FOURTH SECTION

CASE OF POSTEK v. POLAND

(Application no. 4551/10)

JUDGMENT

STRASBOURG

11 October 2011

This judgment is final but it may be subject to editorial revision.

In the case of Postek v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
	George Nicolaou, President,
	Lech Garlicki,
	Vincent A. De Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 20 September 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 4551/10) 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 Sylwia Jarczyńska, on behalf of her minor daughter, a Polish national Ms Julia Postek (“the applicant”), on 12 January 2010.
2.  The applicant was represented by Ms J. Budzowska, a lawyer practising in Kraków. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
3.  The applicant complained that the length of the proceedings in her case had exceeded a reasonable time, in breach of Article 6 of the Convention.
4.  On 11 October 2010 the President of the Fourth Section decided to give notice of the application to the Government.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 2001 and lives in Warszawa.
6.  The facts of the case, as submitted by the applicant, may be summarised as follows.
A.  Main proceedings
7.  On 23 October 2002 the applicant, represented by her mother, instituted civil proceedings against a hospital before the Warsaw Regional Court (Sąd Okręgowy), seeking compensation and a disability pension due to medical negligence and inadequate medical care during her birth.
8.  In the first hearing on 28 April 2003 the Regional Court ordered the defendant hospital to pay to the applicant PLN 250 (approx. EUR 60) per month by way of a provisional disability pension.
9.  On the applicant’s request, filed on 19 January 2005, the Warsaw Regional Court issued a writ of execution in respect of its 2003 decision. On 5 August 2005 the applicant began receiving the provisional disability pension.
10.  On 17 February 2011 the Warsaw Regional Court gave a judgment which granted the applicant’s claims. It appears that this judgment has become final.
B.  Proceedings under the 2004 Act
11.  On 27 May 2009 the applicant filed a complaint with the Warsaw Court of Appeal (Sąd Apelacyjny) 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”). She sought a finding that the length of the proceedings had been excessive and claimed compensation in the amount of PLN 20,000.
12.  On 9 July 2009 the Warsaw Court of Appeal acknowledged that the proceedings in the applicant’s case had been excessive and awarded her PLN 5,000 (approx. EUR 1,200) by way of just satisfaction. The court held that certain delays in the case had resulted from the erroneous transfer of the case file to the wrong medical court experts. It further observed that in 2006 and 2007 there had been a one-year-long period of unjustifiable inactivity on the part of the Regional Court. In the view of the Court of Appeal, some other delays could be explained by the need to obtain various medical expert opinions, often prompted by the applicant’s numerous requests to that effect.
13.  The Court of Appeal explained that the award of PLN 5,000 was justified by the overall length and the level of complexity of the proceedings. It dismissed the applicant’s claim for a higher award, taking note of the fact that her main claims had been properly secured by the payment of the provisional disability pension.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
14.  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 presented in the Court’s decisions in the cases of Charzyński v. Poland (dec.), no. 15212/03, §§ 12-23, ECHR 2005‑V and Ratajczyk v. Poland (dec.), no. 11215/02, ECHR 2005‑VIII, and its 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
15.  On 24 February 2011 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 8,200 to the applicant (the equivalent of approx. EUR 2,000), drawing the Court’s attention to the fact that the excessive length of the proceedings in the applicant’s case had already been acknowledged by the domestic court, which had awarded her a certain amount of compensation in this respect. Consequently, the Government invited the Court to strike out the application in accordance with Article 37 of the Convention.
16.  The applicant did not agree with the Government’s proposal. She considered that the proposed amount would not constitute sufficient just satisfaction for the damage she had sustained. Moreover, she pointed out that she had incurred a certain amount of costs and expenses in connection with the case, both in the domestic proceedings and in connection with the application to the Court. In support of her claims, she submitted detailed and itemised invoices and explained in detail the nature of the costs and expenses incurred. Consequently, she requested the Court to continue the examination of her application.
17.  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 thereof 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).
18.  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-V; Scordino v. Italy (no.1) [GC], no. 36813/97, §§ 193-215, ECHR-2006-V; and Dubjakova v. Slovakia (dec.), no. 67299/01, 10 October 2004).
19.  Admittedly, the amount of compensation proposed by the Government in their unilateral declaration roughly corresponds to the amount of non-pecuniary damage which the Court has awarded in prior, similar cases. However, the Court notes that the applicant presented it with claims for the costs and expenses incurred by her in connection with her case, which were corroborated by sufficiently detailed and itemised invoices. The applicant’s statement was transmitted to the Government, who did not comment on it.
