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FOURTH
SECTION
CASE OF KANIEWSKA v. POLAND
(Application
no. 8518/08)
JUDGMENT
STRASBOURG
18
May 2010
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 Kaniewska 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 27 April 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 8518/08) 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 Grażyna
Kaniewska (“the applicant”), on 5 February 2008.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
12 March 2009 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).
- On
24 July 2009 the Government submitted a unilateral declaration and
invited the Court to strike out the application, in accordance with
Article 37 of the Convention.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1951 and lives in Warsaw.
A. Main proceedings
1. Facts prior to 1 May 1993
- On
22 March 1993 the applicant’s mother lodged with the Warsaw
Regional Court (Sąd Wojewódzki) a claim for a
declaration that a notarial deed was null and void (in the framework
of inheritance proceedings). The action was instituted against five
defendants.
2. Facts after 1 May 1993
- On
30 September 1993 the proceedings were stayed.
- On
15 January 1994 the applicant’s mother died. On 10 January 1995
the applicant confirmed that she wished to
continue the proceedings in her stead and requested that the
proceedings be resumed.
- On
22 October 1996 the court refused to resume the proceedings, stating
that the applicant had failed to comply with the court’s order
to produce the inheritance decisions concerning the defendants.
- The
applicant lodged numerous requests for the resumption of the
proceedings, to no avail. She submitted that the courts had refused
to serve on her the requested decisions, since she was not the
defendants’ relative.
- On
20 September 2004 the proceedings were eventually resumed on the
applicant’s request.
- On
16 November 2004 the court held a hearing.
- On
13 April 2005 the court stayed the proceedings. The applicant did not
lodge an appeal against this decision.
- The
applicant lodged two motions for the resumption of the proceedings.
They were dismissed by the court on 23 October and
15 December 2006. The applicant lodged an appeal against
the second decision.
- On
23 October 2007 the Warsaw Court of Appeal amended the decision of 15
December 2006 and resumed the proceedings. The court held that the
decision of 13 April 2005 was ill-founded since there were
no legal grounds for staying the proceedings.
- On
22 October 2008 the court held a hearing.
- On
23 October 2008 the Warsaw Regional Court gave judgment dismissing
the applicant’s plea as unfounded. On 3 December 2008
the applicant lodged an appeal. It appears that the proceedings are
still pending.
B. Proceedings under the 2004 Act
- On 30 July 2007 the applicant lodged with
the Warsaw Court of Appeal a complaint under section 5 of the
Law on 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. She sought
a ruling declaring that the length of the proceedings before the
Warsaw Regional Court had been excessive. She
asked for the acceleration of the proceedings and an award of
just satisfaction in the amount of 10,000 Polish zlotys (PLN)
(approx. 2,500 euros (EUR)).
- On 6 September 2007 the Warszawa Court of Appeal
dismissed the complaint. The court held that on 17 September 2004,
the date on which the 2004 Act had entered into force, the
proceedings in the case had been stayed. Therefore, in the court’s
opinion, there was no undue delay on the part of the trial court. The
court further found that after the resumption of the proceedings on
20 September 2004 there had been no
inactivity for which the Regional Court could be held responsible.
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. THE GOVERNMENT’S REQUEST TO STRIKE OUT THE
APPLICATION UNDER ARTICLE 37 OF THE CONVENTION
- On
24 July 2009 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 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. In respect of
non-pecuniary damage the Government proposed to award PLN 20,000 to
the applicant (the equivalent of approx. 5,000 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. 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, which is substantially less than the Court
would have awarded in similar cases, 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
the application out of its list of cases under Article 37 of the
Convention and will accordingly pursue the 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 her case were
unfair. In particular, she alleged errors of fact and law committed
by the courts and wrong assessment of evidence. She did not rely on
any specific provision of the Convention. This complaint falls to be
examined under 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 reiterates that, under Article
35 § 1 of the Convention the Court may only deal with
the matter after all domestic remedies have been exhausted. The Court
notes that since the civil proceedings are still pending, the
applicant’s complaint is premature. It follows that this part
of the application must be rejected under Article 35 §§ 1
and 4 of the Convention for non-exhaustion of domestic remedies.
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
Court notes that the proceedings commenced on 22 March 1993. 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 until the
present day almost seventeen years for two levels 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 her case exceeded a reasonable time
(see paragraph 19 above), the Warsaw 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 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 the proceedings have been stayed for
some thirteen years (from 1993 until 2004 and 2005 until 2007).
Further, it cannot be deduced from the facts of the case that the
applicant bears sole responsibility for the staying of the
proceedings (see also the court’s decision of 23 October 2007,
paragraph 15 above).
Having
regard to the above considerations and 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 applicant claimed PLN 410,000 (the equivalent of
approx. 102,500 euros (EUR)) in respect of pecuniary damage. As
regards the non pecuniary damage the applicant emphasised that
she had experienced stress due to the excessively lengthy proceedings
and asked for PLN 200,000 (the equivalent of approx. EUR 50,000)
in compensation under this head.
- 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, it awards the applicant, ruling on an equitable
basis, EUR 12,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed PLN 2,241.48 (the equivalent of approx.
EUR 560 euros) for the costs and expenses incurred before the
domestic courts and the Court. She submitted an invoice for
translations in the amount of PLN 549,00 (the equivalent of approx.
EUR 137).
- The
Government did not express an opinion on the matter.
- 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
rejects the claim for costs and expenses in the domestic proceedings
and considers it reasonable to award the applicant, who was not
represented by a lawyer, the sum of EUR 300 for the proceedings
before the Court.
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
- Dismisses 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, EUR 12,000
(twelve thousand euros) in respect of non-pecuniary damage and EUR
300 (three hundred euros) in respect of costs and expenses, 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 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 18 May 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
