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    European Court of Human Rights
    You are here: BAILII >> Databases >> European Court of Human Rights >> SOKOLOWSKA v. POLAND - 7743/06 [2009] ECHR 44 (13 January 2009)
    URL: http://www.bailii.org/eu/cases/ECHR/2009/44.html
    Cite as: [2009] ECHR 44

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    FOURTH SECTION







    CASE OF SOKOŁOWSKA v. POLAND


    (Application no. 7743/06)












    JUDGMENT




    STRASBOURG


    13 January 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 Sokołowska 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 December 2008,

    Delivers the following judgment, which was adopted on that date:

    PROCEDURE

  1. The case originated in an application (no. 7743/06) 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, Ms Alicja Sokołowska (“the applicant”), on 16 February 2006.

  2. The applicant was represented by Mr A. Bodnar, a lawyer practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of the Foreign Affairs.

  3. On 1 September 2006 the President of the Fourth Section decided to give notice of the application to the Government. It also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3).

    4. THE FACTS

    I  THE CIRCUMSTANCES OF THE CASE

  4. The applicant was born in 1944 and lives in Warsaw.

    5. A.  Main proceedings (civil proceedings for settlement of cohabitation)

    1.  Facts prior to 1 May 1993

  5. The applicant lived in a long-term relationship (cohabitation) with J.L., who died in 1984. On 18 July 1984 she lodged a civil action with the Warsaw District Court against his sons, R. and D., for recognition of her ownership rights to the property she had possessed and maintained during her cohabitation with J.L.

  6. At its first hearing on 13 November 1984 the court heard the parties.

  7. On 23 February 1985 the Warsaw District Court stayed the proceedings, as the applicant's counsel had failed to submit some important documents concerning the ownership of the disputed property. The applicant appealed and on 10 May 1985 the Warsaw Regional Court quashed that decision.

  8. Subsequent hearings in the case were held on 28 January and 19 February 1987. The court questioned the applicant and two witnesses. Further, it asked counsel to define precisely the subject matter of the claim.

  9. The hearing scheduled for 16 November 1987 was postponed due to the applicant's non-appearance.

  10. The hearing of 25 July 1988 was adjourned at the parties' request, in connection with their wish to reach a friendly settlement.

  11. On 27 September and 18 October 1988 the court heard three witnesses.

  12. Following a request by counsel, on 9 December 1988 the court appointed an expert to prepare a valuation of the property. The expert submitted his opinion on 5 September 1989.

  13. At the hearing of 20 April 1990 counsel contested the findings contained in the expert's report. The hearing was subsequently adjourned as the parties again expressed their wish to reach a friendly settlement of the case.

  14. On 1 October 1990 counsel informed the Warsaw District Court about the parties' failure to reach an agreement.

  15. Hearings in the case were held on 12 November 1990 and 10 January, 18 February, 21 March, 29 April and 16 May 1991. The parties were again examined, as well as eleven witnesses.

  16. On 16 May 1991 the court requested the expert to supplement his opinion. In this connection the defendants were asked to deliver additional documents. They failed, however, to comply with this request. Hence, the expert was not able to supplement his opinion and in October 1993 he returned the case file to the court.

    17. 2.  Facts after 1 May 1993

  17. On 29 June 1994 the Warsaw District Court appointed another expert, T.K., who submitted his opinion on 24 April 1995.

  18. On 25 May 1995 the applicant decided to withdraw her claim for transfer of ownership and submitted a claim for compensation instead.

  19. The expert, as well as the defendants, was summoned for a hearing scheduled for 13 September 1996, but they all failed to comply with the summons and did not appear at the trial.

  20. By the decision of 13 September 1996 the Warsaw District Court exempted the applicant from court fees for lodging her new claim.

  21. On the same day the Warsaw District Court decided that it lacked jurisdiction ratione materiae (due to the high value of the transformed claim) and transferred the case to the Warsaw Regional Court.

  22. On 31 January 1997 the Warsaw Regional Court again summoned expert T.K. and adjourned the hearing until 25 April 1997. The expert again failed to attend that hearing.

