FOURTH SECTION
DECISION
Application no. 41298/07
by Ewa ŁUKASIK-KOWALSKA
against Poland
The European Court of Human Rights (Fourth Section), sitting on 1 December 2009 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar
Having regard to the above application lodged on 24 March 2007,
Having regard to the declaration submitted by the respondent Government on 18 August 2008 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 applicant, Ms Ewa Łukasik-Kowalska, is a Polish national who was born in 1945 and lives in Kraków. The Polish Government (“the Government”) were represented by their Agent, Mr Jakub Wołąsiewicz of Ministry of Foreign Affairs.
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is co-owner of a tenement house in Kraków. In 2000 she instituted four sets of administrative proceedings concerning this real property.
(i) First set of administrative proceedings
On 4 October 2000 the Małopolski Regional Construction Inspector (Wojewódzki Inspektor Nadzoru Budowlanego) refused to order the demolition of an unlawful extension of the tenement house.
On 26 October 2000 the applicant lodged with the Supreme Administrative Court – Regional Centre in Kraków an interlocutory appeal against this decision.
Between 26 October 2000 and May 2004 the applicant’s interlocutory appeal lay dormant.
On 14 May 2004 the Kraków Regional Administrative Court (which meanwhile became competent do deal with the applicant’s case) adjourned a hearing until 10 November 2004 as one of the parties had not been properly summoned.
On 10 November 2004 the Kraków Regional Administrative Court dismissed the applicant’s interlocutory appeal.
(ii) Second set of administrative proceedings
On 9 October 2000 the Małopolski Regional Construction Inspector decided on the demolition of the roofing above the entrance to the tenement house.
On 26 October 2000 the applicant lodged with the Supreme Administrative Court – Regional Centre in Kraków an interlocutory appeal against this decision.
Between 26 October 2000 and May 2004 the applicant’s interlocutory appeal lay dormant.
On 14 May 2004 the Kraków Regional Administrative Court adjourned a hearing until 10 November 2004 as one of the parties had not been properly summoned.
On 10 November 2004 the Kraków Regional Administrative Court dismissed the applicant’s interlocutory appeal.
(iii) Third set of administrative proceedings
On 5 October 2000 the Małopolski Regional Construction Inspector ordered the applicant to submit an expert opinion on the technical condition of the tenement house.
On 26 October 2000 the applicant lodged with the Supreme Administrative Court – Regional Centre in Kraków an interlocutory appeal against this decision.
Between 26 October 2000 and May 2004 the applicant’s interlocutory appeal lay dormant.
On 14 May 2004 the Kraków Regional Administrative Court adjourned a hearing until 10 November 2004 as one of the parties had not been properly summoned.
On 10 November 2004 the Kraków Regional Administrative Court dismissed the applicant’s interlocutory appeal.
(iv) Fourth set of administrative proceedings
On 9 October 2000 the Małopolski Regional Construction Inspector ordered the applicant and the other co-owner to submit the detailed minutes of the inspection of a gas installation in the tenement house.
On 26 October 2000 the applicant lodged with the Supreme Administrative Court – Regional Centre in Kraków an interlocutory appeal against this decision.
Between 26 October 2000 and May 2004 the applicant’s interlocutory appeal lay dormant.
On 14 May 2004 the Kraków Regional Administrative Court adjourned a hearing until 10 November 2004 as one of the parties had not been properly summoned.
On 10 November 2004 the Kraków Regional Administrative Court dismissed the applicant’s interlocutory appeal.
(v) Proceedings concerning the applicant’s complaints about the excessive length of the proceedings.
On 16 October 2004 the applicant filed, with reference to each set of proceedings, four separate complaints under 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”). On 13 January 2005 the Supreme Administrative Court, issuing four separate decisions, confirmed that all the proceedings in question had indeed been lengthy and awarded the applicant in respect of each set of proceedings PLN 500 by way of just satisfaction. The court stated, inter alia, that the periods of inactivity between October 2000 and May 2004 only confirmed the fact that the lower court had contributed to the excessive length of the proceedings.
COMPLAINT
The applicant complained under Article 6 § 1 of the Convention about the unreasonable length of proceedings.
THE LAW
Length of proceedings
The applicant complained about the length of 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 18 August 2009 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 unilateral declaration – its acknowledgement of the unreasonable length of the administrative proceedings in which the applicant was involved. (...)
In these circumstances and having regard to the particular facts of the case, the Government declare that they offer to pay to the applicant the amount of PLN 10,000[1].
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 18 September 2009 the applicant requested the Court to reject the Government’s initiative.
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 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 the application (Article 37 § 1(c).
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).
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 in respect of the complaint 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 AracıNicolas Bratza
Deputy RegistrarPresident
[1] Approx. 2300 EUR
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