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FOURTH SECTION
CASE OF RYBCZYŃSCY v. POLAND
(Application no. 3501/02)
JUDGMENT
STRASBOURG
3 October 2006
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Rybczyńscy v. Poland,
The European Court of Human Rights (Fourth Section), sitting 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 Mrs F. Elens-Passos, Deputy Section
Registrar,
Having deliberated in private on 12 September 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an
application on 9 January 2002 (no. 3501/02) against the
Republic of Poland lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by Ms D. Rybczyńska and Mr T. Rybczyński.
- The Polish Government (“the Government”)
were represented by their Agent, Mr J. Wołąsiewicz, the
Plenipotentiary of the Minister of Foreign Affairs for cases and
procedures before the European Court of Human Rights.
- On 6 October 2005
the Court decided to communicate the application. Applying Article 29
§ 3 of the Convention, it decided to rule on the admissibility
and merits of the application at the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicants, Ms D. Rybczyński and Mr T.
Rybczyński, brother and sister, are Polish nationals, who were
born in 1969 and 1971 respectively and live in Przemyśl. They
are represented before the Court by Mr J. Rybczyński,
the applicants’ father.
- On 27 April 1993 the applicants filed a civil action
for damages with the Przemyśl Regional Court and at the same
time requested an exemption from court fees. The proceedings
concerned the devastation caused to the applicants’ flat by
tenants.
- On 18 May 1993 the court granted the applicants partial
exemption from the fees. The applicants appealed and challenged the
impartiality of all the judges of the court, since its President was
a brother of the husband of one of the defendants. On 24 September
1993 the Rzeszów Court of Appeal exempted the applicants from
the payment of court fees and subsequently two judges were excluded
from the examination of their case.
- On 15 November 1993 a hearing was held, but it was
adjourned until 26 November 1993 upon the defendants’ request.
- On 26 November 1993 the defendants replied to the
claim. They stated that they had lived in the applicants’ flat
from 1945 to 1992 as Bug River claimants. They denied having
devastated the flat and pointed out that the applicants had sued all
of the other tenants. At the same time they requested the court to
summon 5 witnesses. The hearing held on 26 November 1993 was
adjourned upon the defendants’ representative’s motion.
- Between 13 December 1993 and 14 February 1994 four
hearings were held, during which the court heard 9 witnesses.
- On 16 March 1994 the applicants extended their claim
and demanded compensation for lost profits as a result of the
devastation of their flat.
- Between 23 March 1994 and 5 September 1994 three
further hearings were held, during which, inter alia, the
applicants requested the court to appoint an expert to assess the
damage.
- On 11 October 1994 the expert appointed by the
Przemyśl Regional Court sent the case file back and stated that
she was not able to prepare the opinion due to the applicants’
representative’s obstructive conduct. The case file was sent to
another expert, who on 9 November 1994 returned it informing the
court about his close personal relations with the husband of one of
the defendants and with the applicants’ representative. On 30
November 1994 the court sent the case file to another expert and on
26 May 1995 the requested opinion was submitted. The applicants
challenged it.
- At a hearing on 19 July 1995 the court ordered a
supplementary opinion and adjourned the hearing upon the defendants’
attorney’s request.
- On 6 November 1995 the expert supplemented his
previous opinion.
- On 29 December 1995 a hearing was held at which the
court heard the expert and, upon the defendants’ request,
ordered another supplementary expert opinion and adjourned the
hearing.
- On 26 February 1996 the expert informed the court
about his serious illness and asked to be relieved of the obligation
to prepare the opinion. Consequently, on 21 March 1996 the case file
was sent to another expert who was given a time-limit of 3 months to
prepare the opinion. However, on 1 April 1996 he returned the case
file informing the court about his close personal relations with the
husband of one of the defendants and with the applicants’
representative. In consequence, on 25 April 1996 the case file was
sent to another expert, who was ordered to prepare the opinion within
3 months. However, on 29 May 1996 he returned the case file pointing
out that he did not have sufficient qualifications to prepare it. On
17 July 1996 the court sent the case file to another expert, who
was given 3 months to prepare an opinion. It was submitted to the
Przemyśl Regional Court on 31 October 1996.
