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FOURTH
SECTION
CASE OF DOROTA AND ZBIGNIEW NOWAK v. POLAND
(Application
no. 17904/04)
JUDGMENT
STRASBOURG
24 March
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 Dorota and Zbigniew Nowak 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 Fatoş
Aracı, Deputy
Section Registrar,
Having
deliberated in private on 3 March 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 17904/04) 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 two Polish nationals, Mrs Dorota Nowak and Mr Zbigniew Nowak
(“the applicants”), on 10 May 2004.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
28 April 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 FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1962 and 1965 respectively and live in
Ostrowiec Świętokrzyski.
A. First set of proceedings
- On
27 November 1995 the applicants lodged with the Kielce Regional Court
(Sąd Okręgowy) a claim for payment against Z.G. and
J.D.
- On
7 May 2001 the first instance court gave judgment. The defendants
appealed.
- On
13 March 2002 the Kraków Court of Appeal (Sąd
Apelacyjny) partly remitted the case.
- On
28 January 2004 the Kielce Regional Court gave judgment.
- The
proceedings were terminated on 9 November 2004 by the final
judgment of the Kraków Court of Appeal.
B. Proceedings under the 2004 Act
- On
7 February 2005 the applicants lodged with the Kraków Court
of Appeal a complaint about a breach of the right to a trial
within a reasonable time. They specifically relied on section 18
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”) which entered into force on
17 September 2004.
- The
applicants sought a ruling declaring that the length of the
proceedings before the Kielce Regional Court had been excessive.
They asked for an award of just satisfaction in the amount of
10,000 Polish zlotys (PLN) (approx. EUR 2,500).
- On
16 March 2005 the Kraków Court of Appeal gave a decision
in which it acknowledged the excessive length of the proceedings
before the Kielce Regional Court. It awarded the applicants jointly
and severally PLN 10,000 in just satisfaction.
C. The second set of proceedings
- On
9 May 2001 the applicants lodged a claim for payment against the City
Office (Urząd Miasta) and District Office (Starostwo
Powiatowe) with the Kielce Regional Court.
- The
first hearing was held on 24 October 2001.
- On
29 October 2001 the applicants specified that they wished to continue
the proceedings only against the City Office.
- The
hearing scheduled for 3 April 2002 was adjourned at the applicants'
request.
- On
22 July 2002 the court held a hearing.
- In
a letter of 2 September 2002 the applicants requested the court
to accelerate the proceedings and to list a hearing.
- On
16 October 2002 and 12 March 2003 the court held
hearings.
- On
18 July, 30 September and 24 October 2003 the court ordered
that an expert report be obtained. The expert's report was submitted
to the court on 3 January 2004.
- On
11 February, 10 March, 28 July and 22 September 2004,
14 March and 30 May 2005 the court held further
hearings, one of which was adjourned at the applicants' request.
- On
9 June 2005 the Kielce Regional Court gave judgment. The parties
filed their appeals on 1 August 2005.
- On
18 January 2006 the Kraków Court of Appeal upheld the first
instance judgment.
D. Proceedings under the 2004 Act
- On
10 June 2005 the applicants lodged with the Kraków Court
of Appeal a complaint about a breach of the right to a trial
within a reasonable time under the 2004 Act.
- The
applicants sought a ruling declaring that the length of the
proceedings before the Kielce Regional Court had been excessive. They
asked for an award of just satisfaction in the amount of 10,000
Polish zlotys (PLN) (approx. EUR 2,500).
- On 25 July 2005 the
Kraków Court of Appeal dismissed the applicants' complaint.
The court found that the Regional Court had given judgment on 9 June
2005, thus at the time of the examination of the complaint the
proceedings before the court of first instance had terminated. The
court further held that the purpose of the complaint about a breach
of the right to a trial within a reasonable time under the 2004
Act was to accelerate the proceedings and not only to afford
financial compensation. The court consequently held that in the facts
of the case there was no basis for declaring that the length of the
proceedings had been excessive.
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 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. ALLEGED
VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE
UNREASONABLE LENGTH OF THE FIRST SET OF PROCEEDINGS
- The
applicants complained that the length of the first set of proceedings
had been incompatible with the “reasonable time”
requirement, laid down in Article 6 § 1 of the Convention
29. The
Court notes that the applicants availed themselves of the remedy
provided for by the 2004 Act and they lodged a complaint about
a breach of the right to a trial within a reasonable time (see
paragraph 10 above).
