Last Updated on November 4, 2019 by LawEuro
FIRST SECTION
DECISION
Application no. 28078/10
Ewa Danuta GAWRYCH and others
against Poland
The European Court of Human Rights (First Section), sitting on 20 February 2018 as a Committee composed of:
Aleš Pejchal, President,
Krzysztof Wojtyczek,
Armen Harutyunyan, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 12 May 2010,
Having regard to the declaration submitted by the respondent Government on 4 October 2016 requesting the Court to strike the application out of the list of cases and the applicants’ reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. A list of the applicants is set out in the appendix.
2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs.
3. The applicants complained under Article 6 § 1 of the Convention about the excessive length of proceedings in their case and under Article 13 of the Convention about the lack of, or insufficient, redress for the excessive length of proceedings granted to them by the national courts.
4. The part of the application concerning Article 6 § 1 of the Convention had been communicated to the Government.
5. By letter of 10 July 2011 the first, second and fourth applicants informed the Court of the third applicant’s death and of the identity of the third applicant’s heir, MrRafałPatynek. He expressed a wish to continue the application in the third applicant’s stead. The Government did not object to the wish of the third applicant’s heir.
THE LAW
A. Standing of the third applicant’s son
6. The Court notes that the third applicant died after the introduction of the application and that her son, MrRafałPatynek has informed the Court that he wishes to pursue the application introduced by his mother.
7. The respondent Government did not object to the third applicant’s son’s wish to pursue the application.
8. The Court recalls that it has accepted on a number of occasions that close relatives of a deceased applicant may be entitled to take his or her place (see, inter alia, Goc v. Poland (dec.), no. 48001/99, 23 October 2001). In the present case, the Court accepts that the third applicant’s son can pursue the application in the third applicant’s stead.
B. Complaint under Article 6 § 1
9. The applicants complained under Article 6 § 1 of the Convention that the length of the civil proceedings had been excessive.
10. After the failure of attempts to reach a friendly settlement, by a letter of 4 October 2016 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 the unilateral declaration – their acknowledgement of the excessive length of proceedings which is still pending.
Consequently, the Government are prepared to pay the sum of PLN 35,000 for each of the applicants which they consider to be reasonable in the circumstances of the present case and case law of the Court in similar cases. 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 Government respectfully 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 …”
11. By a letter of 2 November 2016, the applicants indicated that they were not satisfied with the terms of the unilateral declaration on the ground that the amount proposed by the Government was too low.
12. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application, or its part, 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”.
13. It also reiterates that in certain circumstances, it may strike out an application, or its part, under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the case to be continued.
14. To this end, the Court has examined the declaration in the light of the principles emerging from its case-law, in particular the TahsinAcar judgment (TahsinAcar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
15. 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 (see, for example, Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006‑V; Scordino v. Italy (no. 1) [GC], no. 36813/97, § 227, ECHR 2006‑V, 15 July 2004, and Rutkowski and Others v. Poland, nos. 72287/10, 13927/11 and 46187/11, §§ 126-128, 7 July 2015).
16. Having regard to the nature of the admissions contained in the Government’s declaration, the circumstances of the present case 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)).
17. 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).
18. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
19. In view of the above, it is appropriate to strike the case out of the list in so far as it relates to the complaint under 6 § 1 of the Convention.
C. Complaint under Article 13
20. The applicants further complained under Article 13 of the Convention that they had had no “effective remedy” against the excessive length of proceedings.
21. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time. However, the “effectiveness” of a “remedy” within the meaning of that provision does not depend on the certainty of a favourable outcome for the applicant (see Kudła v. Poland[GC], no. 30210/96, §§ 154 et seq., ECHR 2000-XI).
22. While the subsidiarity principle underlying the Convention system requires the Contracting States to introduce a mechanism addressing complaints about the excessive length of proceedings within the national legal system, they are afforded – subject to compliance with the requirements of the Convention – some discretion as to the manner in which they provide individuals with the relief required by Article 13 and thus conform to their Convention obligations under that provision.
23. The Court further reiterates that the word “remedy” within the meaning of Article 13 does not mean a remedy which is bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint (see, for example,Šidlová v. Slovakia, no. 50224/99, § 77, 26 September 2006,and Figiel v. Poland (no. 2), no. 38206/05, § 33, 16 September 2008).
24. Having regard to the Government’s admissions in respect of Article 6 § 1 of the Convention and the fact that the applicant had, and made use of, a length complaint under the 2004 Act, the Court concludes that this part of the application is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides that the third applicant’s heir has standing to continue the proceedings in the third applicant’s stead;
Takes note of the terms of the respondent Government’s declaration under Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike that part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Declares the remainder of the application inadmissible.
Done in English and notified in writing on 15 March 2018.
Renata Degener AlešPejchal
Deputy Registrar President
______________
Appendix
1. Ewa Danuta GAWRYCH – born in 1952, is a Polish national and lives in Komorów – NowaWieś.
2. Jolanta SALIŃSKA – born in 1951, is a Polish national and lives in Komorów.
3. Hanna PATYNEK – born in 1946 and died in 2011, was a Polish national and lived in Komorów. MrRafałPatynek wishes to continue the application in the third applicant’s stead.
4. Urszula SALIŃSKA-PECORELLI – born on 29/09/1955 is a Polish national and lives in Komorów.
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