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WENDE AND KUKOWKA v. POLAND - 56026/00 [2007] ECHR 377 (10 May 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/377.html
Cite as:
[2007] ECHR 377
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FOURTH
SECTION
CASE OF WENDE AND KUKÓWKA v. POLAND
(Application
no. 56026/00)
JUDGMENT
STRASBOURG
10
May 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 Wende and Kukówka 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 12 April 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 56026/00) 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 two Polish nationals Stefania Wende and
Franciszek Kukówka (“the applicants”), on 4
February 2000.
The
Polish Government (“the Government”) were represented by
their Agents, first Mr K. Drzewicki and subsequently Mr J.
Wołąsiewicz of
the Ministry of Foreign Affairs.
On
4 December 2001 the
Court decided to communicate the complaint concerning the length of
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
THE CIRCUMSTANCES OF THE CASE
The
applicants are siblings. They were born in 1945 and
1944 respectively and live in Tarnowskie Góry, Poland.
5. In
1953 a building and a plot of land owned by the applicants were
expropriated. The compensation granted pursuant to the expropriation
decision was not paid.
In
1992 the second applicant, Mr F. Kukówka, requested the
Katowice Governor (wojewoda) to declare the expropriation
decision null and void.
On
30 March 1993 the Governor refused. The second applicant appealed
against this decision.
On
20 December 1993 the Minister of Construction (Minister Gospodarki
Przestrzennej i Budownictwa) dismissed the appeal. The second
applicant appealed.
On
15 June 1994 the Supreme Administrative Court (Naczelny Sąd
Administracyjny) quashed both decisions taken in 1993.
On
31 January 1995 the Minister of Construction, having re-examined the
second applicant's request, declared the 1953 expropriation decision
null and void. The applicants' ownership right to the property was
entered in the relevant land and mortgage register.
On
7 April 1995 the second applicant requested the Minister of
Construction for compensation for the unlawful use of the property by
a State-owned enterprise.
On
15 January 1996 the Minister of Construction refused the request. The
applicant filed a civil action with the Katowice Regional Court (sąd
wojewódzki).
On
22 February 1996 the Katowice Regional Court declared that it lacked
jurisdiction to deal with the case and transferred it to the Warsaw
Regional Court.
The
Warsaw Regional Court held hearings on 5 September 1996, 17 October
1996, 6 May 1997 and 21 August 1997.
On
8 May 1998 the first applicant joined the proceedings as an
intervenor (interwenient uboczny).
On
25 May 1998 the lawyer representing the State Treasury contested an
expert's opinion filed in the case.
On
22 October 1998 a hearing was held.
On
26 October 1998 the defendant (the State Treasury) requested the
court to order an opinion from another expert.
On
23 April 1999 the court ordered an expert witness to give an opinion.
The opinion was submitted on 3 August 1999. The parties submitted
their comments on 25 October 1999, 3 November 1999 and 6 December
1999.
The
hearing scheduled for 27 January 2000 was adjourned because the
defendant's lawyer had failed to attend. The expert witness had
informed the court that he would not be able to attend hearings
scheduled before 7 February 2000 because he would abroad.
The
expert witness was heard on 19 March 2000.
On
27 March 2000 the Warsaw Regional Court delivered a judgment. It
awarded the second applicant 103,818 zlotys (PLN) in compensation for
damage actually suffered (damnum emergens), together with
statutory interest payable from 11 May 1998. The court dismissed the
claim for the alleged loss of profits (lucrum cessans).
On
31 March 2000 the first applicant filed a motion to supplement the
judgment. On 22 September 2000 the defendant submitted its comments.
On 10 October 2000 the court dismissed the first applicant's motion.
She appealed. Her appeal was dismissed on 14 May 2001.
On
24 July 2000 the first applicant filed a complaint with the President
of the Regional Court about the alleged excessive length of the
proceedings.
