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FOURTH
SECTION
CASE OF GOLIK v. POLAND
(Application
no. 13893/02)
JUDGMENT
STRASBOURG
28
November 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 Golik v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr G.
Bonello,
Mr M. Pellonpää,
Mr K. Traja,
Mr L.
Garlicki,
Ms L. Mijović,
Mr J. Šikuta,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 7 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 13893/02) 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 a Polish national, Mr Zenon Golik
(“the applicant”), on 7 March 2002.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
29 January 2006 the President of the Fourth Section decided to give
notice of the application to the Government. Under the provisions of
Article 29 § 3 of the Convention, it was decided to examine the
merits of the application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1948 and lives in Będzin.
- The
applicant was a police officer in Zawiercie. The Zawiercie police
conducted an investigation into a car theft. On 30 November 1992 the
applicant was instructed to verify whether a certain B.Ł. was in
possession of the stolen car. The applicant and the previous owner of
the car arrived at the house of B.Ł. where her parents returned
the car to the owner.
- On
24 December 1992 the Mysłowice District Prosecutor charged the
applicant with abuse of power by having intimidated the parents of
B.Ł. into returning the car which had been purchased by their
daughter. The prosecutor ordered the applicant’s detention for
a period of one month. On the same day the Mysłowice District
Court dismissed the applicant’s appeal against the detention
order. On 30 December 1992 the Katowice Regional Prosecutor ordered
the applicant’s release.
- On
14 June 1993 the District Prosecutor altered the charges against the
applicant.
- On
21 February 1994 the prosecution service filed a bill of indictment
with the Mysłowice District Court. The applicant was charged
with abuse of power. The charge related to the applicant’s
actions on 30 November 1992, when he had allegedly intimidated the
parents of B.Ł. into returning the car purchased by their
daughter from the previous owner.
- B.Ł.
took part in the proceedings as an auxiliary prosecutor. The trial
court held hearings on the following dates: 30 March, 5 September,
17 October, 5 December 1994, 2 March, 12 June, 31 August 1995,
and on 1 and 26 March 1996.
- On
6 February 1996 the trial judge who heard the case was replaced by
another judge. Consequently, the case had to be heard de novo.
- Hearings
scheduled for 10 November 1994, 3 April and 28 December
1995 were adjourned due to the absence of the applicant’s
counsel. A hearing scheduled for 19 January 1995 was cancelled at the
applicant’s counsel’s request since he had other hearings
listed for that day. Hearings scheduled for 15 May and 26 October
1995 were adjourned due to, respectively, the applicant’s
illness and the auxiliary prosecutor’s absence. At the hearing
on 23 April 1996 the applicant felt unwell and was taken to hospital.
He was diagnosed with a heart condition.
- Hearings
scheduled for 25 June, 6 August and 6 September 1996 were adjourned
due to the applicant’s illness. On the last mentioned date the
trial court ordered that the applicant be brought by the police to
the next hearing fixed for 27 September 1996. However, the
police failed to execute the order since the applicant had objected
to his arrest on the grounds of his poor health.
- On
27 September 1996 the trial court ordered that the applicant be
remanded in custody on the ground that he had unlawfully obstructed
the proceedings. The court noted that the applicant had submitted
certificates of illness, although he had failed to have them
confirmed by the court’s medical expert. On 10 October 1996 the
applicant was detained. The detention order was upheld on appeal on
11 October 1996.
- The
hearing scheduled for 6 November 1996 was adjourned, since the
applicant had complained about the state of his health. The trial
court accordingly ordered a report to be prepared in order to
determine whether the applicant could participate in the trial. The
report, submitted on an unspecified date, concluded that the
applicant could take part in the proceedings and that he could
receive adequate medical treatment in detention.
- On
13 November 1996 the District Court held a hearing. During the
hearing the applicant was examined by a doctor. On the same day the
trial court gave judgment. It convicted the applicant as charged and
sentenced him to 18 months’ imprisonment, suspended on
probation, and a fine. It also ordered that the applicant be
prohibited from working as a police officer for four years.
- The
trial court’s judgment was served on the applicant’s
counsel on an unspecified date in May 1997. On 26 May 1997 the
applicant appealed against the judgment.
- Two
hearings scheduled by the Katowice Regional Court for 25 July
and 17 October 1997 were adjourned. A hearing listed for 5
March 1998 was adjourned due to the absence of the applicant’s
counsel.
- On
7 April 1998 the Katowice Regional Court held a hearing and delivered
its judgment. The Regional Court quashed the first-instance judgment
and discontinued the criminal proceedings against the applicant.
- On
10 June 1998 the applicant and the prosecutor appealed against the
Regional Court’s judgment.