30. The
Regional Court acknowledged a breach of the applicants'
right to a hearing within a reasonable time and awarded them the
equivalent of EUR 2500 in respect of the length of the
proceedings (see paragraph 12 above). The just satisfaction awarded
by the Regional Court, the maximum amount which can be claimed and
granted under the 2004 Act, amounts to over 50 per cent of what
the Court would be likely to have awarded the applicants at that time
in accordance with its practice, taking into account the particular
circumstances of the proceedings.
- The Court thus concludes that the redress provided to
the applicants at domestic level, considered on the basis of the
facts of which they complained before the Court, had been sufficient.
- Having regard to the criteria for determining victim
status in respect of length of proceedings complaints as set out in
the judgment of Scordino v. Italy (no.1) ([GC], no. 36813/97,
§§ 193-215, ECHR-2006-...), the Court concludes that this
complaint must be rejected as being incompatible ratione personae
with the Convention pursuant to Article 35 §§ 3
and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE UNFAIRNESS OF THE SECOND SET
OF PROCEEDINGS
- In
their submissions made on 2 October 2008 the applicants complained
under Article 6 § 1 of the Convention about the unfairness
of the second set of proceedings. In particular, they complained
that the Court of Appeal failed to deal thoroughly with their appeal.
- However,
pursuant to Article 35 § 1 of the Convention:
“1. The Court may only deal with the matter
... within a period of six months from the date on which the final
decision was taken...”
- The Court notes that that
the proceedings in question ended with the Court of Appeal's judgment
of 18 January 2006, thus more than six months
before the date on which this complaint
was submitted to the Court.
It follows that this part of the application has been introduced out
of time and must be rejected 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 SECOND SET OF
PROCEEDINGS
- The
applicants 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 contested that argument.
- The
period to be taken into consideration began on 9 May 2001 and ended
on 18 January 2006. It thus lasted four years, eight months and
twelve days for two court instances.
A. Admissibility
- The
Government raised a preliminary objection that the applicants had not
exhausted domestic remedies available to them under Polish law,
as required by Article 35 § 1 of the Convention. They
maintained that the applicants should have lodged a complaint about
the unreasonable length of the proceedings under section 18 of
the 2004 Act. Moreover, the Government claimed that the applicants
had failed to comply with Article 5 of the 2004 Act, by lodging their
complaint under the 2004 Act after the termination of the
first-instance proceedings.
- The
applicants did not comment on that matter.
- The
court observes that the applicants lodged their complaint about the
excessive length of the proceedings after the first-instance court
had given the judgment (see paragraphs 22 and 24 above). However,
this ruling did not terminate the proceedings in the applicants'
case, since the parties lodged the appeals against it (see paragraph
22 above). Finally, if the Court of Appeal had treated the
applicants' complaint as lodged not in accordance with the formal
requirements set out in the 2004 Act, it would have rejected the
complaint on those grounds.
The Court has already examined that remedy for the purposes of
Article 35 § 1 of the Convention and found it effective in
respect of complaints about the excessive length of judicial
proceedings in Poland (see Michalak v. Poland (dec.)
no. 24549/03, §§37-43). For these
reasons, the Government's plea of inadmissibility on the ground of
non-exhaustion of domestic remedies must be dismissed.
- The
Court further notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention. It also
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 applicants and the relevant authorities and what
was at stake for the applicants 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 applicants' complaint that the
proceedings in their case exceeded a reasonable time, the Kraków
Court of Appeal 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). In
particular, the Court of Appeal did not examine period of the
examination of the case by the first-instance court.
- 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.
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
applicants claimed a lump sum of PLN 84,412.29 in respect
of pecuniary and non-pecuniary damage.
- The
Government contested the claim.
- 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 applicants EUR 2,200 in respect
of non pecuniary damage.
B. Costs and expenses
- The
applicants 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
- Declares the complaint concerning the excessive
length of the second set of 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 applicants, within three months
from the date on which the judgment becomes final in accordance
with Article 44 § 2 of the Convention, EUR 2,200
(two thousand two hundred euros) in respect of non-pecuniary damage,
to be converted into Polish zlotys at the rate applicable
at the date of settlement, 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;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 24 March 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas
Bratza
Deputy Section Registrar President
