BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF POLKOWSKA v. POLAND
(Application
no. 20127/08)
JUDGMENT
STRASBOURG
24
November 2009
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 Polkowska 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,
David Thór Björgvinsson,
Ledi
Bianku,
Mihai Poalelungi, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 3 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 20127/08) 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 Maria
Polkowska (“the applicant”), on 14 April 2008.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr Jakub Wołąsiewicz, of the Ministry of
Foreign Affairs.
- On
18 December 2008 the
President of the Fourth Section decided to give notice of the
application to the Government. It was also decided to rule on
the admissibility and merits of the application at the same time
(Article 29 § 3).
- The
Government submitted a unilateral declaration and invited the Court
to strike the application out of its list of cases, in accordance
with Article 37 § 1 of the Convention.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1959 and lives in Otwock.
A. Civil proceedings for division of matrimonial
property
- On an unspecified date in January 1987 the applicant's
former husband instituted civil proceedings for division of
matrimonial property.
- During
the proceedings the Otwock District Court (Sąd
Rejonowy) decided on
several occasions, of its own motion, to
stay the proceedings due to the fact that the plaintiff had not paid
the relevant costs arising in the course of the proceedings.
- On
numerous occasions the applicant requested the court to resume the
proceedings and to proceed speedily with the
claim.
- On
5 March 1998 the applicant complained to the President of the Warsaw
Regional Court (Prezes Sądu Wojewódzkiego) about
the delay in the proceedings.
- On
8 April 2004 the proceedings were resumed.
- On
20 October 2006 the Otwock District Court gave a decision
ordering the plaintiff to pay a certain amount to the applicant. The
applicant appealed.
- On
29 October 2007 the Warsaw Regional Court (Sąd
Okręgowy) partly amended the
first-instance decision and dismissed the remainder of the
appeal.
B. Proceedings under the 2004 Act
- On 15 February 2005 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”).
- The applicant sought a ruling
that the length of the proceedings before the Otwock District Court
had been excessive and an award of just satisfaction in the amount of
10,000 Polish zlotys (PLN).
- On 6 May 2005 the Warsaw Regional Court dismissed the
applicant's complaint. It limited its examination of the
length of proceedings issue to the period after the entry
into force of the 2004 Act and stressed that the Act could
not be applied to the protracted length of court proceedings
occurring before that date. Having analysed the conduct of the
District Court during the period after the entry into force of the
2004 Act (that is after 17 September 2004), the Regional Court found
that there were no delays for which the District Court could be held
responsible. It held 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 set out 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) 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 THE APPLICATION OUT
UNDER ARTICLE 37 OF THE CONVENTION
- On
3 July 2009 the Government submitted a unilateral declaration similar
to that in the case of Tahsin Acar v. Turkey (Tahsin Acar
v. Turkey (preliminary objection) [GC], no. 26307/95,
ECHR 2003 VI) and informed the Court that they were ready 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 and that the applicant's complaint about the length of
the proceedings had not been redressed at the domestic level as
required by Article 13 of the Convention. In respect of
non-pecuniary damage, the Government proposed to award (a
maximum of) PLN 20,000 to the applicant (the equivalent of 4,900
euros (EUR)). 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. She
considered that the amount proposed did not constitute sufficient
just satisfaction for the damage she had sustained and requested the
Court to continue the examination of the application.
- The
Court observes that, as it has already held on many occasions, it may
be appropriate under certain circumstances to strike out
an application or part of 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.
In this connection, the Court will have regard 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).
- As
to whether it would be appropriate to strike out the present
application on the basis of the unilateral declaration made by the
Government, the Court considers that the sum proposed in the
declaration in respect of non-pecuniary damage suffered by the
applicant as a result of the alleged violation of the Convention
does not bear a reasonable relationship with the amounts awarded by
the Court in similar cases for non-pecuniary damage.
- On
the facts and for the reasons set out above, the Court finds that the
Government failed to submit a statement offering 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, by contrast, 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 this
part of the application out 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
Court notes that the proceedings commenced in January 1987. 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 29 October 2007. It thus lasted fourteen
years and some six months at two court instances (thirteen years and
some six months before the first-instance court).
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 her 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. In particular, the Court notes that even if some delays
were caused by the applicant's former husband (see paragraph 7
above), it was the domestic court's responsibility to discipline the
parties. 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
- 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. In
this connection she complained that the domestic court which examined
her length complaint had not taken under
into consideration the period prior to
the entry into force of the 2004 Act.
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 submit observations on the admissibility and
merits of the complaint.
- 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, §§ 156-57).
- The
Court reiterates further that the word “remedy” within
the meaning of Article 13 does not mean a remedy which is bound to
succeed, but simply an accessible remedy before an authority
competent to examine the merits of a complaint (see, for example,
Figiel v. Poland (no. 2), no. 38206/05, § 33,
16 September 2008, and Šidlová v.
Slovakia, no. 50224/99, § 77, 26 September 2006). In
the light of this principle the Court finds that the fact that
in the context of the examination of the applicant's length
complaint, the court did not take into account the entirety of the
period to be considered under Article 6 of the Convention
(see paragraph 16 above and Majewski, cited above,
§ 36), does not render the remedy under the 2004 Act in the
circumstances of the present case incompatible with Article 13 of the
Convention.
- 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. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE UNFAIRNESS OF THE PROCEEDINGS
- The
applicant complained that the proceedings in her case were unfair. In
particular, she alleged errors of fact and law committed by the
domestic courts.
- However,
the Court reiterates that, according to Article 19 of the Convention,
its duty is to ensure the observance of the engagements undertaken by
the Contracting Parties to the Convention. In particular, it is not
its function to deal with errors of fact or law allegedly committed
by a national court unless and in so far as they may have
infringed rights and freedoms protected by the Convention.
- In
the present case the applicant did not specify a single circumstance
that would indicate that the proceedings were indeed unfair. Instead,
she challenged the result of the proceedings. Assessing the
circumstances of the case as a whole, the Court finds no indication
that the impugned proceedings were conducted unfairly.
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.
V. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
- Lastly, the applicant alleged that Article 14 of the
Convention was breached in that she had been discriminated against in
the enjoyment of her right to a fair trial on the ground of her lack
of financial means.
- In the light of all the material in its possession,
and in so far as the matters complained of are within its competence,
the Court considers that this part of the application does not
disclose any appearance of a violation of the Convention.
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.
VI. 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 euros (EUR) in respect of
pecuniary damage, on the ground that her award before the domestic
courts had been extremely low. The applicant further submitted that
she and her son had suffered distress as a result of the unreasonable
length of the proceedings. In that respect she underlined that
during the period of the proceedings, she and her son had had to
reside in a room of 20m², as the issue concerning the division
of matrimonial property had not been resolved. She left the
determination of the award for non-pecuniary damage to the discretion
of the Court.
- 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, the Court considers that the applicant must
have sustained non-pecuniary damage. Ruling on an equitable basis, it
awards her EUR 11,400 under that head.
B. Costs and expenses
- The
applicant did not make any claim for costs and expenses involved in
the proceedings.
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;
- 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 11,400
(eleven thousand four hundred euros) in respect of non-pecuniary
damage, plus any tax that may be chargeable, to be converted into the
currency of the respondent State 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 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 24 November 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