- On
23 November 2000 the Supreme Court quashed the judgment of the
Regional Court and remitted it to the latter court for a renewed
examination of the appeal against the trial court’s judgment.
- On
18 April 2001 the Regional Court held a hearing. On 20 April
2001 the applicant filed a request for the withdrawal of the judges
of the Regional Court from the case. That request was later decided
on an unspecified date.
- On
7 September 2001 the Katowice Regional Court held a hearing and
rendered its judgment. It upheld the District Court’s judgment
of 13 November 1996 for the most part, amending it only in
respect of the legal basis of the applicant’s conviction and
sentence in connection with the entry into force on 1 September 1998
of the new Criminal Code. The applicant’s counsel was present
at the delivery of the judgment. No further appeal lay against that
judgment.
- It
appears that a written copy of the Regional Court’s judgment
was finalised on 5 October 2001. The applicant was not entitled to
receive ex officio a copy of the judgment and did not request
its service.
- The
applicant’s first letter to the Court setting out the object of
the application was dated 7 March 2002. It was sent by registered
post on 8 March 2002.
II. RELEVANT DOMESTIC LAW
- The
legal provisions applicable at the material time as well as matters
of practice concerning the remedies against unreasonable length of
proceedings are set out in paragraphs 26-35 of the judgment delivered
by the Court on 30 May 2006 in the case of Barszcz v. Poland,
no. 71152/01.
THE LAW
I. THE GOVERNMENT’S PRELIMINARY OBJECTION
- The
Government submitted that the application was inadmissible for
failure to comply with the six-months’ rule. They observed that
the final domestic decision was the Katowice Regional Court’s
judgment given on 7 September 2001 and that the applicant had
until 7 March 2002 to lodge his application. However, the applicant’s
first letter was received by the Registry on 19 March 2002 and thus
more than six months after the final domestic decision was rendered.
The Government further submitted that they had not been provided with
any proof that the applicant’s first letter had in fact been
sent before the expiry of the six-month time-limit. The date printed
on the applicant’s letter (7 March 2002) should not be
taken as the date on which the application had been lodged, since the
applicant could have chosen this date arbitrarily. In addition, they
argued that the applicant’s first letter had been sent beyond
the prescribed time-limit, having regard to the date of its arrival
at the Registry.
- The
applicant disagreed and submitted that he had posted his first letter
on 8 March 2002. He argued, however, that the time-limit began to run
on 27 November 2001, which was the date of the service of the
Regional Court’s judgment.
- The Court first recalls that the first day of a
time-limit is considered to start on the day following the final
decision, whereas “months” are calculated as calendar
months regardless of their actual duration (see Fleri Soler and
Camillieri v. Malta, no. 35349/05, § 31, 26 September 2006;
K. C. M. v. the Netherlands, Commission decision of
9 January 1995, no. 21034/92, Decisions and Reports (DR) 80-A,
p. 88). It further observes that under domestic law the applicant was
not entitled to be served ex officio a written copy of the
Regional Court’s judgment and that he did not request the
service of the judgment. In the present case, the final domestic
decision was rendered on 7 September 2001. It follows that the
six-months’ time-limit provided for in Article 35 § 1 of
the Convention started to run on the following day, namely 8
September 2001.
- The Court notes that the applicant’s first
letter setting out the object of the application was dated 7 March
2002. That letter, as shown by the postage stamp on the envelope, was
sent by registered post on 8 March 2002. Even if the date of
dispatch of the first letter were to be considered as the date of
introduction of the application, the Court observes that the
application was introduced before the expiry of the six-months’
time-limit provided for by Article 35 § 1 of the Convention. In
any event, the Court also points out that the requirements of the
six-months’ rule are complied with if the first communication
has been made within the time-limit, although it may have arrived
several days after its expiry (see Angelova v. Bulgaria
(dec.), no. 38361/97, 6 June 2000, and
Erdogdu and Ince v. Turkey [GC], nos. 25067/94 and
25068/94, § 30, ECHR 1999-IV).
Accordingly,
the Government’s preliminary objection must be dismissed.
II. 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, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that argument.
- The
Court notes that the proceedings commenced on 24 February 1992 when
the applicant was charged with abuse of power. However, the period to
be taken into consideration began only on 1 May 1993, when the
recognition by Poland of the right of individual petition took
effect. Nevertheless, in assessing the reasonableness of the time
that elapsed after that date, account must be taken of the state of
proceedings at the time.
The
period in question ended on 7 September 2001. It thus lasted 8 years,
4 months and 9 days for three levels of jurisdiction.
