In the case of Matrakas and Others v. Poland and Greece,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Isabelle Berro-Lefčvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Krzysztof Wojtyczek, judges,
and Sřren Nielsen, Section Registrar,
Having deliberated in private on 15 October 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
47268/06) against the Republic of Poland and the Hellenic Republic lodged with
the Court under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by three Polish nationals, Mr Dawid
Matrakas (“the first applicant”), Mr Łukasz Mitroudis (“the second
applicant”) and their mother, Ms Beata Kołodziej (“the third applicant”) on
10 November 2006. On 19 October 2009 the applicants’ lawyer informed the Court
that the third applicant changed her name to Ms Beata Mitroudis.
The applicants were represented by Mr Z. Cichoń,
a lawyer practising in Kraków. The Polish Government (“the Government”) were
represented by their Agent, Mr J. Wołąsiewicz,
succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs. The Greek Government were
represented by their Agent’s Delegates, Ms
K. Paraskevopoulou, Mr I. Bakopoulous and
Ms Z. Chatzipavlou, of the State Legal Council.
The applicants alleged, in particular, a breach
of Article 6 § 1 of the Convention by Poland and Greece on account of the lack
of adequate assistance in the proceedings concerning recovery of maintenance.
On 9 September 2011 the application was
communicated to the Polish and Greek Governments.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants were born in 1987, 1992 and 1968 respectively.
They all live in Kraków.
A. Proceedings under the New York Convention for the
recovery of maintenance in respect of the first applicant
On an unspecified date in 1988 the first
applicant, represented by the third applicant, filed with the Kraków
Regional Court an application under the New York Convention of
20 June 1956 on the Recovery Abroad of Maintenance (“the New York Convention”)
for the recovery of maintenance from his father, P.M., a Greek national. The
first applicant requested that the Greek authorities institute court
proceedings with the aim of recovering the maintenance and enforce any decision
that might be given by the Greek courts.
On 23 March 1988 the Kraków Regional
Court, acting as the Transmitting Agency under the
New York Convention, transmitted the application to the Greek
Ministry of Justice (“the Greek Ministry”), which acted as the Receiving
Agency.
On 13 July 1988 the Greek Ministry
informed the Kraków Regional Court that the debtor had been summoned but had
failed to appear, and that the case had been referred to the Law
Department of the Ministry for Macedonia and Thrace for further action.
On 5 August 1989 the Kraków Regional
Court wrote to the Greek Ministry requesting information about the progress in
the recovery of the maintenance. It appears that in reply the Greek
Ministry resent its letter of 13 July 1988.
On 22 January 1990, in response to the
query from the Kraków Regional Court, the third applicant informed the court that
the first applicant had not received any maintenance payments from the debtor.
On 29 January 1990 the Kraków Regional
Court requested the Polish Ministry of Foreign Affairs to intervene in the
case. The Ministry requested the assistance of the Polish Embassy in Athens.
On 3 September 1990 the third
applicant and P.M. signed an agreement stipulating that P.M. would pay 10,000
Greek drachmas (29.35 EUR) in maintenance to the first applicant monthly
for a period of two years.
On 1 October 1990 the third applicant again informed
the Kraków Regional Court that she had not received any maintenance payments
from the debtor.
On 2 November 1990, upon a request
filed by the first applicant, the Kraków Regional Court once again
requested the Polish Ministry of Foreign Affairs to intervene in the
proceedings.
On 19 December 1990 the Greek Ministry
informed the Kraków Regional Court that the third applicant had hired a Greek lawyer
to act in the divorce and maintenance proceedings. In the lawyer’s
opinion, there were good prospects of reaching a friendly settlement in the
case. Consequently, the Greek Ministry considered that its intervention at
that point was not required. However, it would continue to monitor the
situation and inform the Kraków Regional Court of any further
developments. The applicant contested the Greek Government’s assertion that she
had hired a Greek lawyer.
On 19 November 1992 P.M. acknowledged
before a notary his intention to pay 10,000 Greek drachmas in monthly
maintenance to the first applicant until he reached the age of 18. He also
promised to pay 260,000 drachmas (763.02 EUR) for the period up to
31 December 1992. The monthly maintenance payments were to be
deposited on an account at the National Bank of Greece. This notarial deed was
declared enforceable.
On 17 February 1993 the Greek Ministry
informed the Kraków Regional Court that P.M. had acknowledged his obligation to
pay maintenance to the first applicant. It requested the Kraków Regional Court
to provide it with several additional documents, including the first applicant’s
birth certificate and a certificate of his residence, in order for it to
proceed with the transfer of the maintenance to Poland.
On 15 November 1993 the Kraków
Regional Court sent the requested documents to the Greek Ministry.
The Greek Ministry transmitted the requested
documents to the Law Department of the Ministry for Macedonia and Thrace on 1
December 1993. On 24 November 1994 that authority informed the Greek Ministry
that the debtor had deposited 260,000 drachmas on a bank account on 23 November
1992. On the same date the said authority requested the debtor to inform it
whether he had made any further payments to the account. The debtor replied
that he had been making agreed monthly payments to the account and produced
documentary evidence to this effect.
In the course of divorce proceedings instituted
by the third applicant against P.M., on 7 March 1994 the
Kraków-Śródmieście District Court delivered an interim order awarding
maintenance payments by P.M. to the first applicant. The court noted that P.M.’s
place of residence was unknown. On 5 January 1995 the court increased the
amount of maintenance payments.
On 19 July and
28 September 1994 the Kraków Regional Court wrote to the Greek
Ministry requesting it to provide information about the progress of the
proceedings. It appears that no reply was received to these letters. On
13 May 1996 the Kraków Regional Court sent another request for
information. It noted that on 2 February 1995 the Thessaloniki Court of First
Instance had issued a divorce decree in default, dissolving the third applicant’s
marriage to P.M.
On 11 July 1996 the Greek Ministry
informed the Kraków Regional Court that the first applicant had received a
payment of 540,000 drachmas (1,584.74 EUR) in March 1995. According to the
agreement between the parties, this amount was supposed to cover the
maintenance due for the period from 1 October 1990 to
31 March 1995.
On 19 September 1996 the Kraków Regional Court informed
the third applicant about the letter of 11 July 1996 and requested her to submit
comments. On 31 December 1996 the third applicant informed the court that
the amount of 540,000 drachmas covered only the period between 1987 and 1990
and that she intended to lodge a claim for non-received maintenance from 1987
to 1996.
On 17 June 1997 the
Kraków-Śródmieście District Court gave a judgment in default,
increasing the amount of the maintenance payments to be made to the first
applicant by P.M.
On 5 May 1998 the Kraków Regional
Court again requested assistance from the Greek Ministry. The court informed
the Greek Ministry of the debtor’s single payment made in March 1995. The court
also informed the Greek Ministry that three judgments in default had so far
been given in Poland ordering P.M. to pay maintenance, and that on the basis
of those judgments the first applicant had been able to receive substitute
maintenance from the “Maintenance Fund” (Fundusz Alimentacyjny). In case
of the lack of reaction from the debtor, the third applicant would have to
request the enforcement of the Polish judgments in Greece on the basis of the
bilateral agreement. No reply was received from the Greek authorities to that
letter.
On 25 June 1999 the Kraków Regional
Court informed the third applicant that in order to recover the maintenance due
to the first applicant it was necessary for her to file a request with the
Kraków District Court for the recognition and the enforcement in Greece of the
Polish judgments awarding the maintenance, on the basis of the Agreement
of 24 October 1979 between the Polish People’s Republic and the
Hellenic Republic on legal cooperation in civil and criminal matters (“the
1979 Agreement”). The first applicant filed such a request on
6 July 1999.
On 16 November 1999 the Kraków Regional
Court requested the assistance of the Polish Ministry of Foreign Affairs.
On 18 April 2000 the Polish Ministry
of Justice requested the Greek Ministry to assist the first applicant in
obtaining the recognition and enforcement in Greece of the
Kraków-Śródmieście District Court’s judgment in default of
17 June 1997.
By a letter of 17 July 2000, the Greek
Ministry informed the Polish Ministry of Justice that it refused to proceed
with the request for the recognition and enforcement of the Polish
judgment in question. The Greek Ministry explained that the request could
not be allowed due to Article 26 (d) of the 1979 Agreement. This provision
stipulated that a request for recognition and enforcement could be refused in
Greece if the Greek courts had the sole jurisdiction to examine the matter. Consequently,
the Greek Ministry returned the request, along with the entire case
file, to the Polish Ministry of Justice.
On 22 March 2001 the Kraków Regional
Court wrote to the Greek Ministry noting the Greek Ministry’s position
expressed in its earlier letter and requesting it to urgently proceed with the
recovery of the maintenance due to the first applicant in accordance
with the New York Convention.