  23. On 26 April 1997 the court found that it lacked jurisdiction ratione loci and materiae and on 22 May 1997 transferred the case to the Nowy Dwór Mazowiecki District Court. No hearing was scheduled until 15 April 1999.

  24. The hearing of 15 April 1999 had to be adjourned since neither the applicant nor her counsel had appeared.

  25. The subsequent hearings scheduled for 17 June and 9 September 1999 were adjourned due to the defendants' absence.

  26. The hearings scheduled for 7 October, 4 November and 2 December 1999 were also adjourned, due to the non-appearance of the applicant and her counsel (although they had both been summoned correctly).

  27. On 28 April 2000 the court appointed another expert, who submitted her opinion five months later.

  28. The hearing of 7 December 2000 was adjourned due to the defendants' failure to appear.

  29. Neither the applicant, nor her counsel appeared at the hearings scheduled for 22 February, 12 April, 19 June, 17 July, 8 November and 6 December 2001 and 8 May 2002. In consequence all these hearings had to be adjourned.

  30. On 24 July 2002 the Nowy Dwór Mazowiecki District Court delivered a decision in the applicant's favour, awarding her 101,000 Polish zlotys (PLN).

  31. On 12 August 2002 D. (one of the defendants) requested from the court the written grounds of that decision. His request was rejected on 8 October 2002 for having been lodged out of time.

  32. On 28 October 2002 R. (the other defendant) appealed against the decision of 24 July 2002, whereas D. appealed against the decision of 8 October 2002.

  33. On 19 November 2002 the court summoned R. to remedy the formal shortcomings in his appeal.

  34. On 29 November 2002 the court granted D. leave to lodge an appeal out of time and quashed the decision of 8 October 2002.

  35. On 9 December 2002 R.'s counsel remedied the shortcomings in his appeal against the decision of 24 July 2002. On the same day the court summoned R.'s counsel to pay the appeal fee of PLN 720. On 23 December 2002 R. requested the court to exempt him from the fee. On 21 January 2003 the court summoned him to provide relevant documents in support of his request (inter alia on his current financial standing).

  36. On 30 December 2002 D. lodged his appeal against the decision of 24 July 2002. On 21 January 2003 the court summoned D. to rectify the formal shortcomings of his appeal, which he did on 31 January. On 3 February 2003 the court summoned D. to pay the appeal fee of PLN 370. On 12 February D. asked the court for exemption from the fee. On 13 February the court summoned him to provide relevant documents supporting his request.

  37. R. and D. submitted relevant documents on 27 February and 7 March 2003.

  38. On 11 April 2003 the court rejected both requests for exemption from the appeal fee. On 8 May 2003 R. appealed against this decision.

  39. On 29 May 2003 the court summoned D. to pay the appeal fee. On 16 June 2003 he again requested to be exempted from the fee. The court considered his letter as an appeal and a request to be granted leave to appeal out of time against the decision of 11 April 2003. It scheduled a hearing for 27 August 2003 to examine this request.

  40. On 27 August and 4 September 2003 the court heard D. and adjourned the hearing until 17 September 2003, having summoned D. to submit certain documents. On 17 September D. informed the court that he could not attend the hearing and asked for an adjournment.

  41. On 10 October 2003 the court dismissed the applicant's request to be granted leave to appeal out of time against the decision of 11 April 2003. On 20 October 2003 D. asked to be served with written grounds for this decision. On 24 October 2003 the court dismissed his request.

  42. On 9 January 2004 the court dismissed D's appeal against the decision of 11 April 2003 as having been lodged out of time.

  43. On 26 February 2004 the court dismissed on formal grounds D's appeal of 30 December 2002 against the decision of 24 July 2002. D. appealed and his appeal was dismissed on 1 April 2004 as having been lodged out of time. He appealed again. On 21 May 2004 the court summoned him to pay a fee for this appeal.

