FOURTH SECTION

DECISION

Application no. 76100/01 
by Kamila TEMNICKA 
against Poland

The European Court of Human Rights (Fourth Section), sitting on 28 March 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, 
 Mr J. Šikuta, judges
and Mr M. O’Boyle, Section Registrar,

Having regard to the above application lodged on 18 July 2001,

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, Ms Kamila Temnicka, is a Polish national who lives in Poznań. The Polish Government (“the Government”) are represented by their Agent, Mr Jakub Wołąsiewicz.

A.  The circumstances of the case

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

On 10 April 1996 a motion for division of inheritance was lodged with the Wroclaw District court. The applicant was a party to the proceedings. The decision of the first instance court was issued on 16 November 1998. The reasons for the decision were served on the applicant on 9 March 1999.

On 23 March 1999 the applicant lodged an appeal against the decision of the District Court. On 30 May 2000 the Court of Appeal excluded all judges of the Wrocław Regional Court from examining the case and remitted it to Świdnica Regional Court.

On 14 July 2000 the Świdnica Regional Court rejected the appeal on the grounds that the District Court had wrongly granted the applicant retrospective leave to appeal out of time, having taken into consideration that she had paid the appeal fee to a wrong bank account.

The applicant lodged an appeal against this decision on 26 July 2000. The Supreme Court rejected the appeal on 12 December 2000; the decision was served on the applicant on 16 January 2001.

COMPLAINTS

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

2.  She further complained under Article 6 that the proceedings were prolonged until the amendment to the Code of Civil Procedure entered into force on 24 May 2000, which new provisions made a cassation appeal unavailable in her case and thus she was deprived of the access to a cassation court.

THE LAW

On 29 September 2005 the Court decided to communicate the application to the Government.

On 20 February 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 2.400 euros to Ms Kamila Temnicka 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 converted into PLN at the rate applicable on the date of payment and 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 39 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 21 February 2006 the Court received the following declaration signed by the applicant:

“I, Ms Kamila Temnicka, note that the Government of Poland are prepared to pay me the sum of 2.400 euros 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 converted into PLN at the rate applicable on the date of payment and 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 39 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

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

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

Michael O’Boyle Nicolas Bratza 
 Registrar President

TEMNICKA v. POLAND DECISION


TEMNICKA v. POLAND DECISION