Roman WILCZYNSKI (no. 2) v Poland - 38751/05 [2008] ECHR 1864 (9 December 2008)

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The European Court of Human Rights (Fourth Section), sitting on 9 December 2008 as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,

Having regard to the declaration submitted by the respondent Government on 3 September 2008 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,

The applicant, Mr Roman Wilczyński, is a Polish national who was born in 1961 and lives in Warszawa. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

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

On 22 February 2002 the applicant lodged with the Gorzów Wielkopolski Regional Court (Sąd Okręgowy) a claim for protection of property and payment.

The first hearing took place on 20 June 2002. The case was linked to a similar case, instituted by the applicant’s brother on an unknown date.

Two subsequent hearings were scheduled for 12 August 2002 and 30 September 2002.

On 19 July 2002 the applicant notified the Gorzów Wielkopolski Regional Court that he had been arrested and detained in the Warszawa Remand Centre. The letter was lodged with the court on 9 August 2002.

At the hearing on 30 September 2002 the Gorzów Wielkopolski Regional Court stayed the proceedings until preliminary issues had been decided in administrative and criminal proceedings which were pending simultaneously before the domestic authorities. The decision was not served on the applicant.

On 10 November 2002 the applicant’s brother withdrew his claim and on 30 December 2002 the Gorzów Wielkopolski Regional Court resumed and discontinued the proceedings with respect to the applicant’s brother’s claim.

On 26 May 2004 the applicant, who was still detained, asked the court to send the case file to the detention centre for inspection. It was sent to the Warszawa Remand Centre on 8 June 2004, but due to a mistake it was delivered to the applicant’s brother. Following the applicant’s new motion, the case file was disclosed to the applicant on 31 July 2004.

On 5 May 2005 the Gorzów Wielkopolski Regional Court ordered its decision of 30 September 2002 staying the proceedings to be served on the applicant. The applicant received it on 21 May 2005 and the day after he asked the court to be served with the statement of reasons for that decision. It was served on the applicant on 16 June 2005. The applicant appealed and asked the court to resume the proceedings. The proceedings were resumed on an unspecified date.

On 6 June 2007 the Szczecin Court of Appeal (Sąd Apelacyjny) upheld the first-instance judgment. The applicant filed a cassation appeal against it.

It appears that the proceedings are pending before the Supreme Court (Sąd Najwyższy).

On 5 June 2005 the applicant lodged with the Szczecin Court of Appeal a complaint under section 5 of the Law on 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”) which entered into force on 17 September 2004. He sought a ruling declaring that the length of the proceedings before the Gorzów Wielkopolski Regional Court had been excessive and an award of just satisfaction in the amount of 10,000 Polish zlotys (PLN) (approx. 2,500 euros (EUR)). He also asked the Szczecin Court of Appeal to order the first-instance court to serve on him the decision of 30 September 2002.

On 14 September 2005 the Szczecin Court of Appeal gave a decision in which it acknowledged the excessive length of the proceedings before the Gorzów Wielkopolski Regional Court, finding that there had been a period of 32 months of unjustified inactivity between 30 September 2002 and 5 May 2005. It awarded the applicant 1,000 PLN (approx. 250 EUR) in just satisfaction and explained that a higher amount would be excessive as the applicant had not proved the amount of his pecuniary loss. It also ordered the lower court to serve on the applicant the decision of 30 September 2002 with the statement of reasons.

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005 VIII.

A. Length of proceedings and the lack of an effective remedy in this respect

The applicant complained about the length of the proceedings and that he had no effective remedy at his disposal. These complaints fall to be examined under Articles 6 § 1 and 13 of the Convention, which, in so far as relevant, provide as follows:

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

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

By letter dated 3 September 2008 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

“(...) the Government hereby wish to express – by way of the 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 and the applicant can claim to be a victim of violation of his right to have his case examined in the “reasonable time” in the meaning of Article 6 § 1 of the Convention.

In these circumstances, and having regard to the particular facts of the case, the Government declare that they offer to pay the applicant the amount of PLN 9,000 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 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 15 October 2008 the applicant expressed the view that the sum mentioned in the Government’s declaration was unacceptably low and that he wished the examination of the case to be continued.

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application or part thereof 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 or part thereof 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 and about the lack of an effective remedy capable of providing redress for a breach of this right (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; Wende and Kukówka v. Poland, no. 56026/00, 10 May 2007; Kudła v. Poland [GC], no. 30210/96, ECHR 2000-IX; and Charzyński v. Poland (dec.) no. 15212/03, HR 2005- ...).

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 this part of the application (Article 37 § 1(c)).

The Court further notes that this decision constitutes a final resolution of this part of the 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, including any delay which may occur after the date of this decision.

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 this part of the application (Article 37 § 1 in fine).

The applicant further complained that the length of the proceedings had infringed his right to the peaceful enjoyment of his possessions, as guaranteed by Article 1 of Protocol No. 1.

However, the Court considers that the material in its possession does not disclose any appearance of a violation of the applicant’s property rights.

Accordingly, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

Takes note of the terms of the respondent Government’s declaration in respect of the complaints under Articles 6 § 1 and 13 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 so far as it relates to the above complaints in accordance with Article 37 § 1 (c) of the Convention;

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You are here: BAILII >> Databases >> European Court of Human Rights >> Roman WILCZYNSKI (no. 2) v Poland - 38751/05 [2008] ECHR 1864 (9 December 2008) URL: http://www.bailii.org/eu/cases/ECHR/2008/1864.html Cite as: [2008] ECHR 1864