FOURTH SECTION

DECISION

Application no. 30486/09 by Ewa Teresa MICHALSKA - BUNDGARD against Poland

The European Court of Human Righ ts (Fourth Section), sitting on 14 December 2010 as a Committee composed of:

Ljiljana Mijović , President, Ledi Bianku , Nebojša Vučinić , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 25 May 2009,

Having regard to the declaration submitted by the respondent Government on 8 October 2010 requesting the Court to strike the application out of the list of cases and the applicant ’ s reply to that declaration,

Having deliberated, decides as follows:

THE FACTS

The app licant, Ms Ewa Teresa Michalska- Bundgard , is a Polish national who was born in 1954 and lives in Esbjerg . She was represented before the Court by Mr S. Samol , a lawyer practising in Pozna ń . The Polish Government (“the Government”) were 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. Civil proceedings for dissolution of co-ownership (case no. I Ns 381/06)

On an unspecified date in 1975 a certain J.D. instituted civil proceedings for dissolution of co-ownership before the Konin District Court ( SÄ… d Rejonowy ) .

On 9 September 1975 the case was referred to the SÅ‚upca District Court.

In 1978 the applicant joined the proceedings.

On an unspecified date the SÅ‚upca District Court stayed the proceedings.

In 2001 the applicant enquired the SÅ‚upca District Court about the case.

On 20 March 2001 the applicant was informed that the proceedings for dissolution of co-ownership had been discontinued as none of the parties requested the court to resume the proceedings.

On 21 January 2002 the applicant informed the SÅ‚upca District Court that she had not been served with the decision of the court to stay the proceedings.

On 29 January 2002 the applicant was informed that according to the court ’ s registry books, the proceedings for dissolution of co-ownership were stayed and subsequently discontinued. No further information was available as the case-file was destroyed.

On 5 May 2002 the SÅ‚upca District Court instituted proceedings for reconstruction of the case-file in the proceedings for dissolution of co ‑ ownership.

On 28 April 2003 the SÅ‚upca District Court decided to resume the proceedings for dissolution of co-ownership.

On 22 October 2003 the case was referred to the Konin District Court.

On 4 December 2003 the SÅ‚upca District Court quashed its previous decision as to the referral of the case to the Konin District Court.

On 22 January and 15 March 2004 the court held hearings.

On 27 April 2004 the court ordered an expert report from G.H.-S.

On 4 June 2004 the court appointed another expert, a certain W.W.

On 24 June 2004 the court appointed yet another expert - M.C. – to prepare a report.

On 23 June 2005 the case was referred to the Konin District Court.

On 28 December 2005 the Konin District Court decided on the reconstruction of the case-file in the proceedings for dissolution of co ‑ ownership. It further referred the case to the SÅ‚upca District Court.

On an unspecified date the case was referred back to the Konin District Court.

On 10 May 2006 the court held a hearing.

On 9 November 2006 the court ordered an expert report.

On 15 October 2007 the court ordered another expert report to be submitted within one month.

On 27 March 2008 the expert submitted a report.

On 13 June 2008 the court ordered another expert report.

The proceedings are pending before the Konin District Court.

2 . Proceedings under the 2004 Act (case no. I 1 S 10/08)

On an unspecified date the applicant lodged with the Konin Regional Court ( Są d Okregowy ) a complaint under section 5 of the L aw of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time ( Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) (“the 2004 Act”) .

On 4 February 2009 the Konin Regional Court acknowledged the excessive length of the proceedings before the Konin Regional Court . In particular, it referred to the periods between 26 July 2005 and 22 March 2006 and between 17 November 2007 and 27 March 2008 and qualified them as unjustified delays. In its analysis the court examined only the course of the proceedings after 23 June 2005 stating that the applicant ’ s complaint could only refer to the proceedings before the Konin District Court.

The court awarded the applicant 2,000 Polish zlotys (PLN) (approx. 500 euros (EUR)) in just satisfaction.

B. Relevant domestic law and practice

The relevant domestic law and practice concerning remedies for the excessive length of judicial and enforcement proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court ’ s decisions in the cases of CharzyÅ„ski v. Poland , no. 15212/03 ( dec .), §§ 12-23, ECHR 2005-V, and Ratajczyk v. Poland no. 11215/02 ( dec .), ECHR 2005 ‑ VIII, and in its j udgment in the case of Krasuski v. Poland , no. 61444/00, §§ 34-46, ECHR 2005-V.

COMPLAINT

The applicant complained under Article 6 of the Convention about the excessive length of the proceedings .

THE LAW

The applicant complained about the length of the proceedings . She relied on Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

By letter dated 8 October 2010 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They 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 the unilateral declaration – its acknowledgement of the excessive length of the applicant ’ s proceedings within the meaning of Article 6 § 1 of the Convention.

In these circumstances and having particular regard to violation of Article 6 § 1 of the Convention, the Government declare that they offer to pay the applicant the amount of PLN 17,200 , which they consider to be reasonable in the light of the Court ’ s case-law. The sum referred to above, which is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses, will be free from 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 for the Protection of Human Rights. In the event of failure to pay this sum within the three-month period, the Government undertake to pay simple interest on it, from the 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 respectfully 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. ... ”

In a letter of 29 October 2010 the applicant expressed the view that the sum mentioned in the Government ’ s declaration was unacceptably low .

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”.

It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1 (c) 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); WAZA Spółka z o.o . v. Poland ( dec .) no. 11602/02, 26 June 2007; and Sulwińska v. Poland ( dec .) no. 28953/03).

The Court has established in a number of cases, including those brought against Poland, its practice concerning complaints about the violation of one ’ s right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006 ‑ ... .; Majewski v. Poland , no. 52690/99, 11 October 2005; and Wende and Kukówka v. Poland , no. 56026/00, 10 May 2007).

Having regard to the nature of the admissions contained in the Government ’ s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).

The Court further notes that this decision constitutes a final resolution of this application only in so far 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 , which are still pending before the Konin District Court.

Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, 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, 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 under Article 6 § 1 of the Convention 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.

Fatoş Aracı Ljiljana Mijović Deputy Registrar President