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RAFINSKA v. POLAND - 13146/02 [2007] ECHR 550 (3 July 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/550.html
Cite as:
[2007] ECHR 550
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FOURTH
SECTION
CASE OF RAFIŃSKA v. POLAND
(Application
no. 13146/02)
JUDGMENT
STRASBOURG
3
July 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 Rafińska v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza,
President,
Mr J. Casadevall,
Mr G. Bonello,
Mr K.
Traja,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L.
Mijović, judges,
and Mr T.L.
Early,
Section Registrar,
Having
deliberated in private on 12 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an
application (no. 13146/02)
against the
Republic of Poland lodged
with the Court
under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a
Polish national, Ms Janina Rafińska (“the applicant”),
on 1 December 2001.
The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of
Foreign Affairs.
The
applicant complained that the length of civil proceedings in her case
had exceeded reasonable time.
On
20 June
2006 the Court declared
the application partly inadmissible and decided to communicate the
complaint concerning the length of proceedings. 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, Ms Janina
Rafińska, is a Polish national, who
was born in 1937 and lives in Ostrowite.
The
applicant and her husband divorced. On 8 July 1994 L. R. (the
applicant's husband) lodged a motion with the Rypin District Court
for the division of their marital property. He further asked the
court to exempt him from court fees.
On
29 July 1994 the court decided to examine the case together with a
case concerning the dissolution of the co-ownership of a farm
belonging to the applicant, L. R., K. R. (their son) and K. K.
Subsequently, on 8 March 1999 the court decided to examine
in separate proceedings the case concerning the division of the
marital property.
On
7 April 1999 the first hearing in the case was scheduled for 27 April
1999. On the latter date the hearing was adjourned and the parties
were requested to submit their requests regarding the evidence to be
taken.
On
30 April 1999 the applicant challenged a judge sitting in the case.
The challenge was dismissed on 8 June 1999.
The
hearing that was to be held on 14 October 1999 was adjourned and the
parties were obliged to submit again their requests as to the
evidence to be taken.
On
14 October 1999 the following hearing was scheduled for 27 January
2000. However, on the latter date the hearing was adjourned until 17
February 2000 in order to hear the testimonies of the parties. During
the court's hearing of 17 January 2000, the parties were heard. None
of them submitted any additional requests for evidence to be taken.
The proceedings were completed and the judgment was scheduled to be
delivered on 2 March 2000.
However,
on 2 March 2000 the trial was resumed and the hearing was adjourned
until 21 March 2000 in order to admit additional witness evidence. On
21 March 2000 the parties were heard and the trial was terminated.
The court decided to deliver the judgment on 4 April 2000. However,
on the latter date the trial was resumed once again in order to admit
an opinion of an expert on the composition of the property. On
6 April 2000 the applicant appealed against the decision to
admit the expert's opinion. This appeal was dismissed on 10 May 2000.
On
8 August 2000 the expert submitted his opinion to the court.
On
19 December 2000 the court admitted the opinion and the parties'
observations on it.
On
5 January 2001 the Rypin District Court delivered its judgment on the
division of the property.
On
8 March 2001 the applicant lodged an appeal against the judgment. The
court requested her to pay court fees.
On
6 April 2001 the applicant requested the court to exempt her from
court fees. Her motion was allowed on 10 May 2001.
On
10 May 2001 the Włocławek Regional Court dismissed the
appeal.
II. RELEVANT DOMESTIC
LAW
For
a detailed presentation of the relevant domestic law concerning the
available remedies against excessive length of proceedings, i.e. the
2004 Act, see Ratajczyk v. Poland (dec.), no. 11215/02, ECHR
2005; Barszcz v. Poland, no. 71152/01, 30 May 2006, §§
26-35.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
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
period to be taken into consideration began on 8 July 1994 and ended
on 10 May 2001, when the final judgment in the case was delivered. It
thus lasted 6 years and 10 months for two levels of jurisdiction.
A. Admissibility
The
Government submitted that the applicant had not exhausted remedies
available under Polish law. They maintained that from 17 September
2004 when the 2004 Act came into force, the applicant had a
possibility of lodging with the Polish civil courts a claim for
compensation for damage suffered due to the excessive length of
proceedings under Article 417 of the Civil Code read together with
section 16 of the 2004 Act. They argued that the three-year
prescription period for the purposes of a compensation claim in tort
based on the excessive length of proceedings could run from a date
later than the date on which a final decision in these proceedings
had been given.
The
Government further submitted that such a possibility had existed in
Polish law even before the entry into force of the 2004 Act since the
judgment of the Constitutional Court of 4 December 2001, which
entered into force on 18 December 2001.
The
applicant contested the Government's arguments.
The
Court observes that in the present case the proceedings at issue were
terminated on 10 May 2001, which is more than three years before the
relevant provisions of the 2004 Act read together with the Civil Code
became effective. It follows that the limitation period for the
State's liability in tort set out in Article 442 of the Code Civil
had expired before 17 September 2004.
The
Court notes that the arguments raised by the Government are the same
as those already examined and rejected by the Court in previous cases
against Poland (see Małasiewicz v. Poland, no.
22072/02, §§ 32-34, 14 October 2003; Ratajczyk
v. Poland; (dec.), 11215/02, 31 May 2005; Barszcz
v. Poland, no. 71152/01, 30 May 2006) and that the
Government have not submitted any new circumstances which would lead
the Court to depart from its previous findings.
For
these reasons, the Government's plea of inadmissibility on the ground
of non-exhaustion of domestic remedies must be dismissed.
The
Court thus notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII; Zynger v. Poland, no. 66096/01, §45,
13 July 2004).
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 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF
THE CONVENTION
Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed PLN 150,000
without specifying whether this amount related to pecuniary or
non-pecuniary damage.
The Government contested the claim, stating that
the amount was exorbitant.
The
Court does not discern any causal link between the violation found
and any pecuniary damage which may have been alleged. On the other
hand, the Court considers that the applicant must have sustained
non-pecuniary damage. Ruling on an equitable basis, it awards her EUR
3,600 under that head.
B. Costs and expenses
The
applicant also claimed reimbursement of the allegedly high costs and
expenses she incurred before the domestic courts. She did not
substantiate her claims.
The
Government contested this statement and submitted that only those
costs actually incurred in the preparation and defence of the
applicant's case before the European Court, and not before the
domestic courts, can be taken into consideration.
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 (see Zimmermann and Steiner v. Switzerland, judgment
of 13 July 1983, Series A no. 66, §36). In the present
case, regard being had to the information in its possession and the
above criteria, the Court rejects the claim for costs and expenses in
the domestic proceedings and considers it reasonable to award the
applicant, who was not represented by a lawyer, the sum of EUR 100
for the proceedings before the Court.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the remainder of
the application admissible;
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 3,600
(three thousand six 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
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 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 3
July 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.
T.L. Early Nicolas
Bratza
Registrar President
