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FOURTH
SECTION
CASE OF JERZAK v. POLAND
(Application
no. 29360/06)
JUDGMENT
STRASBOURG
7
October 2008
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 Jerzak v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Mihai Poalelungi, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 16 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 29360/06) 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, Ms Teresa
Jerzak (“the applicant”), on 3 July 2006.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
25 September 2007 the
President of the Fourth Section decided to give notice of the
application to the Government. Applying Article 29 § 3 of the
Convention, it was 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 1940 and lives in Sulejówek.
A. Civil proceedings for division of inheritance
- On
8 March 1994 the applicant lodged an application for division of an
inheritance with the Warsaw District Court (Sąd Rejonowy).
- On
7 November 1997 the Warsaw District Court stayed the proceedings. It
referred to the fact that related criminal proceedings concerning
fraudulent acquisition of land, which could affect the outcome of the
case, had first to be terminated.
- On
9 February 1998 the applicant asked for the proceedings to be
resumed.
- On
3 July 1998 the court refused that request.
- On
3 July 1998 the applicant complained to the Warsaw District Court
about the delays in the proceedings. On 14 July 1998 the court
informed her that the proceedings would be resumed after the criminal
proceedings had been terminated.
- On
3 August 2000 the court refused to resume the proceedings. The
applicant lodged an interlocutory appeal against that decision. The
applicant referred to the fact that the prosecution had discontinued
the investigation.
- On
15 January 2001 the applicant asked once more for the proceedings to
be resumed, to no avail.
- The
proceedings were resumed on 14 February 2002.
- On
30 June 2004 the Warsaw District Court ruled that some of the issues
raised in the application, concerning the acquisition of property,
should be examined in separate proceedings. Consequently, part of the
claim, concerning the expropriation of property, was referred to the
Warsaw District Court as a separate case. The applicant appealed. On
26 July 2004 the Warsaw Regional Court (Sąd Okręgowy)
dismissed the appeal.
- On
25 October 2004 the court stayed the proceedings pending the outcome
of the parallel proceedings for the expropriation of property. The
applicant appealed.
- On
24 October 2006 the Regional Court quashed that decision and resumed
the examination of the case. It referred to the fact that the
District Court had erroneously referred part of the claim to other
proceedings. It relied on the need to examine both cases
simultaneously within the scope of the same proceedings.
- On 9 May 2007 the court stayed the
proceedings because the parallel proceedings for the expropriation of
property were pending before the appellate court.
- The
case is still pending before the District Court.
B. Proceedings under the 2004 Act
- On
2 January 2006 the applicant lodged a complaint with the Warsaw
Regional Court, alleging a breach of her right to a hearing within a
reasonable time. She relied on section 2 of the Act 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”),
which entered into force on 17 September 2004.
- On
9 May 2006 the Warsaw Regional Court acknowledged the excessive
length of the proceedings before the Warsaw District Court. It
awarded the applicant 200 Polish zlotys (PLN – approximately 50
euros (EUR)) by way of just satisfaction. The court referred to the
resolution of the Supreme Court (Sąd Najwyższy) of
18 January 2005 (no. III SPP 113/04) in which it ruled that while the
2004 Act produced legal effects as from the date of its date of entry
into force, its provisions applied retroactively to all proceedings
in which delays had occurred before that date and had not yet been
remedied. The Regional Court held that the
overall length of the proceedings before the District Court
had been excessive, there had been long periods of inactivity and the
hearings had not been held on a regular basis. These delays had taken
place before the date of entry into force the 2004 Act and had not
been remedied afterwards.
Referring
to the amount of just satisfaction, the court held that having
analysed all the circumstances of the case it found this amount to be
sufficient for the applicant.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice concerning remedies for the
excessive length of judicial proceedings, in particular the
applicable provisions of the 2004 Act, are stated in the Court's
decisions in the cases of Charzyński v. Poland no.
15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v.
Poland no. 11215/02 (dec.), ECHR 2005-VIII.
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, 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
Government did not submit observations on the admissibility and
merits of the complaint.
- The
period to be taken into consideration began on 8 March 1994 and has
not yet ended. It has thus lasted over fourteen years and six months
for one court instance.
A. Admissibility
- In
the present case the Regional Court acknowledged a breach of the
applicant's right to a hearing within a reasonable time and awarded
her the equivalent of EUR 50 in respect of the length of the
proceedings (see paragraph 19 above). The just satisfaction awarded
by the Regional Court amounts to approximately 0.5 per cent of what
the Court would be likely to have awarded the applicant at that time
in accordance with its practice, taking into account the particular
circumstances of the proceedings.
The
Court thus concludes that the redress provided to the applicant at
domestic level, considered on the basis of the facts of which she
complains before the Court, was insufficient (see Czajka v.
