FOURTH SECTION
DECISION
Application no. 37021/05
by Włodzimierz PEREK
against Poland
The European Court of Human Rights (Fourth Section), sitting on 9 September 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 above application lodged on 30 September 2005,
Having regard to the Court’s decision to examine jointly the admissibility and merits of the case (Article 29 § 3 of the Convention),
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Włodzimierz Perek, is a Polish national who was born in 1932 and lives in Gdynia. He was represented before the Court by Mr W. Leszczyński, a lawyer practising in Gdynia. 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. Main proceedings
On 14 March 1994 the applicant lodged a civil claim with the Gdańsk Regional Court (Sąd Okręgowy) for payment for construction works.
The first hearing in the case was scheduled for 17 October 1994, after formal requirements of his statement of claim had been satisfied.
Between 17 October 1994 and 6 May 2004 (the date on which the proceedings were stayed), the court held 24 hearings. However, no hearings were scheduled between 3 July 1995 and 10 June 1996, between 1 October 1998 and 22 September 2000, as well as between 25 September 2001 and 6 November 2002.
On 3 July 1995 the first-instance court appointed an expert. The report was submitted on an unspecified date in December 1995. On 10 June 1996 the Gdańsk Regional Court ordered a complementary report, which was presented to that court in September 1996. The expert was heard twice by the first-instance court.
On 20 November 1998 the Gdańsk Regional Court appointed a further expert. On 17 April 1999 the court obtained the report concerning construction issues. An expert-accountant was appointed on 9 November 1999. The report was submitted to the Gdańsk Regional Court on 4 April 2000. On 12 May 2000 the applicant lodged objections to the report. The expert’s written reply was lodged with the court on 8 June 2001.
On 30 August 2001 the Gdańsk Regional Court appointed another expert. The report was made on 22 April 2002. On 26 July 2002 the applicant asked the court to supplement the report. The supplementary report was served on the applicant on 29 April 2003.
On 18 September 2003 the Gdańsk Regional Court closed the trial and adjourned delivery of judgment to 2 October 2003. The delivery date of judgment was further postponed three times: to 9 October 2003, to 21 October 2003 and to 4 November 2003.
In the meantime, on 29 October 2003, the Gdańsk Regional Court, acting ex officio, stayed the proceedings due to the fact that the defendant had gone into bankruptcy. The applicant appealed.
On 10 February 2004 the Gdańsk Regional Court quashed the impugned decision but did not deliver judgment.
On 6 May 2004 the Gdańsk Regional Court re-opened the trial and stayed the proceedings.
On 27 January 2005 the Gdańsk Court of Appeal (Sąd Apelacyjny) dismissed the applicant’s appeal against the decision staying the proceedings.
2. The applicant’s complaint under the 2004 Act
On 22 February 2005 the applicant lodged with the Gdańsk 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. The applicant sought a ruling declaring that the length of the proceedings before the Gdańsk Regional Court had been excessive and an award of just satisfaction in the amount of 10,000 Polish zlotys (PLN) (approx. EUR 2,500).
On 8 April 2005 the Gdańsk Court of Appeal dismissed his complaint. It observed that provisions of the 2004 Act could be applied only to the proceedings pending after 17 September 2004, i.e. the date of the entry into force of the 2004 Act. As the main proceedings had been stayed on 6 May 2004, the case could not be regarded as pending within the meaning of the 2004 Act.
B. Relevant domestic law and practice
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.
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention about the excessive length of the proceedings.
Without invoking any provision of the Convention, he also complained about the ineffectiveness of the remedy under the 2004 Act.
Moreover, the applicant complained under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention about the discontinuance of the proceedings by the first-instance court and alleged that the length of the proceedings had infringed his right to the peaceful enjoyment of his possessions.
THE LAW
By letter dated 7 November 2007 the applicant’s representative was requested to submit any observations on the Government’s friendly‑settlement proposal together with any claims for just satisfaction by 14 December 2007.
By letter dated 6 March 2008 the Registry sent the Government’s unilateral declaration to the applicant’s representative, who was invited to submit any comments in reply by 27 March 2008.
By letter dated 10 April 2008, sent by registered post, the applicant’s representative was notified that the period allowed for submission of the applicant’s observations as well as of his comments on the Government’s unilateral declaration had expired on 14 December 2007 and 27 March 2008, respectively, and that no extension of time had been requested. The applicant’s representative’s attention was drawn to Article 37 § 1 (a) of the Convention, which provides that the Court may strike a case out of its list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue the application. The applicant’s representative received this letter on 17 April 2008. However, no response has been received.
By letter dated 6 June 2008, the applicant was requested to inform the Court by 20 June 2008 whether he wished to pursue his application. This letter, sent by registered mail with an acknowledgment of receipt, was returned unclaimed. The same letter was sent to the applicant’s representative, who received it on 18 June 2008. However, no response has been received.
The Court considers that, in these circumstances, the applicant may be regarded as no longer wishing to pursue his application, within the meaning of Article 37 § 1 (a) 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 continued examination of the case. In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy