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FOURTH
SECTION
CASE OF WAWRZYNOWICZ v. POLAND
(Application
no. 73192/01)
JUDGMENT
STRASBOURG
17
July 2007
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 Wawrzynowicz v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr G.
Bonello,
Mr K. Traja,
Mr L. Garlicki,
Ms L.
Mijović,
Mr J. Šikuta,
Mrs P. Hirvelä,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 26 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 73192/01) 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, Mrs M. Wawrzynowicz (“the applicant”)
on 25 February 2001.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
8 December 2005 the
Court declared the application partly inadmissible and decided to
communicate the complaint concerning the length of the proceedings to
the Government. Applying Article 29 § 3 of the Convention, it
decided to rule on the admissibility and merits of the application at
the same time.
- The
applicant and the Government each filed observations on the merits
and on the claims for just satisfaction under Article 41 of the
Convention.
- The
Government submitted a unilateral declaration and invited the Court
to strike out the application, in accordance with Article 37 of the
Convention.
THE FACTS
A. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1940 and lives in Poznań.
- On
12 March 1993 she lodged an application with the Poznań District
Court. She sought interest on the sum of money awarded to her by the
court on 30 September 1991. The proceedings were related to other
proceedings concerning the division of the matrimonial property of
the applicant and her former husband, in particular their apartment.
Apparently the apartment had been vested to the applicant's former
husband by a judgment of 1992. Other sets of proceedings concerned
their mutual liabilities in this regard.
- Hearings
were held on 25 May 1993 and 31 August 1993. Subsequently, the
applicant extended her claim.
- On
5 October 1993 the court decided to transfer the case-file to the
Regional Court. On 15 January 1994 the Poznań Regional Court
transferred the case-file back to the Poznań District Court.
- On
9 May 1994 the applicant requested the court to adjourn the hearing
scheduled for 10 May 1994.
- On
29 July 1994 and 21 November 1994 the applicant's lawyer
submitted pleadings setting out details of the claim.
- Subsequent
hearings were held on 27 September 1994, 24 January 1995,
27 March 1995, 24 April 1995, 17 May 1995 and 19 June 1995.
- On
26 June 1995 the Poznań District Court delivered a judgment. It
allowed the applicant's claim in part. On 2 September 1995 the
applicant appealed.
- On
1 December 1995 the Poznań Regional Court quashed the judgment
and remitted the case.
- A
hearing of 10 April 1996 was adjourned to 18 October 1996. A hearing
of 18 October 1996 was cancelled because a judge sitting in the case
was ill. Subsequent hearings were held on 20 December 1996 and 11
March 1997. It appears that the files of cases related to the present
proceedings, requested by the parties on 11 March 1997, had not been
submitted to the court. They were eventually submitted on 13 May 1997
and 6 March 1998.
- Subsequent
hearings were held on 29 May 1998, 8 November 1999, 10 January 2000,
10 February 2000 (adjourned), 31 August 2000 and 12 October
2000.
- On
7 December 2000 the Poznań District court delivered a judgment.
It allowed the applicant's claim in part. On 10 April 2001 the
applicant appealed.
- On
7 September 2001 the Poznań Regional Court dismissed the appeal.
The judgment was final.
- On
9 March 2005 the applicant lodged a complaint with the Poznan Court
of Appeal about the excessive length of two sets of proceedings,
including the one complained of in the present case (further referred
to as “the first set of proceedings”). She invoked
section 18 of the 2004
Act (see domestic law part below) and requested the court to find
that the length of the proceedings, which had lasted eight and four
years respectively, had been unreasonable. She further submitted that
she had lodged a complaint about the length of the proceedings with
the European Court of Human Rights.
- On
21 April 2005 the Court of Appeal rejected the complaint without
examining its merits. The court found (referring to the second set of
proceedings) that the complaint had not been lodged while the
impugned proceedings were still pending. The court further noted that
the [second set of] proceedings had terminated in 2000, which was
before the applicant had lodged an application with the European
Court of Human Rights. Therefore, the applicant had not complied with
the provisions of sections 5 or 18 of the 2004 Act and her complaint
had to be rejected. The court did not refer to the first set of
proceedings mentioned in the applicant's complaint.