The written reasons of the judgment of 27 March 2000 were served on
the applicants on 16 October 2000. The first applicant and the
defendant appealed against the judgment.
The
first applicant's appeal against the judgment was rejected on 14 May
2001. Her appeal against this decision was dismissed on 29 June 2001.
On
10 July 2001 the applicants summoned the defendant to pay the
compensation awarded by the Regional Court. In reply, they were
informed that the judgment of 27 March 2000 was not enforceable since
the appellate proceedings were pending.
The
applicants requested the Regional Court to provide them with an
interpretation of its judgment. On 25 July 2001 the court refused
that request.
Subsequently,
they requested that court to add an enforcement clause to the
judgment. On 21 September 2001 the court refused since the
proceedings were pending before the Court of Appeal.
On
29 August 2002 the Court of Appeal upheld the judgment of the
first-instance court, but held that interest was payable from 27
March 2000.
On
17 February 2003 the Court of Appeal attached an enforcement clause
to the judgment.
The
compensation was eventually paid by the State on 5 March 2003.
On
18 March 2003 the applicants lodged a request for the re-opening of
the proceedings. The request was eventually refused on 26 April 2006.
On
26 October 2004 the first applicant lodged a complaint under the 2004
Act (see paragraph 37 below) with the Court of Appeal about the
excessive length of the proceedings. She invoked section
18 of the 2004 Act and requested the court to “deliver a
decision concerning the unreasonable length of proceedings which had
lasted eight years” (since the proceedings for re-opening were
still pending). She further presented the substance of the impugned
proceedings and submitted that she had lodged a complaint about the
length of the proceedings with the European Court of Human Rights and
that the Court had communicated her complaint to the respondent
Government.
On
5 November 2004 the Court of Appeal asked the Ministry of Foreign
Affairs whether the first applicant had lodged an application with
the Court and whether an admissibility decision had been issued.
In
reply to its question of 5 November 2004, on 16 November 2004 the
Registry informed the Ministry of Foreign Affairs that the first
applicant's application was pending before the Court and had
not been declared admissible.
On
1 December 2004 the Court of Appeal rejected the complaint without
examining its merits. The court first noted that it had been informed
by the Government that the first applicant's case in Strasbourg had
been declared inadmissible. Further, the court noted that the first
applicant's complaint had not contained a request to find that
there had been an unreasonable delay in the impugned proceedings.
Lastly, the court considered that the applicant had failed to
indicate circumstances that would justify her request, as required by
section 6 of the 2004 Act. The court found that the mere fact, relied
on by the applicant, that the proceedings had lasted over eight
years, could not suffice to find that the proceedings had lasted
longer that was necessary. Therefore, according to section 9 of the
Act, the complaint had to be rejected without requiring the plaintiff
to complete it.
The
second applicant also lodged a length complaint with regard to the
same proceedings. His complaint was examined by the same panel of
judges and on the same day as the first applicant's complaint. The
second applicant's complaint was partly rejected and partly
dismissed. The Court of Appeal considered that the second applicant's
complaint concerned two separate sets of proceedings, the original
proceedings and those in which the applicant had sought to have the
original proceedings re-opened. In so far as the proceedings which
had ended on 29 August 2002 were concerned, the Court of Appeal found
that the complaint had not been lodged while the impugned proceedings
were still pending. Therefore, the second applicant had not complied
with the provisions of section 5 of the 2004 Act and his complaint
had therefore to be rejected. The court did not refer to the
applicant's reliance on section 18 of the 2004 Act in his complaint.
II. RELEVANT DOMESTIC LAW
On
17 September 2004 the Law of 17 June 2004 on complaints about a
breach of the right to a trial within a reasonable time (Ustawa o
skardze na naruszenie prawa strony do rozpoznania sprawy w
postępowaniu sądowym bez nieuzasadnionej zwłoki)
(“the 2004 Act”) entered into force. A party to pending
proceedings may ask for the acceleration of those proceedings and/or
just satisfaction for their unreasonable length under section 2 read
in conjunction with section 5(1) of the 2004 Act.