20.  Recalling its jurisprudence in the area of just satisfaction awards (see, among other authorities, Roche v. the United Kingdom [GC], no. 32555/96, § 182, ECHR 2005-X), the Court first of all notes that the costs and expenses claimed by the applicant, incurred in the course of the domestic proceedings, are referable to the violation alleged by the applicant, namely that of Article 6 of the Convention. What is more, these costs and expenses have been incurred necessarily, either in order to allow the applicant to obtain redress for the alleged violation or to exhaust the available domestic remedy prior to lodging her application with the Court. The Court also considers that the invoices submitted by the applicant were sufficiently detailed and that the applicant actually incurred the costs and expenses claimed. It also observes that their amount exceeds by some 50 % the amount proposed by the Government in their unilateral declaration.
21.  Since the amount of just satisfaction put forward by the Government in their unilateral declaration does not take into account the above‑mentioned costs and expenses incurred by the applicant in connection with the case, the Court, having regard to its above findings, finds that respect for human rights, as defined in the Convention and its Protocols, does not allow it to strike the application out of its list of cases on the basis of the Government’s declaration. Consequently, it considers it necessary 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).
22.  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
23.  Invoking Articles 2, 6 and 8 of the Convention, the applicant complained that the length of the proceedings had been excessive. The Court considers that the applicant’s complaint is best examined from the standpoint of Article 6 § 1 of the Convention, which provides, in so far as relevant:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
24.  The Government, in their unilateral declaration submitted on 24 February 2011, acknowledged that the length of the proceedings in the applicant’s case had indeed been excessive.
25.  The period to be taken into consideration began on 23 October 2002 and ended on 17 February 2011. It thus lasted 8 years and 4 months for one level of jurisdiction.
A.  Admissibility
26.  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
27.  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; Kaniewska v. Poland, no. 8518/08, § 32, 18 May 2010; Jerzak v. Poland, no. 29360/06, § 26, 7 October 2008).
28.  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 takes note of the Government’s acknowledgement of the excessive length of the proceedings, made in their unilateral declaration.
29.  Having examined all the material submitted to it and 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.
30.  There has accordingly been a breach of Article 6 § 1.
III.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
31.  In addition, the applicant alleged that she was not provided with an effective remedy before the national courts against the excessive length of proceedings, in breach of Article 13 of the Convention, which reads:
“Everyone whose rights and freedoms as set forth in this 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.”
32.  The Government did not comment on the matter.
33.  With regard to the applicant’s complaint, it should be recalled that the Court has already found that the 2004 Act provides for an effective remedy in respect of the excessive length of proceedings (see Charzyński v. Poland (dec.), no. 15212/03, §§ 12-23, ECHR 2005‑V; Figiel v. Poland (no. 1), no. 38190/05, §§ 25-30, 17 July 2008; Figiel v. Poland (no. 2), no. 38206/05, §§ 29-34, 16 September 2008).
34.  It follows that the complaint is manifestly ill-founded within the meaning of Article 35 § 3 a) and must be rejected in accordance with Article 35 § 4.
IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
35.  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
36.  The applicant claimed EUR 5,000 in respect of non-pecuniary damage.
37.  The Government, as stated above, submitted a unilateral declaration.
38.  The Court considers that the applicant must have sustained non‑pecuniary damage. The Court has had due regard to the matters raised by the Government, in particular to the fact that the excessive length of the proceedings had been acknowledged on the domestic level and to the amount of the award made by the domestic court (see paragraphs 12 and 15 above).
39.  Ruling on an equitable basis, it awards the applicant EUR 2,000 under that head.
B.  Costs and expenses
40.  The applicant also claimed EUR 186 for the costs and expenses incurred before the domestic court and EUR 1,010 for those incurred before the Court (approx. PLN 4,738). She presented the relevant invoices.
41.  The Government did not express an opinion on the matter.
42.  In the Court’s view, having regard to the amount of work carried out by the applicant’s counsel in connection with the case, in particular to her diligent, comprehensive communications with the Court, and to the cost of making translations, the amounts claimed appear to be reasonable as to quantum.
43.  Regard being had to the documents in its possession, to the Court’s case-law and, in particular, to its findings described in paragraphs 19-20 above, the Court considers that the sums claimed should be awarded in full.
C.  Default interest
44.  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
1.  Dismisses the Government’s request to strike the application out of its list of cases;

2.  Declares the complaint concerning the excessive length of the civil proceedings admissible and the remainder of the application inadmissible;

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

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months EUR 2,000 (two thousand euros), in respect of non-pecuniary damage, and EUR 1,196 (one thousand one hundred and ninety-six euros) for costs and expenses, plus any tax that may be chargeable, to be converted into Polish zlotys 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;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 11 October 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	George Nicolaou
	Deputy Registrar	President