On 9 May 2001 the Greek Ministry
responded by reasserting the position expressed in its letter of
17 July 2000 and confirming that the entire case file had been
returned to the Polish Ministry of Justice on 17 July 2000.
On 15 October 2001 the Kraków-Śródmieście
District Court gave another judgment in default increasing the amount of the
maintenance payments to the first applicant.
On 14 February 2002 the Kraków
Regional Court requested the Greek Ministry of Justice to provide it with
information as to the progress of the proceedings and as to the prospects
of a successful recovery of maintenance. On 2 July 2002 the
Greek Ministry replied by re-sending their letter of 9 May 2001.
On 2 August 2002 the Kraków Regional
Court requested the International Law Department of the Polish Ministry of
Justice (“the International Law Department”) to provide it with legal advice as
to the further steps necessary to recover the maintenance due
to the first applicant.
On 25 October 2002 the International
Law Department advised the Kraków Regional Court to file a new request
with the Greek authorities under the New York Convention. It observed that the
prospects of a successful recovery of the maintenance on the basis of
the request filed in 1988 were poor, given the lack of a proper response
from the Greek authorities. It further informed the Kraków Regional Court that
there appeared to be no obstacles to the first applicant requesting the
recognition and enforcement of the Kraków District Court’s judgment given on
15 October 2001 directly before Greek courts, on the basis of the
Lugano Convention of 16 September 1988 on Jurisdiction and
the Enforcement of Judgments in Civil and Commercial Matters (“the Lugano
Convention”) provided that the conditions specified in that convention had been
fulfilled.
On 6 January 2004 the Kraków-Podgórze
District Court delivered yet another judgment in default, again increasing the
amount of the maintenance due to the first applicant.
On 11 August 2004 the Kraków Regional
Court sent to the Greek authorities a new request filed by the first applicant
under the New York Convention, asking the Greek authorities to recover
maintenance in respect of the period from April 1994 onwards. In the
same letter, the Kraków Regional Court also requested the Greek
authorities to recognise and enforce the Polish judgment of
6 January 2004 under the Lugano Convention.
On 10 November 2004 the Greek Ministry
informed the Kraków Regional Court that its request for the recovery of
maintenance under the New York Convention could not be accepted, because
under Article 6 (3) of that convention only Greek private
international law was applicable. Consequently, the Polish court which had
given the judgment awarding maintenance to the first applicant had had no
jurisdiction to do so since at the time of filing the action the debtor had had
his permanent residence in Greece. The Greek Ministry returned the entire
request together with all attachments.
On 6 December 2004 the Kraków Regional
Court requested the International Law Department to provide it with a
legal opinion as to the correctness of the Greek Ministry’s position.
On 7 January 2005 the International
Law Department stated that the position of the Greek Ministry was incorrect and
that the Lugano Convention, which was binding on both Poland and Greece,
did not allow Greece to invoke the sole jurisdiction of the Greek courts
as an obstacle to the recognition and enforcement of Polish
judgments. It noted that the Lugano Convention replaced the 1979 Agreement. The
International Law Department further noted that it would perhaps be quicker for
the first applicant to send a request for recognition and enforcement
under the Lugano Convention directly to the competent court in Thessaloniki.
Alternatively, it advised the Kraków Regional Court to resubmit its request to
the Greek Ministry of Justice.
On 6 May 2005 the Kraków Regional
Court sent another request for the recognition and enforcement in Greece
of the judgment of the Kraków-Podgórze District Court of
6 January 2004 on the basis of the Lugano Convention. In
the same letter, it reminded the Greek Ministry about the request lodged under
the New York Convention and requested the recovery of the maintenance due
from the date of the first request filed in 1988. No reply to that request was
received. Enquiries with the Polish postal service revealed that the letter had
been served on the Greek Ministry on 21 June 2005.
Meanwhile, on 23 August 2005 the Greek
Ministry sent the first applicant’s file to the State Legal Council in order
for them to proceed with the enforcement of the Kraków-Podgórze District Court’s
judgment of 6 January 2004. On 1 September 2005 the State Legal
Council transmitted the case to the Law Department of the Ministry for
Macedonia and Thrace.
On 22 December 2005 the Kraków
Regional Court again sent a letter to the Greek Ministry of Justice. No reply
to that letter was received.
On 1 March 2006 the President of the
Kraków Regional Court requested the Polish Embassy in Athens to intervene in
the case.
On 5 June 2006 the Greek Ministry asked the
Kraków Regional Court for a certificate proving that P.M. had been informed of
the request which had commenced the proceedings terminated by the judgment of
6 January 2004. Such a certificate was necessary to start recognition
and enforcement proceedings on the basis of the Lugano Convention.
On 16 August 2006 the Kraków Regional
Court forwarded the requested documents to the Greek Ministry.
On various dates in 2007, at the request of the
third applicant, the Kraków Regional Court attested that she had not received
any maintenance payments due to the first applicant. The third applicant needed
the confirmation to receive substitute maintenance.
On 26 January 2007 the Greek
authorities lodged a request for the recognition and enforcement of the
judgment of 6 January 2004 with the Thessaloniki Court of First
Instance. The first hearing, scheduled for 24 April 2007, was
adjourned until 18 September 2007.
On 23 April 2007 the Kraków Regional
Court asked the Greek Ministry to provide it with further information as to the
progress of the proceedings. On 26 July 2007 the Greek Ministry
replied that the Thessaloniki Court of First Instance would examine the case on
18 September 2007.
The hearing set for 18 September 2007
was adjourned owing to elections. Upon a request from the Greek authorities a
further hearing was scheduled for 14 December 2007. It was then
postponed on account of the friendly-settlement negotiations between the
parties.
On 28 November 2007 the Kraków
Regional Court asked the Greek Ministry to inform it of the results of the
court hearing.
On 9 May 2008 the Greek Ministry
informed the Kraków Regional Court that on 21 March 2008 the third
applicant had reached an agreement with P.M. Under the terms of that agreement
P.M. was to pay 9,700 euros to the first applicant as a final settlement
of the sums of maintenance awarded by the Polish court up to
18 August 2005. The third applicant declared that she would withdraw
her request to enforce the judgment of 6 January 2004.
On 8 June 2008 the third applicant
declared that P.M. had paid his debts up to 2005 but had not made any payments
for the period between 2005 and 2008, and that he was not paying the current
instalments.
On 14 September 2008 the third
applicant declared that P.M. had paid part of his debt for the period between
2005 and 2008 (EUR 3,000) but he had not paid the interest.
On 16 January 2009 the third applicant
informed the Kraków Regional Court that the case could be closed. On
12 February 2009 the case was closed by the Kraków Regional Court.
The latter court informed the Greek Ministry that the recovery proceedings
under the New York Convention were terminated.
B. Proceedings instituted in Poland under the 2004 Act
by the first applicant
On 29 August 2007 the first applicant
filed a complaint under the Law of 17 June 2004 on
complaints concerning a breach of the right to a trial within a reasonable time
(“the 2004 Act”). He alleged that the length of the proceedings
for the recovery of maintenance instituted in 1988 on his behalf by
his mother on the basis of the New York Convention had been excessive. He also
claimed compensation in the amount of 10,000 Polish zlotys (PLN). The
applicant explained that he had not been able to recover any maintenance
from his father, despite the fact that several judgments awarding maintenance
had been handed down in Poland and despite the Kraków Regional Court’s
repeated attempts to intervene with the Greek authorities.
On 9 October 2007 the Kraków Court of
Appeal rejected the applicant’s complaint. It
recalled that a mere reference to the overall duration of the proceedings did
not suffice for a conclusion that their length had been excessive and that the
applicant had failed to sufficiently specify the omissions or delays
attributable to the lower court. It further observed that, in any event,
the Regional Court’s role as the Transmitting Agency in the impugned
proceedings under the New York Convention had been limited solely to
carrying out technical and organisational tasks, which the Regional Court had
duly done.
C. Proceedings for the recovery of the maintenance due
to the second applicant
On 6 January 2004 Y.M., a Greek
national, was declared the father of the second applicant by the Kraków-Podgórze
District Court. He was further ordered to pay monthly maintenance in the amount
of PLN 900.
On 26 April 2005 the second applicant,
represented by his mother, filed with the Kraków Regional Court a request for
the recovery of maintenance from Y.M. under the New York Convention. He
requested that the Greek authorities secure a friendly settlement of the
case or, alternatively, institute court proceedings with the aim of recovering
the maintenance and enforce any judgment that might be given in this
connection by the Greek courts.