Section
6 § 2 provides that a complaint must include:
1) a
request to find that there was an unreasonable delay in the impugned
proceedings;
2)
circumstances that would justify the request.
According
to section 9 of the Act, when a complaint does not meet the
requirements of section 6 of the Act, it must be rejected without
prior summons to the plaintiff to complete the shortcomings in the
complaint.
41. Under
section 18 of the Act, within six months after the entry into force
of the Act, that is, from 17 September 2004, anyone who had lodged an
application with the European Court of Human Rights complaining of a
violation of the 'reasonable-time' requirement contained in Article 6
§ 1 of the Convention was entitled to lodge a length of
proceedings complaint provided for by the Act, if the application to
the Court had been lodged when the proceedings were still pending and
if it had not yet been declared admissible by the European Court.
Under
Article 130 of the Code of Civil Procedure if a statement of case or
a pleading fails to comply with formal requirements, the party shall
be summoned to complete or remedy the formal shortcomings within a
one-week time-limit.
THE LAW
I. THE WITHDRAWAL OF THE SECOND APPLICANT
In
a letter of 17 October 2006 the second applicant, Mr F. Kukówka,
informed the Court that he wished to withdraw his case.
Having
regard to Article 37 § 1 (a) of the Convention, the Court
concludes that the second applicant no longer intends to pursue the
application. Furthermore, in accordance with Article 37 § 1 in
fine, the Court finds no special circumstances regarding respect
for human rights as defined in the Convention and its Protocols which
require the examination of this application to be continued in so far
as it concerned the second applicant.
Accordingly,
the case should be struck out of the list of cases insofar as it
relates to the second applicant.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
first 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.
A. Admissibility
1. Application of Article
6 to the proceedings for re-opening
As to the proceedings concerning the request for
re-opening, the Court recalls that the guarantees of Article 6 §
1 of the Convention do not apply to proceedings concerning the
re-opening of a civil case, where the reopening was not granted (see
Sablon v. Belgium, no. 36445/97, § 87, 10 April
2001; Komanický v. Slovakia (dec.), no. 13677/03, 1
March 2005; Eder v. Germany (dec.), no. 11816/02,
13 October 2005).
It
follows that this part of the application, insofar as it relates to
the proceedings instituted after 18 March 2003, is incompatible
ratione materiae with the provisions of the Convention within
the meaning of Article 35 § 3 and must be rejected in
accordance with Article 35 § 4.
2. Exhaustion of domestic remedies
With
respect to the requirement of exhaustion of domestic remedies, the
Court notes that the applicant made use of the remedy provided for by
the 2004 Act and lodged a complaint about the unreasonable length of
the proceedings. However, her complaint was rejected on formal
grounds.
In
the present case the Court is not called upon to examine whether the
decision to reject the applicant's complaint without examining it on
the merits was arbitrary. It must be determined, however, whether the
applicant's failure to fulfil the formal requirements leads to a
finding that her application is inadmissible for failure to exhaust
domestic remedies.
In this connection the Court emphasises that the
application of the exhaustion of domestic remedies rule must make due
allowance for the fact that it is being applied in the context of
machinery for the protection of human rights that the Contracting
Parties have agreed to set up. Accordingly, it has recognised that
Article 35 must be applied with some degree of flexibility and
without excessive formalism. This means, in particular, that the
Court must take realistic account, not only of the existence of
formal remedies in the legal system of the Contracting Party
concerned, but also of the general context in which they operate, as
well as the personal circumstances of the applicant. It must then
examine whether, in all the circumstances of the case, the applicant
did everything that could reasonably be expected of him to exhaust
domestic remedies (see Akdivar and Others v. Turkey judgment
of 16 September 1996, Reports of Judgments and Decisions
1996-IV, § 69, and Yaşa v. Turkey judgment of
2 September 1998, Reports 1998-VI, § 77).
The
Court observes that the applicant in her length complaint presented
the substance of her allegations, invoked the legal basis for her
complaint and clearly expressed, though not in the exact wording of
the 2004 Act, her request for a declaration that the length of the
proceedings was unreasonable. She also informed the domestic court
that the Strasbourg Court had already decided to communicate her
length complaint concerning the same proceedings to the Government.