- Apparently,
following the communication of the application, the Government drew
the Court of Appeal's attention to the fact that the applicant's
complaint concerning the length of the first set of proceedings had
not been examined. On 31 March 2006 the president of the court
informed the Government that the court would deal with this part of
the complaint.
- On
31 May 2006 the Poznan Court of Appeal rejected the applicant's
complaint concerning the first set of proceedings. The court
considered that the applicant had failed to indicate circumstances
that would justify her request, as required by section 6 of the 2004
Act. The court found that the mere fact, relied on by the applicant,
that the proceedings had lasted over eight years, could not suffice
to find that the proceedings had lasted longer that was necessary.
Therefore, according to section 9 of the Act, the complaint had to be
rejected without requiring the plaintiff to complete it.
B. RELEVANT DOMESTIC LAW AND PRACTICE
- 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. A party to pending
proceedings may ask for the acceleration of those proceedings and/or
just satisfaction for their unreasonable length under section 2 read
in conjunction with section 5(1) of the 2004 Act.
- Section
12 provides for measures that may be applied by the court dealing
with the complaint. The relevant part provides:
“1. The court shall dismiss a complaint
which is unjustified.
2. If the court considers that the complaint
is justified, it shall find that there was an unreasonable delay in
the impugned proceedings.
3. At the request of the complainant, the
court may instruct the court examining the merits of the case to take
certain measures within a specified time. Such instructions shall not
concern the factual and legal assessment of the case.
4. If the complaint is justified the court
may, at the request of the complainant, grant ... just satisfaction
in an amount not exceeding PLN 10,000 to be paid by the State
Treasury. If such just satisfaction is granted it shall be paid out
of the budget of the court which conducted the delayed proceedings.”
- Section
6 § 2 provides that a complaint must include:
1) a
request to find that there was an unreasonable delay in the impugned
proceedings;
2)
circumstances that would justify the request.
- According
to section 9 of the Act, when a complaint does not meet the
requirements of section 6 of the Act, it must be rejected without
prior summons to the plaintiff to complete the shortcomings in the
complaint.
27. Under
section 18 of the Act, within six months after the entry into force
of the Act, that is, from 17 September 2004, anyone who had lodged an
application with the European Court of Human Rights complaining of a
violation of the 'reasonable-time' requirement contained in Article 6
§ 1 of the Convention was entitled to lodge a length of
proceedings complaint provided for by the Act, if the application to
the Court had been lodged when the proceedings were still pending and
if it had not yet been declared admissible by the European Court.
- Under
Article 130 of the Code of Civil Procedure if a statement of case or
a pleading fails to comply with formal requirements, the party shall
be summoned to complete or remedy the formal shortcomings within a
one-week time-limit.
THE LAW
I. THE GOVERNMENT'S REQUEST TO STRIKE OUT THE APPLICATION
UNDER ARTICLE 37 OF THE CONVENTION
- On
13 April 2007 the Government submitted a unilateral declaration
similar to that in the case Tahsin Acar v. Turkey ((preliminary
objection) [GC], no. 26307/95, ECHR 2003-VI) and informed
the Court that they were ready to accept that there had been a
violation of the applicant's rights under Article 6 § 1 of the
Convention as a result of the unreasonable length of the proceedings
in which the applicant had been involved. In respect of non-pecuniary
damage, the Government proposed to award the applicant PLN 10,000
(the equivalent of EUR 2,600). The Government invited the Court to
strike out the application in accordance with Article 37 of the
Convention.
- The
applicant did not agree with the Government's proposal. She
considered that the amount proposed did not constitute sufficient
just satisfaction for the damage she had sustained and requested the
Court to continue the examination of the application.