By a letter of 12 May 2005 the Kraków
Regional Court asked the applicant to rectify her request, in particular by attaching
the required documents.
On 7 June 2005 the Kraków Regional
Court, acting as the Transmitting Agency under the New York Convention,
transferred the second applicant’s request to the Greek Ministry, acting as the
Receiving Agency.
On 10 November 2005 the Kraków
Regional Court requested the Greek Ministry to confirm reception of the
application filed by the second applicant. It appears that there was no
response to that request. Enquiries with the Polish postal service revealed
that the request had been served on the Greek Ministry on
28 July 2005.
On 10 November 2005 the Kraków Regional Court
issued a certificate for the third applicant attesting that she had not received
any maintenance payments due to the second applicant. The certificate was
necessary to claim substitute maintenance from the Maintenance Fund.
On 1 March 2006 the Kraków Regional
Court requested the assistance of the Polish Embassy in Athens. In reply,
on 17 May 2006 the Polish Embassy informed the Kraków Regional Court
that the Greek Ministry had instituted proceedings for the recovery
of the maintenance due to the second applicant. The Embassy further informed
the court that a hearing before the Thessaloniki Court of First Instance,
initially scheduled for 24 March 2006, had been rescheduled for
26 May 2006.
On 28 August 2006 and 23 April 2007
the Kraków Regional Court requested the Greek Ministry to inform it of the
outcome of the hearing before the Thessaloniki court.
On 22 January and 23 April 2007 the
Kraków Regional Court requested the Polish Embassy in Athens to enquire with
the Greek authorities about the progress of the proceedings.
On 18 September 2007 the Kraków
Regional Court sent the file concerning the second applicant’s case to the
International Law Department, requesting its assistance.
On 16 November 2007 the International
Law Department sent the case file back to the Kraków Regional Court, informing
it that the second applicant should address the Greek authorities directly with
a request to be provided with a copy of the decision that had apparently been
given in his case by the Greek court. On 29 November 2007
the Kraków Regional Court forwarded the International Law Department’s
letter to the third applicant.
On 4 April 2008 the Kraków Regional
Court requested the Greek Ministry to inform it about any further steps taken
with a view to recovering the maintenance. It sent again a copy of the
original request for the recovery of maintenance from Y.M. and requested the
Greek Ministry’s assistance as Y.M. had not been paying maintenance due to the
second applicant since 1995. On the same day, the Kraków Regional Court
requested the Polish Embassy in Athens to intervene in the case.
On 20 May 2008 the Greek Ministry
informed the Kraków Regional Court that they had already sent to it the
judgment of the Thessaloniki Court of First Instance of 23 April 2007
(see paragraph 97 below). They also requested the Kraków Regional Court to
provide them with additional information as to the defendant’s property,
with a view to the enforcement of the judgment in Greece. The Kraków
Regional Court replied to the Greek Ministry that the judgment of the
Thessaloniki Court of First Instance given on 23 April 2007 in the
third applicant’s case did not concern any maintenance payments in respect of
the second applicant. Consequently, it requested the Greek Ministry to proceed
with the recovery of the maintenance owed by Y.M. to the second applicant.
In its response of 26 June 2008, the
Greek Ministry informed the Kraków Regional Court that the Polish judgment
ordering Y.M. to pay maintenance to the second applicant was a judgment
in default given in Y.M.’s absence. Consequently, the Greek Ministry
requested the Kraków Regional Court to provide it with documents proving that
Y.M.’s rights as a defendant in the proceedings before the Polish courts had
been respected, as required by Article 23 (b) of the
1979 Agreement. On 4 July 2008 the Kraków Regional Court
forwarded the requested documents to the Greek Ministry.
On 1 September 2008 the Greek Ministry
transmitted the case to the State Legal Council as a competent authority to
institute the proceedings in accordance with the New York Convention.
Subsequently, the case was transmitted to the Law Department of the Ministry
for Macedonia and Thrace for further action.
On 3 April 2009 the Greek Ministry,
acting as the Receiving Agency, filed a claim with the Thessaloniki Court of
First Instance for the enforcement of the Kraków-Podgórze District Court’s judgment
of 6 January 2004.
On 11 December 2009 the Thessaloniki
Court of First Instance gave judgment, dismissing the claim. The court
considered that the Ministry had no standing to file such a claim because the
New York Convention did not apply to the case. It held that the Council Regulation
44/2001/EC was applicable to the case and that accordingly it was the second
applicant who had standing to file a claim for enforcement. It is not clear
whether the Ministry lodged an appeal against that judgment.
Meanwhile, on 17 April 2008 the third
applicant filed a claim with the Thessaloniki Court of First Instance
requesting the recognition and enforcement of the Kraków-Podgórze District Court’s
judgment of 6 January 2004. The court gave judgment on
27 May 2009, dismissing the third applicant’s claim. It held that the
defendant, Y.M., had not been correctly informed about the proceedings in
Poland and therefore could not defend his interests in the proceedings. The
court found that Y.M. had been served summons to appear at the hearing
scheduled for 14 July 2003 only on 20 September 2003, i.e. after the hearing
had taken place. The third applicant appealed.
According to a document dated 1 December 2009 prepared
by a judge of the Kraków-Podgórze District Court the rights of Y.M. had been
fully respected in the proceedings leading to the Kraków-Podgórze District
Court’s judgment of 6 January 2004. The judge noted that the second applicant’s
claim had been filed on 20 February 2003 and that the first hearing had been
scheduled for 14 July 2003. The latter hearing was adjourned since Y.M. had
failed to appear and the Kraków-Podgórze District Court had had no proof that
the claim had been served on the defendant. After the court was notified that
the claim had been served on Y.M. on 20 September 2003 it scheduled a hearing
for 6 January 2004. On that date the Kraków-Podgórze District Court heard the
case and delivered judgment in default. The judgment was translated and served
on Y.M. on 21 September 2004. He was instructed that he could file an
objection to the judgment in default within seven days from the date of the
service but he did not react.
A hearing before the Thessaloniki Court of
Appeal was scheduled for 17 May 2010. However, that hearing was
rescheduled owing to a bomb attack which had occurred in the court in Thessaloniki
several days prior to that date. Another hearing in the case, scheduled
for 8 November 2010, was also rescheduled, on account of the
local elections due to take place from
3 to 12 November 2010.
On 10 June 2011 the Thessaloniki Court
of Appeal dismissed the third applicant’s appeal. It upheld the lower court
finding that the Y.M.’s rights to participate in the proceedings and to defend
his interests had not been respected. Accordingly, the recognition of the judgment
in issue would have been contrary to the public order.
It appears that the third applicant did not
lodge an appeal with the Court of Cassation.
On 17 April 2008 the third applicant
also lodged an action with the Thessaloniki Court of First Instance against
Y.M. for maintenance on behalf of the second applicant. The proceedings were
suspended pending the outcome of the proceedings for the recognition and
enforcement of the judgment of 6 January 2004.
D. Proceedings instituted in Poland under the 2004 Act
by the second applicant
On 18 July 2008 the second applicant,
represented by his mother, filed a complaint under the 2004 Act. He
claimed that the length of the proceedings for the recovery of maintenance
instituted by him on 29 April 2005 on the basis of the New York
Convention had been excessive. He also claimed compensation in the amount of
PLN 10,000.
On 27 August 2008 the Kraków Court of Appeal
dismissed the applicant’s complaint. The court observed that the second
applicant had filed his application for recovery of maintenance under the New
York Convention on 29 April 2005. It noted that the initial
application had been incomplete and had had to be rectified by the second
applicant before being transmitted to the Greek Ministry of Justice. The Court
of Appeal considered that the transmission of documents had been carried
out without undue delay. It further considered that, in the proceedings
under the New York Convention, the Kraków Regional Court had only acted as the
Transmitting Agency and, as such, had had no influence on the
expeditiousness of the recovery of the maintenance by the Greek authorities.
Moreover, the Court of Appeal found that the Regional Court, although it had
not been required to do so by law, had on several occasions attempted to
intervene in the proceedings by sending reminder letters to the Greek
authorities and by soliciting the assistance of the Polish embassy in Athens.
Consequently, the Court of Appeal considered that the Regional Court could
not be held responsible for the overall length of the impugned proceedings
and it dismissed the second applicant’s complaint, refusing to award him any
compensation.
E. Proceedings instituted for the recognition and
enforcement in Greece of the Polish court’s judgment awarding maintenance
to the third applicant
On 23 December 2002 the Kraków
Regional Court issued a divorce decree in default, dissolving the third
applicant’s marriage to a Greek national, Y.M., and ordering Y.M. to pay
maintenance to her.
