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FOURTH
SECTION
CASE OF NIEROJEWSKA v. POLAND
(Application
no. 77835/01)
JUDGMENT
STRASBOURG
22
August 2006
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 Nierojewska v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr G.
Bonello,
Mr M. Pellonpää,
Mr K. Traja,
Mr L.
Garlicki,
Ms L. Mijović,
Mr J. Šikuta,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 11 July 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 77835/01) 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 Izabella
Nierojewska (“the applicant”), on 5 November 2000.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign
Affairs.
- On
1 September 2005 the
President of the Fourth Section decided to communicate the
application. Under the provisions of Article 29 § 3 of the
Convention, it was decided to examine the merits of the application
at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1937 and lives in Sopot, Poland.
- On
15 March 1994 the applicant filed a petition for divorce with the
Gdańsk Regional Court. She also sought an interim maintenance
award.
- The
applicant’s husband failed to appear at a reconciliation
meeting on 14 April 1994. The subsequent reconciliation meeting held
on 16 May 1994 failed. On that date the applicant’s
husband requested the Gdańsk Regional Court that the case be
transmitted to the Elbląg Regional Court due to his change of
domicile. That request was dismissed on 26 May 1994. The appeal
lodged by the applicant’s husband was rejected.
- On
21 September 1994 and on 28 February 1995 the applicant sought an
increase of her interim maintenance award. She also requested the
court to determine the way in which the spouses would occupy the
matrimonial home.
- On
13 June 1995 the Regional Court ordered the defendant to pay PLN 500
per month to the applicant by way of interim maintenance. It also
determined the issue of the spouses’ occupation of the
matrimonial home. Both parties appealed against that decision. On 31
October 1995 the Gdańsk Court of Appeal upheld the contested
decision.
- On
5 October 1995 the applicant requested the Elbląg Regional Court
to draw up an inventory of the assets located in the matrimonial
home. On 13 October 1995 the Elbląg Regional Court
transmitted that request to the Gdańsk Regional Court. On 19
April 1996 the Gdańsk Court of Appeal quashed that decision. On
1 July 1996 the Elbląg Regional Court again transmitted the case
to the Gdańsk Regional Court, finding that the latter court was
competent in the matter of drawing up an inventory.
- On
30 August 1996 the applicant increased her maintenance claims. She
also informed the court that the defendant had continuously failed to
comply with the interim maintenance order of 13 June 1995 and had
prevented the applicant from occupying the matrimonial home as
determined by the court in the same decision.
- On
an unspecified date in August or September 1996 the applicant’s
husband filed an application for an interim maintenance order against
the applicant.
- On
16 December 1996 the Elbląg District Court convicted the
applicant’s husband of having prevented the applicant from
entering their matrimonial home and fined him PLN 200. On 23 April
1997 the Elbląg Regional Court upheld the first-instance
judgment.
- On
17 October and 6 December 1996 the applicant’s husband
requested the court to hear evidence from new witnesses, including
some who lived in Germany. On 27 March 1997 the President of the
Regional Court requested that two witnesses who lived in Germany be
heard by the court in Mannheim pursuant to the relevant agreement on
legal co operation between Germany and Poland.
- On
8 September 1997 the defendant requested that the judge who was
hearing the case should withdraw from it. On 11 September 1997 the
Gdańsk Regional Court dismissed his request. That decision was
upheld on appeal on 30 March 1998.
- In
the meantime a new judge was assigned to hear the case.
- On
3 December 1997 the Regional Court dismissed the defendant’s
application for an interim maintenance award. That decision was
upheld on appeal on 30 March 1998.
- On
18 November 1998 the court heard evidence from the applicant and her
husband.
- The
Regional Court held 20 hearings on the following dates: 26 October
1994; 6 January, 1 March, 26 April and 31 May 1995; 14 February,
6 March, 4 April, 26 June, 11 September, 17 October and
6 December 1996; 12 February, 22 July, 27 August, 8
September 1997 and 3 December 1997; and 18 September, 16
October and 18 November 1998.
- On
30 November 1998 the Gdańsk Regional Court granted a divorce,
finding that the defendant had been responsible for the breakdown of
their marriage. It also ordered the defendant to pay maintenance to
the applicant in the amount of PLN 600 per month and determined the
issue of the occupation of the matrimonial home.
