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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> Bernard TOMULA v Poland - 38595/05 [2008] ECHR 1299 (21 October 2008) URL: http://www.bailii.org/eu/cases/ECHR/2008/1299.html Cite as: [2008] ECHR 1299

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FOURTH SECTION

DECISION

Application no. 38595/05
by Bernard TOMUŁA
against Poland

The European Court of Human Rights (Fourth Section), sitting on 21 October 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 28 September 2005,

Having regard to the decision to examine the admissibility and merits of the case together (Article 29 § 3 of the Convention),

Having regard to the declaration submitted by the respondent Government on 30 July 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, Mr Bernard Tomuła, is a Polish national who was born in 1945 and lives in Gierałtowice. 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 31 January 1994 the applicant filed with the Katowice Regional Court a civil action against his former business partner, claiming payment for rent of business premises and maintenance costs. On 15 March 1994 the defendant lodged a counterclaim with the same court.

A first hearing was held, after an exchange of pleadings, on 6 October 1994. Further hearings were held on 17 November 1994, 19 January and 18 May 1995. On 14 June 1995 the parties requested that the proceedings be stayed pending the outcome of a criminal case related to the facts of the civil case pending at that time.

On 21 March 1997 the proceedings were resumed, following the applicant's request.

The next hearing was held on 3 June 1997. Hearings to be held on 16 September and 18 November 1997 were adjourned. In 1998 hearings were held on 13 January, 17 March and 26 May. A hearing to be held on 8 September 1998 was adjourned. Further hearings were held on 17 November 1998 and 30 March 1999. On the latter date the court appointed an expert.

The expert submitted her opinion on 13 July 1999.

In November 1999 a further expert was appointed, who submitted his opinion on 14 December 1999. As the parties subsequently requested that the opinion be supplemented, on 21 March 2000 the expert submitted further observations. The applicant challenged this opinion and the expert submitted further supplementary comments. On 24 November 2000 the expert was questioned by the court. Later on, another expert was appointed, at the applicant's request, by a decision of 12 January 2001. In March 2001 the case file was forwarded to a third expert who submitted his report on 13 June 2001.

Further hearings were held on 30 October and 21 December 2001. In his pleadings of 20 February 2002 the applicant disagreed with the expert's conclusions and requested that the expert be ordered to submit further comments. The expert submitted his comments on 9 August 2002.

At a hearing held on 29 October 2002 the court closed the hearing and announced that a judgment would be delivered on 12 November 2002. Subsequently, the court re-opened the hearings and forwarded the case file to a fourth expert, who submitted his report in March 2003.

Further hearings were held on 1 July and 23 September 2003. On 27 November 2003 the court forwarded the case file to another expert. He submitted his opinion to the court on 14 January 2004.

Hearings were held on 23 March, 27 April and 9 June 2004. Hearings scheduled for 14 July and 14 October 2004 were adjourned. At a hearing held on 11 January 2005 the court closed the hearings and announced that a judgment would be delivered on 21 January 2005.

Both parties appealed.

On 25 May 2005 the applicant lodged with the Katowice Court of Appeal a complaint about the excessive length of the judicial proceedings.

By a decision of 14 July 2005 the court dismissed his complaint, finding that the length complaint related to the period prior to the entry into force of the 2004 Act, whereas the purpose of that Act was to counteract and remedy delays existing at the moment of its entry into force and afterwards. It further found that after the entry into force of the Act the proceedings had been conducted speedily.

On 24 January 2006 the Katowice Court of Appeal partly upheld and party amended the contested judgment.

B.  Relevant domestic law

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the Act 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”), 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 and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34 46, ECHR 2005 V.

In particular, section 16 of the Act refers to proceedings that have been terminated in the following terms:

“A party which has not lodged a complaint about the unreasonable length of the proceedings under Article 5 (1) may claim – under Article 417 of the Civil Code ... – compensation for the damage which resulted from the unreasonable length of the proceedings after the proceedings concerning the merits of the case have ended.”

COMPLAINT

The applicant complained under Article 6 § 1 of the Convention that the proceedings in his case had lasted an unreasonably long time.

THE LAW

A.  Length of proceedings

The applicant complained about the length of the proceedings. He 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 30 July 2008 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of 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 duration of the domestic 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 15,000 PLN.

The sum referred to above, 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 above sum can be considered as reasonable in the light of the Court's case-law.

(...) The Government agree with the statement of facts concerning the conduct of the civil proceedings in the applicant's case as prepared by the Registry of the Court and enclosed to the letter informing the Government that the above application is pending before the Court.

(...) The Government's unilateral declaration contains an unconditional acknowledgment that the length of the domestic proceedings in the applicant's case has gone beyond what can still be considered “reasonable”.

The Government would suggest that the above declaration might 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 28 August 2008 the applicant expressed the view that the sum mentioned in the Government's declaration was unacceptably low.

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application or part of 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 or part thereof 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 this part of the application (Article 37 § 1(c)).

The Court further notes that this decision constitutes a final resolution of this application only in so far as the proceedings before the Court are concerned. It is without prejudice to the use by the applicant of other remedies before the domestic courts to claim further compensation in respect of the length of the impugned proceedings.

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.

Lawrence Early Nicolas Bratza
Registrar President