  44. On 6 September 2004 the Nowy Dwór Mazowiecki District Court referred the case to the Warsaw Regional Court.

  45. On 5 November 2004 the Warsaw Regional Court dismissed D.'s appeal against the decision of 1 April 2004 and R.'s appeal against the decision of 11 April 2003.

  46. On 20 January 2005 the Nowy Dwór Mazowiecki District Court summoned R. to pay an appeal fee for his appeal against the decision of 24 July 2002.

  47. On 7 March 2005 the court held a hearing to examine another of D.'s requests to be granted leave to appeal out of time against the decision of 26 February 2004. The court dismissed his request and consequently dismissed his appeal on 20 April 2005.

  48. On 20 April 2005 the court again summoned R. to pay an appeal fee.

  49. On 13 October 2005 the Nowy Dwór Mazowiecki District Court dismissed R.' appeal against the decision of 24 July 2002 on formal grounds (for his failure to pay a court fee). R. appealed against this decision.

  50. On 26 September 2005 the applicant asked the Nowy Dwór Mazowiecki District Court to issue an enforcement order for the judgment of 24 July 2002, submitting that the defendants, by lodging successive procedural motions and subsequently appealing against all decisions, were aiming solely at prolonging the proceedings and avoiding the execution of the judgment. She was informed that the decision was not yet final and could not be enforced, because various appeals lodged by the defendants were pending at that time.

  51. On 13 October 2005 R.'s appeal was rejected by the Nowy Dwór Mazowiecki District Court.

  52. On 15 May 2006 the Nowy Dwór Mazowiecki District Court made an enforcement order on the decision of 24 July 2002 and it became final.

    53. B.  Proceedings under the 2004 Act

  53. On 25 January 2005 the applicant lodged with the Nowy Dwór Mazowiecki District Court 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”) alleging the excessive length of pending civil proceedings. At the same time she asked the court to have her complaint transferred to the Warsaw Regional Court, which was competent to examine it. She described in two pages the delays in the proceedings, and submitted that: “for these reasons I lodge a complaint about the excessive length of the proceedings”. She also asked the court to instruct the lower court to terminate the proceedings without further delay.

  54. The Nowy Dwór Mazowiecki District Court transferred the case file to the Warsaw Regional Court only in March 2005, after the applicant had intervened requesting that her excessive length complaint be dealt with.

  55. On 31 March 2005 the Warsaw Regional Court rejected her complaint on formal grounds. It considered that it was tainted with a formal shortcoming, namely that it did not contain an express request to find that there had been an unreasonable delay in the proceedings.

  56. On 14 April 2005 the applicant lodged a fresh complaint of excessive length of proceedings. In the title of her application she referred in direct terms (by providing the case's exact register number) to the currently pending appeal proceedings, as required by the relevant law. In the substance of her complaint she described in detail the proceedings in their entirety as pending from 1984. She also indicated the different register numbers with which the case was designated throughout the entire period of its examination. She concluded her complaint by requesting the court to immediately terminate the proceedings in her case, which had been pending as of 1984. It transpires that she complied with all the formal requirements of a complaint as provided by the 2004 Act.

  57. On 5 July 2005 the Warsaw Regional Court rejected her complaint as unfounded. The court considered only the length of the appeal proceedings, the applicant had referred to in her complaint's title, namely after the decision of 24 July 2002 had been given, and found that there were no unreasonable delays in the examination of the numerous requests made by the defendants after that date. They were considered speedily. On several occasions the defendants had to be summoned to rectify formal shortcomings in their requests. In this connection the court observed that the time-limits given had been complied with. Hence, no evidence was found in support of the conclusion that unreasonable delays had occurred in the case. The court concluded that nothing in the case file could suggest that the length of proceedings was excessive.

    58. II.  RELEVANT DOMESTIC LAW AND PRACTICE

  58. On 17 September 2004 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”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings. A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under Article 2 read in conjunction with Article 5(1) of the 2004 Act.

    59. Article 6 § 2 provides that a complaint must include:

    1) a request to find that there was an unreasonable delay in the impugned proceedings;

    2) an indication of circumstances that would justify the request.