On 24 February 2003 the third
applicant lodged an application with the Kraków Regional Court for the recovery
of maintenance from Y.M. under the New York Convention. In her
application, she requested the Greek authorities to secure a friendly
settlement of the case or, alternatively, to institute proceedings with
the aim of recovering the maintenance and to recognise and enforce
the judgment of 23 December 2002.
On 24 March 2003 the Kraków Regional Court asked
the third applicant to rectify her request by attaching the required documents.
On 18 August 2003 the court transmitted the application to the
Greek Ministry.
On 25 November 2003 the Ministry of
Justice sent the applicant’s file to the Thessaloniki Court of First Instance
in order for it to proceed with enforcement of the recovery of maintenance from
Y.M. The efforts to summon Y.M. proved unsuccessful. On 9 February 2004 the
Greek Ministry transmitted the case-file to the State Legal Council with a view
to instituting enforcement proceedings in accordance with the New York
Convention. Subsequently, the case was referred to the Law Department of the
Ministry for Macedonia and Thrace for further action.
Meanwhile, on 7 February 2004 the third
applicant married S.K. According to the Polish Government, pursuant to Article 60
§ 3 of the Polish Family and Custody Code, Y.M.’s obligation to pay maintenance
to the third applicant ceased as a consequence of this act. The applicant
contested this assertion of the Polish Government.
On 23 April 2004 the Greek
Ministry requested the Kraków Regional Court to provide it with proof that the
summons had been served on Y.M. in the proceedings before the Kraków Regional
Court.
On 10 August 2004 the Kraków Regional
Court sent the requested document to the Greek Ministry, observing that it had
already been sent to it on 18 August 2003, together with the initial
request for recovery of maintenance.
On 20 October 2004 the Greek
authorities brought an action against Y.M. before the Thessaloniki Court of
First Instance with the aim of obtaining the recognition and enforcement
of the judgment of the Kraków Regional Court of 23 December 2002.
On 24 January 2005 the Thessaloniki
Court of First Instance decided to adjourn the hearing in order to verify
whether the matter had not already been the subject of another final judgment
concerning the same parties.
On 10 March 2005,
30 August 2005 and 12 January 2006 the Kraków Regional
Court requested the Greek Ministry to provide it with information as to the
progress of the proceedings. It appears that no response was received to these
enquiries.
On 12 January 2006 the Kraków Regional
Court requested the assistance of the Polish Embassy in Athens.
A hearing before the Thessaloniki Court of First
Instance scheduled for 24 March 2006 was adjourned. A hearing
took place on 26 May 2006. On 23 July 2006 the court decided to
adjourn the hearing for the same reason as previously (see paragraph 91 above).
The next hearing scheduled for 20 February 2007 was adjourned. The
hearing took place on 9 March 2007. Twice in the course of the
proceedings the Greek authorities lodged a request with the Thessaloniki Court
of First Instance for a hearing to be scheduled in the case.
On 4 July 2006 the Kraków Regional
Court requested the Greek Ministry to provide it with information as to the
outcome of the hearing before the Thessaloniki court. Since no reply was
received to that request, on 8 January 2007 the Kraków
Regional Court requested the Polish Embassy in Athens to enquire with the
Greek authorities as to the outcome of the proceedings.
On 12 February 2007 the Greek Ministry
informed the Kraków Regional Court of the developments in the case.
On 23 April 2007 the Thessaloniki
Court of First Instance gave a judgment recognising the Kraków Regional Court’s
divorce verdict of 23 December 2002 as enforceable in Greece. On 4
July 2007 the Greek Ministry sent a copy of the judgment to the Kraków Regional
Court.
On 14 September 2007 the Kraków Regional Court
requested the Polish Ministry of Justice to provide it with legal advice as to
the further steps necessary to recover the maintenance due
to the third applicant. On 16 November 2007 the Polish Ministry
suggested further cooperation with the Greek Ministry and underlined that the
Regional Court acted only as a Transmitting Agency.
On 29 November 2007 the Kraków
Regional Court informed the third applicant that she should entrust the
carrying out of the enforcement proceedings in Greece to a Greek counsel.
The court further informed her that the proceedings in her case would be
temporarily stayed pending the outcome of the enforcement proceedings in
Greece.
On 18 April 2008 a copy of the judgment
of 23 April 2007 was served on Y.M., together with an order of
payment for 36,332.96 EUR.
On 20 May 2008 the Greek Ministry
asked the Polish Ministry to provide information as regards Y.M.’s assets in
Greece. In reply, the third applicant provided the information that Y.M.’s
assets included three taverns in Chalastra and Thessaloniki, a house in
Chalastra, a flat in Thessaloniki and several cars and motorcycles.
On 12 June 2008 the Greek Ministry
informed the Kraków Regional Court that enforcement proceedings against Y.M. on
the basis of the judgment of the Thessaloniki Court of First Instance
of 23 April 2007 had been initiated and that some property belonging
to Y.M. would be seized and auctioned off.
Subsequently, three auctions were organised in
order to sell two of Y.M.’s apartments in Thessaloniki (on 17 September 2008,
14 January 2009 and 25 February 2009). However, this was to no avail, as there
were no bidders at the auctions.
On 3 April 2009 the Greek authorities requested
the Thessaloniki Court of First Instance to fix a lower price for the two
apartments in order to facilitate the auction. On 15 July 2009 the court partly
granted the request and fixed the price at 48,000 EUR and 44,000 EUR
respectively. Two subsequent auctions of 1 and 16 September 2009 were again to
no avail for the lack of bidders.
On 14 February 2011 the Greek authorities lodged
a request with the Thessaloniki Court of First Instance to authorise the sale
of Y.M.’s two apartments through an open sale.
On 30 April 2012 the court dismissed
the request, explaining that the Civil Code did not permit an open sale in the
circumstances of the case.
In the meantime, on 18 October 2010
the third applicant filed a new application for recovery of maintenance
payments. It was forwarded to the Greek Ministry on 2 December 2010. The
first hearing was set for 11 February 2011.
On 15 June 2011 the Kraków Regional
Court asked the Greek Ministry what the chances were that the maintenance would
be recovered from Y.M. The Greek Ministry did not reply.
II. RELEVANT INTERNATIONAL,
EUROPEAN AND DOMESTIC LAW
A. The New York Convention on the Recovery Abroad of
Maintenance
The Convention on the Recovery Abroad of
Maintenance was adopted and opened for signature on 20 June 1956 by the United
Nations Conference on Maintenance Obligations. Poland and Greece ratified the
New York Convention on 13 October 1960 and
1 November 1965 respectively.
The relevant provisions of the New York
Convention read as follows:
Article 1 - Scope of the Convention
1. The purpose of this Convention is to facilitate the
recovery of maintenance to which a person, hereinafter referred to as claimant,
who is in the territory of one of the Contracting Parties, claims to
be entitled from another person, hereinafter referred to as respondent, who is
subject to the jurisdiction of another Contracting Party. This purpose shall be
effected through the office of agencies which will hereinafter be referred to
as Transmitting and Receiving Agencies.
2. The remedies provided for in this Convention are in
addition to, and not in substitution for, any remedies available under
municipal or international law.
Article 3 - Application to Transmitting Agency
1. Where a claimant is in the territory of one Contracting
Party, hereinafter referred to as the State of the claimant, and the
respondent is subject to the jurisdiction of another Contracting Party,
hereinafter referred to as the State of the respondent, the claimant may
make application to a Transmitting Agency in the State
of the claimant for the recovery of maintenance from the respondent.
(...)
3. The application shall be accompanied by all relevant
documents, including, where necessary, a power of attorney authorising the
Receiving Agency to act, or to appoint some other person to act, on behalf of
the claimant. It shall also be accompanied by a photograph of the
claimant and, where available, a photograph of the respondent.
4. The Transmitting Agency shall take all reasonable steps
to ensure that the requirements of the law of the State of the Receiving Agency
are complied with; ...
Article 5 - Transmission of judgments and other judicial
acts
1. The Transmitting Agency
shall, at the request of the claimant, transmit, under the provisions of
article 4, any order, final or provisional, and any other judicial act,
obtained by the claimant for the payment of maintenance in a competent tribunal
of any of the Contracting Parties, and, where necessary and possible, the
record of the proceedings in which such order was made. ...
2. Proceedings under article 6 may include, in accordance
with the law of the State of the respondent, exequatur or registration
proceedings or an action based upon the act transmitted under paragraph 1.
Article 6 - Functions of the Receiving Agency
1. The Receiving Agency shall, subject always to the
authority given by the claimant, take, on behalf of the claimant, all
appropriate steps for the recovery of maintenance, including the settlement of
the claim and, where necessary, the institution and prosecution of an
action for maintenance and the execution of any order or other judicial act for
the payment of maintenance.