- The
Court observes, as it has previously stated in Tahsin Acar (cited
above, §§ 74-77), that a distinction must be drawn between,
on the one hand, declarations made in the context of strictly
confidential friendly-settlement proceedings and, on the other,
unilateral declarations – such as the present declarations –
made by a respondent Government in public and adversarial proceedings
before the Court. In accordance with Article 38 § 2 of the
Convention and Rule 62 § 2 of the Rules of Court, the Court will
proceed on the basis of the Government's unilateral declarations and
the parties' observations submitted outside the framework of
friendly-settlement negotiations, and will disregard the parties'
statements made in the context of exploring the possibilities for a
friendly settlement of the case and the reasons why the parties were
unable to agree on the terms of a friendly settlement.
- The Court considers that, under certain circumstances,
it may be appropriate to strike out an application under Article 37 §
1 (c) of the Convention on the basis of a unilateral declaration by
the respondent Government even if the applicant wishes the
examination of the case to be continued. It will, however, depend on
the particular circumstances whether the unilateral declaration
offers a sufficient basis for finding that respect for human rights
as defined in the Convention does not require the Court to continue
its examination of the case (see Tahsin Acar, cited above, §
75; Melnic v. Moldova, no. 6923/03, § 22,
14 November 2006).
- Relevant
factors in this respect include the nature of the complaints made,
whether the issues raised are comparable to issues already determined
by the Court in previous cases, the nature and scope of any measures
taken by the respondent Government in the context of the execution of
judgments delivered by the Court in any such previous cases, and the
impact of these measures on the case at issue. It may also be
material whether the facts are in dispute between the parties, and,
if so, to what extent, and what prima facie evidentiary value
is to be attributed to the parties' submissions on the facts. In that
connection it will be of significance whether the Court itself has
already taken evidence in the case for the purposes of establishing
disputed facts.
Other
relevant factors may include the question of whether in their
unilateral declaration the respondent Government have made any
admission(s) in relation to the alleged violations of the Convention
and, if so, the scope of such admissions and the manner in which they
intend to provide redress to the applicant (see Melnic, cited
above, § 23).
- To
establish whether the amount of the intended redress should be
regarded as appropriate for the purpose of striking out the
application, the Court shall take into consideration the possibility
of removing or reducing the effects of an alleged violation and the
respondent Government's readiness to do so.
- The
foregoing list is not intended to be exhaustive. Depending on the
particular circumstances of each case, it is conceivable that further
considerations may come into play in the assessment of a unilateral
declaration for the purposes of Article 37 § 1 (c) of the
Convention.
- The
Court notes that it has specified in a number of cases the nature and
extent of the obligations which arise for the respondent State under
Articles 6 and 13 of the Convention as regards the guarantees of the
right to a trial within a reasonable time (see, among many others,
Kusmierek v. Poland, no. 10675/02, judgment of 21
September 2004; Zynger v. Poland, no. 66096/01,
judgment of 13 July 2004) and the requirement of an effective remedy
capable of providing appropriate redress for the damage resulting
from the breach of this right (see Kudła v. Poland [GC],
no. 30210/96, ECHR 2000 XI; Krasuski v. Poland,
no. 61444/00, ECHR 2005 ... (extracts); Charzyński
v. Poland (dec.), no. 15212/03, ECHR 2005 ...;
Majewski v. Poland, no. 52690/99, 11 October 2005;
Cocchiarella v. Italy [GC], no. 64886/01, ECHR 2006 ...).
Where the Court has found a breach of these Articles it has awarded
just satisfaction, the amount of which depended on the particular
features of the case.
- As
to whether it would be appropriate to strike out the present
application on the basis of the unilateral declarations made by the
Government, the Court notes in the first place that the applicant's
admissible complaint concerned mainly the excessive length of the
civil proceedings. The Court further observes that the proceedings
were terminated on 7 September 2001 and the relevant Polish remedies
against excessive length of proceedings introduced in 2004 proved
either not applicable or not effective in the circumstances of the
present case (see the admissibility part below). Consequently, no
other remedy for the alleged violation is possible at this stage.
- Further,
the Court notes that although the Government acknowledged in their
unilateral declarations that the domestic proceedings had been
unreasonably lengthy, they did not, however, offer her an adequate
redress. The Court considers that the sum proposed in the declaration
in respect of non-pecuniary damage suffered by the applicant as a
result of the alleged violation of the Convention does not bear a
reasonable relationship with the amounts awarded by the Court in
similar cases for non-pecuniary damage.
