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FOURTH
SECTION
CASE OF KRZYSZTOF
KANIEWSKI v. POLAND
(Application
no. 49788/06)
JUDGMENT
STRASBOURG
30
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 Krzysztof Kaniewski v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
Ján Šikuta,
Mihai
Poalelungi,
Nebojša Vučinić,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 9 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 49788/06) 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, Mr Krzysztof
Kaniewski (“the applicant”), on 5 December 2006.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
21 February 2007 the
President of the Fourth Section decided to give notice of the
application to the Government. It was also decided to examine the
merits of the application at the same time as its admissibility
(Article 29 § 3).
- The
Government submitted a unilateral declaration and invited the Court
to strike the application 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 dissolution of a partnership
- On 6 November 1992 the applicant lodged a claim with
the Warsaw Regional Court (Sad Okręgowy) for dissolution
of a partnership.
- On
6 June 1995 the proceedings were stayed.
- On
26 September 1996 the Warsaw Regional Court discontinued the
proceedings.
- The
applicant appealed against this decision.
- On
an unspecified date the Warsaw Court of Appeal (Sąd
Apelacyjny) quashed the decision on the discontinuance of the
proceedings.
- On
23 July 1997 the Warsaw Regional Court found that it was not
competent to deal with the matter and referred the case to the Warsaw
District Court (Sąd Rejonowy).
- Between
26 February 1998 and 2 September 2002 the court scheduled eight
hearings, two of which were adjourned.
- On
2 September 2002 the court ordered that an expert report be obtained.
- Between
25 November 2002 and June 2003 the expert witness prepared his
report.
- On
8 April 2004 the proceedings were stayed. The applicant appealed.
- On
16 August 2004 the court rejected the applicant’s appeal.
- The
proceedings are still pending before the Warsaw District Court.
B. Proceedings under the 2004 Act
- On
14 June 2005 the applicant lodged a complaint under 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 September 2005 the Warsaw Regional Court (Sąd Okręgowy)
dismissed his complaint on the ground that on the date of the entry
into force of the 2004 Act no undue delays in the court’s
conduct could be discerned. The court acknowledged that the
proceedings before 2004 had been unreasonably lengthy for various
reasons such as the failure of witnesses and lawyers to appear on
numerous occasions and the unreasonably long period taken up by the
preparation of a report by the expert witness. The court also found
some periods of inactivity on the part of the Warsaw District Court
(between 18 November 1998 and 24 September 1999 and between
9 December 1999 and 29 October 2001). However, the court
stressed that the 2004 Act had entered into force on 17 September
2004 and could not be applied to the proceedings occurring before
that date. Having analysed the conduct of the District Court in the
period following the entry into force of the 2004 Act, the Regional
Court found that the proceedings had been conducted with due
diligence and within a reasonable time.
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. 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 16,000 (the equivalent of EUR 5,000). 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 and
requested the Court to continue the examination of the case. 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).
- 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, conversely,
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 UNFAIRNESS OF THE PROCEEDINGS
- The
applicant first complained that the proceedings in his case were
unfair. He alleged a breach of Article 6 § 1 of the Convention,
which, in its relevant part, reads:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
- However,
the Court notes that the relevant proceedings are still pending
before the first-instance court.
It
follows that this part of the application must be declared
inadmissible for failure to exhaust the domestic remedies in
accordance with Article 35 §§ 1 and 4 of the
Convention.
III. 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
Court notes that the proceedings commenced on 6 November 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 has not yet ended. It has thus lasted over 15
years at one level of jurisdiction.
A. Admissibility
- 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
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). Furthermore, the Court
considers that, in dismissing the applicant’s complaint that
the proceedings in his case exceeded a reasonable time, the Warsaw
Regional Court failed to apply standards which were in conformity
with the principles embodied in the Court’s case-law (see
Majewski v. Poland, no. 52690/99, § 36, 11 October 2005).
- 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.
There
has accordingly been a breach of Article 6 § 1.
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 PLN 160,000,000 in respect of pecuniary and
non-pecuniary damage.
- The
Government contested the claim claiming it to be highly excessive.
- 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 awards the applicant EUR 13,500 in respect of
non pecuniary damage.
B. Costs and expenses
- The
applicant also claimed PLN 486,84 for the costs and expenses incurred
before the domestic courts and for those incurred before the Court.
-
The Government contested the claim.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of 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 sum of EUR 100 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
- Rejects the Government’s request to strike
the application out of its list of cases;
- 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 the currency
of the respondent State at the rate applicable at the date of
settlement:
(i) EUR
13,500 (thirteen thousand five hundred euros) in respect of
non-pecuniary damage;
(ii) EUR
100 (one hundred euros) in respect of costs and expenses;
(iii) 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 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 30 September 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