With
regard to the domestic court's finding that the applicant “had
failed to indicate circumstances that would justify her request”,
the Court notes that it is not called upon to interpret this
procedural rule and its application in the present case.
Nevertheless, it has already found that declaring a complaint
inadmissible on the grounds that an applicant “had not
specified the circumstances in which his/her complaint had been
based” is a too formalistic approach, which may prevent an
applicant's claims from being examined on merits. Such a limitation
of one's right to a court has been found to be disproportionate to
the aim of ensuring legal certainty and the proper administration of
justice (see, mutatis mutandis, Liakopoulou
v. Greece, no. 20627/04, §§ 23-24, 24 May 2006).
The
Court notes that the applicant had not been summoned to provide the
required justification and therefore she had not been given a chance
to remedy the formal deficiencies of her complaint. It is true that
according to the relevant provisions the applicant could have lodged
a fresh complaint. However, lodging a new complaint rather than
completing an original one may entail further consequences for
respecting the relevant time-limits. The Court considers that when
the relevant law provides individuals with a possibility of lodging a
complaint without being represented by a lawyer, domestic court
should advise applicants on how to remedy formal deficiencies of
their complaints.
Further,
the Court recalls that an applicant is only required to exhaust
domestic remedies that are effective, that is capable of expediting
the proceedings or providing an adequate redress (see, mutatis
mutandis, Kudła v. Poland [GC], no. 30210/96,
§ 158-159, ECHR 2000 XI). First and foremost, however,
an effective length remedy must lead in each case to an examination
of the substance of the length complaint. In this connection, the
Court notes that the second applicant also filed a length complaint
and, in so far as it concerned the proceedings under consideration,
it was also rejected, although on different grounds (see paragraphs
36-37 above). Thus, in the circumstances of this case, it is
questionable whether the first applicant's complaint, had she
presented it in the way prescribed by the 2004 Act would have been
any more successful (compare Orel v. Slovakia, no. 67035/01,
§ 77-78, 9 January 2007).
Therefore,
applying the above criteria, and having regard to the vague and
ill-defined nature of the requirement (c.f. Šidlová
v. Slovakia, no. 50224/99, § 53, 26 September 2006) the
Court is satisfied that the applicant did everything that could
reasonably be expected of her to exhaust domestic remedies.
This
complaint is therefore not inadmissible for non-exhaustion of
domestic remedies. The Court notes that this complaint is not
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. Period to be taken into consideration
The
Court reiterates that its case-law on the intervention of third
parties in civil proceedings makes the following distinction: where
the applicant has intervened in domestic proceedings only on his or
her own behalf the period to be taken into consideration begins to
run from that date, whereas if the applicant has declared his or her
intention to continue the proceedings as an heir he or she can
complain of the entire length of the proceedings (Scordino
v. Italy (no. 1) [GC], no. 36813/97, § 220,
ECHR 2006 ...).
The
period to be taken into consideration therefore began only on 8 May
1998, when the first applicant joined the proceedings. By that time,
the proceedings had already lasted three years.
The
Court further notes that the proceedings on the merits came to an end
on 29 August 2002, when the judgment of the Court of Appeal was
delivered. However, the applicant was unable to institute enforcement
proceedings until the Court of Appeal had issued an enforcement
measure on 17 February 2003. The Court also notes that the
compensation was eventually paid by the State on 5 March 2003.
In
that context, the Court observes that, for the purposes of
Article 6 § 1 of the Convention, the termination of
the proceedings on the merits of the claim does not always constitute
an end of a “determination of a civil right” within the
meaning of that provision. What is decisive is the point at
which the right asserted by a claimant actually becomes “effective”,
that is to say, when his civil claim is finally satisfied.