- It
is to be noted that the amount proposed by the Government in
their unilateral declaration is the maximum amount of just
satisfaction that can be awarded under section 12 of the 2004 Act.
The Court reiterates that when it considered the 2004 Act an
effective remedy in length cases it was prepared to accept the
statutory ceiling of PLN 10,000 only when it remained open to the
applicant to lodge a civil claim and thus seek full compensation (see
Charzyński, cited above, § 38). However, as noted
above, that remedy was not available to the applicant in the instant
case.
- It cannot
be excluded that where an applicant has been speedily awarded
compensation of PLN 10,000 by a domestic court under the 2004 Act,
and has been promptly paid, the Court might consider
the amount to be compatible with its own awards in such cases,
bearing in mind the principles which it has developed in
this connection for determining victim status and for
assessing its own award in cases where it has found a breach of
the reasonable-time requirement (see
Cocchiarella, cited above, §§ 85 107;
Scordino v. Italy [GC], no. 36813/97, §§ 193-215,
29 March 2006; Dubjakova v. Slovakia (dec.), no.
67299/01, 10 October 2004). However, these considerations
cannot be applied to a unilateral declaration which
addresses a situation where the remedy failed or was not
available to an applicant who had to introduce proceedings under the
Convention in order to obtain redress.
- On
the facts and for the reasons set out above, the Court finds that the
Government failed to submit a statement offering a sufficient basis
for finding that respect for human rights as defined in the
Convention does not require the Court to continue its examination of
the case (see, by contrast, Akman v. Turkey (striking out),
no. 37453/97, §§ 23-24, ECHR 2001-VI).
- This
being so, the Court rejects the Government's request to strike the
application out under Article 37 of the Convention and will
accordingly pursue its examination of the admissibility and merits of
the case.
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 his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
proceedings began on 12 March 1993 and ended on 7 September
2001. 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. However, 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
proceedings have thus lasted 8 years, 6 months and 9 days for two
levels of jurisdiction, the case having been remitted on one occasion
to the first-instance court.
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 2004 Act had come into force, the applicant had the
possibility of lodging with the Polish civil courts a claim for
compensation for damage caused by the excessive length of proceedings
under Article 417 of the Civil Code, read together with section 16 of
the 2004 Act. They noted that the three-year limitation 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 such proceedings had been given.
- The
Government further argued that such a
possibility 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
Court observes that in the present case the proceedings at issue
terminated 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. Consequently, 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.), 11215/02, 31 May 2005; and 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 also submitted that the applicant had not exhausted the
remedies provided for in section 18 of the 2004 Act, since the
examination of her complaint about the length of the impugned
proceedings had been resumed and was pending at the time the
Government's observation were submitted to the Court.
- The
Court observes that the applicant's complaint with regard to the
proceedings in question was rejected on formal grounds on 31 May 2006
(see paragraphs 19-22 above), having been examined over a year after
the complaint had been lodged with the competent court, and only as a
consequence of the communication of the application to the
Government. In the first decision following the applicant's complaint
the domestic court made no reference to the impugned proceedings.
- It
is to be noted that the applicant did not complaint about
effectiveness of the Polish length of proceedings remedy. It must be
determined, however, whether the applicant's failure to fulfil the
formal requirements leads to a finding that her application is
inadmissible for failure to exhaust domestic remedies.
- In this connection the Court emphasises that the
application of the exhaustion of domestic remedies rule must make due
allowance for the fact that it is being applied in the context of
machinery for the protection of human rights that the Contracting
Parties have agreed to set up. Accordingly, it has recognised that
Article 35 must be applied with some degree of flexibility and
without excessive formalism. This means, in particular, that the
Court must take realistic account, not only of the existence of
formal remedies in the legal system of the Contracting Party
concerned, but also of the general context in which they operate, as
well as the personal circumstances of the applicant. It must then
examine whether, in all the circumstances of the case, the applicant
did everything that could reasonably be expected of him to exhaust
domestic remedies (see Akdivar and Others v. Turkey judgment
of 16 September 1996, Reports of Judgments and Decisions
1996-IV, § 69, and Yaşa v. Turkey judgment of
2 September 1998, Reports 1998-VI, § 77).
- With
regard to the domestic court's finding that the applicant “had
failed to indicate circumstances that would justify her request”,
the Court notes that it is not called upon to interpret this
procedural rule and its application in the present case.
