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FOURTH
SECTION
CASE OF KUCZKOWSKA v. POLAND
(Application
no. 2311/04)
JUDGMENT
STRASBOURG
22
July 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 Kuczkowska v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Giovanni Bonello, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Ledi
Bianku,
Mihai Poalelungi, judges,
and
Fatoş Aracı,
Deputy Section Registrar,
Having
deliberated in private on 1 July 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 2311/04) 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 Małgorzata
Kuczkowska (“the applicant”), on 22 December 2003.
- The
applicant was represented by Ms M. Gąsiorowska, a lawyer
practising in Warsaw. The Polish Government (“the
Government”) were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
- On
16 November 2006
the President of the Fourth Section of the Court 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 1951 and lives in Warsaw.
A. Main proceedings
- On
3 June 1991 the applicant instituted civil proceedings for
dissolution of a co-ownership and division of an inheritance before
the Warsaw District Court (Sąd Rejonowy). On 18 November
1992 the case was transmitted to the Pruszków District Court.
- Between
24 February 1993 and 28 May 2003 the court held 18 hearings.
- On 7 June 2004 the Pruszków District Court gave
a partial decision in the case. The court held that, following
further proceedings, a final decision concerning the distribution of
the estate would be given at a later stage. The applicant appealed.
- On 9 June 2005 the Warsaw Regional Court, having
examined the partial decision, remitted the case to the District
Court.
- According
to the applicant's submissions, from June 2005 until March 2006
no hearing was listed in her case.
- On
22 August 2007 the Pruszków District Court gave a decision and
divided the inheritance. It is unclear whether the applicant appealed
against that decision.
B. Proceedings under the 2004 Act
- On
an unspecified date the applicant lodged a complaint with the Warsaw
Regional Court (Sąd Okręgowy), 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
8 March 2005 the Warsaw Regional Court rejected her complaint for a
procedural mistake.
- On
11 April 2005 the applicant again lodged a complaint with the Warsaw
Regional Court under section 5 of the 2004 Act. She sought a ruling
declaring that the length of the proceedings before the Pruszków
District Court had been excessive and that just satisfaction in the
amount of 10,000 Polish zlotys (PLN - approx. EUR 2,500) should be
awarded to her.
- On
9 June 2005 the Warsaw Regional Court gave a decision in which it
acknowledged the excessive length of the proceedings, finding that
there had been some periods of unjustified inactivity (lasting from
several months to some two years) on the part of the Pruszków
District Court and awarded the applicant PLN 3,000 (approx. EUR
738) in just satisfaction. Referring to the amount of just
satisfaction, the court relied on the fact that the applicant and
other parties to the proceedings had contributed to their length and
that after 2003 the proceedings had been considerably accelerated.
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; 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 ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE PROCEEDINGS
- 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
Court notes that the proceedings commenced on 3 June 1991.
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 22 August 2007. It thus lasted over
sixteen years for one level of jurisdiction (the case was once
remitted to the first-instance court, which had given only a partial
decision).
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
just satisfaction which remained well below the maximum limit
provided under the 2004 Act and amounted to approximately 7.5% of
what the Court would be likely to have awarded the applicant at the
time in accordance with its practice, taking into account the
particular circumstances of the proceedings (see paragraph 14 above).
Having regard to the criteria for determining victim status in
respect of length of proceedings complaints as set out in the
judgment 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 or
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).
- There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 13 READ IN CONJUNCTION
WITH ARTICLE 6 § 1 OF THE CONVENTION
- The
applicant also alleged a breach of Article 13 of the Convention in
that she 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 refrained from making 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 (no. 1),
cited above, §§ 188-189).
- The
fact that in the present case 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 his
victim status in respect of the alleged breach of the reasonable-time
requirement (see paragraph 18 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 paragraph 25 above; and, also,
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. 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 PLN 592,083 in respect of pecuniary and PLN 163,060
in respect of non-pecuniary damage.
- The
Government did not express an opinion on the matter.
- 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 must have sustained
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. Making
its assessment on an equitable basis and having regard to the sum
awarded by the domestic authorities, the Court awards the applicant
EUR 12,000 in respect of non pecuniary damage.
B. Costs and expenses
- The
applicant also claimed PLN 13,364.34 for the costs and expenses
incurred before the domestic courts and for those incurred before the
Court. She submitted a copy of a contract with her lawyer.
- The
Government did not express an opinion on the matter.
- 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 are 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 sum of EUR 750 covering costs and expenses
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 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, the following
amounts, to be converted into Polish zlotys at the rate applicable at
the date of settlement:
(i) EUR 12,000
(twelve thousand euros) in respect of non pecuniary damage;
(ii) EUR 750
(seven hundred fifty euros) in respect of costs and expenses;
(iii) any
tax that may be chargeable on the above amounts;
(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 22 July 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Giovanni Bonello
Deputy
Registrar President