2. The Receiving Agency shall keep the Transmitting Agency
currently informed. If it is unable to act, it shall inform the
Transmitting Agency of its reasons and return the documents.
3. Notwithstanding anything in this Convention, the law
applicable in the determination of all questions arising in any such
action or proceedings shall be the law of the State of the respondent,
including its private international law.”
B. The 1979 Agreement between Poland and Greece
on Legal Aid in Civil and Criminal Cases
The Agreement between Poland and Greece entered
into force on 23 December 1981.
The 1979 Agreement provides, in so far as
relevant:
Chapter 5
Recognition and enforcement of decisions in civil matters
Article 21
...
2. Final court decisions in civil matters concerning
rights of a pecuniary nature delivered in the territory of one State Party may
be recognised as enforceable in the other State-Party if they were delivered
after the entry into force of the present Agreement.
Article 22
A request for the recognition or
the enforcement of a court decision should be filed with the court which
examined the matter in the first instance or with the competent court of the
other State-Party. In the former case, the court shall transmit the request to
the competent court of the other State-Party, in accordance with the procedure
set out in article 2 of the present Agreement.
Article 23
1. A request for the recognition or the enforcement of a court
decision should include:
...
b) a document
proving that a plaintiff who did not participate in the proceedings, or his
lawyer, had been informed in due time and summoned in due time to a hearing on
at least one occasion.
Article 26
Refusal of recognition or enforcement
Recognition or enforcement may be refused:
...
d) if, according to the law of the State Party in whose
territory the decision is to be recognised or enforced, the court of that
State Party has sole jurisdiction to examine the matter.
C. The Lugano Convention on Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters
Greece and Poland ratified the Lugano
Convention on 11 June 1997 and 1 November 1999
respectively. It entered into force in respect of Greece on 1 September 1997 and in respect of Poland on
1 February 2000.
The relevant provisions of the Lugano
Convention read as follows:
TITLE III
RECOGNITION AND ENFORCEMENT
Article 25
For the purposes of this Convention, ‘judgment’ means any
judgment given by a court or tribunal of a Contracting State, whatever the
judgment may be called, including a decree, order, decision or writ of
execution, as well as the determination of costs or expenses by an officer of
the court.
Section 1
Recognition
Article 26
A judgment given in a Contracting State shall be recognised in
the other Contracting States without any special procedure being required.
Any interested party who raises the recognition of a judgment
as the principal issue in a dispute may, in accordance with the procedures provided
for in Section 2 and 3 of this Title, apply for a decision that the judgment be
recognised.
If the outcome of proceedings in a court of a Contracting State
depends on the determination of an incidental question of recognition that
court shall have jurisdiction over that question.
Article 27
A judgment shall not be recognised:
1. if such recognition is contrary to public policy in the
State in which recognition is sought;
2. where it was given in default of appearance, if the
defendant was not duly served with the document which instituted the proceedings
or with an equivalent document in sufficient time to enable him to arrange
for his defence;
3. if the judgment is irreconcilable with a judgment given
in a dispute between the same parties in the State in which recognition is
sought;
4. if the court of the State of origin, in order to arrive
at its judgment, has decided a preliminary question concerning the status or
legal capacity of natural persons, rights in property arising out of a
matrimonial relationship, wills or succession in a way that conflicts with a
rule of the private international law of the State in which the recognition is
sought, unless the same result would have been reached by the application of
the rules of private international law of that State;
5. if the judgment is irreconcilable with an earlier judgment
given in a non-contracting State involving the same cause of action
and between the same parties, provided that this latter judgment fulfils the
conditions necessary for its recognition in the State addressed.
...
Section 2
Enforcement
Article 31
A judgment given in a
Contracting State and enforceable in that State shall be enforced in another
Contracting State when, on the application of any interested party, it has been
declared enforceable there.
...
Article 34
The court applied to shall give
its decision without delay; the party against whom enforcement is sought shall
not at this stage of the proceedings be entitled to make any submissions on the
application.
The application may be refused only for one of the reasons specified
in Articles 27 and 28.
Under no circumstances may the foreign judgment be reviewed as
to its substance.
Article 35
The appropriate officer of the
court shall without delay bring the decision given on the application to the
notice of the applicant in accordance with the procedure laid down by the law
of the State in which enforcement is sought.
D. Council Regulation (EC) No 44/2001 of 22 December
2000 on jurisdiction and the recognition and enforcement of judgments in civil
and commercial matters
The Council Regulation (EC) No 44/2001 lays
down rules governing the jurisdiction of courts and the recognition and
enforcement of judgments in civil and commercial matters in the European Union
countries. The relevant provisions of the Regulation (EC) No 44/2001 read as
follows:
CHAPTER III
RECOGNITION AND ENFORCEMENT
Article 32
For the purposes of this Regulation, ‘judgment’ means any
judgment given by a court or tribunal of a Member State, whatever the judgment
may be called, including a decree, order, decision or writ of execution, as
well as the determination of costs or expenses by an officer of the court.
Section 1
Recognition
Article 33
1. A judgment given in a Member State shall be recognised
in the other Member States without any special procedure being required.
2. Any interested party who raises the recognition of a
judgment as the principal issue in a dispute may, in accordance with the
procedures provided for in Sections 2 and 3 of this Chapter, apply for a
decision that the judgment be recognised.
3. If the outcome of proceedings in a court of a Member
State depends on the determination of an incidental question of recognition
that court shall have jurisdiction over that question.
Article 34
A judgment shall not be recognised:
1. if such recognition is manifestly contrary to public
policy in the Member State in which recognition is sought;
2. where it was given in default of appearance, if the
defendant was not served with the document which instituted the proceedings or
with an equivalent document in sufficient time and in such a way as to enable
him to arrange for his defence, unless the defendant failed to commence
proceedings to challenge the judgment when it was possible for him to do so;
3. if it is irreconcilable with a judgment given in a
dispute between the same parties in the Member State in which recognition is
sought;
4. if it is irreconcilable with an earlier judgment given
in another Member State or in a third State involving the same cause of action
and between the same parties, provided that the earlier judgment fulfils the
conditions necessary for its recognition in the Member State addressed.
...
Section 2
Enforcement
Article 38
1. A judgment given in a Member State and enforceable in
that State shall be enforced in another Member State when, on the application
of any interested party, it has been declared enforceable there.
...
Article 40
1. The procedure for making the application shall be
governed by the law of the Member State in which enforcement is sought.
...
Article 41
The judgment shall be declared enforceable immediately on
completion of the formalities in Article 53 without any review under Articles
34 and 35. The party against whom enforcement is sought shall not at this stage
of the proceedings be entitled to make any submissions on the application.
Article 42
1. The decision on the application for a declaration of
enforceability shall forthwith be brought to the notice of the applicant in
accordance with the procedure laid down by the law of the Member State in which
enforcement is sought.
...
Article 43
1. The decision on the application for a declaration of
enforceability may be appealed against by either party.
...
Article 45
1. The court with which an appeal is lodged under Article
43 or Article 44 shall refuse or revoke a declaration of enforceability only on
one of the grounds specified in Articles 34 and 35. It shall give its decision
without delay.
2. Under no circumstances may the foreign judgment be
reviewed as to its substance.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicants complained that the Polish and
Greek authorities had failed to effectively recover the maintenance payments in
the proceedings under the New York Convention and that the length of the
proceedings for the recovery of maintenance had been excessive. They relied on
Article 6 § 1 of the Convention, which reads 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 ...”.
A. Admissibility
1. With regard to Poland
(a) The parties’ submissions
Firstly, the Polish Government argued that the
application should be dismissed on account of the applicants’ abuse of the
right of individual petition. An application could be rejected on this ground
if new important developments occurred during the proceedings before the Court
and if the applicant failed to disclose that information to the Court, thereby
preventing it from ruling on the case in full knowledge of the facts. In this
connection the Government noted that the applicants had failed to inform the
Court that the first applicant had received at least EUR 12,700 from P.M.
and that the enforcement proceedings against P.M. had been closed following a
request by the third applicant lodged on 16 January 2009. In
addition, the applicants had failed to inform the court that they had been receiving
substitute maintenance from the Maintenance Fund over a considerable period of
time.
The applicants stressed that the application
had been lodged on 10 November 2006, and thus three years before the
first applicant had obtained the EUR 12,700 from his father. Moreover, the
payment had also been taken into consideration in the applicants’ claims for
just satisfaction. As regards the sums received from the Maintenance Fund, they
covered only a limited part of the amounts adjudicated by the Kraków Regional
Court.
