FOURTH SECTION

CASE OF POLKOWSKA v. POLAND

(Application no. 20127/08)

JUDGMENT

STRASBOURG

24 November 2009

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 Polkowska v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
	Nicolas Bratza, President,
	Lech Garlicki,
	Giovanni Bonello,
	Ljiljana Mijović,
	David Thór Björgvinsson,
	Ledi Bianku,
	Mihai Poalelungi, judges,
Fatoş Aracı, 
Having deliberated in private on 3 November 2009,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in  against  lodged with the  of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by .
2.  The Polish Government (“the Government”) were represented by their Agent, Mr Jakub Wołąsiewicz, of the Ministry of Foreign Affairs.
3.  On  the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3).
4.  The Government submitted a unilateral declaration and invited the Court to strike the application out of its list of cases, in accordance with Article 37 § 1 of the Convention.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1959 and lives in Otwock.
A.  Civil proceedings for division of matrimonial property
6.  On an unspecified date in January 1987 the applicant's former husband instituted civil proceedings for division of matrimonial property.
7.  During the proceedings the Otwock District Court (Sąd Rejonowy) decided on several occasions, of its own motion, to stay the proceedings due to the fact that the plaintiff had not paid the relevant costs arising in the course of the proceedings.
8.  On numerous occasions the applicant requested the court to resume the proceedings and to proceed speedily with the claim.
9.  On 5 March 1998 the applicant complained to the President of the Warsaw Regional Court (Prezes Sądu Wojewódzkiego) about the delay in the proceedings.
10.  On 8 April 2004 the proceedings were resumed.
11.  On 20 October 2006 the Otwock District Court gave a decision ordering the plaintiff to pay a certain amount to the applicant. The applicant appealed.
12.  On 29 October 2007 the Warsaw Regional Court (Sąd Okręgowy) partly amended the first-instance decision and dismissed the remainder of the appeal.
B.  Proceedings under the 2004 Act
13.  On 15 February 2005 the applicant lodged a complaint with the Warsaw Regional Court 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”).
14.  The applicant sought a ruling that the length of the proceedings before the Otwock District Court had been excessive and an award of just satisfaction in the amount of 10,000 Polish zlotys (PLN).
15.  On 6 May 2005 the Warsaw Regional Court dismissed the applicant's complaint. It limited its examination of the length‑of‑proceedings issue to the period after the entry into force of the 2004 Act and stressed that the Act could not be applied to the protracted length of court proceedings occurring before that date. Having analysed the conduct of the District Court during the period after the entry into force of the 2004 Act (that is after 17 September 2004), the Regional Court found that there were no delays for which the District Court could be held responsible. It held that the proceedings had been conducted with due diligence and within a reasonable time.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
16.  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 set out in the Court's decisions in the 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 THE APPLICATION OUT UNDER ARTICLE 37 OF THE CONVENTION
17.  On 3 July 2009 the Government submitted a unilateral declaration similar to that in the case of Tahsin Acar v. Turkey (Tahsin Acar v. Turkey (preliminary objection) [GC], . 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 and that the applicant's complaint about the length of the proceedings had not been redressed at the domestic level as required by Article 13 of the Convention. In respect of non-pecuniary damage, the Government proposed to award (a maximum of) PLN 20,000 to the applicant (the equivalent of 4,900 euros (EUR)). The Government invited the Court to strike out the application in accordance with Article 37 of the Convention.
18.  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.
19.  The Court observes that, as it has already held on many occasions, it may be appropriate under certain circumstances to strike out an application or part of 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 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 and its Protocols does not require the Court to continue its examination of the case (see cited above, § 75, and Melnic v. Moldova, no. /03, § 22, 14 November 2006).
20.  According to the Court's case-law, the amount proposed in a unilateral declaration may be considered a sufficient basis for striking out an application or part thereof. In this connection, the Court will have regard to the compatibility of the amount with its own awards in similar length-of-proceedings cases, bearing in mind the principles which it has developed  for determining victim status and for assessing the amount of non-pecuniary compensation to be awarded where it has found a breach of the reasonable time requirement (see Cocchiarella v. Italy[GC], no. 64886/01, §§ 85‑107, ECHR 2006‑...; Scordino v. Italy (no.1) [GC], no. 36813/97, §§ 193-215, ECHR-2006-...; and Dubjakova v. Slovakia (dec.), no. 67299/01, 10 October 2004).
21.  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 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.
22.  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).
23.  This being so, the Court rejects the Government's request to strike this part of the application out 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 ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE PROCEEDINGS
