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TUR v. POLAND - 21695/05 [2007] ECHR 843 (23 October 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/843.html
Cite as:
[2007] ECHR 843
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FOURTH
SECTION
CASE OF TUR v. POLAND
(Application
no. 21695/05)
JUDGMENT
STRASBOURG
23
October 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 Tur v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr S. Pavlovschi,
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 2 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 21695/05) 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 Karolina Tur (“the applicant”)
on 30 May 2005. She was represented before the Court by Mr W. Brózda,
a lawyer practising in Gdańsk-Wrzeszcz.
The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
On
28 October 2005 the
Court decided to give notice of the application 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
Government submitted a unilateral declaration and invited the Court
to strike out the application, in accordance with Article 37 of the
Convention.
THE FACTS
I THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1986 and lives in Gdańsk.
A. The civil proceedings for establishment of paternity
and child maintenance
On
21 October 1987 the applicant's mother lodged an action against E.A.
for establishment of paternity and child maintenance with the Gdańsk
District Court. The hearings in the case were adjourned on several
occasions as E.A. had left the country and failed to appear in court.
Although the applicant's mother provided the court with E .A.'s
address abroad, the court maintained that the address was unknown.
The
first hearing in the case was held on 5 February 1988, the subsequent
one on 18 November 1988. Two hearings were held in 1989 and seven
hearings in 1990.
On
4 April 1991 the Gdańsk District Court delivered a judgment in
the applicant's favour. The judgment was not challenged and became
final.
On
18 June 1997 the Minister of Justice lodged an extraordinary appeal
against the judgment.
On
25 September 1997 the Supreme Court remitted the case for
re examination on the grounds that serious procedural
shortcomings had been committed by the court examining the case,
namely that it had not conducted a thorough investigation to
establish the address of the defendant.
The
Gdańsk District Court resumed the proceedings in 1998. In 1999
no hearings were held. On several occasions the applicant and her
mother reported to the Academy of Medicine in Gdańsk to have
blood samples taken. E.A. refused to do so.
On
31 August 2000 a legal-aid lawyer was appointed to represent the
applicant.
On
3 November 2000 the District Court dismissed the applicant's claims.
On
28 February 2001 the Gdańsk Regional Court remitted the case for
re-examination on the grounds of errors in the assessment of evidence
committed by the lower court.
In
2002 the parties were several times summoned to appear at the Academy
of Medicine for examination, but the appointments were postponed on
several occasions upon the court's requests. It also transpires from
the file that at least on one occasion the District Court failed to
inform the applicants about the date of examination.
On
8 June 2002 the District Court admitted an opinion of experts in
forensic medicine.
On
10 April 2003 the District Court dismissed the applicant's action.
The applicants appealed.
On
12 September 2003 the Regional Court admitted an opinion of an expert
in graphology.
On
29 December 2003 the Gdańsk Regional Court remitted the case for
re-examination on the grounds of shortcomings in the assessment of
evidence.
Since
the defendant resided in Germany, on 13 April 2004 the President of
the Gdańsk Regional Court requested a German court to take
evidence in the case. On 6 September 2004 and 26 October 2004 the
President of the Gdańsk Regional Court requested the German
court to expedite the proceedings. It submitted a reply on 14
December 2004.
In
December 2004 the applicant turned eighteen and reached the legal age
of majority.
On
17 January 2005 the court asked the applicant whether she wished to
pursue the claim. She confirmed her wish to pursue the case.
On
17 February 2005 the District Court admitted evidence from experts in
dactyloscopy and graphology. The reports were served on the applicant
on 21 March 2005.
On
11 April 2006 the District Court delivered a judgment, dismissing the
applicant's action for establishment of paternity and child
maintenance. The applicant appealed.
On
30 June 2006 the Gdańsk Court of Appeal dismissed the
applicant's claims.
B. Proceedings under the 2004 Act
On
20 September 2004 the applicant's lawyer lodged a complaint under
section 5 of 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”). On 15 November 2005 the Gdańsk Regional Court
rejected the complaint without providing written grounds for its
decision.