- On 26 November 1996 the applicants and the defendants
lodged objections against the expert opinion.
- Between 9 December 1996 and 17 December 1997 four
hearings were held, during which the expert submitted his
supplementary opinion, the applicants challenged it and both parties
were heard by the court.
- On 29 December 1997 the Przemyśl Regional Court
gave a judgment, partly dismissing the applicants’ action. Both
parties appealed.
- By a judgment of 29 October 1998 the Rzeszów
Court of Appeal partly allowed the applicants’ and dismissed
the defendants’ appeal. The applicant lodged a cassation
appeal.
- On 10 July 2001 the Supreme Court refused to entertain
the cassation appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. State’s liability for a tort committed by its
official
1. Provisions applicable before 1 September 2004
- Articles 417 et seq. of the Civil Code (kodeks
cywilny) provide for the State’s liability in tort.
In the version applicable until 1 September 2004, Article 417 §
1, which lays down a general rule, reads as follows:
“1. The State Treasury shall be liable
for damage caused by a State official in the course of carrying out
the duties entrusted to him.”
- Article 418 of the Civil Code, as applicable until
18 December 2001, provided for the following exception in cases
where damage resulted from the issue of a decision or order:
“1. If, in consequence of the issue of
a decision or order, a State official has caused damage, the State
Treasury shall be liable only if a breach of the law has been
involved in the issue of the decision or order and if that breach is
the subject of a prosecution under the criminal law or of a
disciplinary investigation, and the guilt of the person who caused
the damage in question has been established by a final conviction or
has been admitted by the superior of that person.
2. The absence of the establishment of guilt
by way of a criminal conviction or in a decision given in
disciplinary proceedings shall not exclude the State Treasury’s
liability for damage if such proceedings cannot be instituted in view
of the [statutory] exception to prosecution or disciplinary actions.”
2. Provisions applicable as from 1 September 2004
- On 1 September 2004 the Law of 17 June 2004 on
amendments to the Civil Code and other statutes (Ustawa o zmianie
ustawy – kodeks cywilny oraz niektórych innych ustaw)
(“the 2004 Amendment”) entered into force. While the
relevant amendments have in essence been aimed at enlarging the scope
of the State Treasury’s liability for tort under Article 417
of the Civil Code – which included adding a new Article 4171
and the institution of the State’s tortious liability for its
omission to enact legislation (the so-called “legislative
omission”; “zaniedbanie legislacyjne”) –
they are also to be seen in the context of the operation of a new
statute introducing remedies for the unreasonable length of judicial
proceedings.
Following the 2004 Amendment, Article 4171,
in so far as relevant, reads as follows:
“3. If damage has been caused by
failure to give a ruling (orzeczenie) or decision (decyzja)
where there is a statutory duty to give them, reparation for [the
damage] may be sought after it has been established in the relevant
proceedings that the failure to give a ruling or decision was
contrary to the law, unless otherwise provided for by other specific
provisions.”
- However, under the transitional provisions of Article
5 of the 2004 Amendment, Article 417 as applicable before 1 September
2004 shall apply to all events and legal situations that subsisted
before that date.
B. Constitutional Court’s judgment of 4 December
2001
- On 4 December 2001 the Constitutional Court (Trybunał
Konstytucyjny) dealt with two constitutional complaints in which
the applicants challenged the constitutionality of Articles 417 and
418 of the Civil Code. They alleged, in particular, that those
provisions were incompatible with Articles 64 and 77 § 1 of the
Constitution.
On the same day the Constitutional Court gave judgment (no. SK 18/00)
and held that Article 417 of the Civil Code was compatible with
Article 77 § 1 of the Constitution in so far as it
provided that the State Treasury was liable for damage caused by the
unlawful action of a State official carried out in the course of
performing his duties. It further held that even though Article 418
of the Civil Code was compatible with Article 64 of the Constitution,
it was contrary to Article 77 § 1 since it linked the award of
compensation for such damage with the personal culpability of the
State official concerned, established in criminal or disciplinary
proceedings.