Secondly, the Government submitted that in so
far as the applicants complained against Poland, their complaints should be
dismissed as incompatible ratione loci. They noted that the present case
concerned mostly the length and effectiveness of the enforcement procedures
carried out in Greece. In addition, the Kraków Regional Court had acted only as
a Transmitting Agency and as such had had no influence on the expeditiousness
of the recovery of maintenance by the Greek authorities.
The applicants argued that even though the
Kraków Regional Court had acted only as a Transmitting Agency there had
nevertheless been periods of inactivity on the part of the Polish authorities
which, together with the attitude of the Greek authorities, had prolonged the
duration of the proceedings.
Thirdly, the Government submitted that the
application was inadmissible ratione temporis, in so far as it concerned
events which had taken place before 1 May 1993, the date when Poland
recognised the right of individual petition under the Convention. The
applicants did not comment on this objection.
Fourthly, the Government maintained that the
third applicant had failed to exhaust the required domestic remedies since she
had not lodged a complaint under the 2004 Act.
The third applicant maintained that she had not
lodged a complaint under 2004 Act in view of the decision given in the
case of first applicant (see paragraph 57 above). In that decision the Kraków
Court of Appeal had rejected the complaint lodged by the first applicant by
pointing out that, in any event, the Kraków Regional Court had acted only as a
Transmitting Agency. For that reason, the third applicant considered that a
complaint under 2004 Act would not have been an effective remedy in her
case.
With regard to the merits, the Government
argued that the Polish authorities had acted diligently and without undue
delay. The requests lodged by the applicants under the New York Convention had
been immediately translated and transmitted to the Greek authorities. The
Polish authorities assisted the applicants in recovery of their maintenance
payments. The Kraków Regional Court, although not required by the New York
Convention, had many times attempted to intervene in the proceedings by
enquiring about their progress with the Greek authorities and by soliciting the
assistance of the Polish Embassy in Athens, the Ministry of Justice and the
Ministry of Foreign Affairs. The Government submitted that the applicants had
failed to indicate what specific actions they would have expected from the
Polish authorities for the effective recovery of maintenance. They pointed out
that they could not be held responsible for the lack of effectiveness in the
recovery of maintenance by the Greek authorities.
The Government also argued that the case was
very complex. The proceedings had been based on three different international
instruments: the New York Convention, the 1979 Agreement and the Lugano
Convention. In addition, numerous documents had had to be translated.
The applicants submitted that on account of the
inactivity of the Polish authorities they had not been able to obtain the maintenance
payments awarded to them by several judgments of the Polish courts. They
pointed to numerous periods of inactivity on the part of the authorities. In
particular, the Polish authorities had taken no action between
15 November 1993 and 19 July 1994,
31 December 1996 and 5 May 1998, and
25 October 2002 and 11 August 2004.
(b) The Court’s assessment
The Court notes that the Polish Government
raised a number of objections in respect of the admissibility of the
application. However, the Court considers that it is not necessary to examine
these objections because the application is in any event inadmissible in
respect of Poland for the reasons set out below.
The Court notes that all three applicants
complain that the Polish authorities, in particular the Transmitting Agency
(the Kraków Regional Court), had failed to effectively recover the maintenance
payments in the three separate sets of proceedings under the New York
Convention. The New York Convention establishes a cooperation procedure between
the Contracting Parties by virtue of which the competent authorities,
designated by the two Contracting Parties, undertake the necessary measures in
order to assist the creditor in the recovery of maintenance. Each Contracting
Party is responsible under the New York Convention for the consequences of the
obligations undertaken on ratification of that convention, in particular, for
the assistance it provides to the creditor in the recovery of maintenance through
the appropriate measures, including those foreseen in its domestic law (see, Huc
v. Romania and Germany (dec.), no. 7269/05, § 46,
1 December 2009).
The Court considers that the Transmitting
Agency (the Kraków Regional Court) acted diligently in the present case. Its
role was to receive the applications for recovery of maintenance, ensure that
they included all necessary information and were accompanied by relevant
documents and finally to transmit the applications to the Receiving Agency. The
applicants pointed to certain delays in the procedure related to the recovery
of maintenance due to the first applicant. However, the Court finds that even
if certain delays could be attributed to the Polish authorities, they were not
unreasonable in the light of the complexity of the procedure which required
constant cooperation between the Transmitting and Receiving Agencies and the
first applicant. Furthermore, the Court notes that the Transmitting Agency
actively monitored the progress of the procedure with the Greek authorities and
on numerous occasions solicited assistance of the Polish Ministries of Justice
and Foreign Affairs and of the Polish Embassy in Athens. In conclusion, the
Court finds that the measures undertaken by the Polish authorities with a view
to recovering the maintenance payments due to the applicants were adequate and
sufficient. It follows that the complaints against Poland are manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4
of the Convention.
2. With regard to Greece
(a) The parties’ submissions
The Greek Government argued that the applicants
had failed to exhaust the required domestic remedies. They pointed out that the
New York Convention did not dispense the applicants from the obligation to
undertake action with a view to recovering the maintenance.
In respect of the first applicant the
Government submitted that he should have filed an individual claim for
maintenance against his father directly in Greece. He should also have filed
claims for the recognition and enforcement of the Polish judgments in Greece in
accordance with Article 905 of the Code of Civil Procedure, the 1979 Agreement
and, following Poland’s accession to the EU, in accordance with the Regulation
44/2001/EC.
In respect of the second applicant, the
Government maintained that he had failed to lodge a cassation appeal against
the judgment of the Thessaloniki Court of Appeal of
11 September 2011.
Lastly, they submitted that the third applicant
should herself have filed a claim in Greece for the recognition and enforcement
of the Kraków Regional Court judgment of 23 December 2002,
independently of the measures taken by the Greek authorities.
The applicants argued that they had exhausted
all effective remedies. The maintenance had been awarded by the Polish courts
and the applicants had taken all the steps necessary for its recovery. To file
identical claims before the Greek courts would only have constituted an
impractical multiplication of proceedings.
(b) The Court’s assessment
The Court considers that the objections
concerning all three applicants are closely linked to the substance of their
complaints under Article 6 § 1 of the Convention and should be joined to
the merits of the case.
The Court further notes that this part of the
application is not manifestly ill-founded within the meaning of
Article 35 § 3 (a) of the Convention. It further notes that it is not
inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The applicants’ submissions
The applicants submitted that on account of the
inactivity of the Greek authorities in the proceedings instituted under the New
York Convention they had not been able to obtain the maintenance payments
awarded to them by several judgments of the Polish courts. They pointed to
numerous periods of inactivity on the part of the authorities. The Greek
authorities had not, for example, provided any information to the Kraków
Regional Court for a period of two years and eight months (between November
1993 and July 1996) in respect of the proceedings concerning the first
applicant.
2. The Greek Government’s submissions
. The
Greek Government submitted that they had acted diligently.
. With
respect to the first applicant, the Government pointed out that when his
request had been received on 5 April 1988, it had been transferred to the
competent authority and the defendant had been summoned. However, as the
parties had started friendly-settlement negotiations, the authorities had
considered that it was not necessary to take any action. Thus, an agreement had
been signed by the parties on 3 September 1990 and the Greek authorities had
monitored its implementation. They also informed accordingly the Kraków
Regional Court.
. The
Government acknowledged that it had refused to proceed to the recognition and
enforcement of the judgment of the Kraków District Court issued on
6 January 2004. However, under Article 6 § 3 of the
New York Convention, the Polish court had had no jurisdiction to give that
judgment. Subsequently, the Greek authorities had recognised the competence of
the Polish court on the basis of Article 5 § 2 of the Lugano
Convention. In January 2007 the authorities had lodged an action with the
Thessaloniki Court of First Instance seeking recognition of the judgment of
6 January 2004. Those proceedings had been discontinued because of
the friendly settlement reached between the parties on 21 March 2008.
Accordingly, all domestic procedures were pursued without delays attributable
to the Greek authorities.
. With
respect to the second applicant, the Government submitted that the enforcement
proceedings in respect of the Kraków District Court’s judgment of
6 January 2004 had begun only on 26 June 2008, when the
Greek authorities had sent a request to the Kraków Regional Court. Afterwards,
the proceedings had been conducted swiftly. An action had been filed on
30 April 2009 and a judgment had been given on
11 December 2009.
. With
respect to the request for recognition lodged by the third applicant on behalf
of the second applicant, the Government submitted that the first-instance
judgment had been delivered after thirteen months of proceedings and the
second-instance judgment ten months later. Several hearings had been adjourned,
but always owing to force majeure, and new hearings had been scheduled
promptly.