On
2 March 2005 the applicant lodged a new complaint under section 5 of
the 2004 Act alleging excessive length of the proceedings and lack of
due diligence on the part of the courts. She submitted, inter
alia, that no hearings had been held since April 2004. She sought
acceleration of the proceedings and just satisfaction for their
unreasonable length
On
9 May 2005 the Gdańsk Regional Court dismissed her complaint
finding it ill-founded. The court stressed that the 2004 Act could be
applied only to delays which had occurred after the date of its entry
into force. Therefore, the Act could be applied to proceedings that
had begun earlier only insofar as the delays in the proceedings
concerned had not yet been remedied on that date. The Regional Court
quoted at this point the Supreme Court's resolution of 18 January
2005 (see the domestic law part below). The Regional Court dismissed
the applicant's complaint on the grounds that on the date of entry
into force of the 2004 Act no undue delays in the District Court's
conduct could be discerned. Subsequently the Regional Court refused
to give any instructions to the lower court, finding that such
instructions could be given only if the complaint had been allowed.
II. RELEVANT DOMESTIC LAW AND PRACTICE
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
12 provides for measures that may be applied by the court dealing
with the complaint. The relevant part provides:
“1. The court shall dismiss a complaint which
is unjustified.
2. If the court considers that the complaint
is justified, it shall find that there was an unreasonable delay in
the impugned proceedings.
3. At the request of the complainant, the
court may instruct the court examining the merits of the case to take
certain measures within a specified time. Such instructions shall not
concern the factual and legal assessment of the case.
4. If the complaint is justified the court
may, at the request of the complainant, grant ... just satisfaction
in an amount not exceeding PLN 10,000 to be paid by the State
Treasury. If such just satisfaction is granted it shall be paid out
of the budget of the court which conducted the delayed proceedings.”
Section
15 provides
1. A party whose complaint has been allowed
may seek compensation from the State Treasury ... for the damage it
suffered as a result of the unreasonable length of the proceedings.
Section
16 provides:
A party which has not lodged a
complaint about the unreasonable length of the proceedings under
Article 5 (1) may claim – under
Article 417 of the Civil Code ... – compensation for the damage
which resulted from the unreasonable length of the proceedings after
the proceedings concerning the merits of the case have ended.
On
18 January 2005 the Supreme Court (Sąd Najwyższy)
adopted a resolution (no. III SPP 113/04) in which it ruled that
while the 2004 Act produced legal effects as from the date of its
date of entry into force (17 September 2004), its provisions
applied retroactively to all proceedings in which delays had occurred
before that date and had not yet been remedied.
A
detailed presentation of the relevant domestic law and practice
concerning remedies for the excessive length of judicial proceedings,
in particular the applicable provisions of the 2004 Act, are stated
in the Court's decisions in cases of Charzyński v. Poland no.
15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v.
Poland no. 11215/02 (dec.), ECHR 2005 VIII and the judgment
in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46,
ECHR 2005-V.
THE LAW
I. THE GOVERNMENT'S REQUEST TO STRIKE OUT THE APPLICATION
UNDER ARTICLE 37 OF THE CONVENTION
On
13 April 2007 the Government submitted a unilateral declaration
similar to that in the case Tahsin Acar v. Turkey ((preliminary
objection) [GC], no. 26307/95, ECHR 2003-VI) and informed
the Court that they were ready to accept that there had been a
violation of the applicant's rights under Article 6 § 1 of the
Convention as a result of the unreasonable length of the proceedings
in which the applicant had been involved. In respect of non pecuniary
damage, the Government proposed to award the applicant PLN 10,000
(the equivalent of EUR 2,600). The Government invited the Court to
strike out the application in accordance with Article 37 of the
Convention.
The
applicant did not agree with the Government's proposal. She
considered that the amount proposed did not constitute sufficient
just satisfaction for the damage she had sustained and requested the
Court to continue the examination of the application.