Nevertheless, it has already found that declaring a complaint
inadmissible on the grounds that an applicant “had not
specified the circumstances in which his/her complaint had been
based” is too formalistic an approach, which may prevent an
applicant's claims from being examined on the merits. Such a
limitation of one's right to a court has been found to be
disproportionate to the aim of ensuring legal certainty and the
proper administration of justice (see, mutatis mutandis,
Liakopoulou v. Greece, no. 20627/04, §§ 23-24, 24
May 2006).
- The
Court considers that when the relevant law provides individuals with
a possibility of lodging a complaint without being represented by a
lawyer, domestic court should advise applicants on how to remedy the
formal deficiencies of their complaints (see Wende and Kukowka v.
Poland, no. 56026/00, § 54, 10 May 2007).
In
the present case the applicant had not been requested to provide the
required justification and therefore she had not been given a chance
to remedy the formal deficiencies of her complaint. Furthermore, the
Court notes that the applicant could not have lodged a fresh,
corrected complaint, since the decision of the domestic court was
delivered one year and two months after the expiry of the time-limit
provided for in section 18 of the 2004 Act.
- Therefore,
applying the above criteria, and having regard to the vague and
ill-defined nature of the requirement (see Wende and Kukowka,
cited above; c.f. Šidlová v. Slovakia,
no. 50224/99, § 53, 26 September 2006), the Court is satisfied
that the applicant did everything that could reasonably be expected
of her to exhaust domestic remedies.
- It follows that the Government's plea of
inadmissibility on the ground of non-exhaustion of domestic remedies
must be dismissed.
58. 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 Government submitted that the case had involved complex legal and
factual issues. They also submitted that it had required the
examination of case-files concerning other sets of proceedings.
- The
Government were of the opinion that the interests of the applicant
had been of a purely pecuniary nature.
- They
observed that, as regards the conduct of the authorities, the court
had conducted comprehensive evidence proceedings. Twenty-one hearings
had been held, the parties had been heard on several occasions and
the case files of other proceedings had been analysed.
- The
Government maintained that the applicant had contributed to the
length of the proceedings as she had amended her claim on several
occasions and had not complied with the prescribed time-limits.
-
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; Kusmierek v. Poland, no.
10675/02, judgment of 21 September 2004, § 62; and Zynger v.
Poland, no. 66096/01, judgment of 13 July 2004, § 45).
- The
Court notes that the proceedings were not very complex.
- The
Court further observes that the transfer of the case-file to the
Regional Court and back to the District Court unnecessarily
contributed to the length of the proceedings (see paragraph 9 above).
Several hearings were adjourned. Moreover, case-files of related
proceedings were submitted to the court with a significant delay
(they had been requested on 11 March 1997 and submitted on 13 May
1997 and 6 March 1998).
- The
Court takes note of the fact that the applicant amended her claim on
several occasions; however, she did not contribute to the length of
the proceedings in a significant way.
- 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 Frydlender and other cases 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.
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. 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
- In
respect of non-pecuniary damage the applicants claimed PLN 10,000
as well as an award of a social flat or, alternatively, higher
financial compensation.
- The
Government contested any claims exceeding PLN 10,000.
- The
Court considers that the applicant must have sustained some
non-pecuniary damage, having regard to the excessive length of the
proceedings. Ruling on an equitable basis, it awards her EUR
4,200 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant did not make a 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
1. Rejects the Government's request to strike the application
out of the list;
- Declares the remainder of the application
admissible;
- 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 4,200 (four
thousand two hundred 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 17 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