. With
regard to the proceedings concerning the third applicant, the Government
submitted that all actions had been taken without any delay. As the whereabouts
of the debtor had been unknown, the authorities had lodged an action for
recognition of the judgment of 23 December 2002 with the Thessaloniki
Court of First Instance. The judgment, favourable to the applicant, had been
given two years and six months later. Two hearings had been adjourned because
of the need to obtain additional documents or information. Twice the Greek
authorities had requested that a new hearing be scheduled. As the debtor had
refused to pay, enforcement proceedings had been instituted. Numerous auctions
had been organised but there had been no bidders. After consultation with the
applicant the authorities had sought to sell the debtor’s two apartments
through an open sale. However, this had not been authorised since it was
incompatible with the Greek Code of Civil Procedure.
3. The Court’s assessment
The Court recalls that the “right to a court”
would be illusory if a Contracting State’s domestic legal system allowed a
final, binding judicial decision to remain inoperative to the detriment of one
party. It would be inconceivable that Article 6 § 1 should describe in detail
procedural guarantees afforded to litigants - proceedings that are fair, public
and expeditious - without protecting the implementation of judicial decisions;
to construe Article 6 as being concerned exclusively with access to a court and
the conduct of proceedings would be likely to lead to situations incompatible
with the principle of the rule of law which the Contracting States undertook to
respect when they ratified the Convention. Execution of a judgment given by any
court must therefore be regarded as an integral part of the "trial"
for the purposes of Article 6 (see, among others, Hornsby v. Greece,
19 March 1997, § 40, Reports of Judgments and Decisions 1997-II).
The issue in the present cases concerns the
assistance of the Greek authorities with regard to the applicants’ requests for
recovery of maintenance. The first applicant in his original request asked the
Greek authorities to institute court proceedings with the aim of recovering the
maintenance and enforce any judgment that might be given in this connection.
Subsequently, the first applicant requested that the Greek authorities enforce
judgments of the Polish courts awarding him maintenance. The second and third
applicants requested primarily that the Greek authorities enforce judgments
given by the Polish courts awarding them maintenance. All requests were filed
under the system established by the New York Convention to which Greece and
Poland were parties.
The Court recalls that a State cannot be held
responsible for ineffectiveness of enforcement proceedings which is due to the
insolvency of a private debtor. However, the State has a positive obligation to
organise a system for the enforcement of judgments that is effective both in
law and in practice and ensures their enforcement without undue delay (see,
Fouklev v. Ukraine, no. 71186/01, § 84, 7 June 2005).
Therefore, the State’s responsibility concerning enforcement of a judgment in
favour of a private party may be engaged if the public authorities involved in
the enforcement proceedings fail to act with necessary diligence or hinder the enforcement
(see, Romańczyk v. France, no. 7618/05, § 55, 18 November 2010).
The Court notes that the New York Convention
establishes a system of cooperation between the Contracting Parties in order to
overcome practical and legal obstacles to the pursuit of maintenance claims
abroad or enforcement of judgments awarding maintenance. Article 1 of the said
Convention stipulates that its object is “to facilitate the recovery of
maintenance to which a person (...) who is in the territory of one of the
Contracting Parties, claims to be entitled from another person (...) who is
subject to the jurisdiction of another Contracting Party.” (see paragraph 110
above).
The Court recalls that the New York Convention does
not absolve the claimant of his obligation to act in parallel with the
authorities of the Receiving Agency (the State of the respondent) and to use
the existing avenues in domestic law with a view to pursuing a claim or enforcing
a judicial decision. However, the New York Convention does not in any way make
the assistance of the State of the respondent dependent on any action of the
claimant. On the contrary, it results expressly from Article 6 of the New York
Convention that when a Contracting Party receives an application it should
take, on behalf of the claimant, all appropriate steps for the recovery of
maintenance; including the settlement of the claim and, where necessary, the
institution and prosecution of an action for maintenance and the execution of
any order or other judicial act for the payment of maintenance. Accordingly, the
obligation to act does not rest exclusively on the claimant, but equally on the
State of the respondent which is under a positive obligation to assist the
claimant in the proceedings under the New York Convention (Romańczyk v.
France, cited above, § 58).
Each Contracting Party is responsible under the
New York Convention for the consequences of the obligations undertaken on
ratification of that convention, in particular, for the assistance it provides
to the creditor in the recovery of maintenance through the appropriate
measures, including those foreseen in its domestic law (see, Huc v. Romania
and Germany (dec.), no. 7269/05, § 46, 1 December 2009). The
Court has already examined cases concerning the application of the New York
Convention and applied Article 6 of the Convention to proceedings instituted on
the basis of the New York Convention (see, K. v. Italy, no. 38805/97,
ECHR 2004-VIII; Zabawska v. Germany (dec.), no. 49935/99, 3
March 2006; Dinu v. Romania and France, no. 6152/02, 4 November
2008; Huc v. Romania and Germany, cited above; Romańczyk
v. France, cited above). It sees no reason to depart from its earlier
case-law and concludes that the applicants, having lodged their requests under
the New York Convention, were entitled to the assistance of the Greek
authorities in recovering the maintenance.
As in earlier cases the Court underlines the
particular importance of what was at stake for the applicants who have
attempted for many years to obtain maintenance to which they claimed to be
entitled.
Now the Court will examine whether the measures
taken by the Greek authorities in the present case with a view to assisting the
applicants in the recovery of maintenance were adequate and sufficient (see Romańczyk
v. France, cited above, § 62).
(a) The first applicant
The Court notes first that the first applicant’s
request for recovery of maintenance was received by the Greek authorities on 5
April 1988. He recovered the entirety of the maintenance only at the end of 2008,
which is twenty years later.
The Government submitted that they had not
undertaken any action following the receipt of the request because the parties
had been seeking a settlement. They also argued that upon the signature of a
provisional settlement the authorities had been monitoring its implementation.
However, the Court notes between the date of receipt of the request on 5 April
1988 and the date of a provisional settlement on 3 September 1990 the
authorities’ assistance was limited to one unsuccessful attempt to summon the
debtor. Furthermore, with regard to the monitoring of the implementation of the
settlement the Court notes that the first applicant received the payment of
540,000 drachmas (1,584.74 EUR) only in March 1995, which is four and a half
years after the conclusion of the settlement. In addition, the first applicant
claimed that the payment was only a part of what was due to him.
In the subsequent period the Kraków Regional
Court unsuccessfully requested the assistance of the Greek authorities in the
recovery of maintenance due to the first applicant. In July 2000 the Greek
Ministry refused to proceed with the recognition and enforcement of the
Kraków-Śródmieście District Court’s judgment in default of
17 June 1997, citing Article 26 (d) of the 1979 Agreement.
In August 2004 the Kraków Regional Court lodged
with the Greek Ministry a new request for recovery of maintenance under the New
York Convention. It also requested the Greek authorities to recognise and
enforce the Kraków-Podgórze District Court’s judgment of 6 January 2004. The Greek
Ministry first refused to proceed with this request, citing Article 6 § 3
of the New York Convention; however, sometime in 2005 it agreed to proceed with
the request under the Lugano Convention. These proceedings were discontinued
following a final settlement reached between the first applicant and the debtor
on 21 March 2008. The Court’s task is not to determine whether the Greek
authorities’ refusal to proceed to the enforcement of the relevant Polish judgments
was justified under the legal instruments they quoted. However, it cannot but
note that these refusals led to further delays in the recovery of maintenance
claimed by the first applicant.
The Court further notes that during certain
periods the Greek authorities failed to provide any information to the Polish
authorities (for example, November 1993 and July 1996, between May 1998 and
July 2000, and between May 2005 and June 2006). On several occasions the Greek
authorities responded only after repeated queries from the Kraków Regional
Court, or following the intervention of the Polish Embassy in Athens (see
paragraphs 11, 14, 27 and 44 above).
Having regard to the foregoing the Court
concludes that the measures undertaken by the Greek authorities in order to
assist the first applicant in the recovery of maintenance were not adequate and
sufficient.
With regard to the Government’s assertion that
the first applicant should have lodged an action for maintenance and claims for
the recognition and enforcement of the Polish judgments directly with a Greek
court, the Court notes that to impose such a requirement on the applicant would
have undermined the purpose of the New York Convention, which is to facilitate
the recovery of maintenance. The Court recalls that the first applicant, having
lodged his requests under the New York Convention, was entitled to the
assistance of the Greek authorities in recovering the maintenance. The New York
Convention creates positive obligations for the competent authorities of the
State of the debtor which are not conditional upon the action undertaken by the
creditor (see Romańczyk, cited above, § 58).
It follows that there has been a violation of
Article 6 § 1 of the Convention, and the Government’s objection of
non-exhaustion of domestic remedies (see paragraph 131 above) must accordingly
be rejected.
