Application no. 3233/02
by Elżbieta NOWACKA
The European Court of Human Rights (Fourth Section), sitting on 14 February 2006 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr G. Bonello,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr L. Garlicki,
Mr J. Borrego Borrego, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 7 January 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 deliberated, decides as follows:
The applicant, Ms Elżbieta Nowacka, is a Polish national who was born in 1951 and lives in Łódź. She was represented before the Court by Mr T. Strzelecki, a lawyer practising in Łódż. 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.
The applicant and her husband were granted a divorce by a judgment of the Łask District Court of 22 November 1989.
On 2 March 1990 the applicant filed with the Łask District Court an application for division of the matrimonial property. She also requested to be exempted from the court fees. On an unspecified later date the District Court partially exempted her from the relevant fees.
The court held the first hearing on 21 November 1990. Further hearings were held on 16 and 28 January 1991. A hearing scheduled for 28 March 1991 was adjourned as it was necessary that the parties adduce new evidence. On 20 June 1991 the District Court adjourned the hearing due to the applicant’s illness and ordered the preparation of an expert report.
The next hearing was held on 6 April 1992. The court asked the local tax authority to provide information about the defendant’s business activities.
On 14 September 1992 the court adjourned the hearing at the parties’ request. It ordered the preparation of another expert report. On 14 December 1992 the court ordered that the expert report should be supplemented. On 4 May 1993 a hearing was adjourned.
On 11 May 1993 the District Court gave a preliminary ruling (postanowienie wstępne) on the applicant’s request, which had been submitted three years earlier, to the effect that the real estate acquired during the marriage be considered part of the matrimonial property. The court dismissed that request. The applicant appealed against that decision. On 8 September 1993 the Sieradz Regional Court quashed the preliminary ruling.
On 3 November 1993 the District Court adjourned the hearing and ordered the applicant to specify her claims in respect of the real estate.
The court held hearings on 7 December 1993 and 11 January 1994. On the latter date it ordered that the expert report on the value of the real estate be updated.
On 12 April 1994 the court adjourned the hearing since the defendant requested that a second expert report on the value of the real estate be prepared. On 14 June 1994 the court again adjourned the hearing to enable the defendant to file his pleading in reply to the applicant’s submissions.
On 13 September 1994 the court requested that the Łódź District Court hear evidence from a witness S.K. and adjourned the hearing. That witness was heard on 27 October 1994.
A hearing scheduled for 6 December 1994 was adjourned due to the absence of the parties.
On 10 January 1995 the court adjourned the hearing due to the illness of the lawyers of the parties. Another hearing was adjourned on 7 March 1995 due to the absence of the parties. On that date the court ordered the parties to file their evidence motions within 10 days.
On 25 April 1995 the court adjourned the hearing on the joint request of the parties since the defendant’s lawyer had died. Other hearings were adjourned on 24 May and 14 June 1995. On 18 July 1995 the court adjourned the hearing since the parties failed to appear.
The court held a hearing on 12 September 1995 and heard the parties.
On 26 September 1995 the Łask District Court gave judgment on the division of the matrimonial property. The applicant’s former husband appealed against that judgment. Two hearings before the Regional Court were adjourned at the defendant’s request (on 29 May and 17 July 1996). On 7 August 1996 the Sieradz Regional Court quashed the contested judgment and remitted the case.
A hearing before the District Court scheduled for 18 December 1996 was adjourned due to the absence of the parties. On 26 February 1997 the court adjourned the hearing since the applicant and her lawyer failed to appear.
On 26 March 1997 the court held a hearing. It ordered that additional documentary evidence be submitted.
On 23 April 1997 the court adjourned the hearing since a witness failed to appear. The court imposed a fine on that witness for unjustified absence.
The court held hearings on 11 June and 22 October 1997, and on 4 February and 20 March 1998. On 22 October 1997 it imposed a fine on the defendant for contempt of court.
On 10 June 1998 the court ordered that another expert report be prepared. On 2 December 1998 it adjourned the hearing due to the absence of the applicant and her lawyer. On 12 February 1999 the court held a hearing.
On 5 May 1999 the court adjourned the hearing due to the parties’ absence. On 16 July 1999 it adjourned the hearing since the parties indicated a possibility of reaching a settlement. On 8 September 1999 the court adjourned the hearing due, inter alia, to the absence of the defendant and his lawyer. On 6 December 1999 the court ordered preparation of another expert report.
On 19 December 2000 the court held a hearing. The parties failed to reach a settlement. On 12 June 2001 the court adjourned the hearing since the defendant, his lawyer and an expert failed to appear.
On 24 July 2001 the last hearing was held.
On 7 August 2001 the District Court gave judgment on the division of the matrimonial property. No party appealed against it.
The applicant complained under Article 6 § 1 of the Convention about the excessive length of the proceedings.
On 15 December 2005 the Court received the following declaration from the Agent of the Government:
“I declare that the Government of Poland offer to pay 10,000 Polish zlotys to Ms Elzbieta Nowacka 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 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.”
On 10 January 2006 the Court received the following declaration signed by the applicant:
“I note that the Government of Poland are prepared to pay the sum of 10,000 Polish zlotys to Ms Elżbieta Nowacka 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 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 declare that the applicant accepts the proposal and waives 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.”
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). 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 and to strike the application out of its list of cases.
Michael O’Boyle Nicolas Bratza
NOWACKA v. POLAND DECISION
NOWACKA v. POLAND DECISION