- On 18 December 2001, the date on which the
Constitutional Court’s judgment took effect, Article 418 was
repealed. The Constitutional Court’s opinion on the
consequences of the repeal read, in so far as relevant:
“The elimination of Article 418 of the Civil Code
from the legal system ... means that the State Treasury’s
liability for an action of a public authority consisting in the issue
of unlawful decisions or orders will flow from the general principles
of the State liability laid down in Article 417 of the Civil Code.
This, however, does not rule out the application in the present legal
system of other, not necessarily only those listed in the Civil Code,
principles of the State liability laid down in specific statutes.”
C. The Law of 17 June 2004
- 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 Act”) entered into force. It lays down various
legal means designed to counteract and/or redress the undue length of
judicial proceedings.
A party to pending proceedings may ask for the acceleration of those
proceedings and/or just satisfaction for their unreasonable length
under Article 2 read in conjunction with Article 5(1) of the 2004
Act.
Article 2, in so far as relevant, reads as follows:
“1. Parties to proceedings may lodge a
complaint that their right to a trial within a reasonable time has
been breached [in the proceedings] if the proceedings in the case
last longer than is necessary to examine the factual and legal
circumstances of the case ... or longer than is necessary to conclude
enforcement proceedings or other proceedings concerning the execution
of a court decision (unreasonable length of proceedings).”
Article 5 provides, in so far as relevant:
“1. A complaint about the unreasonable
length of proceedings shall be lodged while the proceedings are
pending. ...”
- Article 16 refers to proceedings that have been
terminated and that do not fall under the transitional provision of
Article 18 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.”
- Article 442 of the Civil Code sets out limitation
periods in respect of various claims based on tort. That provision
applies to situations covered by Article 417 of the Civil Code.
Article 442, in so far as relevant, reads:
“1. A claim for compensation for damage
caused by a tort shall lapse 3 years following the date on which the
claimant learned of the damage and the persons liable for it.
However, the claim shall in any case lapse 10 years following the
date on which the event causing the damage had occurred.”
- Article 18 of the 2004 Act lays down the following
transitional rules in relation to the applications already pending
before the Court:
“1. Within six months after the date of
entry into force of this law persons who, before that date, had
lodged a complaint with the European Court of Human Rights ...
complaining of a breach of the right to a trial within a reasonable
time guaranteed by Article 6 (1) of the Convention for the Protection
of Human Rights and Fundamental Freedoms ..., may lodge a complaint
about the unreasonable length of the proceedings on the basis of the
provisions of this law if their complaint to the Court had been
lodged in the course of the impugned proceedings and if the Court has
not adopted a decision concerning the admissibility of their case.
2. A complaint lodged under subsection 1
shall indicate the date on which the application was lodged with the
Court.
3. The relevant court shall immediately
inform the Minister of Foreign Affairs of any complaints lodged under
subsection 1.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
32. The
applicant complained about the unfairness of the proceedings and
alleged that the length of the proceedings had been incompatible with
the “reasonable time” requirement. He invoked Article 6 §
1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing within a
reasonable time by [a] ... tribunal...”
- The Court observes that the proceedings started on 27
April 1993, when the applicants lodged their claim with the Przemyśl
Regional Court, and were terminated by the Supreme Court’s
judgment of 10 July 2001. They therefore lasted over 8 years and 2
months for three levels of jurisdiction.
- The Court observes that the period to be taken into
consideration began on 30 April 1993, when the recognition by Poland
of the right of individual petition took effect and that it includes
practically the whole period of the proceedings, which were initiated
on 27 April 1993.
A. Admissibility
1. Complaint under Article 6 § 1 of the Convention about the
unfairness of the proceedings
- The applicants complained, invoking Article 6 § 1
of the Convention, that the Przemyśl Regional Court did not
consider evidence fundamental to their case, did not accept evidence
and witnesses who testified in their favour and erroneously failed to
include transportation costs and VAT in the amount of compensation.