Therefore, in cases such as the present one, where the party to civil
proceedings has to institute enforcement proceedings in order to
satisfy his or her judicially-determined claim, those proceedings
must be regarded as a second stage of proceedings on the merits and,
consequently, an integral part of the original proceedings (see
Dewicka v. Poland, no. 38670/97, § 41-43, 4 April
2000; Zappia v. Italy judgment of 26 September 1996,
Reports 1996-IV, p. 1411, §§ 18-22).
Accordingly,
the length of the proceedings to be considered under Article 6 §
1 is at least four years and nine months for two levels of
jurisdiction.
2. Reasonableness of the length of the proceedings
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; Zynger v. Poland,
no. 66096/01, § 45, 13 July 2004).
The
Court observes that the substantive law issues before the domestic
courts were not complex. The Government have not offered any
satisfactory explanation for the length of the proceedings, the
intervals between the hearings (during the period in question only
two hearings were held at first instance). There were significant
delays in the proceedings, in particular between 21 August 1997 and
17 April 1998, when the court awaited a report from an expert witness
and did not take any steps to oblige the appointed expert to expedite
the preparation of the report. The Court also notes that one hearing
was adjourned as the defendants' lawyer failed to appear. The fact
that the State was the defendant in the proceedings cannot be
overlooked.
The
Court notes that the applicant, at the later stage of the
proceedings, filed appeals against several decisions rejecting her
appeal. She has not, however, contributed substantially to the length
of the proceedings. On the other hand, the period of the proceedings
before the second instance was substantially devoted to the
examination of the defendant's appeal.
Having
examined all the materials submitted to it and 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.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO
THE CONVENTION
The
first applicant also complained of an infringement of her right to
the peaceful enjoyment of her possessions within the meaning of
Article 1 of Protocol No. 1 in that her property was
expropriated without payment of compensation in 1953. Article 1 of
Protocol No. 1 reads:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.”
The Court observes that Poland ratified Protocol No. 1
on 10 October 1994. In accordance with universally recognised
principles of international law, a State can only be held responsible
in respect of events following the ratification of the Convention.
The contested decision was issued in 1953, that is prior to that
date. It follows that this complaint is incompatible ratione
temporis with the provisions of the Convention within the
meaning of Article 35 § 3 of the Convention and must be rejected
pursuant to paragraph 4 of that Article (see Futro v. Poland
(dec.), 51832/99, 12 December 2000).
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 1,132 583 PLN in respect of pecuniary and
non-pecuniary damage.
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.
The Court considers that the applicant must have sustained some
non-pecuniary damage. Ruling on an equitable basis, it awards award
her EUR 1,800 under that head.
B. Costs and expenses
The
applicant also claimed reimbursement of the costs and expenses
incurred before the domestic courts and the Court.
The
Government contested the claim.
According to the Court's case-law, an applicant is
entitled to reimbursement of his costs and expenses only in so far as
it has been shown that these have been actually and necessarily
incurred and were reasonable as to quantum. The
Court reiterates that costs incurred before national courts may only
be taken into account if they were incurred in seeking redress for
the violations of the Convention found, which was not so in the
instant case (see Nikolova v. Bulgaria [GC], no. 31195/96,
§ 79, ECHR 1999-II).
The
Court considers it reasonable to award the applicant, who was
represented by her husband, the sum of EUR 100 for
the costs and expenses incurred in the Convention proceedings.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Decides to strike the application out of its
list of cases insofar as it relates to the second applicant;
Declares the complaint concerning the excessive
length of the proceedings up until 17 February 2003 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 1,800 (one
thousand eight hundred euros) in respect of non-pecuniary damage and
EUR 100 (one hundred euros) in respect of costs and expenses, to be
converted into Polish zlotys at the rate applicable on the date of
payment, 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 amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 10 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
