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FOURTH SECTION

CASE OF IWANKIEWICZ v. POLAND

(Application no. 6433/09)

JUDGMENT

STRASBOURG

7 December 2010

This judgment is final but it may be subject to editorial revision.

In the case of Iwankiewicz v. Poland,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

Ljiljana Mijović, President,
Lech Garlicki,
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 16 November 2010,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 6433/09) 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 Kazimierz Iwankiewicz (“the applicant”), on 5 January 2009.

The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

On 19 November 2009 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). In accordance with Protocol No. 14, the application was assigned to a Committee of three Judges.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1949 and lives in Lipiany.

A. Civil proceedings for division of inheritance

On 15 November 1996 the applicant brought before the Poznań – Stare Miasto District Court (Sąd Rejonowy) an action for the division of the estate of his late father. The estate comprised, inter alia, real property located in Poznań.

Shortly afterwards, the applicant asked the same court for a decision declaring that he had acquired his late father's estate. On an unspecified subsequent date both actions were consolidated into one.

On 16 July 1998 the case was referred to the Stargard Szczeciński District Court as most of the parties to the proceedings lived in that region.

On 21 September 1999 the court gave a partial decision (postanowienie częściowe) declaring that the applicant had acquired 3/16 of the estate.

On 11 May 2004 the Szczecin Regional Court (Sąd Okręgowy) referred the case in its part concerning the division of an inheritance to the Poznań District Court. It further decided that the inheritance proceedings should be joined with another set of proceedings concerning the dissolution of co ownership of the real property in question.

On 24 September and 30 November 2004, 4 February, 25 March, 17 May, 2 August, 18 October and 9 December 2005 the Poznań District Court held hearings.

In August 2005 the Poznań District Court ordered that an expert report estimating the market value of the real property be prepared within four months.

In January 2006 the expert informed the court that he would not be able to submit the report within the above time-limit because of a heavy workload.

In August 2006 the expert notified the court that he was denied access to 9 out of the 15 apartments which made up the property.

On 1 December 2006 the expert submitted a report estimating the value of eight apartments only. In the report, the expert noted that he could not inspect the rest of the apartments as their current tenants had not allowed him to do so.

Between 1 December 2006 and 7 August 2008 the Poznań District Court gave several interlocutory decisions concerning the estimate of the value of the real property.

A hearing scheduled for 18 May 2010 was adjourned due to the illness of the judge. The next hearing was scheduled for 14 September 2010.

The proceedings are still pending before the Poznań District Court.

B. Proceedings under the 2004 Act

On 7 August 2008 the applicant lodged with the Poznań Regional Court 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 24 October 2008 the Poznań Regional Court acknowledged that there had been some periods of inactivity for which the Poznań District Court had been responsible, in particular that an expert report had not been prepared within the time-limit fixed and that little effort had been made by the court to discipline the expert. In its analysis the court did not examine the course of the proceedings prior to the date of the entry into force of the 2004 Act.

The Poznań Regional Court refused to grant the applicant any compensation considering that he had failed to duly justify the amount sought.

II. RELEVANT DOMESTIC LAW AND PRACTICE

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 24 May 2010 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 20,000 (the equivalent of approx. EUR 5,000). The Government invited the Court to strike out the application in accordance with Article 37 of the Convention.

The applicant contested the Government's request to strike out the application from the Court's list of cases.

The Court observes that, as it has already held on many occasions, it may be appropriate under certain circumstances 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 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 Tahsin Acar, cited above, § 75; and Melnic v. Moldova, no. 6923/03, § 22, 14 November 2006).

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. The Court will have regard in this connection 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).

On the facts, and having regard in particular to the amount of compensation proposed, the Court finds that the Government have failed to provide a sufficient basis for concluding that respect for human rights as defined in the Convention and its Protocols does not require it to continue its examination of the case (see, conversely, 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 contested that argument.

The period to be taken into consideration began on 15 November 1996 and has not yet ended. It has thus lasted thirteen years and ten months for one level of jurisdiction.

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. 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.

III. 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 20,000 euros (EUR) in respect of non pecuniary damage. The further claimed 518,400 Polish zlotys (PLN) in respect of pecuniary damage.

The Government contested these claims as excessive, unsubstantiated and inconsistent with the Court's case law.

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, it awards the applicant EUR 12,000 in respect of non pecuniary damage.

B. Costs and expenses

The applicant did not make any claim for costs and expenses involved in the 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

Rejects the Government's request to strike the application out of the list;

2. Declares 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, EUR 12,000 (twelve thousand euros) in respect of non pecuniary damage, plus any tax that may be chargeable, to be converted into Polish zlotys 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;

Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 7 December 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Ljiljana Mijović
Deputy Registrar President