FOURTH SECTION
FINAL DECISION
Application no. 4661/04
by Adam WASILEWSKI
against Poland
The European Court of Human Rights (Fourth Section), sitting on 5 December 2006 as a Chamber composed of:
SirNicolas Bratza, President,
MrJ. Casadevall,
MrG. Bonello,
MrK. Traja,
MrL. Garlicki,
MsL. Mijović,
MrJ. Šikuta, judges,
and Mrs F. Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 25 January 2004,
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 Adam Wasilewski, is a Polish national who was born in 1974 and lives in Brwinów. He is represented before the Court by his father Mr Marek Wasilewski, who is his legal guardian. The respondent Government are 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) Facts before 12 December 2000
Before the applicant’s birth his mother had a car accident during pregnancy. Shortly after his birth, the applicant was diagnosed as suffering from certain serious malformations. In 1976 the Warsaw Regional Court decided that “Warta” Insurance Company was liable for the consequences of the applicant’s mother’s accident, both those which had already come to light and those which might manifest themselves in the future. The court also awarded the applicant compensation for pecuniary and non-pecuniary damage and ordered that the defendant insurance company should pay a monthly disability pension to him.
In February 1991 the applicant, represented by his father, lodged an action with the Warsaw Regional Court claiming an increase of the pension.
On 10 March 1995 the Warsaw Regional Court in part dismissed and in part allowed the applicant’s claim against “Warta” Insurance Company.
On 13 March 1996 the Warsaw Court of Appeal set aside the judgment of 10 March 1995 and remitted the case for reconsideration to the Regional Court.
On 21 December 2000 the court delivered a judgment concerning the same proceedings, and ruled that there had been a violation of Article 6 § 1 of the Convention in that the “reasonable time” within the meaning of Article 6 of the Convention had been exceeded (Wasilewski v. Poland, no. 32734/96, §79, 21 December 2000).
2) Facts after 21 December 2000
On 30 December 2002 the Regional Court issued a judgment on the merits, increasing the pension. Both parties appealed.
On 22 October 2004 the Court of Appeal allowed the appeal of the Insurance Company and reduced the pension. The applicant lodged a cassation appeal on 25 February 2005.
On 17 August 2005 the Supreme Court refused to entertain the applicant’s cassation appeal.
Meanwhile on 6 April 2005 the applicant lodged a complaint under the 2004 Act with the Warsaw Court of Appeal about the excessive length of the proceedings before the Regional Court.
On 31 May 2005 the Court of Appeal rejected his complaint without examining its merits. The court observed that the applicant had failed to refer to circumstances that would justify an examination of his request, as required by Section 6 of the 2004 Act.
On 18 April 2005 the applicant lodged a new complaint under the 2004 Act with the Supreme Court about the excessive length of the proceedings before the Court of Appeal.
On 7 June 2005 the Supreme Court rejected his complaint without examining its merits, finding that the applicant had failed to refer to the circumstances that would justify an examination of his request.
COMPLAINTS
The applicant complained under Article 6 of the Convention about the excessive length of the proceedings in his case.
The applicant also complained that the domestic courts had rejected his complaints under the 2004 Act and ignored the Court’s judgment concerning the same proceedings, thus rendering ineffective the length remedy available under domestic law.
He further complained about the outcome of the proceedings.
THE LAW
On 9 May 2006 the Court decided to communicate the application to the Government.
On 20 October 2006 the Court received the following declaration signed by the applicant’s legal guardian:
“I, Marek Wasilewski, the representative of the applicant, note that the Government of Poland are prepared to pay me the sum of 10,000 PLN with a view of 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 of this application. I declare that this constitutes a final resolution of the case.”
On 25 October 2006 the Court received the following declaration from the Government:
“I, Jakub Wołąsiewicz, Agent of the Government, declare that the Government of Poland offer to pay 10,000 PLN to Mr Marek Wasilewski 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 (Article 39 of the Convention). It is satisfied that the settlement is based on respect for human rights as defined in the Convention or its Protocols (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of Court).
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 discontinue the application of Article 29 § 3 of the Convention;
Decides to strike the application out of its list of cases.
Françoise Elens-PassosNicolas Bratza
Deputy RegistrarPresident
Full & Egal Universal Law Academy