The
Court observes, as it has previously stated in Tahsin Acar (cited
above, §§ 74-77), that a distinction must be drawn between,
on the one hand, declarations made in the context of strictly
confidential friendly settlement proceedings and, on the other,
unilateral declarations – such as the present declarations –
made by a respondent Government in public and adversarial proceedings
before the Court. In accordance with Article 38 § 2 of the
Convention and Rule 62 § 2 of the Rules of Court, the Court will
proceed on the basis of the Government's unilateral declarations and
the parties' observations submitted outside the framework of
friendly settlement negotiations, and will disregard the
parties' statements made in the context of exploring the
possibilities for a friendly settlement of the case and the reasons
why the parties were unable to agree on the terms of a friendly
settlement.
The
Court recalls that, under certain circumstances, it may be
appropriate to strike out an application under Article 37 § 1
(c) of the Convention on the basis of a unilateral declaration by the
respondent Government even if the applicant wishes the examination of
the case to be continued. It will, however, depend on the particular
circumstances whether the unilateral declaration offers a sufficient
basis for finding that respect for human rights as defined in the
Convention does not require the Court to continue its examination of
the case (see Tahsin Acar, cited above, § 75;
Melnic v. Moldova, no. 6923/03, § 22,
14 November 2006).
The
Court notes that it has specified in a number of cases the nature and
extent of the obligations which arise for the respondent State under
Articles 6 and 13 of the Convention as regards the guarantees of the
right to a trial within a reasonable time (see, among many others,
Kuśmierek v Poland, no. 10675/02, judgment of
21 September 2004; Zynger v. Poland, no. 66096/01,
judgment of 13 July 2004) and the requirement of an effective remedy
capable of providing appropriate redress for the damage resulting
from the breach of this right (see Kudła v. Poland [GC],
no. 30210/96, ECHR 2000 XI; Krasuski v. Poland,
no. 61444/00, ECHR 2005 ... (extracts); Charzyński
v. Poland (dec.), no. 15212/03, ECHR 2005 ...;
Majewski v. Poland, no. 52690/99, 11 October 2005;
Cocchiarella v. Italy [GC], no. 64886/01, ECHR
2006 ...). Where the Court has found a breach of these Articles
it has awarded just satisfaction, the amount of which depended on the
particular features of the case.
As
to whether it would be appropriate to strike out the present
application on the basis of the unilateral declaration made by the
Government, the Court notes in the first place that the relevant
Polish remedies against excessive length of proceedings introduced in
2004 proved to be ineffective in the circumstances of the present
case, both in terms of adequate redress and the possibility of
expediting the pending proceedings (see paragraphs 28 above and
paragraph 58 et seq, below).
Further,
the Court observes that although the Government acknowledged in their
unilateral declaration that the domestic proceedings had been
unreasonably lengthy, they did not, however, refer to the complaint
concerning the lack of an effective remedy and did not offer the
applicant adequate redress. The Court considers that the sum proposed
in the declaration in respect of non-pecuniary damage suffered by the
applicant as a result of the alleged violation of the Convention does
not bear a reasonable relationship with the amounts awarded by the
Court in similar cases for non-pecuniary damage.
It
is to be noted that the amount proposed by the Government in
their unilateral declaration is the maximum amount of just
satisfaction that can be awarded under section 12 of the 2004
Act. The Court reiterates that when it considered the
2004 Act to be an effective remedy in length cases it was prepared to
accept the statutory ceiling of PLN 10,000 only when it remained open
to the applicant to lodge a civil claim and thus seek full
compensation (see Charzyński, cited above, § 38;
Wawrzynowicz v. Poland, no. 73192/01, § 39,
17 July 2007). However, that remedy was not available to the
applicant in the instant case (see paragraphs 31-32 above).