24.  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...”
25.  The Government refrained from submitting observations on the admissibility and merits of the complaint.
26.  The Court notes that the proceedings commenced in January 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. Nevertheless, 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 29 October 2007. It thus lasted fourteen years and some six months at two court instances (thirteen years and some six months before the first-instance court).
A.  Admissibility
27 .  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. It must therefore be declared admissible.
B.  Merits
28.  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).
29.  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). Furthermore, the Court considers that, in dismissing the applicant's complaint that the proceedings in her case exceeded a reasonable time, the Warsaw Regional Court failed to apply standards which were in conformity with the principles embodied in the Court's case-law (see Majewski v. Poland, no. 52690/99, § 36, 11 October 2005).
30.  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. In particular, the Court notes that even if some delays were caused by the applicant's former husband (see paragraph 7 above), it was the domestic court's responsibility to discipline the parties. 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
31.  The applicant also alleged a breach of Article 13 of the Convention in that she had no effective domestic remedy in respect of the protracted length of proceedings in her case. In this connection she complained that the domestic court which examined her length complaint had not taken into consideration the period prior to the entry into force of the 2004 Act.
Article 13 reads:
“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.”
32.  The Government did not submit observations on the admissibility and merits of the complaint.
33.  The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time. However, the “effectiveness” of a “remedy” within the meaning of that provision does not depend on the certainty of a favourable outcome for the applicant (see Kudła v. Poland [GC], no. 30210/96, §§ 154 et seq., ECHR 2000-XI, §§ 156-57).
34.  The Court reiterates further that the word “remedy” within the meaning of Article 13 does not mean a remedy which is bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint (see, for example, , no. 38206/05, § 33, 16 September 2008, and Šidlová v. Slovakia, no. 50224/99, § 77, 26 September 2006). In the light of this principle the Court finds that the fact that in the context of the examination of the applicant's length complaint, the court did not take into account the entirety of the period to be considered under Article 6 of the Convention (see paragraph 16 above and Majewski, cited above, § 36), does not render the remedy under the 2004 Act in the circumstances of the present case incompatible with Article 13 of the Convention.
35.  It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
IV.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE UNFAIRNESS OF THE PROCEEDINGS
36.  The applicant complained that the proceedings in her case were unfair. In particular, she alleged errors of fact and law committed by the domestic courts.
37.  However, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention.
38.  In the present case the applicant did not specify a single circumstance that would indicate that the proceedings were indeed unfair. Instead, she challenged the result of the proceedings. Assessing the circumstances of the case as a whole, the Court finds no indication that the impugned proceedings were conducted unfairly.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
V.  ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
39.  Lastly, the applicant alleged that Article 14 of the Convention was breached in that she had been discriminated against in the enjoyment of her right to a fair trial on the ground of her lack of financial means.
40.  In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
41.  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
42.  The applicant claimed 20,000 euros (EUR) in respect of pecuniary damage, on the ground that her award before the domestic courts had been extremely low. The applicant further submitted that she and her son had suffered distress as a result of the unreasonable length of the proceedings. In that respect she underlined that during the period of the proceedings, she and her son had had to reside in a room of 20m², as the issue concerning the division of matrimonial property had not been resolved. She left the determination of the award for non-pecuniary damage to the discretion of the Court.
43.  The Government did not express an opinion on the matter.
44.  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 11,400 under that head.
B. Costs and expenses
45.  The applicant did not make any claim for costs and expenses involved in the proceedings.
C.  Default interest
46.  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
1.  Rejects the Government's request to strike the application out of the list;

2.  Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;

3.  Holds that there has been a violation of Article 6 § 1 of the Convention;

4.  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 11,400 (eleven thousand four hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(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;

5.  Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 24 November 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Nicolas Bratza
	Deputy Registrar	President