British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[
Home]
[
Databases]
[
World Law]
[
Multidatabase Search]
[
Help]
[
Feedback]
European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
MIERKIEWICZ v. POLAND - 77833/01 [2007] ECHR 133 (13 February 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/133.html
Cite as:
[2007] ECHR 133
[
New search]
[
Contents list]
[
Printable RTF version]
[
Help]
FOURTH
SECTION
CASE OF MIERKIEWICZ v. POLAND
(Application
no. 77833/01)
JUDGMENT
STRASBOURG
13
February 2007
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Mierkiewicz v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr G.
Bonello,
Mr K. Traja,
Mr L. Garlicki,
Ms L.
Mijović,
Mr J. Šikuta,
Mrs P. Hirvelä,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 23 January 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 77833/01) against the
Republic of Poland lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Polish national, Mr Wojciech
Mierkiewicz (“the applicant”), on 7 June 2001.
The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
On
19 December 2005 the
Court decided to communicate the complaint concerning the length of
the proceedings to the Government. Applying Article 29 § 3 of
the Convention, it decided to rule on the admissibility and merits of
the application at the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1946 and lives in Poznań, Poland.
On
27 June 1987 the applicant lodged a claim for payment against a
certain M.R. with the Poznań District Court (Sąd
Rejonowy).
The
court held a number of hearings and ordered on four occasions that
expert evidence be obtained. Expert reports were amended several
times.
On
18 November 1993 the District Court found that it was not competent
to deal with the case and referred it to the Poznań Regional
Court (Sąd Okręgowy).
The
Regional Court held the first hearing on 18 April 1995.
On
27 June 1995 the court ordered that an additional expert opinion be
obtained. The expert submitted his report on 15 April 1996. It was
subsequently modified several times at the court’s request.
The
Regional Court scheduled 12 hearings. Several of them were adjourned
because the parties or expert witnesses had failed to appear.
On
23 December 1999 the court partly granted the claim.
On
31 August 2000 the Poznań Court of Appeal (Sąd
Apelacyjny) amended the first-instance judgment.
On
29 November 2000 the Court of Appeal rejected the applicant’s
cassation appeal. The court found that the applicant had failed to
indicate the grounds for lodging it.
On
26 April 2001 the Supreme Court (Sąd Najwyższy)
dismissed the applicant’s appeal against that decision.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The
relevant domestic law and practice concerning remedies for the
excessive length of judicial proceedings are stated 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 the judgment in
the case of Krasuski v. Poland, no. 61444/00, §§
34-46, ECHR 2005-V.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION WITH RESPECT TO THE LENGTH OF THE PROCEEDINGS
The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
The
Government contested that argument.
The
applicant lodged his claim on 27 June 1987. However, the period to be
taken into consideration began only on 1 May 1993, when the
recognition by Poland of the right of individual petition took
effect. In assessing the reasonableness of the time that elapsed
after that date, account must be taken of the state of proceedings at
the time.
The
period in question ended on 26 April 2001. It thus lasted 8 years for
3 levels of jurisdiction.
A. Admissibility
The
Government raised a preliminary objection that the applicant had not
exhausted domestic remedies available to him under Polish law, as
required by Article 35 § 1 of the Convention. They maintained
that from 17 September 2004, the date of entry into force of the
2004 Act, the applicant had a possibility of seeking compensation for
the damage resulting from the excessive length of proceedings before
the Polish courts under section 16 of the 2004 Act read in
conjunction with Article 417 of the Civil Code.
However, the Court has already held that the civil
action relied on by the Government cannot be regarded as an effective
remedy with a sufficient degree of certainty in cases where the
three-year limitation period for the State’s liability in tort
expired before the entry into force of the 2004 Act on 17 September
2004 (see Ratajczyk v. Poland (dec), 11215/02, 31 May
2005, Barszcz v. Poland, no. 71152/01, § 45,
30 May 2006). The present case belongs to this group of
applications as the proceedings at issue ended on 26 April 2001,
which is more than three years before the 2004 Act had come into
force. It follows that the Government’s plea of inadmissibility
on the ground of non exhaustion of domestic remedies must be
dismissed.
The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION WITH RESPECT TO THE UNFAIRNESS OF THE PROCEEDINGS
Relying on Articles 6 § 1 and 13 of the
Convention the applicant complained about the unfairness of the
proceedings. He alleged that the courts had committed errors of fact
and law when dealing with his case and that their judgments were
unjust.
Pursuant to Article 35
§ 1 of the Convention:
“The Court may only deal with the matter after all
domestic remedies have been exhausted, according to the generally
recognised rules of international law...”
The Court notes that that the applicant failed to
lodge a cassation appeal against the final judgment given in his case
in accordance with procedural requirements (see paragraph 13
above). Consequently, it was rejected by the Poznań Court
of Appeal.
It
follows that this complaint must be declared inadmissible for
non-exhaustion of domestic remedies, pursuant to Article 35 §§
1 and 4 of the Convention.
III. ALLEGED
VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION WITH RESPECT TO
REJECTION OF THE APPLICANT’S CASSATION APPEAL
The
applicant complained under Article 6 § 1 that the rejection of
his cassation appeal had infringed his right of access to a court and
to a fair trial.
The
Court firstly recalls that the right to a court, guaranteed by
Article 6 of the Convention, is not absolute and may be subject to
limitations. However, the limitations applied cannot restrict or
reduce the access left to the individual in such a way or to such an
extent that the very essence of the right is impaired. Furthermore, a
limitation will not be compatible with Article 6 § 1 if it does
not pursue a legitimate aim and if there is not a reasonable
relationship of proportionality between the means employed and the
aim sought to be achieved (see, inter alia, Prince
Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98,
§ 44, 12 July 2001, ECHR 2001-VII).
The
Court observes that the applicant failed to comply with a procedural
requirement for lodging his cassation appeal, namely he did not
specify the grounds on which he relied. That requirement served the
purpose of the efficient administration of justice in proceedings
before the Supreme Court and cannot be said to have amounted to a
disproportionate limitation on the applicant’s right to access
to a court.
In
view of the above it cannot be said that the rejection of the
applicant’s obviously unmeritorious cassation appeal infringed
the very essence of his right to a court.
For
these reasons the Court rejects the complaint under Article 6 §
1 of the Convention as being manifestly ill-founded, pursuant to
Article 35 §§ 3 and 4.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 150,000 Polish zlotys (PLN) in respect of pecuniary
damage. He further maintained that his non-pecuniary damage was
“inestimable”.
The Government contested these claims.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, the Court considers that the applicant has suffered
non-pecuniary damage – such as distress resulting from the
protracted length of the proceedings – which is not
sufficiently compensated by the finding of a violation of the
Convention. Considering the circumstances of the case and making its
assessment on an equitable basis, the Court awards the applicant EUR
2,300 under that head.
B. Costs and expenses
The
applicant did not seek reimbursement for costs and expenses.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,300 (two
thousand three hundred euros) in respect of non-pecuniary damage to
be converted into the national currency of the respondent State at
the rate applicable at the date of settlement, plus any tax that may
be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 13 February 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