A. Admissibility
- The
Government submitted that the applicant had not exhausted remedies
available under Polish law. They maintained that from 17 September
2004 when 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”) had come into force, the applicant had a possibility of
lodging with the Polish civil courts under Article 417 of the
Civil Code read together with section 16 of the 2004 Act a claim for
compensation for damage suffered due to the excessive length of
proceedings. 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
Government further submitted that such a possibility had existed in
Polish law before the entry into force of the 2004 Act ever since the
judgment of the Constitutional Court of 4 December 2001, which
entered into force on 18 December 2001.
- The
applicant contested the Government’s arguments.
- The
Court observes that the proceedings at issue ended on 7 September
2001, which is more than three years before the relevant provisions
of the 2004 Act read together with the Civil Code became effective.
It follows that the limitation period for the State’s liability
in tort set out in Article 442 of the Code Civil had expired before
17 September 2004.
- The
Court notes that the arguments raised by the Government are the same
as those already examined and rejected by the Court in previous cases
against Poland (see Małasiewicz v. Poland, no.
22072/02, §§ 32-34, 14 October 2003; Ratajczyk
v. Poland (dec.), no. 11215/02, ECHR 2005-...; Barszcz
v. Poland, no. 71152/01, §§ 41-45, 30 May 2006)
and the Government have not submitted any new arguments which would
lead the Court to depart from its previous findings. For these
reasons, 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
- 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 (see, among
many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II)
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Pélissier and Sassi, cited above).
- Having examined all the material submitted to it, the
Court considers that the Government have not put forward any fact or
argument capable of persuading it to reach a different conclusion in
the present case. It observes, in particular, that there was more
than a 29-month period of inactivity in the proceedings before the
Supreme Court between the date of lodging the applicant’s
cassation appeal and the date of delivery of the judgment. The Court
can accept that some delays in the procedure before the Supreme Court
could be explained by the fact that at the material time the Supreme
Court had to deal with an increased workload (see, in respect of
civil cases, Kępa v. Poland (dec.), no. 43978/98,
30 September 2003). Nevertheless, in the present case the
applicant’s cassation appeal lay dormant in the Supreme Court
for over 29 months, which constitutes an unreasonable delay (see
Domańska v. Poland, no. 74073/01, § 32,
25 May 2004). 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.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 6 § 1 about the unfairness of
the proceedings. He claimed that he had been wrongly convicted and
that the domestic courts had erroneously assessed the facts and
evidence. Invoking Article 7, he complained that he had been
convicted without a legal basis. The applicant further complained
under Article 13 that all the remedies he had used in the proceedings
were not effective. He further alleged a violation of Article 8,
claiming that the unjustified allegations against him had had adverse
effects on his private and family life. Lastly, he alleged a
violation of Articles 2 and 5 § 1 in relation to his detention
between 24 and 30 December 1992 and between 10 October
and 13 November 1996.
- As
regards the complaints about unfairness of the proceedings, the Court
recalls that it is not called upon to deal with errors of fact and
law allegedly committed by a national court unless and in so far 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). It further recalls that the
admissibility and assessment of evidence are matters that fall to be
decided primarily at the domestic level. Having regard to the above,
the Court considers that in the proceedings complained of, seen as a
whole, there is no appearance of unfairness or arbitrariness which
would infringe the guarantees of a fair hearing within the meaning of
Article 6 § 1 of the Convention.
- In
respect of the complaint concerning the applicant’s detention,
the Court observes that the first period of his detention lasted from
24 to 30 December 1992. It recalls that Poland recognised
the right of individual petition as from 1 May 1993. Consequently,
the complaint in respect of the first period of detention falls
outside the Court’s jurisdiction ratione temporis. The
second period of the applicant’s detention lasted from
10 October until 13 November 1996. However, the Court notes that
the complaint in respect of that period was submitted outside the
six-months’ time-limit.
- As
regards all the remaining complaints, the Court, having examined
them, and regardless of other possible grounds of inadmissibility,
finds nothing in the case file which might disclose any appearance of
a violation of the Convention. It follows that this part of the
application is manifestly ill-founded and must be rejected pursuant
to Article 35 §§ 3 and 4 of the Convention.
IV. 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 900,000 Polish zlotys in respect of pecuniary and
non-pecuniary damage.
- The
Government contested these claims.
- 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 considers that the applicant certainly suffered
non-pecuniary damage, such as distress and frustration, on account of
the protracted length of the proceedings, which cannot be
sufficiently compensated by the above finding of a violation. Taking
into account the circumstances of the case and making its assessment
on an equitable basis, the Court awards the applicant EUR 2,000 under
that head.
B. Costs and expenses
- The
applicant made no claim for costs and expenses.
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 applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,000 (two
thousand euros) in respect of non-pecuniary damage, to be converted
into Polish zlotys at the rate applicable at the date of settlement,
plus any tax that may be chargeable;
(b) that
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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 28 November 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