It cannot
be excluded that where an applicant has been speedily awarded
compensation of PLN 10,000 by a domestic court under the 2004 Act,
and has been promptly paid, the Court might consider
the amount to be compatible with its own awards in such cases,
bearing in mind the principles which it has developed in
this connection for determining victim status and for
assessing its own award in cases where it has found a breach of
the reasonable-time requirement (see
Cocchiarella,
cited above, §§ 85 107;
Scordino v. Italy
[GC], no. 36813/97,
§§ 193-215, 29 March 2006; Dubjakova
v. Slovakia (dec.), no. 67299/01, 10
October 2004). However, these considerations cannot be applied
to a unilateral declaration which addresses a
situation where the remedy failed or was not available to an
applicant who had to introduce proceedings under the Convention in
order to obtain redress (see Wawrzynowicz, cited
above, § 40).
On
the facts and for the reasons set out above, the Court finds that the
Government failed to submit a statement offering a sufficient basis
for finding that respect for human rights as defined in the
Convention and its Protocols does not require the Court to continue
its examination of the case (see, by contrast, Spółka
z o.o. WAZA v. Poland (striking out), no. 11602/02, 26 June
2007).
This
being so, the Court rejects the Government's request to strike the
application out of its list of cases under Article 37 of the
Convention and will accordingly pursue its examination of the
admissibility and merits of the case.
II. 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 refrained from submitting observations on the
admissibility and merits of the complaint, having regard to their
acknowledgment of the violation of Article
6 of Convention made in their unilateral declaration.
The
Court notes that the proceedings commenced on 21 October 1987 and
were terminated for the first time on 4 April 1991 by a judgment in
the applicant's favour of the Gdansk District Court. Subsequently, on
18 June 1997 the Minister of Justice lodged an extraordinary
appeal against the final judgment; the
proceedings were instituted de novo and were terminated on 30
June 2006.
In
the Government's view the proceedings which were conducted as a
result of the Minister of Justice's extraordinary appeal should be
regarded as a separate set of proceedings. Therefore, only the period
following 18 June 1997 should be taken into account.
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 Baranowska v.
Poland, no. 72994/01, § 40-42, 24 October
2006; C. v. Poland, no. 27918/95, judgment of 3 May 2001,
§§ 33-36) and the Government have not submitted any new
elements which would lead the Court to depart from its previous
findings. In consequence, the proceedings in question are to be
treated as one set of proceedings and the period to be taken into
consideration is to be counted from 1 May 1993.
The
period in question thus lasted 13 years at three court instances;
during that period the case was remitted on three occasions to the
first-instance court for re-examination.
A. Admissibility
The
Court notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds.
The
Court notes in particular that the applicant availed herself of the
remedy for the excessive length of proceedings (the 2004 Act), and
the remedy proved to be ineffective in the applicant's case.
Accordingly, the applicant exhausted domestic remedies in respect of
her complaint under Article 6 § 1 of the Convention.
The
complaint 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,
judgment of 13 July 2004, §45).
In
cases relating to civil status, what is at stake for the applicant is
also a relevant consideration, and special diligence is required in
view of the possible consequences which the excessive length of
proceedings may have, notably on enjoyment of the right to respect
for family life (Laino v. Italy [GC], no. 3158/96, § 18,
ECHR 1999-I; Kubiszyn v. Poland, no. 37437/97,
§ 34, 30 January 2003).
Any exception from the principle of legal certainty
should be treated with an utmost caution in such cases. In this
connection the Court cannot but note that the proceedings were
instituted de novo following the Minister's extraordinary
appeal lodged over six years after the first judgment in the case
became valid and final, as a result of quashing this final and
“irreversible” judicial decision (compare Brumărescu v.
Romania [GC], no. 28342/95, § 62, ECHR 1999 VII).
Moreover, after the final judgment of 1991 had been quashed the case
was again remitted for fresh consideration on the grounds of
shortcomings in the assessment of evidence committed by the
first-instance court (see paragraphs 14 and 19 above). Although the
Court is not in a position to analyse the quality of the adjudication
by the domestic courts, it considers that, since the remittal of
cases for re-examination is usually ordered as a result of errors
committed by lower courts, the repetition of such orders within one
set of proceedings discloses a serious deficiency in the judicial
system (see Wierciszewska v. Poland, no. 41431/98,
§ 46, 25 November 2003).