(b) The second applicant
The Court observes that the second applicant’s request
on the basis of the New York Convention was transmitted to the Greek
authorities on 7 June 2005 and received on 28 July 2005 (see paragraph 62 above).
It appears that to date the second applicant has not received any maintenance
payments.
The Greek Government argued that the
enforcement proceedings had started only in June 2008, when the Ministry of
Justice sent a letter to the Kraków Regional Court, and that after that date
they had been conducted swiftly. The Court finds it difficult to understand how
the fact that the Government took concrete legal steps to assist the second applicant
almost three years after the reception of the request constitutes an argument that
the Greek authorities acted diligently. It appears that the Greek authorities
confused the request for recovery of maintenance filed by the second applicant
with the similar request filed by the third applicant. It follows that the
assistance offered by the Greek authorities to the second applicant in the
recovery of maintenance was not adequate and sufficient.
In so far as the Government pleaded that the
applicant had failed to lodge a cassation appeal against the Thessaloniki Court
of Appeal’s judgment of 11 September 2011, the Court notes that these
proceedings were instituted directly in Greece by the second applicant. They
did not concern the proceedings instituted by the Greek authorities upon his request
filed under the New York Convention in which he was entitled to the assistance
of the Greek authorities in recovering the maintenance (see also the Court’s
findings in respect of the similar objection in paragraph 157 above).
The Court therefore concludes that there has
been a breach of Article 6 § 1 of the Convention, and that the Government’s
objection of non-exhaustion of domestic remedies must be rejected.
(c) The third applicant
The Court notes that the third applicant’s request
on the basis of the New York Convention was transmitted to the Greek
authorities on 18 August 2003. The third applicant has still not
recovered any maintenance.
In so far as the Greek Government argued that
the proceedings had been conducted without undue delay but had not been
effective owing to circumstances over which the authorities had no influence
(the lack of bidders and the impossibility of organising an open sale), the
Court reiterates that it has previously acknowledged that a Contracting Party
cannot be held responsible for an ineffective enforcement that is due to the
debtor’s insolvency (see Fouklev, cited above, § 84).
However, in the present case, the Court has
doubts as to whether the Greek authorities did in fact act with necessary
diligence. It notes that one year after the transmission of the third applicant’s
request the Greek authorities asked the Polish Transmitting Agency for
documents which had been already attached to the original request. Furthermore,
the Thessaloniki Court of First Instance gave its judgment two and a half years
after the claim had been filed (see paragraphs 90 and 97 above). Several
hearings were adjourned and the Greek authorities failed to provide the Kraków
Regional Court with regular information on developments in the case (see
paragraph 95 above). Another year passed between the delivery of the
Thessaloniki Court of First Instance’s judgment and its service on the debtor.
The enforcement proceedings proved ineffective although the debtor owned a
number of properties.
In conclusion, the Court finds that the Greek
authorities failed to provide the third applicant with adequate and sufficient assistance
in recovering the maintenance.
With regard to the Government’s assertion that
the third applicant should herself have filed a claim in Greece for the
recognition and enforcement of the Kraków Regional Court’s judgment of
23 December 2002, the Court dismisses this argument by reference to
the findings made above in respect of the similar objection concerning the
first applicant (see paragraph 158 above).
The foregoing considerations are sufficient to
enable the Court to conclude that there has been a violation of Article 6
§ 1 of the Convention. The Government’s objection on the basis of
non-exhaustion of domestic remedies must accordingly be rejected.
II. OTHER ALLEGED VIOLATIONS IN RESPECT OF GREECE
The applicants also alleged that the failure to
carry out effective enforcement proceedings on the part of the Greek
authorities had deprived them of their financial entitlement, which had been
granted by several court judgments, and this constituted deprivation of
property for the purposes of Article 1 of Protocol No. 1 to the
Convention. They also complained under Article 8 of the Convention that by
failing to assist them effectively in the recovery of the maintenance payments
the Polish and Greek authorities had deprived them of a source of income which
constituted a financial basis for their family life.
The Court notes that these complaints are
linked to the one examined above and must therefore likewise be declared
admissible.
However, having regard to the reasons which led
the Court to find a violation of Article 6 § 1 of the Convention, the
Court finds that the applicants’ complaints under Article 8 of the
Convention and Article 1 of Protocol No. 1 do not require a separate
examination.
III. OTHER ALLEGED VIOLATIONS IN RESPECT OF
POLAND
The applicants made similar complaints under Article 1
of Protocol No. 1 and Article 8 of the Convention against
Poland.
The Court has found above that the applicants’
complaints under Article 6 of the Convention concerning the alleged failure of
the Polish authorities to provide them with necessary assistance in the
recovery of maintenance were inadmissible as manifestly ill-founded (see
paragraph 129 above). It notes that the applicants’ complaints under Article 1
of Protocol No. 1 and Article 8 of the Convention are also based on the
assertion that the Polish authorities failed to assist them effectively in the
recovery of the maintenance payments. Accordingly, these complaints are manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3 (a)
and 4 of the Convention.
In addition, the first applicant complained,
without invoking any specific provision of the Convention, that he had had no
effective remedy against the excessive length of the proceedings, in that the
Kraków Court of Appeal had unfairly rejected on formal grounds his complaint,
filed under the 2004 Act. This complaint was communicated under Article 13 of
the Convention. In view of its finding that the complaint under Article 6
against Poland was manifestly ill-founded, the Court finds that the complaint
under Article 13 is also manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 (a) and 4 of the Convention.
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 first applicant claimed 74,000 euros (EUR) in
respect of pecuniary damage (this amount representing the unpaid maintenance)
and EUR 60,000 in respect of non-pecuniary damage.
The second applicant requested EUR 112,000
in respect of pecuniary damage and EUR 60,000 in respect of non-pecuniary
damage.
The third applicant claimed EUR 67,000 in
respect of pecuniary damage and EUR 60,000 in respect of non-pecuniary
damage.
The Greek Government argued that the claims for
pecuniary damage were not causally linked with the alleged violations. With
regard to the claims for non-pecuniary they argued that these were excessive
and unjustified. Alternatively, the Greek Government invited the Court to rule
that the finding of a violation constituted in itself sufficient just
satisfaction for any non-pecuniary damage sustained by the applicants.
The Court does not discern any causal link
between the violations found and the pecuniary damage alleged; it therefore
rejects these claims. However, the Court considers that the applicants must
have sustained non-pecuniary damage. The Court notes that it has found a
violation of Article 6 § 1 in respect of Greece in that the Greek
authorities failed to assist all three applicants in the recovery of the
maintenance due to them. Ruling on equitable basis, it awards EUR 9,600 to
the first applicant, EUR 4,800 to the second applicant, and EUR 4,000
to the third applicant in respect of non-pecuniary damage, plus any tax that
may be chargeable on these amounts.
B. Costs and expenses
The applicants also claimed 95,000 Polish
zlotys (PLN) (approx. EUR 23,000) for the costs and expenses incurred in
the proceedings before the Greek courts. This sum covers expenses relating to
plane tickets to Greece, hotel bills, translations, and lawyers’ fees in the
proceedings before the domestic courts.
The applicants’ lawyer claimed PLN 32,000
(approx. EUR 8,000) for the costs of legal representation before the
Court, which sum corresponds to eighty hours of work. He submitted that the
applicants were due to pay this amount under the contract signed with him.
The Greek Government contested these claims.
They noted that the applicants produced no documents supporting their claim for
costs and expenses.
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 are
reasonable as to quantum. In the present case, regard being had to the
documents 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 sum of EUR 850 for the proceedings before the Court.
C. Default interest
The Court considers it appropriate that the
default interest rate 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. Joins to the merits, the Greek Government’s
preliminary objection concerning exhaustion of domestic remedies as regards the
complaints under Article 6 § 1 of the Convention in respect of all applicants
and rejects it;
2. Declares the complaints against Greece in
respect of all applicants admissible and the remainder of the application
inadmissible;
3. Holds that there has been a violation of
Article 6 § 1 of the Convention in respect of all applicants;
4. Holds that there is no need to examine separately
the complaints under Article 8 of the Convention and Article 1 of Protocol No.
1 to the Convention;
5. Holds
(a) that the Greek Government 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, the
following amounts:
(i) EUR 9,600 (nine thousand six hundred euros) to
the first applicant, EUR 4,800 (four thousand eight hundred euros) to the second
applicant, and EUR 4,000 (four thousand euros) to the third applicant in
respect of non-pecuniary damage plus any tax that may be chargeable to the
applicants on these amounts;
(ii) EUR 850 (eight hundred and fifty euros), plus
any tax that may be chargeable to the applicants, in respect of costs and
expenses;
(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;
6. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 7 November 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sřren Nielsen Isabelle
Berro-Lefčvre
Registrar President
