FOURTH SECTION
DECISION
Application no. 36240/03
by Władysław KOS
against Poland
The European Court of Human Rights (Fourth Section), sitting on 26 June 2007 as a Chamber composed of:
SirNicolas Bratza, President,
MrG. Bonello,
MrK. Traja,
MrL. Garlicki,
MsL. Mijović,
MrJ. Šikuta,
MrsP. Hirvelä, judges,
and Mr T.L. Early, Section Registrar,
Having regard to the above application lodged on 25 September 2003,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Władysław Kos, is a Polish national who was born in 1924 and lives in Zabrze. He was represented before the Court by Mrs K. Szpunar, a lawyer practising in Katowice. 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 applicant, may be summarised as follows.
On 22 January 1988 the applicant lodged a claim for payment with the Zabrze District Court.
According to the applicant’s submissions, the District Court scheduled 33 hearings and the intervals between them varied from 8 months to 2 years. The proceedings were stayed twice – in 1996 and in 2001.
On 19 March 2003 the applicant wrote a letter to the President of the Zabrze District Court informing him that he intended to lodge an application with the European Court of Human Right to complain about the excessive length of the proceedings. He also requested the President to resume the proceedings and informed him that his earlier request to the same effect had been left unanswered by the court.
On 2 July 2003 the Zabrze District Court gave judgment ordering the defendant to pay the applicant a certain amount of money.
On 11 August 2003 the applicant lodged an appeal against the first-instance judgment.
On 1 April 2004 the Gliwice Regional Court dismissed the appeal.
On 26 November 2004 the applicant filed with the Warsaw Regional Court a complaint about a breach of the right to a trial within a reasonable time and asked for compensation. He relied specifically on section 18 of the Law 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”), which entered into force on 17 September 2004.
However, on 1 February 2005 the Regional Court rejected the applicant’s complaint, holding that the provisions of the 2004 Act, including section 18, were applicable exclusively to pending proceedings. The court found that the applicant had lodged his length complaint after the date on which the main proceedings had been terminated and that the fact that he had lodged an application with the European Court of Human Rights did not mean that the proceedings were pending.
B. Relevant domestic law and practice
The legal provisions that apply in the case and the relevant practice are set out in paragraphs 12-23 of the decision in the case of Charzyński v. Poland, no. 15212/03 and in paragraphs 12-23 of the decision in the case of Michalak v. Poland, no. 24549/03, both decisions delivered by the Court on 1 March 2005.
COMPLAINT
The applicant complained under Article 6 § 1 of the Convention about the excessive length of the proceedings.
THE LAW
On 21 March 2007 the Court received the following declaration signed by the applicant:
“I note that the Government of Poland are prepared to pay me the sum of PLN 21,000 (twenty one thousand Polish zlotys) with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of 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 on Human Rights. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
I accept the proposal and waive any further claims against Poland in respect of the facts giving rise to this application. I declare that this constitutes a final resolution of the case.”
On 18 May 2007 the Court received the following declaration from the Agent of the Government:
“I declare that the Government of Poland offer to pay PLN 21,000 (twenty one thousand Polish zlotys) to Mr Władyslaw Kos with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses will be free of 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 on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from 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 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, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
T.L. EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy