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FOURTH
SECTION
CASE OF OPAŁKO v. POLAND
(Application
no. 4064/03)
JUDGMENT
STRASBOURG
15 January
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 Opałko v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza,
President,
Giovanni Bonello,
Kristaq Traja,
Lech
Garlicki,
Ljiljana Mijović,
Ján
Šikuta,
Päivi Hirvelä, judges,
and Lawrence Early, Section
Registrar,
Having
deliberated in private on 11 December 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 4064/03) 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 Stanisław
Opałko (“the applicant”), on 22 January 2003.
- The
Polish Government were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
- On
19 March 2007 the
President of the Fourth Section of the Court decided to communicate
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 President also gave priority to the application, pursuant to Rule
41 of the Rules of the Court.
- On
10 December 2007 at 5.35 p.m. the Government sent a facsimile to the
Court informing it that they were ready to settle the case. However,
having regard to the fact that it was considering a draft of a
judgment in the case at that stage, the Court decided to treat the
Government's initiative as belated and to proceed with its
deliberations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1935 and lives in Komorowice.
- In 1986 the applicant was arrested and detained on
remand on a charge of stealing 4 tons of coal. The subsequent
criminal proceedings against him ended in 1991, when he was finally
acquitted.
- On
22 January 1992 the applicant lodged with the Wrocław Regional
Court (Sąd Wojewódzki) an action for compensation
for unlawful detention in 1986.
- On
22 August 1994 the court held the first hearing, which was however
adjourned.
- At
the second hearing held on 31 August 1995 the court dismissed the
applicant's action.
- On
7 September 1995 the applicant lodged an appeal against the decision.
However, the case file was transferred to the Wrocław Court of
Appeal (Sąd Apelacyjny) only on 21 May 1999.
- On
14 July 1999 the Court of Appeal dismissed the appeal.
- August
1999 the applicant lodged a cassation appeal with the Supreme Court
(Sąd Najwyższy).
- On
6 February 2002 the Supreme Court allowed the appeal, quashed both
judgments and remitted the case to the Regional Court.
- The
Wrocław Regional Court held the first hearing on 24 September
2002. Subsequently, on seven occasions, the composition of the court
changed so the proceedings had to start from the beginning.
- On
16 March 2005 the applicant lodged a complaint about the unreasonable
length of the proceedings under section 5 of 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”).
- On
29 April 2005 the Wrocław Court of Appeal allowed the complaint
and granted the applicant PLN 2,000 in compensation (approximately
EUR 514). The court analysed the course of the impugned
proceedings in the light of the criteria which the Court itself
applies and concluded that the Regional Court had violated the
applicant's right to a hearing without unjustified delay.
- On
14 October 2005 the Wrocław Regional Court gave judgment. The
court allowed the applicant's action and granted him PLN 27,000
in compensation for his unlawful detention in 1986. The applicant
appealed.
- On
19 April 2006 the Wrocław Court of Appeal upheld the judgment.
- The
applicant did not lodge a cassation appeal and the judgment became
final.
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 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 and the judgment in the case
of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR
2005-V.
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 comment on the merits of the applicant's
complaint.
- The
Court notes that the proceedings commenced on 22 January 1992.
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 19 April 2006. It thus lasted almost
13 years for three levels of jurisdiction.
A. Admissibility
- The
Government raised an objection that the applicant cannot be
considered a “victim”, within the meaning of Article 34
of the Convention, of a violation of his right to a hearing
within a reasonable time. The Court notes that this issue falls to be
determined in the light of the principles established under the
Court's case-law (Cocchiarella v. Italy [GC],
no. 64886/01, §§ 69 107, ECHR 2006 ...
and Scordino v. Italy (no. 1) [GC], no. 36813/97,
§§ 178 213, ECHR 2006 - ...).
- The
Wroclaw Court of Appeal analysed the course of the impugned
proceedings in the light of the criteria which the Court itself
applies. It concluded that the Regional Court had violated the
applicant's right to a hearing without unjustified delay and awarded
the applicant the equivalent of EUR 514 in respect of the length
of the proceedings. The just satisfaction awarded by the Court of
Appeal amounts to approximately 7 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 he complains before the Court, was insufficient (see Czajka
v. Poland, no. 15067/02, § 56, 13 February
2007). In these circumstances, the argument that the applicant has
lost his status as a “victim” cannot be upheld.
- The
Government also submitted that the applicant had not exhausted
remedies available under Polish law. They maintained that he had not
lodged a civil claim for compensation for damage suffered due to the
excessive length of proceedings with the Polish civil courts under
Article 417 of the Civil Code.
- The
applicant contested the Government's arguments and submitted that he
had made use of a remedy available to him and, particularly given his
advanced age, he should not be required to initiate another set of
proceedings.
- The
Court recalls that the rule of exhaustion of domestic remedies
referred to in Article 35 § 1 of the Convention requires an
applicant first to use the remedies provided by the national legal
system. The rule is based on the assumption that the domestic system
provides an effective remedy in respect of the alleged breach. In
order to comply with the rule, normal recourse should be had by an
applicant to remedies which are available and sufficient to afford
redress in respect of the breaches alleged (see Aksoy v. Turkey,
judgment of 18 December 1996, Reports of Judgments and Decisions
1996-VI, pp. 2275–76, §§ 51–52).
- The Court also reiterates that, although Article 35 §
1 requires that the complaints intended to be brought subsequently
before the Court should have been made to the appropriate domestic
body, it does not require that, in cases where the national law
provides for several parallel remedies in various branches of law,
the person concerned, after an attempt to obtain redress through one
such remedy, must necessarily try all other means (see, mutatis
mutandis, H.D. v. Poland (dec.),
no. 33310/96, 7 June 2001, Kaniewski v. Poland,
no. 38049/02, §§ 32-39, 8 November 2005).
- The
Court notes that the applicant lodged a complaint about the length of
the proceedings under the 2004 Act. On 26 April 2005 the Poznan Court
of Appeal admitted that the proceedings had been lengthy and awarded
the applicant the equivalent to EUR 514 in compensation.
The Court has already examined that remedy for the purposes of
Article 35 § 1 of the Convention and found it effective in
respect of complaints about the excessive length of judicial
proceedings in Poland (see Michalak v. Poland
(dec.) no. 24549/03, §§ 37-43).
- The
Court considers therefore that, having exhausted the available remedy
provided by the 2004 Act, the applicant was not required to embark on
another attempt to obtain redress by bringing a civil action for
compensation (see Cichla v. Poland, no. 18036/03, § 26,
10 October 2006). Accordingly, the Court concludes that, for the
purposes of Article 35 § 1 of the Convention, the
applicant has exhausted domestic remedies. For these reasons, the
Government's plea of inadmissibility on the ground of non-exhaustion
of domestic remedies must be dismissed.
- The
Court further notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention. It also
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 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.
Moreover, the Court notes that the case lay dormant for three and a
half years before being transferred to the Court of Appeal and that
the Government failed to give any explanation of this delay (see
paragraph 9 above). 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 20,000 Polish zlotys (approximately 5,500 euros
(EUR) on the date on which the claim had been submitted) in respect
of non-pecuniary damage.
- The
Government submitted that the claim was exorbitant.
- The
Court considers that the applicant must have sustained non-pecuniary
damage resulting from the protracted length of the proceedings. In
the particular circumstances of the case it considers that it should
award the full sum claimed.
B. Costs and expenses
- The
applicant also claimed PLN 3,000 for the costs and expenses incurred
before the domestic courts and 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 considers it
reasonable to award the applicant, who was not represented by a
lawyer, the sum of EUR 500 covering costs under all heads.
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 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 5,500 (five
thousand five hundred euros) in respect of non-pecuniary damage and
EUR 500 (five hundred euros) for costs and expenses, plus any tax
that may be chargeable, to be converted into Polish zlotys at the
rate applicable at the date of settlement;
(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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 15 January 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
