FOURTH SECTION

DECISION

Application no. 7541/03 
by Marian WIMOŃĆ 
against Poland

The European Court of Human Rights (Fourth Section), sitting on 23 May 2006 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr J. Casadevall
 Mr G. Bonello
 Mr K. Traja
 Mr S. Pavlovschi
 Mr L. Garlicki, 
 Ms L. Mijović, judges
and Mr T.L. Early, Section Registrar,

Having regard to the above application lodged on 3 February 2003,

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 Marian Wimońć, is a Polish national who was born in 1932 and lives in Warszawa. The respondent Government are represented by Mr Jakub Wołąsiewicz, the Government’s Agent.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 18 October 1991 the applicant lodged a claim with the Warsaw District Court for the division of marital property. The first hearing was held on 8 October 1992. It appears that certain documents had to be reconstructed as they had disappeared in unspecified circumstances.

On 14 April 1995 the applicant applied by motion for the judge to step down, as he had not taken any action for three years and a half. On 4 May 1995 his motion was dismissed.

In 1995 and 1996 the applicant repeatedly complained to the President of the District Court and to the Ministry of Justice about the length of the proceedings and conduct of the court, but to no avail.

At a hearing held on 16 December 1996 the date of the next hearing was set for 11 September 1997. The applicant complained to the President of the court and received a reply that it was impossible to find an earlier date for the hearing.

In February 1997 the court assigned an expert to value the spouses’ apartment.

On 1 June 2000 the applicant lodged a complaint with the Ministry of Justice. On 8 June 2000 he received a letter informing that, as his allegations concerning the undue length of the proceedings were justified, the proceedings would be constantly supervised. Between that date and 23 April 2002 five hearings were held, and witnesses many times failed to comply with the summonses. On 23 April 2002 a new judge was assigned to the case, but apparently the hearing set for that date was not held as he became ill.

In December 2002 the court assigned another expert to update the assessment of the value of the spouses’ apartment. Another hearing was scheduled for 21 October 2003, when another judge took the case over.

On 30 October 2003 the court granted legal aid to the applicant. On 15 March 2003 the lawyer requested that another lawyer be appointed to replace him. A new legal aid lawyer was eventually appointed on 2 June 2004.

A subsequent hearing was held on 14 October 2004.

On 16 December 2004 the applicant lodged a complaint about the undue length of proceedings under the 2004 Act. On 10 February 2005 the Warsaw Regional Court dismissed his complaint on the ground that on the date of entry into force of the 2004 Act no undue delays in the court’s conduct could be discerned. The court stressed that the 2004 Act had entered into force on 17 September 2004 and according to the lex retro non agit rule it could not be applied to the protracted conduct of court proceedings occurring before that date, but already remedied. Having analysed the conduct of the District Court since the entry into force of the Act, the Regional Court found that the proceedings had been conducted with due diligence and within a reasonable time.

On 1 April 2005 the applicant, and on 19 April 2005 the Helsinki Foundation for Human Rights, asked the Ombudsman to lodge a cassation appeal against the decision of the Regional Court of 10 February 2005. The acting Chairman of the Foundation, argued that the 2004 Act had been misinterpreted by the court and that the entire conduct of the District Court, which was responsible for the undue delay of the proceedings, should have been taken into account, and not just the period after the date of entry into force of the Act in September. He observed that the sole fact that the impugned proceedings had lasted over 13 years on that date indicated that the delays had not so far been remedied. He also argued that the purpose of the 2004 Act was to redress the undue length of judicial proceedings seen as a whole and to discipline the court responsible.

No action has been taken by the Ombudsman so far.

B.  Relevant domestic law and practice

On 17 September 2004 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 Law”) entered into force. A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under section 2 read in conjunction with section 5(1) of the 2004 Act.

On 18 January 2005 the Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Law produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.

COMPLAINTS

1.  The applicant complained under Article 6 of the Convention about the excessive length of the proceedings in his case.

2.  The applicant further complained that the 17 June 2004 Act is not an effective remedy in case of a breach of the right to a trial within a reasonable time.

THE LAW

On 11 November 2005 the Court decided to communicate the application to the Government

On 7 March 2006 the Court received the following declaration from the Government:

“I, Jakub Wołąsiewicz, Agent of the Government before the ECHR, declare that the Government of Poland offer to pay 8.000 Polish zlotys to Mr Marian Wimońć 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 and it will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 (b) 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 24 March 2006 the Court received the following declaration signed by the applicant:

“I, Marian Wimońć, note that the Government of Poland are prepared to pay me the sum of 8.000 Polish zlotys 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 and it will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 (b) 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.”

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

Declares to discontinue the application of Article 29 § 3 of the Convention;

Decides to strike the application out of its list of cases.

T.L. Early Nicolas Bratza 
 Registrar President

WIMOŃĆ v. POLAND DECISION


WIMOŃĆ v. POLAND DECISION