1935 and lived in Rzeszów, Poland.

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

A. Facts prior to 1 May 1993

Since 1979 the applicant had been selling flowers from a wooden stall placed in the centre of the Rzeszów old town. In 1984 the applicant was granted t he right of a perpetual use ( użytkowanie wieczyste) of the plot of land on which the stall was located. The stall had historical value as it had been brought at the beginning of the XX century from Vienna.

In 1990 the “S” co-operative, which owned the adjacent land, decided to install a heating system on its property. The applicant claimed that the construction had been illegally carried out partly on his plot of land and had damaged his stall. Furthermore, it obstructed the access to the stall which prevented the applicant from continuing his commercial activity.

On 21 September 1990 the applicant instituted before the Rzeszów District Court civil proceedings against the “S” co-operative. He asked the court to prevent further infringements of his possession rights by the defendant (“ o ochronę posiadania“ ). The applicant applied for an interim measure to immediately stop the construction.

On 4 October 1990 the Rzeszów District Court allowed his application for an interim measure and ordered the defendant to stop further works. The defendant appealed against this decision.

On 10 December 1990 the Rzeszów Regional Court dismissed the appeal. Nevertheless, the construction was continued.

On 31 March 1992 the Rzeszów District Court gave judgment. It dismissed the applicant's action. The applicant appealed against the decision.

On 9 November 1992 the Rzeszów Regional Court finally allowed the applicant's application for leave to appeal against the District Court's judgment out of time.

B. Facts after 30 April 1993

On 3 September 1993 the Rzeszów Regional Court quashed the impugned judgment and remitted the case to the first-instance court.

On 15 July 1994 the trial court held a hearing at which the applicant changed his claim. He requested 500,000,000 old zlotys in compensation for the damaged stall and damages in respect of the loss of income. The case was transferred to the Rzeszów Regional Court.

On an unspecified date the court ordered an expert opinion.

On 10 July 1997 the Rzeszów Regional Court gave judgment. It partly allowed the applicant's action and awarded him PLN 28,216 in compensation. The court established that the defendant was responsible for the destruction of the stall, however, it did not award the applicant damages in respect of the loss of income. The applicant appealed against the decision.

The appellate court requested at least one expert opinion.

On 18 June 1998 the Rzeszów Court of Appeal partly allowed the appeal, in respect of damages for the loss of income, and changed the amount of the compensation to PLN 35,515. The applicant appealed against the decision.

On 5 July 2000 the Supreme Court dismissed the cassation appeal.

THE LAW

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

On 15 April 2003 the Polish Government submitted that the applicant died on 10 September 2001. The Government further asked the Court to strike the application out of the list of cases.

The Court notes that the applicant died on 10 September 2001 and that no request has been submitted by the applicant's heirs to pursue the examination of the case. In these circumstances the Court concludes, that it is no longer justified to continue the examination of the application within the meaning of Article 37 § 1 (c) of the Convention . Furthermore, in accordance with Article 37 § 1 in fine , the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the examination of the application to be continued. Accordingly, the application to the case of Article 29 § 3 should be discontinued and the case struck out of the list.

For these reasons, the Court unanimously

Decides to strike the case out of the list.

Michael O'Boyle Nicolas Bratza Registrar President