- The
defendant filed an appeal against that judgment. He also applied for
exemption from payment of the court fees for the appeal proceedings.
On 4 March 1999 the Regional Court dismissed the defendant’s
request. That decision was upheld on appeal on 23 June 1999.
- Subsequently,
the defendant again requested to be exempted from payment of the
court fees. On 8 September 1999 the Regional Court dismissed his
request. The Court of Appeal upheld that decision on 17 February
2000.
- On
10 April 2000 the Regional Court rejected the defendant’s
appeal against the judgment of 30 November 1998 for failure to pay
the relevant court fee.
- On
4 May 2000 the applicant requested the Regional Court to make an
enforcement order in her favour in respect of the judgment of
30 November 1998. On 29 May 2000 the Regional Court issued the
enforcement order.
II. RELEVANT DOMESTIC LAW
- The
legal provisions applicable at the material time as well as matters
of practice are set out in paragraphs 26-35 of the judgment delivered
by the Court on 30 May 2006 in the case of Barszcz v. Poland,
no. 71152/01.
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, provided 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 March 1994 and
ended on 29 May 2000. It thus lasted over 6 years and 2 months for
one level 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 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”) had come into force, the applicant had a possibility of
lodging with the Polish civil courts under Article 417 of the Civil
Code read together with Article 16 of the 2004 Act a claim for
compensation for damage suffered due to the excessive length of
proceedings. 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 before the entry into force of the 2004 Act ever 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 the proceedings at issue ended at the latest on
29 May 2000, 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 for 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 by the Court in previous cases against
Poland (see Małasiewicz v. Poland, no. 22072/02, §§
32-34, 14 October 2003; Ratajczyk v. Poland (dec.),
no. 11215/02, ECHR 2005-...; Barszcz v. Poland, no.
71152/01, §§ 41-45, 30 May 2006) and the Government have
not submitted any new arguments 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 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). 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 for the enjoyment
of the right to respect for family life (Laino v. Italy [GC],
no. 3158/96, § 18, ECHR 1999-I).
- 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.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON
ACCOUNT OF THE UNFAIRNESS OF THE PROCEEDINGS
- The
applicant complained under Article 6 § 1 of the Convention that
the divorce proceedings were unfair.
However,
it appears that the applicant did not lodge an appeal against the
Gdańsk Regional Court’s judgment of 30 November 1998.
- Even
assuming that the rule of exhaustion of domestic remedies was
complied with in the present case, the Court recalls that it is not
called upon to deal with errors of fact and law allegedly committed
by a national court unless and in so far as they may have infringed
rights and freedoms protected by the Convention (see García
Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR
1999-I). The Court finds that in the proceedings under consideration,
throughout which the applicant was represented by counsel, there is
no appearance of unfairness or arbitrariness which would infringe the
guarantees of a fair hearing within the meaning of Article 6 § 1
of the Convention. It follows that this complaint is manifestly
ill-founded and must be rejected in accordance with Article 35
§§ 3 and 4 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Invoking
Articles 13, 14, 17 of the Convention, Article 1 of Protocol No.
1 to the Convention and Article 5 of Protocol No. 7 to the
Convention, the applicant complained, in essence, that the courts had
failed to secure her share in the matrimonial property despite her
repeated requests. The applicant further alleged, relying on Article
5 § 1 of the Convention, that the length of the divorce
proceedings had resulted in the deterioration of her health and her
impoverishment.
The
Court, having examined those complaints, and regardless of other
possible grounds of inadmissibility, finds nothing in the case file
which might disclose any appearance of a violation of these
Convention provisions.
It
follows that this part of the application is manifestly ill-founded
and must be rejected pursuant to Article 35 §§ 3 and 4 of
the Convention.
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 500,000 in respect of pecuniary damage and
PLN 100,000 in respect of 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, it considers that the applicant must have sustained
non pecuniary damage. Ruling on an equitable basis, and having
regard in particular to the fact that the proceedings in issue
concerned the applicant’s civil status, it awards award her
EUR 4,500 under that head.
B. Costs and expenses
- The
applicant did not seek to be reimbursed for any costs and expenses in
connection with 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 complaint concerning the excessive
length of the proceedings 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 4,500 (four
thousand five hundred euros) in respect of non-pecuniary damage, 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 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 22 August 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