Poland, no. 15067/02, § 56, 13 February
2007). Having regard to the criteria for determining victim status in
respect of length of proceedings complaints as set out in the
judgment of Scordino v. Italy (no.1) ([GC], no. 36813/97,
§§ 193-215, ECHR-2006-...), the Court concludes that the
complaint cannot be rejected as being incompatible ratione
personae with the Convention.
- It
further 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 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).
- 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, cited above).
- Having
examined all the material submitted to it, the Court observes that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
While the Court is prepared to accept that there may have been
justification for staying the proceedings between 7 November 1997 and
14 February 2002 pending the termination of the criminal
proceedings, it cannot be said that the domestic court displayed due
diligence in dealing with the applicant's case. In particular, the
case had already been pending before the Warsaw District Court for
over three years prior to the decision to stay the proceedings.
Following the resumption of the proceedings no hearings were held in
2003 and due to the erroneous decision of the District Court, quashed
by the Regional Court, the proceedings were stayed between
25 October 2004 and 24 October 2006 (see paragraphs 14 and
15 above). The proceedings are still pending before the
first-instance court.
- 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. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- Regarding
the applicant's allegations that her complaint about a breach of her
right to a trial within a reasonable time was not effective, the
Court considered it appropriate to raise of its own motion the issue
of Poland's compliance with the requirements of Article 13 of the
Convention on account of indications that the applicant had no
effective domestic remedy in respect of the protracted length of
proceedings in her case. Article 13 reads:
Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity.
- The
Government did not make any comments in this respect.
- The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of the requirement
under Article 6 § 1 to hear a case within a reasonable time.
However, the “effectiveness” of a “remedy”
within the meaning of that provision does not depend on the certainty
of a favourable outcome for the applicant (see Kudła v.
Poland [GC], no. 30210/96, §§ 154 et seq., ECHR
2000-XI, §§ 156-157).
- While
the subsidiarity principle underlying the Convention system requires
the Contracting States to introduce a mechanism addressing complaints
about the excessive length of proceedings within the national legal
system, they are afforded – subject to compliance with the
requirements of the Convention – some discretion as to the
manner in which they provide individuals with the relief required by
Article 13 and conform to their Convention obligation under that
provision. In particular, where the State has introduced a
compensatory remedy, the Court must leave to it a wide margin of
appreciation and allow it to organise the remedy – including
the interpretation and application of the notion of “damage”
in a given case – in a manner consistent with its own legal
system, traditions and the standard of living in the country
concerned (see Kudła ibid.; and Scordino v. Italy
(no.1), cited above, §§ 188-189).
- The
fact that in the present case the applicant's claim for just
satisfaction failed and that the redress obtained from the domestic
court was not sufficient for Convention purposes does not in itself
render the remedy under the 2004 Act incompatible with Article 13,
albeit that it has consequences for the Court's assessment of her
victim status in respect of the alleged breach of the reasonable-time
requirement (see paragraph 24 above, with references to the
Court's case-law, and, mutatis mutandis, Zarb v. Malta,
no. 16631/04, §§ 49-52, 4 July 2006).
As
stated above, the expression “effective remedy” used in
Article 13 cannot be interpreted as a remedy bound to succeed,
but simply an accessible remedy before an authority competent to
examine the merits of a complaint (see, e.g., Šidlová
v. Slovakia, no. 50224/99, § 77, 26 September
2006).
In
the light of the foregoing, the Court considers that in the
circumstances of the present case it cannot be said that the
applicant's right to an effective remedy under Article 13 of the
Convention has not been respected.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO
THE CONVENTION
- Lastly,
the applicant complained that the length of the proceedings
complained of had infringed her right to the peaceful enjoyment of
her possessions, as guaranteed by Article 1 of Protocol No. 1.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- Having
regard to its finding under Article 6 § 1 (see paragraph
29 above), the Court considers that it is not necessary to
examine whether, in this case, there has been a violation of Article
1 of Protocol No. 1 (see Kroenitz v. Poland, no.
77746/01, § 37, 25 February 2003).
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 949,360 Polish zlotys (PLN) in respect of pecuniary
damage and PLN 50,000 in respect of 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, and having regard to the fact that the proceedings
were stayed for over five years due to objective reasons, it awards
the applicant EUR 9,200 in respect of non pecuniary damage.
B. Costs and expenses
- The
applicant also claimed PLN 15,000 for the costs and expenses incurred
in order to obtain redress for the violation of the Convention.
- 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 applicant, who was not represented by a
lawyer, the sum of EUR 100 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 complaints under Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 relating to
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 that it is not necessary to examine the
complaint under Article 1 of Protocol No. 1 to 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 9,200 (nine
thousand two hundred euros) in respect of
non pecuniary damage and EUR 100 (one hundred euros) for costs
and expenses, 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 7 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