    According to Article 9 of the Act, when a complaint does not meet the requirements of Article 6 of the Act, it must be rejected without a prior request to the plaintiff to remedy the shortcomings in the complaint.

  59. For further references concerning the relevant domestic law and practice in respect of remedies available for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, see 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.

    60. THE LAW

    I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE PROCEEDINGS

  60. 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:

    61. “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

  61. The Government contested that argument.

  62. The Court notes that the proceedings commenced on 18 July 1984. 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 15 May 2006. It thus lasted twenty-one years and ten months (of which thirteen years fall within the Court's jurisdiction ratione temporis) at one level of jurisdiction.

    63. A.  Admissibility

    The Government's plea of non-exhaustion of domestic remedies

  63. The Government pleaded non-exhaustion of domestic remedies in that the applicant had failed to file correctly the remedies provided for by the 2004 Act. They observed that her first complaint was rejected on formal grounds. With regard to the second, the Government maintained that if the applicant wished to complain against the length of the entire proceedings (as pending from 1984), she should have showed greater diligence in preparing her complaint and have specified her demands more precisely, in particular by referring to the correct register number of the case. They alleged that the domestic court considered solely the part of the proceedings pending after the first-instance decision had been given on 24 July 2002, since the applicant had referred only to this period in her complaint's title. The Government stressed that during this period the defendants had made numerous requests to the court, which required extensive consideration. This was done systematically and it cannot be said that undue delays occurred in the court's actions.

  64. The Government concluded that the applicant had failed to make a proper use of the complaint of the excessive length of proceedings, as provided by the 2004 Act.

  65. The applicant submitted that she had lodged a complaint of excessive length of proceedings twice.

  66. The first decision given in respect of her complaint filed under the 2004 Act reflected the very strict and purely formalistic approach applied by domestic courts while interpreting the formal requirements of a complaint, as provided for by sections 6 and 9 of the above-mentioned Act. She submitted that such an approach should be assessed negatively, having particularly in mind that the 2004 Act did not require professional representation in making a complaint. Accordingly, if the complaint was drafted and lodged by a non-lawyer the court should consider primarily the general meaning and aim of the complaint and whether it corresponded in substance to the requirements of section 6 § 2 of the 2004 Act. The court should not apply strict procedural requirements when examining the request, since this risked violating the applicant's rights to an effective remedy. In consequence it could result in the ineffectiveness of the remedies provided for by the 2004 Act.

  67. With regard to the second decision, given on 5 July 2005, the applicant submitted that the domestic court, by considering only the length of proceedings conducted after 24 July 2002, once a decision had been given at the first level of jurisdiction, had assessed the period pending at one level of jurisdiction only and failed to examine it in the context of the entire length of proceedings. This, the applicant alleged, constituted a common feature of the review provided by the domestic courts under the 2004 Act. In consequence she stressed that the Warsaw Regional Court had failed to adjudicate her case correctly. Moreover, it also failed to correctly apply the principles established in the jurisprudence of the Court in respect of unreasonable length of proceedings, namely the four-step test, that is the court's and parties' contribution to the proceedings' length, the complexity of the case and what was at stake for the applicant. The applicant alleged that the court had automatically referred only to the contribution of the parties, setting aside other factors, and on this ground had rejected her complaint.

  68. The applicant concluded that she had exhausted all available domestic remedies.

  69. The Court reiterates that pursuant to Article 35 § 1 of the Convention the Court may only deal with the matter after all domestic remedies have been exhausted.

  70. In this connection the Court notes that the applicant lodged two complaints under the 2004 Act. The first one (of 25 January 2005) was dismissed on formal grounds. After examining the second one (of 14 April 2005) the court found no unreasonable delays in the proceedings the applicant had referred to in her complaint and for this reason had rejected it as unfounded (see paragraphs 53-57 above).

  71. As to the first complaint, the Court observes that since the applicant failed to comply with the formal requirements of remedies provided by the 2004 Act, it cannot be said that she exhausted available domestic remedies.

