[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF ARKADIUSZ KUBIK v. POLAND
(Application
no. 45097/05)
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 Arkadiusz Kubik 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
Lawrence Early, Section
Registrar,
Having
deliberated in private on 9 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 45097/05) 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 Arkadiusz
Kubik (“the applicant”), on 8 December 2005.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
29 May 2007 the
President of the Fourth Section of the Court 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
applicant was born in 1934 and lives in Sosnowiec.
A. Civil proceedings for payment
- On
4 March 1997 the applicant lodged with the Katowice Regional Court
(Sąd Okręgowy) a claim for payment against a limited
liability coal mining company which for several years had been
in possession of the applicant's plot of land and had not paid the
applicant any remuneration for using it without a contract.
- Between
2 October 1997 and 11 September 2000 the court listed 8 hearings
and heard five expert witnesses.
- On
25 September 2000 the Katowice Regional Court gave judgment and
partly granted the claim.
- On
29 September 2000 the defendant was declared insolvent and a trustee
(syndyk masy upadłości) was appointed.
- On
31 October 2000 the trustee lodged an appeal against the judgment of
25 September 2000.
- On
22 November 2000 the Katowice Regional Court stayed the proceedings.
The court relied on a provision of the Code of Civil Proceedings
(Kodeks postępowania cywilnego) pursuant to which the
proceedings had to be stayed if a party to them had meanwhile been
declared insolvent and the dispute concerned an object belonging to
the assets of the insolvent party.
On 23
May 2007 the Katowice Regional Court gave a decision and discontinued
the proceedings. It relied on a newly amended provision of the Code
of Civil Proceedings pursuant to which a court must discontinue the
proceedings if they concern assets belonging to the insolvent party
and the liquidation of the assets in question has been ordered.
B. Proceedings under the 2004 Act in respect of the
proceedings for payment
- On
7 July 2006 the applicant lodged a complaint about the undue length
of the proceedings 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
25 August 2006 the Katowice Court of Appeal (Sąd Apelacyjny)
dismissed his complaint. Relying on certain judgments of the Supreme
Court (Sąd Najwyższy) according to which the 2004
Act was applicable only to proceedings in which the “state of
unreasonable delay” existed on the date on which the 2004 Act
entered into force, the court came to the conclusion that a complaint
under this Act was not the appropriate remedy for seeking a ruling on
the unreasonable length of the proceedings before the court, which
had resolved the dispute a long time ago (in this regard the court
referred to the fact that the Regional Court had given its judgment
on 25 September 2000 and after that date the proceedings had been
stayed). The court also found that the applicant had not appealed
against the decision staying the proceedings and concluded that the
period in which the proceedings had been stayed could not be taken
into account.
C. The proceedings against the trustee
- On 23 July 2001 the applicant instituted proceedings
against the trustee of the above-mentioned company, seeking to
recover possession of the property which had been used by the
coal-mining company.
- On 6 June 2005 the Katowice Regional Court stayed the
proceedings. The applicant appealed and, on 8 August 2005, the
Katowice Court of Appeal dismissed his appeal.
- On an unspecified date the applicant requested the
court to resume the proceedings.
- On 8 December 2006 the Katowice Regional Court
rejected the applicant's request.
- On an unspecified date the applicant appealed against
that decision.
- On 10 April 2007 the Katowice Court of Appeal amended
the Regional Court's decision, granted the applicant's request and
resumed the proceedings.
- The proceedings are pending.
D. Proceedings under the 2004 Act in relation to the
proceedings against the trustee
- On 3 December 2005 the applicant lodged a complaint
under the 2004 Act.
- On 1 March 2006 the Katowice Court of Appeal rejected
the complaint on account of a procedural mistake; the applicant had
failed to specify in his complaint the legal basis of the claim and
the relief sought, in particular he did not ask the court to declare
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 in 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 PROCEEDINGS
FOR PAYMENT
- The
applicant complained that the length of the proceedings for payment
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 and submitted that the case had
been complex and required collecting a substantial quantity of
evidence and hearing some expert witnesses.
- The
period to be taken into consideration began on 27 February 1997 and
ended on 23 May 2007. It thus lasted ten years, two months and
twenty six days for one level of jurisdiction; on appeal the
proceedings were stayed.
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 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).
- Having examined all the material submitted to it, the
Court accepts that the case was of a certain complexity and required
some expert opinions to be collected by the courts. It considers
however that the complexity of the case cannot justify the overall
length of the proceedings. 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.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE PROCEEDINGS
AGAINST THE TRUSTEE
- The
applicant also complained that the proceedings against the trustee
had been incompatible with the “reasonable time”
requirement laid down in Article 6 § 1 of the Convention.
- The Court notes that he lodged a complaint under the
2004 Act and that on 1 March 2006 the Katowice Court of Appeal
rejected the complaint because of a procedural mistake; the applicant
had failed to specify the circumstances justifying his claim and to
demand that the court acknowledge the unreasonable length of the
proceedings, as required by section 6 of the 2004 Act.
- The
Court has already found that when a complaint under the 2004 Act has
been rejected for a procedural mistake and it is still open to the
applicant to lodge another complaint, the applicant is required to do
so (see Komorowska v. Poland (dec.) 38226/03).
- Accordingly,
the Court considers that the applicant failed to exhaust domestic
remedies in that he did not lodge a further and correctly formulated
complaint under section 5 of the 2004 Act after the domestic
court had rejected his initial complaint for procedural mistakes.
It
follows that the complaint about the excessive length of the
proceedings must be rejected under Article 35 §§ 1
and 4 of the Convention for non-exhaustion of domestic remedies.
III. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Article 1 of Protocol No. 1 to the
Convention that the defendant company had been using his plot of land
without paying for it.
The
Court notes that the proceedings for compensation were terminated.
However, another set of proceedings – against the trustee, for
the return of the property in question – is still pending.
Therefore the Court considers that the matter complained of by the
applicant under Article 1 of Protocol No. 1 has not yet been resolved
before the domestic courts.
It
follows that the complaint is premature and must be rejected under
Article 35 §§ 1 and 4 of the Convention for
non-exhaustion of domestic remedies.
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 1,000,000 Polish zlotys (PLN) 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 applicant 8,400 euros (EUR) in respect
of non pecuniary damage.
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
- Declares the complaint concerning the excessive
length of the civil proceedings for payment 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 8,400 (eight thousand four 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 applicant's claim
for just satisfaction.
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
