BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH SECTION
CASE OF BIAŁAS v. POLAND
(Application no. 69129/01)
JUDGMENT
STRASBOURG
10 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 Białas 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 Mr T.L. Early, Section Registrar,
Having deliberated in private on 19 September 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an
application (no. 69129/01) 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 a Polish national, Anna Białas (“the applicant”).
- The Polish Government (“the Government”)
were represented by their Agent, Mr Jakub Wołąsiewicz of
the Ministry of Foreign Affairs.
- On 13 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 applicant was born in 1922 and lives in Tarnowska
Wola.
- On 23 February 1989 the applicant filed an action with
the Tarnobrzeg District Court in which she sought a court order
against third parties requiring them to remove an electricity cable
they had installed on her land.
- Between May and August 1989 three hearings were held.
An expert opinion was submitted to the court during that period.
- As the parties were subsequently invited to settle the
case, between 15 November 1990 and 6 May 1991 the proceedings
were stayed at their request in order to negotiate a settlement.
- On 29 June 1991 the Tarnobrzeg District Court delivered
a judgment dismissing the applicant’s action. The applicant
appealed on 28 August 1991.
- At the appeal hearing of 28 October 1991 the Tarnobrzeg
Regional Court decided to stay the proceedings pending the
termination of other proceedings for the establishment of the
defendant’s ownership of the land. Those proceedings ended on
26 October 1998 with the Supreme Court’s decision rejecting the
applicant’s cassation appeal as inadmissible.
- On 3 December 1999 the proceedings were resumed upon
the applicant’s request of 16 November 1999.
- On 23 December 1999 the Tarnobrzeg Regional Court
quashed the first-instance judgment and remitted the case for
re-examination, indicating the need to obtain an expert opinion on
the exact route of the electricity line across the land.
- A hearing was held on 9 February 2000; the court
ordered the preparation of the expert opinion and ordered the
applicant to pay the expert’s fee within 14 days.
- Between February and April 2000 the applicant
repeatedly sought exemption from payment of the expert’s fee.
She was ordered to pay the fee, failing which the evidence provided
by the expert opinion would be excluded. The applicant failed to
comply with the order.
- On 31 May 2000 the Tarnobrzeg District Court decided
to omit the evidence contained in the expert opinion. It examined as
evidence the case files of three other sets of related proceedings
and on that basis delivered a judgment dismissing the action.
- On 7 September 2000 the Tarnobrzeg Regional Court
dismissed the applicant’s appeal. The court agreed with the
first-instance court that the defendant had the right of co-ownership
to the plot on the date on which the proceedings were instituted and
that the applicant’s claim was accordingly inadmissible.
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, read 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 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 inability to establish 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 a
[statutory] exception to prosecution or disciplinary action.”
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 – including the addition of a new Article
4171 and the
imposition on the State of tortuous 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 the actions 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 principles of State liability laid down
in specific statutes and not necessarily only those listed in the
Civil Code.”
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 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.”
D. Article 394 of the Code of Civil Procedure
27. Article
394 of the Code of Civil Procedure of 1964 provides, in so far as
relevant:
“An appeal to a second-instance court is available
for decisions issued by a first-instance court and terminating the
proceedings in the case (...)”.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The applicant complained that the length of the
proceedings had been incompatible with the “reasonable time”
requirement, provided in Article 6 § 1 of the Convention, which
reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The Court observes that the proceedings started on
23 February 1989, when the applicant lodged her claim with
the Tarnobrzeg District Court, and ended with the Tarnobrzeg Regional
Court’s judgment of 7 September 2000. They therefore lasted
almost 11 years and 7 months.
- The Court observes that the period to be taken into
consideration began only on 30 April 1993, when the recognition by
Poland of the right of individual petition took effect. However, in
assessing the reasonableness of the time that elapsed after that
date, namely 7 years and 4 months for two levels of jurisdiction,
account must be taken of the state of proceedings at the time.
A. Admissibility
- The Government submitted that the applicant had not
exhausted remedies available under Polish law.
- In the first place, they pointed out that the
applicant did not challenge the Tarnobrzeg Regional Court’s
decision of 28 October 1991 to stay the proceedings and, in so far as
the delay in the examination of the case related to the fact that no
action was taken by the court in that period, the length complaint in
this phase of the proceedings should be rejected for non-exhaustion
of domestic remedies.
- The applicant contested the Government’s
arguments, arguing that the impugned decision was issued by the
second-instance court and, according to the Supreme Court’s
case-law, decisions issued by appellate courts could not be appealed.
- The Court accepts the applicant’s argument and
notes that according to Article 394 of the Code of Civil Procedure,
in force at the material time, an appeal against a decision given by
an appellate court acting as a first-instance court was not
available. Consequently, the Government’s plea of
inadmissibility on the ground of failure to appeal against the
Regional Court’s decision of 28 October 1991 must be dismissed.