  72. It is to be noted however that the applicant embarked on another attempt to lodge a fresh complaint, after being instructed by the court on the formal shortcomings of the first one. Her second complaint was allowed by the Warsaw Regional Court and examined as to its merits. The court considered only the period of the proceedings which the applicant referred to (by indicating its register number) in her complaint's title, pending after the first-instance decision had been given on 24 July 2002. As a result, the court found that the Nowy Dwór Mazowiecki District Court had not violated the applicant's right to have her case heard within a reasonable time. The court stressed that the defendants in the case had made numerous procedural representations. These were considered speedily by the court. The Warsaw Regional Court thus concluded that there was no evidence in support of the applicant's allegation that unjustified delays occurred in the case, and accordingly rejected her complaint as unfounded (see paragraph 57 above).

  73. It follows that the applicant made use of the remedy provided for by the 2004 Act, and lodged a complaint about the unreasonable length of proceedings which was examined by the court as to its merits.

    74. The Court has already examined that remedy for the purposes of Article 35 § 1 of the Convention and found it effective in respect of the complaints of excessive length of judicial proceedings in Poland. In particular, it considered that it was capable both of preventing the alleged violation of the right to a hearing within a reasonable time or its continuation, and of providing adequate redress for any violation that has already occurred (see Charzyński v. Poland (dec.), no. 15212/03, §§ 36-42).

  74. The Court observes that the applicant's complaint under the 2004 Act failed. It failed because the court limited its examination of the proceedings' length to a certain period of time only, which the applicant referred to in the title of her complaint. In this connection the Court notes that the applicant's reference to the case number of the currently pending appeal proceedings was made in accordance with the relevant law. The Court further notes that the applicant in the substance of her complaint described in detail the proceedings in their entirety as pending from 1984 and made respective references to different register numbers with which the case was designated throughout the entire period of its examination. Further, as it transpires she complied with all the formal requirements, including in her petition all elements of her complaint as provided by the 2004 Act (see paragraph 56 above). Therefore it cannot be said that the applicant was only requesting the court to consider the part of the proceedings pending after the first-instance decision had been given on 24 July 2002, which period amounted to less than two years and ten months. Neither can it be concluded that the court acted in compliance with the relevant provisions of the 2004 Act concerning the formal requirements for lodging an application. It follows that the court failed to examine the applicant's complaint correctly.

    75. Having regard to the above, the Court rejects the Government's argument as to the applicant's lack of due diligence in preparing her second complaint (see paragraphs 63 and 64 above) and concludes that the applicant made a proper use of the complaint of the excessive length of proceedings, as provided by the 2004 Act.

  75. Accordingly, the Court finds that the applicant exhausted domestic remedies in respect of her complaint under Article 6 § 1 of the Convention. In consequence the Court finds that the present application cannot be declared inadmissible for non-exhaustion of domestic remedies and dismisses the Government's plea.

  76. 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.

    77. B.  Merits

  77. 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).

  78. 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).

  79. 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. Furthermore, the Court considers that, in rejecting 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).

    80. There has accordingly been a breach of Article 6 § 1.

    II  APPLICATION OF ARTICLE 41 OF THE CONVENTION

  80. Article 41 of the Convention provides:

    81. “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

  81. The applicant claimed 12,000 euros (EUR) in respect of non-pecuniary damage.

  82. The Government contested the claim, finding the amount to be exorbitant.

  83. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, the Court considers that it should award the full sum claimed.

    84. B.  Costs and expenses

  84. The applicant did not make any claim for costs and expenses involved in the proceedings.

    85. C.  Default interest

  85. 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.

    86. FOR THESE REASONS, THE COURT UNANIMOUSLY

  86. Declares the application admissible;


  87. Holds that there has been a violation of Article 6 § 1 of the Convention;


  88. Holds

    89. (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 amount to be converted in the currency of the respondent State at the rate applicable at the date of settlement: EUR 12,000 (twelve thousand euros) in respect of non-pecuniary damage, 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 amount 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 13 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

    Lawrence Early Nicolas Bratza
    Registrar President

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URL: http://www.bailii.org/eu/cases/ECHR/2009/44.html