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.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
Regarding the applicant's allegation that her
complaint about a breach of her right to a trial within a reasonable
time was unjustly dismissed, the Court considered it appropriate to
raise of its own motion the issue of Poland's compliance with the
requirements of Article 13 of the Convention, on account of
indications that the applicant had no effective domestic remedy in
respect of the unreasonable length of the civil proceedings.
This
provision provides as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
The Government refrained from making any comments on
this complaint.
A. Admissibility
The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
B. Merits
The Court recalls that, in the context of Article 13
and remedies for excessive length of proceedings, it has already held
that such a remedy, or the aggregate of remedies, in order to be
“effective” must be capable either of preventing the
alleged violation of the right to a “hearing within a
reasonable time” or its continuation, or of providing adequate
redress for a violation that had already occurred (see, mutatis
mutandis, Kudła v. Poland, [GC], no.
30210/96, § 158 et seq, ECHR 2000-XI).
The Court further recalls that it has already examined
the remedy under the 2004 Act for the purposes of Article 35 § 1
of the Convention and found it effective in respect of complaints
about the excessive length of judicial proceedings in Poland (see
Charzyński, cited above, §§ 36-42; Michalak
v. Poland (dec.), no. 24549/03, §§ 37-43).
The Court notes that the national authorities are in
principle better placed than an international court to evaluate the
facts of a case. Nevertheless, in their assessment and appreciation
they must apply standards which are in conformity with the principles
embodied in the Convention as developed in the case-law of the Court.
The Court has already indicated on a great number of occasions that
the reasonableness of the length of proceedings must be assessed in
the light of the particular circumstances of the case taken as a
whole. The Court's approach consists in examining the overall length
of proceedings and in covering all stages of the proceedings (see
Majewski v. Poland, no. 52690/99, § 34-35,
11 October 2005).
In
the present case the Gdańsk Regional Court examined only the
period of time after the entry into force of the 2004 Act, i.e. after
17 September 2004. Relying on the
Supreme Court's resolution of 18 January 2005 the Regional Court
dismissed the applicant's complaint on the ground that on the date of
entry into force of the 2004 Act no undue delays in the District
Court's conduct could be discerned (see paragraphs 28 and 33 above).
Thus,
the domestic court did not take into consideration the overall
period of the examination of the case by the domestic courts as
required by the constant case law of the Convention organs (see
Majewski, cited above, § 36; see Bako v Slovakia,
(dec), no 60227/00, 15 March 2005).
The
Court further observes that despite the applicant's request the
Regional Court refused to give any instructions to the lower court,
aimed at accelerating the proceedings, finding that any such
instructions could only have been given had the complaint been
upheld.
The
Court considers that, irrespective of whether the Regional Court's
approach resulted from an erroneous interpretation or from the
wording of the 2004 Act, the dismissal of the applicant's complaint
did not reflect standards which were in conformity with the
principles embodied in the Court's case-law.
In
particular, the examination by the domestic court of only a fraction
of the impugned proceedings, and its setting aside of the period of
over seven years, effectively deprived the applicant of appropriate
protection in respect of her length complaint.
Consequently,
the Court considers that the remedy under the 2004 Act, as applied in
the present case, cannot be regarded as “effective”
within the meaning of Article 13 of the Convention.
Accordingly,
there has been a violation of this Article.
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 PLN 7,200 (approximately EUR 1,871) for every year
of the impugned proceedings 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. 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 10,500 under that head.
B. Costs and expenses
The
applicant did not submit any claim 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 application admissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds that there has been a violation of Article
13 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 10,500 (ten
thousand five hundred euros) in respect of non-pecuniary damage to be
converted into the currency of the respondent State, 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 23 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