- The Government also 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 applicant contested the Government’s
arguments, maintaining that Article 417 of the Civil Code did not
provide her with a basis for applying for compensation, since the
proceedings had been terminated before 1 September 2004, the date on
which the 2004 Act came into force.
- 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 by Polish civil law was an effective remedy in respect of
complaints about the length of proceedings. It has found in previous
cases that there was no evidence of any judicial practice 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 to the contrary, the Court can but
confirm its previous findings in this case.
- It follows that the Government’s plea of
inadmissibility on the ground of non-exhaustion of domestic remedies
must be dismissed.
- 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
a. The parties’ submissions
- The Government
submitted that the case had been somewhat complex on account of the
need to have recourse to expert reports and the relevance of other
proceedings involving the parties to the outcome of the case. In any
event, the case did not require any special diligence since what was
at stake for the applicant was solely of a pecuniary nature.
- As to the conduct of
the public authorities, the Government noted that the applicant did
not request the court to resume the proceedings until 16 November
1999. On that account, only the period from 16 November 1999 to
7 September 2000 should be taken into account in assessing the
conduct of the domestic authorities for the purpose of Article 6 § 1
of the Convention.
- The Government also expressed the opinion that the
domestic authorities showed due diligence in ensuring the proper and
swift examination of the applicant’s case. After the resumption
of the proceedings on 3 December 1999, which was 17 days
after the applicant’s motion, the case was terminated in about
9 months. During this period the case was examined twice in the
appellate proceedings and once in the proceedings before the
first-instance court and three judgments were adopted.
- As to the conduct of the applicant, the Government
were of the opinion that she had significantly contributed to the
prolongation of the impugned proceedings.
- Firstly, in the period from 1 May 1993 to 16 November
1999 the applicant remained totally passive in the proceedings. On no
occasion during this period had she requested the court to resume the
proceedings. After the termination of another set of proceedings on
26 October 1998, the applicant delayed more than one year before
asking the court to resume the present proceedings.
- Secondly, the Government argued that in the 9 months
between 3 December 1999 and 7 September 2000, during which the
proceedings were terminated after their resumption, about 3 months
had been devoted to the applicant’s request to be exempted from
the fees due for the expert opinion, as ordered by the domestic
court.
- The applicant did not
address these arguments.
b. The Court’s assessment
- The Court will examine the reasonableness of the
length of proceedings in the light of the circumstances of the case
and with reference to the criteria established by its case-law,
particularly the complexity of the case, the conduct of the applicant
and of 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, and Humen v. Poland [GC], no. 26614/95, § 60,
15 October 1999).
- As regards the nature of the case, the Court observes
that, given that the determination of the claim involved the need to
obtain expert evidence, it was of a certain complexity. However, that
alone cannot justify the length of the proceedings.
- As regards the conduct of the applicant, the Court
shares the Government’s opinion that the applicant
contributed to the length of the proceedings. It is to be observed
that, although in principle the applicant cannot be reproached for
having made use of her procedural rights when she asked for exemption
from the court fees, nevertheless the applicant must have known that
her motions would have led to delays, the consequences of which she
would have to bear (see Malicka-Wąsowska v. Poland (dec)
no. 41413/98. 5 April 2001). In the present case, the
applicant’s repeated unsuccessful motions for exemption from
the court fees for an expert opinion and her subsequent refusals to
pay them resulted in the court’s decision not to admit the
evidence which the applicant had asked for. Consequently, the
applicant contributed unnecessarily to the prolongation of the
proceedings.
- As regards the conduct of the judicial authorities,
the Court observes that during the period under consideration the
case was heard by courts at two instances and was stayed for 6 years
and 7 months pending the termination of the proceedings for the
establishment of the defendant’s ownership of the land. The
applicant did not contest the decision to stay the proceedings and
did not ask the court to resume the proceedings until more than one
year had elapsed from the date of the termination of the other set of
proceedings. Moreover, there is nothing to indicate that the domestic
court’s decision to stay the proceedings is open to criticism
on the grounds, for example, that it could itself have resolved the
ownership dispute in the context of the proceedings brought by the
applicant. It is also to be noted that after resuming the impugned
proceedings, the courts examined the case file diligently and there
was no inordinate delay in the proceedings; three judgments were
delivered within a period of 9 months.
- Consequently, the Court considers that the authorities
displayed due diligence in handling the applicant’s case.
- In view of the foregoing and having regard to the
overall length of the proceedings, the Court finds that there has
been no violation of Article 6 § 1 of the
Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been no violation of
Article 6 § 1 of the Convention.
Done in English, and notified in writing on 10 October 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
