FOURTH SECTION
DECISION
Application no. 34635/02
by Lesław OSMAKIEWICZ
against Poland
The European Court of Human Rights (Fourth Section), sitting on 12 April 2007 as a Chamber composed of:
SirNicolas Bratza, President,
MrJ. Casadevall,
MrS. Pavlovschi,
MrL. Garlicki,
MsL. Mijović,
MrJ. Šikuta,
MrsP. Hirvelä, judges,
and Mr T.L. Early, Section Registrar,
Having regard to the above application lodged on 10 September 2002,
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 regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Lesław Osmakiewicz, is a Polish national who was born in 1927 and lives in Sosnowiec, Poland. He was represented before the Court by Mr M. Brachmański, a lawyer practising in Wrocław. The Polish Government were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was a member of the Polish resistance troops of the underground Home Army (Armia Krajowa). In 1945 he was arrested by the NKVD and the Polish political police and imprisoned in a labour camp in Siberia. He was released in 1954. On 26 October 1992 the judgment against the applicant was annulled.
On 9 June 1993 the applicant filed an application with the Warsaw Regional Court for compensation under section 8 § 2 (a) of the Law of 23 February 1991 on annulment of convictions whereby persons were persecuted for their activities aimed at achieving independence for Poland (Ustawa o uznaniu za nieważne orzeczeń wydanych wobec osób represjonowanych za działalność na rzecz niepodległego bytu Państwa Polskiego) (“the 1991 Act”).
On 9 April 1996 the Katowice Regional Court (Sąd Wojewódzki) dismissed his application. On 11 April 1996 the applicant appealed against the decision.
On 2 December 1997 the Katowice Court of Appeal (Sąd Apelacyjny) quashed the impugned decision and remitted the case.
Subsequently, hearings were held on January, 15 December 1999 and 17 May and 18 October 2000.
On 6 November 2000 the Katowice Regional Court (Sąd Okręgowy) partly granted the application and awarded him compensation. The applicant appealed.
On 18 January 2001 the Katowice Court of Appeal again quashed the decision and remitted the case.
On 9 May 2001 the trial court held the first hearing.
On 13 March 2002 the Katowice Regional Court gave judgment and awarded the applicant compensation in a higher amount. The judgment is final.
On 10 March 2005 the applicant, represented by his lawyer, lodged with the Katowice Court of Appeal, Civil Chamber, a civil claim for compensation under Article 417 of the Civil Code in connection with section 16 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”).
However, the court had transferred the claim to the Criminal Chamber. On 23 March 2005 the Katowice Court of Appeal, Criminal Chamber, examined the claim as a complaint under the 2004 Act and rejected it. The applicant appealed against this decision arguing that the court had made a mistake by qualifying his civil claim of 10 March 2005 as a complaint under the 2004 Act. However, on 14 April 2005 the President of the Criminal Chamber of the Katowice Court of Appeal informed the applicant that no appeal against the impugned decision was provided by the law.
COMPLAINT
The applicant complained under Article 6 § 1 of the Convention about the unreasonable length of the proceedings.
THE LAW
On 23 January 2007 the Court received the following declaration signed by the applicant:
“I, Lesław Osmakiewicz, note that the Government of Poland are prepared to pay me the sum of PLN 15,000 (fifteen 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 might be applicable and 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 16 February 2007 the Court received the following declaration signed by the Agent of the respondent Government:
“I declare that the Government of Poland offer to pay PLN 15,000 (fifteen thousand Polish zlotys) to Mr Lesław Osmakiewicz 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 might be applicable and 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