FOURTH SECTION

DECISION

Application no. 4428/02 by Tomasz DUDRAK against Poland

The European Court of Human Rights (Fourth Section), sitting on 3 February 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 , Mrs E. Fura-Sandström , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 17 January 2002,

Having regard to the parties’ declarations on concluding a friendly settlement,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Tomasz Dudrak, is a Polish national who was born in 1975 and lives in Zielona Góra , Poland. The respondent Government were represented by their Agents Mr K. Drzewicki , and, subsequently, by Mr J. Wołąsiewicz , of the Ministry of Foreign Affairs.

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

A. Facts prior to 1 May 1993

On 27 September 1989 the applicant, at that time fourteen-years-old, joined with his sister a swimming class organised by the Zielona Góra sport club “N”. During the class the applicant got out of the pool unnoticed and jumped into the shallow water. In a consequence of the impact of water and a concrete bottom of the pool, he suffered a compression fracture of the sixth vertebra and spinal cord injury. Despite medical treatment, surgeries and rehabilitation, the applicant’s hands and legs remain paralysed.

On 27 April 1990 the applicant, represented by his father, lodged with the Zielona Góra Regional Court a civil action against the swimming instructor and the sport club “N”. In December 1990 the trial court called as a co-defendant the State Insurance Company ( Powszechny Zakład Ubezpieczeń ).

On 12 December 1990 a first hearing was held.

The trial court held in total fifteen hearings and requested one expert opinion.

B. Facts after 30 April 1993

On 4 October 1994 the Zielona Góra Regional Court gave judgment in which it dismissed the applicant’s claim.

In January 1995 the applicant lodged an appeal against the judgment.

On 16 May 1995 the Poznań Court of Appeal quashed the impugned judgment and remitted the case to the first-instance court.

The Zielona Góra Regional Court held sixteen hearings at which it heard witnesses and expert witnesses and requested new expert opinions.

On 29 April 1999 the trial court gave judgment in which it again dismissed the applicant’s action.

The applicant appealed against the judgment.

On 14 October 1999 the Poznań Court of Appeal quashed the impugned judgment and remitted the case to the first-instance court.

On 24 March 2000 the trial court held a hearing. Subsequently, eight hearings were held.

On 19 July 2001 the applicant concluded a friendly settlement with the defendants and the Zielona Góra Regional Court discontinued the proceedings. The State Insurance Company agreed to pay the applicant PLN 130,000 in compensation and a monthly pension of PLN 500. The defendant accepted its liability for any future deterioration of the applicant’s health resulting from the accident.

COMPLAINT

The applicant complained under Article 6 § 1 of the Convention about the unreasonable length of civil proceedings.

THE LAW

On 12 December 2003 the Court received a declaration signed by the applicant that read, in its relevant part:

“I note that the Government of Poland are prepared to pay me the sum of PLN 17,000 covering pecuniary and non-pecuniary damage and costs with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights. I accept the proposal and waive any further claims against Poland in respect of the facts of this application. I declare that this constitutes a final settlement of the case....”

On 5 January 2004 the Court received the following declaration signed by the respondent Government:

“I declare that, with a view to securing a friendly settlement of the above-mentioned case, the Government of Poland offer to pay PLN 17,000 to Mr Tomasz Dudrak . This sum is to cover any pecuniary and non-pecuniary damage as well as costs, and it will be payable within three months from the date of delivery of the decision by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. This payment will constitute the final resolution of the case.”

The Court takes note of the agreement reached between the parties and considers that the matter has been resolved (Article 37 § 1 (b) 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 of the Convention should be discontinued and the case struck out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Michael O’Boyle Nicolas Bratza Registrar President