Finally, they alleged that the judges of the Regional Court lacked
impartiality.
- The Court reiterates that according to Article 19 of
the Convention, its duty is to ensure the observance of the
engagements undertaken by the Contracting Parties in the Convention.
In particular, it is not its function to deal with errors of fact or
law allegedly committed by a national court unless and insofar as
they may have infringed rights and freedoms protected by the
Convention (see García Ruiz v. Spain [GC], no.
30544/96, § 28, ECHR 1999- I).
- Noting that the present complaint concerns the
domestic court’s evaluation of facts and evidence, the Court
finds that its examination of the applicants’ submissions does
not disclose any appearance of a violation of the Convention. There
are no elements which would indicate that the national courts went
beyond their proper discretion in their assessment of facts or that
they reached conclusions which could be considered arbitrary.
- Insofar as the applicants
complained about the impartiality of the judges, the Court notes that
the Rzeszów Court of Appeal examined the issue at the
applicants’ request and as a result two judges were excluded
from trying their case. In these circumstances,
the Court finds that this part of the application discloses no
appearance of a violation of the applicants’ rights under
Article 6 of the Convention.
- Accordingly, the complaint about
the unfairness of the proceedings is manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention and must be
declared inadmissible in accordance with Article 35 § 4.
2. Complaint under Article 6 § 1 of the Convention about the
unreasonable length of the proceedings
- The Government submitted that the applicant had not
exhausted remedies available under Polish law. They maintained that
from 17 September 2004 when the 2004 Act came into force, the
applicant had a possibility of lodging with the Polish civil courts a
claim for compensation for damage suffered due to the excessive
length of proceedings under Article 417 of the Civil Code read
together with Article 16 of the 2004 Act. They argued that the
three-year prescription period for the purposes of a compensation
claim in tort based on the excessive length of proceedings could run
from a date later than the date on which a final decision in these
proceedings had been given.
- The applicant contested the Government’s
arguments.
- The Court notes that the arguments raised by the
Government are the same as those already examined by the Court in
previous cases against Poland (see Malasiewicz v. Poland,
no. 22072/02, §§ 32-34, 14 October 2003; Ratajczyk
v. Poland; (dec.), 11215/02, 31 May 2005; Barszcz
v. Poland, no. 71152/01, 30 May 2006) and the Government
have not submitted any new circumstances which would lead the Court
to depart from its previous findings.
- The Government further argued that the possibility of
lodging a claim for compensation for damage suffered due to the
excessive length of proceedings under Article 417 of the Civil Code
had existed in Polish law even before the entry into force of the
2004 Act, namely since the judgment of the Constitutional Court of 4
December 2001.
- The applicants contested the Government’s
arguments, maintaining that there was no legal basis for lodging a
claim for compensation in the circumstances of their case.
- The Court notes that it has already examined whether
after 18 December 2001 and prior to the entry into force of the
Law of 17 June 2004 a compensation claim in tort as provided for by
Polish civil law was an effective remedy in respect of complaints
about the length of proceedings. It held that no evidence of any
judicial practice had been provided to show that a claim for
compensation based on Article 417 of the Civil Code has ever been
successful before the domestic courts (see Skawińska
v. Poland (dec.), no. 42096/98, 4 March 2003 and Malasiewicz
v. Poland, no. 22072/02, 14 October 2003). As the Government
have failed to submit any new arguments, the Court will abide by its
previous findings.
- It follows that the Government’s plea of
inadmissibility on the ground of non-exhaustion of domestic remedies
must be dismissed.
47. The Court notes that
this complaint is not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention. It further notes that it is
not inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. The parties’ submissions
- The applicants complained about the excessive length
of the civil proceedings.
- The Government submitted that the case had been very
complex due to the fact that the courts had to establish the extent
of the damage to the applicants’ flat and to assess its value.
The examination of the case had required the obtaining of expert
opinions.
