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FOURTH
SECTION
CASE OF FIGIEL v. POLAND (no. 2)
(Application
no. 38206/05)
JUDGMENT
STRASBOURG
16
September 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 Figiel v. Poland (no. 2),
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 28 August 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 38206/05) 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 Wojciech
Figiel (“the applicant”), on 29 January 2005.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
1 September 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
Government requested that the present application be joined to
application no. 38190/05, which was lodged by the applicant
(Figiel v. Poland (no. 1) and which concerned the
length of another and unrelated set of civil proceedings. On 6 May
2008 the President of the Chamber decided not to join the
applications.
- The
Government submitted a unilateral declaration and invited the Court
to strike both of the above-mentioned applications out of the list,
in accordance with Article 37 of the Convention.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1955 and lives in Warsaw.
A. Civil proceedings for payment
- On
10 November 1999 the applicant lodged a claim for payment with the
Warsaw District Court (Sąd Rejonowy). The applicant
requested the court to make an order for payment against his business
partner. The value of the claim was 500 Polish zlotys (PLN) (about
150 euros (EUR).
- On
9 January 2004 the Warsaw District Court gave judgment and dismissed
the applicant's claim.
- On
7 February 2004 the applicant appealed against the first-instance
judgment.
- On
30 November 2004 the Warsaw Regional Court heard the applicant's
appeal and granted the claim for payment.
B. Proceedings under the 2004 Act
- On
21 September 2004 the applicant lodged a complaint with the Warsaw
Regional Court 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”). He sought a
ruling declaring that the length of the proceedings before the Warsaw
District Court had been excessive and that just satisfaction should
be awarded to him.
- On 9 November 2004 the Warsaw Regional Court gave a
decision in which it acknowledged the excessive length of the
proceedings (36 months and 7 days of inactivity on the part of the
Warsaw District Court) but refused to grant the applicant any just
satisfaction, holding that the applicant had failed to reason his
request for just satisfaction and that the proceedings for payment of
PLN 500 did “not seem to be particularly important for the
applicant, who is a businessman”.
C. Application no. 38190/05
- On 29 January 2005 the applicant lodged another
application concerning the length of the civil proceedings for
payment. Those proceedings lasted 5 years at one level of
jurisdiction. The applicant made use of the complaint provided for by
the 2004 Act and the domestic court acknowledged the excessive length
of the proceedings (35 months and 21 days of inactivity on the
part of the Warsaw District Court) but refused to grant the applicant
any just satisfaction.
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 (dec.),
no. 15212/03, §§ 12-23, ECHR 2005-V and Ratajczyk v.
Poland (dec.), no. 11215/02 ,ECHR 2005-VIII, and the judgment in
the case of Krasuski v. Poland, no. 61444/00, §§
34-46, ECHR 2005-V.
THE LAW
I. THE GOVERNMENT'S REQUEST TO STRIKE OUT THE APPLICATION
UNDER ARTICLE 37 OF THE CONVENTION
- On
30 July 2007 the Government submitted a unilateral declaration
similar to that in the case of Tahsin Acar v. Turkey (preliminary
objection) [GC], no. 26307/95, ECHR 2003-VI) and informed
the Court that they were prepared 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) in respect of the two cases introduced
by the applicant (see paragraphs 7 and 13 above). The Government
invited the Court to strike out the applications in accordance with
Article 37 of the Convention.
- The
applicant did not agree with the Government's proposal and requested
the Court to continue the examination of the cases. He maintained
that the amount offered was too low.
- The
Court observes that, as it has already held on many occasions, it may
be appropriate under certain circumstances 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 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 and its Protocols does not
require the Court to continue its examination of the case (see
Tahsin Acar, cited above, § 75, and Melnic
v. Moldova, no. 6923/03, § 22, 14 November
2006).
- According to the Court's case-law, the amount proposed
in a unilateral declaration may be considered a sufficient basis for
striking out an application or part thereof. The Court will have
regard in this connection to the compatibility of the amount with its
own awards in similar length of proceedings cases, bearing in mind
the principles which it has developed for determining victim status
and for assessing the amount of non-pecuniary compensation to be
awarded where it has found a breach of the reasonable time
requirement (see Cocchiarella v. Italy [GC],
no. 64886/01, §§ 85 107, ECHR 2006 ...,;
Scordino v. Italy (no.1) [GC], no. 36813/97, §§
193-215, ECHR-2006-...; and Dubjakova v. Slovakia (dec.), no.
67299/01, 10 October 2004).
- It
is to be noted that the amount proposed by the Government in their
unilateral declaration refers to two separate cases brought by the
applicant, one of which is the subject of the present proceedings.
- While
the amount proposed might be considered sufficient in a single case,
it cannot be accepted as adequate just satisfaction for a breach of
the reasonable-time requirement in two separate cases. On the facts
and for the reasons set out above, in particular the amount of
compensation proposed, the Court finds that the Government have
failed to provide a sufficient basis for concluding that respect for
human rights as defined in the Convention and its Protocols does not
require it to continue its examination of the case (see, a
contrario, Spółka z o.o. WAZA v. Poland
(striking out), no. 11602/02, 26 June 2007).
- This
being so, the Court rejects the Government's request to strike the
application out of its list of cases 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 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
Government refrained from submitting observations on the
admissibility and merits of the complaint.
- The
period to be taken into consideration began on 10 November 1999
and ended on 30 November 2004. It thus lasted 5 years and 22 days for
two levels of jurisdiction.
A. Admissibility
- In
the present case the Regional Court acknowledged a breach of the
applicant's right to a hearing within a reasonable time but refrained
from making an award of just satisfaction (see paragraph 12 above).
Having regard to the criteria for determining victim status in
respect of length of proceedings complaints as set out in the
above-mentioned Scordino (no. 1) judgment, 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).
- 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. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- Regarding
the applicant's allegations that his complaint about a breach of his
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 his 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 that connection.
- 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 (loc. cit., and Scordino (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 his
victim status in respect of the alleged breach of the reasonable-time
requirement (see paragraph 25 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 31 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.
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 3,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government did not express an opinion on the matter.
- The
Court considers that it should award the full sum claimed.
B. Costs and expenses
- The
applicant also claimed EUR 150 for the costs and expenses incurred
before the Court.
- The
Government did not express an opinion on the matter.
- The
Court awards the full sum claimed.
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
- Rejects the Government's request to strike the
application out of the list;
- 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;
4.. 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 the currency
of the respondent State at the rate applicable at the date of
settlement:
(i) EUR
3,000 (three thousand euros) in respect of non-pecuniary damage, plus
any tax that may be chargeable;
(ii) EUR
150 (one hundred and fifty euros) in respect of costs and expenses,
plus any tax that may be chargeable to the applicant;
(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.
Done in English, and notified in writing on 16 September 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