- The Government further argued that the parties had
contributed significantly to the length and the complexity of the
proceedings, in particular by challenging the expert opinions, with
the result that supplementary opinions had to be ordered. In
addition, two hearings had to be adjourned upon their or their
representative’s motion.
- As regards the conduct of the public authorities, the
Government were of the view that the case did not require special
diligence since what was at stake for the applicants was solely of a
pecuniary nature.
- The applicants contested the Government’s
arguments and submitted that the length of the proceedings was
excessive.
2. The Court’s assessment
- The Court reiterates that the reasonableness of the
length of proceedings must be assessed in the light of the
circumstances of the case and with reference to the following
criteria: the complexity of the case, the conduct of the applicant
and the relevant authorities and what was at stake for the applicant
in the dispute (see, among many other authorities, Frydlender v.
France [GC], no. 30979/96, § 43, ECHR 2000-VII; Malinowska
v. Poland, no. 35843/97, 14 December 2000).
54. As to the complexity of the case, the
Court notes that the applicants sought compensation for damage caused
to their flat. The fact that the court
had to obtain expert evidence in order to estimate the amount of
damage could not of itself render the case complex.
- As to the conduct of the parties, the Court notes that
the applicants challenged the expert opinions. However, it is
well-established in the Court’s case-law that the applicant in
principle cannot be reproached for having made full use of the
procedures available to him under domestic law (see mutatis
mutandis Eckle v. Germany, judgment of 15 July 1982,
Series A no. 51, § 82). In the present case the
objections against expert opinions were raised by both parties and
the domestic court found the objections justified, requesting the
experts to supplement their opinions (see paragraphs 12-15 and 17-18
above). Moreover, the Court notes that the case file was sent twice
to an expert who had close personal relations with the husband of one
of the defendants and the applicant’s representative and for
that reason he had to disqualify himself. Moreover, it was discovered
that another expert who had been commissioned did not have sufficient
qualifications to prepare an opinion. Accordingly, the part of the
proceedings during which the opinions were ordered and examined
lasted from October 1994 to December 1997 (see paragraphs 12 -18
above), thus prolonging the proceedings before the first instance
court for 3 years and 2 months. In the opinion of the Court, the
first-instance court did not deal with the estimation of the damage
to the applicants’ house with sufficient rigour. Quite apart
from that, the Government have not provided any sufficient
explanation for the length of the proceedings.
- Having examined all the material submitted to it and
having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There has accordingly been a breach of Article 6 § 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The applicant claimed 250,000 PLN (62,000 EUR) in
respect of pecuniary and non-pecuniary damage.
- The Government contested the claim, arguing that it
was exorbitant.
60. The Court does not
discern any causal link between the violation found and the pecuniary
damage alleged; it therefore rejects this claim. On the other hand,
it awards the applicants 2,400 EUR (two thousand four hundred euros)
in respect of non-pecuniary damage to be converted into Polish zlotys
at the rate applicable at the date of settlement.
B. Costs and expenses
- The applicants also claimed PLN 4,711.48 (about EUR
1,190) for the costs and expenses incurred before the domestic courts
and PLN 1,436.38 (about EUR 363) for those incurred before the
Court.
- The Government contested the claim.
- According to the Court’s case-law, an applicant
is entitled to reimbursement of his costs and expenses only in so far
as it has been shown that these have been actually and necessarily
incurred and were reasonable as to quantum. In the present case,
regard being had to the information in its possession and the above
criteria, the Court rejects the claim for costs and expenses in the
domestic proceedings and considers it reasonable to award the sum of
EUR 363 for the proceedings before the Court.
C. Default interest
- The Court considers it appropriate that the default
interest should be based on the marginal lending rate of the European
Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that the respondent State is to pay the applicants,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, EUR 2,400 (two thousand four hundred euros) in respect of
non-pecuniary damage and EUR 363 (three hundred and sixty-three
euros) in respect of costs and expenses, to be converted into Polish
zlotys at the rate applicable at the date of settlement, together
with any tax that may be payable;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 3 October 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Nicolas Bratza
Deputy
Registrar President
